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Flewellen-El v. AT&T, Services Inc.

United States District Court, N.D. California

May 25, 2018

GLESA FLEWELLEN-EL, Plaintiff,
v.
AT&T SERVICES, INC., Defendant.

          ORDER GRANTING IN PART MOTION FOR LEAVE TO AMEND

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Following 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 in Part.

         STATEMENT

         Pro 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).

         Plaintiff 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).

         ANALYSIS

         FRCP 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 unduly prejudicial.

         1. Title VII and ADA Claims.

         The 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.[1]

2. Fraud Claims.

         To 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.

         First, 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 false.

         Second, 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 ...


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