United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO
DISMISS; GRANTING IN PART AND DENYING IN PART MOTIONS FOR
ATTORNEY'S FEES AND COSTS AND SANCTIONS Re: Dkt. No. 293,
320
VINCE
CHHABRIA United States District Judge.
The
plaintiffs in the fourteen above-listed coordinated cases are
all African-American pilots employed by United Airlines. In
their Seventh Amended Complaints, several of the plaintiffs
(the "settlement plaintiffs")[1] contend, among
other things, that the defendants (collectively,
"United") retaliated against them for making prior
complaints to the Equal Employment Opportunity Commission, in
violation of 42 U.S.C. § 1981. The other plaintiffs (the
"non-settlement plaintiffs")[2] allege that
United retaliated against them for associating with their
colleagues who made prior EEOC complaints, in violation of
section 1981, Title VII of the Civil Rights Act, the
California Fair Employment and Housing Act
("FEHA"). Each plaintiff also contends that United
retaliated against him for participating in this civil rights
lawsuit, in violation of section 1981, Title VII, and FEHA,
both by denying him promotions since the inception of the
litigation in 2012 and by sending certain plaintiffs an
allegedly retaliatory letter in August 2015 in the course of
this litigation. The settlement plaintiffs also allege that
United retaliated against them for obtaining a prior
settlement from United in 2011, in breach of that settlement
agreement.
United
moved to dismiss all of the above-listed plaintiffs'
retaliation claims from their 7ACs, and in the alternative,
to strike the plaintiffs' FEHA retaliation claims, to the
extent they are based on the August 2015 letter, under
California's anti-SLAPP statute, Cal. Civ. Proc. Code
§ 426.16. In its motions to dismiss the retaliation
claims from the settlement plaintiffs' 7ACs, United noted
first that Judge Chesney had previously dismissed these
plaintiffs' retaliation claims with prejudice in December
2013, to the extent those claims were premised on the theory
that United retaliated against the plaintiffs in response to
EEOC charges they filed in 2010, and therefore argued the
claims should be dismissed again, regardless that the
plaintiffs were now attempting to assert them under section
1981 and had previously asserted them only under Title VII
and FEHA. United further argued that Judge Chesney's
December 2013 ruling similarly foreclosed the settlement
plaintiffs' breach of contract claims because those
claims were premised on the same conduct and same theory of
retaliation. United also argued, as to all fourteen of these
plaintiffs, that to the extent their retaliation claims were
based on the August 2015 letter, those claims were barred by
the First Amendment and the Noerr-Pennington
doctrine, as well as California's litigation privilege,
Cal. Civ. Code § 47(b). United also argued that the
Court lacked jurisdiction over the plaintiffs' Title VII
and FEHA retaliation claims because those claims were not
properly exhausted. In the alternative, United argued that
the plaintiffs' FEHA retaliation claims must be stricken
under California's anti-SLAPP statute, to the extent the
FEHA claims were based on the August 2015 letter.
At the
hearing on United's motions to dismiss and/or strike, the
Court indicated it would grant United's motions to
dismiss the retaliation claims to the extent they were based
on the prior EEOC complaints and to the extent they were
based on the August 2015 letter, and suggested that
United's anti-SLAPP motion might therefore be moot, since
United described its anti-SLAPP motion as having been brought
in the alternative. United requested the opportunity to brief
the question whether it was nevertheless entitled to
attorney's fees and costs under section 426.16(c), which
the Court permitted it to do. In its subsequent motions for
attorney's fees and costs, United argued that it is
entitled to attorney's fees under both the anti-SLAPP
statute and section 1981, Title VII, and FEHA, and also moved
for sanctions under Rule 11.
For the
reasons below, the motions to dismiss are granted to the
extent the plaintiffs' retaliation claims are based on
the August 2015 letter, and to the extent the plaintiffs'
retaliation claims are based on either their own or their
colleagues' prior EEOC activity. The motions to dismiss
are denied as to the plaintiffs' claims that United has
retaliated against them for participating in this lawsuit by
denying them promotional opportunities, and as to the
settlement plaintiffs' breach of contract claim.
