United States District Court, N.D. California, San Jose Division
ANDREW R. DUPREE, Plaintiff,
APPLE, INC., et al., Defendants.
ORDER GRANTING MOTION TO DISMISS RE: DKT. NO.
H. KOH United States District Judge.
Andrew Dupree (“Plaintiff”) brings this action
against Apple, Inc., Tim Cook, Brenda Everson, and Suzanne
Pierre-Ziles (collectively, “Defendants”). Before
the Court is Defendants’ motion to dismiss certain
causes of action in Plaintiff’s Second Amended
Complaint. ECF No. 39 (“Mot.”); ECF No. 36
(“SAC”). The Court finds this matter suitable for
decision without oral argument pursuant to Civil Local Rule
7-1(b) and thus VACATES the motion hearing set for August 11,
2016, at 1:30 p.m. The case management conference, currently
set for August 11, 2016, at 1:30 p.m., is CONTINUED to
October 19, 2016, at 2:00 p.m. Having considered the
submissions of the parties, the relevant law, and the record
in this case, the Court GRANTS Defendants’ motion to
February 15, 2011, Plaintiff began working as a retail
specialist for Apple, Inc. (“Apple”) at
Apple’s retail store at the Millenia Mall in Orlando,
Florida (the “Millenia Mall store”). SAC ¶
5. Plaintiff, an African American, alleges that a manager at
the Millenia Mall store told him that “[b]lacks
don’t make management in this market.”
Id. ¶ 9. “[S]hocked, embarrassed, and
humiliated by this comment, ” Plaintiff requested and
was granted a transfer to the Apple retail store in Sydney,
Australia (the “Australia store”). Id.
¶ 10. Plaintiff began working in Australia on July 27,
2012. Id. ¶ 11.
9, 2013, Plaintiff decided to transfer back to the Millenia
Mall store, and contacted Millenia Mall store leadership.
Id. ¶ 15. Plaintiff avers that Millenia Mall
store leadership indicated that they would be receptive to
Plaintiff’s return, and Plaintiff returned to Florida
on July 28, 2013. Id. ¶ 20. On August 22, 2013,
however, Millenia Mall store leadership contacted Plaintiff
and informed him that he would not be rehired.
learning this news, Plaintiff sent emails to Apple CEO Tim
Cook (“Cook”) and Apple Human Resources
representatives Brenda Everson (“Everson”) and
Susan Pierre-Zilles (“Zilles”). Id.
¶¶ 27-28. In response to these emails, Everson
informed Plaintiff on October 10, 2013 that management at
Apple’s retail store in Central Florida “would be
contacting him regarding a possible position.”
Id. ¶ 31. On December 2, 2013, Plaintiff was
hired at the Central Florida Apple retail store (the
“Central Florida store”). Id. ¶ 33.
working in Central Florida, Plaintiff alleges that he was
discriminated based on his race and national origin.
Plaintiff, for instance, states that he was disciplined for
wearing a “baseball cap with a logo on store grounds,
” while it was “common for [other] employees to
wear these types of baseball caps with no disciplinary action
taken.” Id. ¶ 35. Plaintiff also alleges
that he was falsely reported as being late, that his work
schedule was changed without his knowledge, and that he was
threatened by his manager. Id.
September 2015, Plaintiff transferred to the Apple retail
store in Los Gatos, California, where he is currently
employed (the “California store”). ECF No. 28 at
10. During his tenure in Los Gatos, Plaintiff alleges that he
continues to be subject to racial discrimination. Plaintiff
points specifically to four incidents. First, a corporate
Apple employee who had asked Plaintiff to help fix her Apple
device allegedly called Plaintiff “Oakland”
because Plaintiff “wasn’t from around here”
and “must be from Oakland since he is African
American.” SAC ¶ 36. Second, another Apple
employee allegedly asked whether Plaintiff was “part of
some kind of new diversity program” when the employee
became frustrated with Plaintiff’s service.
Id. ¶ 37. Third, another Apple employee
“stated [that] she wanted to work with someone more
professional looking and not someone who looked like they
were part of a gang.” Id. ¶ 38. Most
recently, in 2016, Plaintiff alleges that one of his
coworkers threatened to “punch [Plaintiff] in the face,
” that another coworker yelled at Plaintiff for no
reason, and that Plaintiff’s schedule was changed
without his knowledge or consent. Id. ¶ 39.
22, 2014, Plaintiff filed a complaint against Apple which
alleged discrimination on the basis of race and national
origin, in violation of Title VII of the Civil Rights Act
(“Title VII”). Dupree v. Apple Inc.
(“Dupree I”), No. 14-CV-3294 (N.D.
Cal.). The complaint was filed in the Northern District of
California, but focused on events occurring at the Millenia
Mall store. Id. at 6. Accordingly, on March 11,
2015, U.S. District Judge Edward Davila, to whom Dupree
I was assigned, granted Apple’s motion to transfer
Dupree I to the Middle District of Florida.
Dupree I, ECF No. 46. As Judge Davila noted,
“Apple has demonstrated based primarily on
Plaintiff’s allegations that most if not all of the
critical events giving rise to Plaintiff’s claims
occurred in or around [an] Orlando Apple store.”
Id. at 3.
March 16, 2015, Dupree was officially transferred
into the Middle District of Florida and was assigned to U.S.
District Judge Kendall Sharp. Dupree v. Apple Inc.,
No. 15-CV-0423 (M.D. Fla.), ECF No. 47. On April 7, 2015,
Judge Sharp granted Plaintiff’s motion for leave to
amend his complaint. Dupree I, ECF No. 62.
