United States District Court, N.D. California
ORDER GRANTING IN PART MOTION FOR LEAVE TO
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
an order of dismissal in this employment-discrimination
action, pro se plaintiff moves for leave to amend
the complaint. For the reasons set forth below,
plaintiff's motion is Granted in Part and Denied
se plaintiff Glesa Flewellen-El, who is African
American, began working for defendant AT&T Services, Inc.
in 1999. Throughout her employment, plaintiff received
positive performance reviews and always met or exceeded her
employer's expectations. Despite this, defendant treated
plaintiff differently than her non-African American
coworkers. For example, plaintiff's supervisors assigned
her a heavier workload, excluded her from meetings, belittled
her in front of her coworkers, and excessively monitored her
work. Plaintiff reported this conduct pursuant to
defendant's internal procedures. As a result,
plaintiff's supervisor overloaded her with more
undesirable work and ultimately terminated her after fifteen
years of employment (Second Amd. Compl. ¶¶ 5, 7-9,
18, 24, 33, 42, 52-54, 56, 76).
initiated this action in July 2017, alleging, among other
things, discrimination, retaliation, and harassment in
violation of Title VII, the ADA, and 42 U.S.C. § 1981.
The original complaint mistakenly designated AT&T Inc. -
the parent company of plaintiff's former employer
AT&T Services - as the sole defendant. In response to
AT&T Inc.'s motion to dismiss for lack of personal
jurisdiction, plaintiff amended the complaint to correctly
name defendant AT&T Services as her former employer.
Defendant then moved to dismiss all claims in the amended
complaint for failure to state a claim. An order dated March
12, 2018, granted defendant's motion to dismiss but
afforded plaintiff an opportunity to seek leave to amend.
Plaintiff now brings the instant motion and appends a
proposed second amended complaint. This order follows full
briefing and oral argument (Dkt. Nos. 1, 8, 16, 43, 46).
15(a)(2) advises, “The court should freely give leave
when justice so requires.” In ruling on a motion for
leave to amend, courts consider: (1) bad faith, (2) undue
delay, (3) prejudice to the opposing party, (4) futility of
amendment, and (5) whether the plaintiff has previously
amended their complaint. Futility alone can justify denying
leave to amend. Nunes v. Ashcroft, 375 F.3d 805, 808
(9th Cir. 2004). For purposes of assessing futility on this
motion, the legal standard is the same as it would be on a
motion to dismiss under FRCP 12(b)(6). Miller v.
Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir.
1988). Defendant opposes plaintiff's motion for
leave to amend, arguing that amendment would be futile and
Title VII and ADA Claims.
March 12 order held that plaintiff's Title VII and ADA
claims were time-barred due to plaintiff's failure to
timely file a charge of discrimination with the EEOC. Under
both statutes, a plaintiff must exhaust her administrative
remedies by filing a charge with the EEOC or appropriate
state agency within 180 or 300 days of the alleged
discriminatory act. Freeman v. Oakland Unified Sch.
Dist., 291 F.3d 632, 636 (9th Cir. 2002); Douglas v.
California Dep't of Youth Auth., 271 F.3d 812, 823
n.12 (9th Cir. 2001). Here, plaintiff failed to file a charge
with the EEOC or DFEH until March 2017, over three years
after defendant terminated her employment in January 2014.
The March 12 order rejected plaintiff's argument that she
timely filed an EEOC charge through letters mailed or faxed
to the EEOC or other government agencies in 2014. While
plaintiff now points to another letter she sent in 2014, her
proposed amendment does not remedy this defect.
Plaintiff's motion for leave to amend her ADA and Title
VII claims is Denied.
2. Fraud Claims.
state a claim for fraud, a plaintiff must allege: (1) a
misrepresentation; (2) knowledge of falsity; (3) intent to
defraud; (4) justifiable reliance; and (5) resulting damage.
Lazar v. Superior Court, 12 Cal.4th 631, 638 (1996).
The elements of a claim for intentional misrepresentation are
the same. See Manderville v. PCG & S Group,
Inc., 146 Cal.App.4th 1486, 1498 (2007). Plaintiff's
fraud claims are subject to a three-year statute of
limitations. Cal. Code Civ. Proc. § 338(d). Because
plaintiff initiated this action on July 24, 2017, the March
12 order held that defendant's pre-July 2014 conduct was
time-barred. As to the post-July 2014 conduct alleged in the
complaint, the March 12 order dismissed plaintiff's fraud
claims for failing to meet FRCP 9(b)'s pleading
requirements. Plaintiff's proposed amendment fails to
remedy the latter issue.
plaintiff alleges that in February 2014, Dwight Thompson made
a false representation regarding plaintiff's accrued
vacation days. Plaintiff argues that she did not discover the
falsity of the representation until 2017, when she learned
that she was entitled to more pay under California law. Even
if timely, this allegation fails to meet FRCP 9(b)'s
pleading requirements, as plaintiff fails to allege that
Thompson knew or had reason to know that his statement was
plaintiff alleges that defendant falsely reported
plaintiff's earned wages to the Social Security
Administration in 2015. The March 12 order dismissed this
claim for failing to state the circumstances constituting the
alleged misrepresentation with particularity, such as when
defendant made the ...