United's motion for attorney's fees and costs and for
sanctions is granted in part and denied in part.
I.
As
United notes, in December 2013, Judge Chesney concluded that
the settlement plaintiffs had failed sufficiently to allege
in their Third Amended Complaint that United decision makers
had retaliated against the plaintiffs for their prior EEOC
activity, and therefore dismissed the settlement
plaintiffs' retaliation claims without further leave to
amend. Johnson v. United Airlines, Inc. et al., No.
12-cv-02730-VC, Dkt. No. 89, at 8-9. As the Court indicated
at the hearing on the motions to dismiss and anti-SLAPP
motions to strike, in light of the unique procedural posture
of these cases, the Court will decline to reconsider Judge
Chesney's ruling. See, e.g., Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988).
That
the settlement plaintiffs' newly asserted section 1981
retaliation claims, to the extent those claims are based on
the theory that United retaliated against the plaintiffs for
filing prior EEOC complaints, are foreclosed by Judge
Chesney's December 2013 order. It is irrelevant that the
plaintiffs have attempted to reassert these claims under a
different statute, i.e. section 1981, that was not previously
at issue for the technical reason that the settlement
plaintiffs only brought retaliation claims under Title VII
and FEHA in the 3AC; the standard for establishing a prima
facie case of retaliation is the same under Title VII and
section 1981. See, e.g., Surrell v. Cal. Water
Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008) (citing
Metoyer v. Chassman, 504 F.3d 919, 930 (9th Cir.
2007)); see also Id . at 1105. The plaintiffs
therefore cannot now bring section 1981 claims based on the
same conduct that Judge Chesney previously ruled was
insufficient to support a claim under Title VII. The
settlement plaintiffs' section 1981 retaliation claims
are accordingly dismissed with prejudice to the extent they
are premised on their prior EEOC activity.
II.
United
also argues that the settlement plaintiffs' breach of
contract claims are barred by Judge Chesney's December
2013 ruling. The 2011 settlement agreement contains a
non-retaliation provision, under which "United agree[d]
that it w[ould] not retaliate against any of the Claimants
for having raised any of the Allegations" that were the
basis of the agreement. Whether United breached the
agreement's non-retaliation provision as to any
particular plaintiff is a question of Illinois law under the
contract's choice of law provision, and that question is
not necessarily coextensive with the Title VII analysis.
Retaliation that constitutes a breach of the settlement
agreement could be accomplished by means that would not
constitute actionable retaliation under Title VII, because
the contract does not define "retaliation" nor
obviously limit it to adverse employment actions. Thus,
although the settlement plaintiffs' breach of contract
claims are premised in part on the same conduct that Judge
Chesney ruled did not state a claim for retaliation under
Title VII and FEHA, the breach of contract claims are
sufficiently distinct that they are not barred by Judge
Chesney's December 2013 ruling. United's motions to
dismiss the settlement plaintiffs' breach of contract
claims are therefore denied.
III.
The
non-settlement plaintiffs did not bring retaliation claims in
the 3AC. The parties are accordingly in agreement that the
non-settlement plaintiffs' retaliation claims, to the
extent they are based on the non-settlement plaintiffs'
association with the settlement plaintiffs and those
plaintiffs' prior EEOC activity, are not foreclosed by
Judge Chesney's December 2013 ruling.
Nevertheless,
United's motions to dismiss these claims must also be
granted, because this theory of retaliation is far too
attenuated and the allegations supporting it far too sparse
and implausible to state a claim for relief. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007)). The
non-settlement plaintiffs assert that they were denied
promotions for "being associated with the 'Dirty
Dozen, '" i.e. the settlement plaintiffs, who filed
prior EEOC complaints. But nowhere in their 7ACs do the
non-settlement plaintiffs support this assertion with any
concrete facts: they do not explain how they came to be
associated with the settlement plaintiffs, or when, or by
which decision makers. Because the plaintiffs have all had an
extraordinary number of opportunities to amend their
complaints, and because the Court has previously ruled that
there would be no further opportunities to amend, the
...