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Dupree v. Apple, Inc.

United States District Court, N.D. California, San Jose Division

August 9, 2016

ANDREW R. DUPREE, Plaintiff,
v.
APPLE, INC., et al., Defendants.

          ORDER GRANTING MOTION TO DISMISS RE: DKT. NO. 39

          LUCY H. KOH United States District Judge.

         Plaintiff 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 dismiss.

         I. BACKGROUND

         A. Factual Background

         On 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.

         On July 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.

         Upon 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.

         While 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.

         In 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.

         B. Procedural History

         On July 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.

         On 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. § 1981.

         On 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 dismissal.

         On 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. 84.

         On 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.

         On May 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.

         Defendants 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”).

         II. LEGAL STANDARD

         A. Motion to Dismiss

         Pursuant 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).

         Nonetheless, 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)).

         B. Leave to Amend

         Under 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. 2008).

         III. DISCUSSION

         Of the 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.

         A. First and Fifth Causes of Action: Title VII

         Plaintiff 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 a ...


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