United States District Court, N.D. California
ORDER GRANTING PARTIAL DISMISSAL OF PLAINTIFF’S
FIRST AMENDED COMPLAINT AND VACATING HEARING RE: DKT. NO.
35
PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE
Before
the court is Defendant World Carrier Ground, Inc.’s
(“WCG”) motion to partially dismiss plaintiff
Obie Banawis-Olila’s First Amended Complaint
(“FAC”). See Dkt. 35. The matter is
fully briefed and suitable for decision without oral
argument. Accordingly, the hearing set for August 10, 2016 is
VACATED. Having read the parties’ papers and carefully
considered their arguments and the relevant legal authority,
and good cause appearing, the court hereby GRANTS the motion,
with leave to amend the complaint, for the following reasons.
BACKGROUND
This is
an employment dispute, based on violations of the California
Labor Code, that was removed from state court on the basis of
diversity. Plaintiff Obie Banawis-Olila worked as a
dispatcher for defendant WCG from 1998 until her resignation
in September 2015. FAC ¶ 1 (Dkt. 32). Banawis-Olila
asserts 6 causes of action against WCG: (1) violation of the
California Equal Pay Act, Labor Code § 1197.5; (2)
failure to provide rest periods, in violation of Labor Code
§ 226.7 and the applicable Industrial Welfare Commission
(“IWC”) wage orders; (3) failure to provide
duty-free meal periods, in violation of Labor Code §
226.7 and applicable IWC wage orders; (4) failure to pay
overtime compensation, in violation of Labor Code § 1198
and applicable IWC wage orders; (5) unfair competition, in
violation of California Business & Professions Code
§ 17200; and (6) failure to pay “waiting time
penalties” required by Labor Code § 203 and owed
as a result of the failure to pay overtime and provide rest
periods. FAC ¶¶ 6-36.
Only
the California Equal Pay Act claim (“the EPA
claim”) is at issue in the instant motion. The basis
for Banawis-Olila’s EPA claim is her allegation that
WCG “intentionally and willfully pa[id] plaintiff, a
female, $17 per hour to work as a dispatcher while defendants
paid a relatively newly hired dispatcher, Robert Pool (male),
$26 per hour in the same establishment for equal work.”
FAC ¶ 7.
On May
23, 2016, the court entered an order granting
defendants’ prior motion to dismiss the original
complaint. See Dkt. 25 (“the May 23 Order”). The
court dismissed all claims against former defendant
Amerisourcebergen Corporation (“ABC”), the EPA
claim, a constructive discharge claim, and a number of claims
based on gender discrimination. Id. at 13. Leave to
amend was granted only with respect to the EPA claim, the
discharge claim, and the claims against ABC. On June 16,
2014, Banawis-Olila filed an amended complaint and reasserted
her EPA claim. Dkt. 32. WCG now brings a motion to dismiss
the EPA claim, arguing that the FAC “neglects to cure
the deficiencies” identified by the court in its May 23
Order.
LEGAL
STANDARD
A
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests for the legal sufficiency of the claims
alleged in the complaint. Ileto v. Glock, Inc., 349
F.3d 1191, 1199-1200 (9th Cir. 2003). To survive a motion to
dismiss for failure to state a claim, a complaint generally
must satisfy only the minimal notice pleading requirements of
Federal Rule of Civil Procedure 8, which requires that a
complaint include a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2).
A
complaint may be dismissed under Rule 12(b)(6) for failure to
state a claim if the plaintiff fails to state a cognizable
legal theory, or has not alleged sufficient facts to support
a cognizable legal theory. Somers v. Apple, Inc.,
729 F.3d 953, 959 (9th Cir. 2013). While the court is to
accept as true all the factual allegations in the complaint,
legally conclusory statements, not supported by actual
factual allegations, need not be accepted. Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009); see also In re
Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.
2008).
The
allegations in the complaint “must be enough to raise a
right to relief above the speculative level, ” and a
motion to dismiss should be granted if the complaint does not
proffer enough facts to state a claim for relief that is
plausible on its face. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 558-59 (2007) (citations and quotations
omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678 (citation omitted). “[W]here the well-pleaded
facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - but it
has not ‘show[n]’ - ‘that the pleader is
entitled to relief.’” Id. at 679.
When
dismissal is warranted, it is generally without prejudice,
unless it is clear that the complaint cannot be saved by any
amendment. Sparling v. Daou, 411 F.3d 1006, 1013
(9th Cir. 2005). “Leave to amend may also be denied for
repeated failure to cure deficiencies by previous
amendment.” Abagninin v. AMVAC Chem. Corp.,
545 F.3d 733, 742 (9th Cir. 2008).
ANALYSIS
The
court’s May 23 Order dismissed the EPA claim because
plaintiff “has not alleged facts sufficient to state a
plausible claim that the work was ‘equal.’”
Dkt. 25 at 6. Plaintiff’s original complaint offered
only a conclusory allegation that the work performed by
Banawis-Olila and Pool was “the same or substantially
similar.” Under the applicable version of the EPA,
however, plaintiff was required to allege facts showing the
positions were (i) “in the same establishment”;
(ii) on jobs requiring “equal skill, effort, and
responsibility”; and (iii) “performed under
similar working conditions.” Cal. Lab. Code §
1197.5 (former version, effective through Dec. 30, 2015). The
court granted Banawis-Olila “leave to amend, to allege
facts showing that the work plaintiff performed was
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