Plaintiff’s amended complaint added Cook, Zilles, and
Everson as Defendants, and alleged causes of action based
upon violations of Title VII, the California Fair Employment
and Housing Act (“FEHA”), and 42 U.S.C. §
April 24, 2015, Defendants moved to dismiss certain causes of
action in Plaintiff’s first amended complaint. On June
30, 2015, Judge Sharp granted Defendants’ motion to
dismiss. Dupree I, ECF No. 69 (“Dupree
I MTD”). First, Judge Sharp held that Plaintiff
could not move forward with Plaintiff’s FEHA claims
because FEHA does not apply to conduct occurring outside of
California. Next, Judge Sharp held that Plaintiff could not
bring a Title VII claim against Cook, Zilles, and Everson
because “individual capacity suits under Title VII are
inappropriate.” Id. at 7 (alterations
omitted). Finally, Judge Sharp determined that Plaintiff had
failed to state a cause of action under 42 U.S.C. § 1981
against Cook, Zilles, and Everson. Id. at 9. Judge
Sharp also concluded that amendment would be futile, and
granted Defendants’ motion to dismiss with prejudice.
Because Defendants did not move to dismiss all causes of
action against all Defendants in Dupree I, a portion
of Plaintiff’s first amended complaint survived
September 29, 2015, Judge Sharp granted Plaintiff’s
motion to dismiss Plaintiff’s surviving claims in
Dupree I without prejudice, as “Plaintiff
wishe[d] . . . to end litigation of this matter without
incurring further expenses.” Dupree I, ECF No.
January 19, 2016, Plaintiff filed the original complaint in
the instant action. ECF No. 1 (“Compl.”). The
Court shall refer to all proceedings in the instant action as
Dupree II. Plaintiff filed a motion for leave to
amend on April 11, 2016, which Defendants did not oppose. ECF
No. 23. Accordingly, the Court granted Plaintiff’s
motion to amend on the record at the April 27, 2016 initial
case management conference. ECF No. 32.
25, 2016, Plaintiff filed another motion for leave to amend.
ECF No. 33. Defendants also did not oppose this second motion
to amend. ECF No. 37. Plaintiff, however, referred to the
proposed amended complaint as the “First Amended
Complaint.” ECF No. 36. As the procedural history
demonstrates, however, Plaintiff’s May 25, 2016 motion
in fact sought leave to file a third complaint in Dupree
II. Accordingly, the Court granted Plaintiff’s May
25, 2016 motion for leave to amend, but stated that it would
refer to the “proposed amended complaint as the
‘Second Amended Complaint’ or ‘SAC’
in . . . all future Orders.” ECF No. 38 at 2.
moved to dismiss the SAC on June 29, 2016. Plaintiff filed a
response on July 13, 2016, and Defendants filed a reply on
July 20, 2016. ECF No. 40 (“Opp’n”); ECF
No. 43 (“Reply”).
Motion to Dismiss
to Federal Rule of Civil Procedure 12(b)(6), a defendant may
move to dismiss an action for failure to allege “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “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. The plausibility standard is not
akin to a ‘probability requirement, ’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal citations omitted). For purposes of
ruling on a Rule 12(b)(6) motion, the Court “accept[s]
factual allegations in the complaint as true and construe[s]
the pleadings in the light most favorable to the nonmoving
party.” Manzarek v. St. Paul Fire & Marine Ins.
Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
the Court is not required to “‘assume the truth
of legal conclusions merely because they are cast in the form
of factual allegations.’” Fayer v.
Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (quoting
W. Mining Council v. Watt, 643 F.2d 618, 624 (9th
Cir. 1981)). Mere “conclusory allegations of law and
unwarranted inferences are insufficient to defeat a motion to
dismiss.” Adams v. Johnson, 355 F.3d 1179,
1183 (9th Cir. 2004); accord Iqbal, 556 U.S. at 678.
Furthermore, “‘a plaintiff may plead [him]self
out of court’” if he “plead[s] facts which
establish that he cannot prevail on his . . . claim.”
Weisbuch v. Cnty. of L.A., 119 F.3d 778, 783 n.1
(9th Cir. 1997) (quoting Warzon v. Drew, 60 F.3d
1234, 1239 (7th Cir. 1995)).
Leave to Amend
Rule 15(a) of the Federal Rules of Civil Procedure, leave to
amend “shall be freely granted when justice so
requires, ” bearing in mind “the underlying
purpose of Rule 15 to facilitate decision on the merits,
rather than on the pleadings or technicalities.”
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)
(en banc) (ellipses omitted). Generally, leave to amend shall
be denied only if allowing amendment would unduly prejudice
the opposing party, cause undue delay, or be futile, or if
the moving party has acted in bad faith. Leadsinger, Inc.
v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir.
nine causes of action in the SAC, Defendants move to dismiss
the first, second, fourth, fifth, sixth, seventh, and ninth
causes of action. The Court addresses Defendants’
arguments in turn.
First and Fifth Causes of Action: Title VII
alleges that Defendants violated Title VII of the Civil
Rights Act (“Title VII”) by subjecting Plaintiff
to race, color, and national origin discrimination (first
cause of action) and by retaliating against Plaintiff for
complaining about this discrimination (fifth cause of
action). SAC ¶¶ 40, 52. In response, Defendants
argue that Plaintiff is time-barred from asserting a Title
VII claim insofar as it relates to incidents occurring at the
Millenia Mall and Central Florida stores. In addition,
although Plaintiff does not appear to allege that Defendants
violated Title VII during Plaintiff’s employment in
Australia, Defendants also argue that Plaintiff may not bring