United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND
[RE: ECF 12]
LAB SON FREEMAN UNITED STATES DISTRICT JUDGE
Gwendolyn Taitt-Relf (“Plaintiff”) sues Defendant
Olympus Corporation of the Americas
(“Defendant”), claiming that Defendant subjected
her to discrimination and retaliation at work. Plaintiff
asserts four causes of action: (1) race discrimination; (2)
age discrimination; (3) retaliation; and (4) failure to
prevent discrimination or retaliation.
before the Court is Defendant's motion to dismiss the
entire Complaint for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). See Motion at 1,
ECF 12. The Court heard arguments for the motion to dismiss
on September 5, 2019 (“the hearing”). For the
reasons stated on the record and discussed below, the motion
is GRANTED WITH LEAVE TO AMEND.
alleges that when she began working for Defendant in 2017,
she informed the company that she frequently needed to use
the restroom because of her medications. Compl. ¶¶
13-14, ECF 1. Ex. A. In July 2018, Plaintiff got a new
supervisor (the “Supervisor”), who began
documenting in a spreadsheet Plaintiff's meal and rest
breaks as well as her restroom use. Id. ¶¶
15-16. The Supervisor met with the Plaintiff several times to
discuss those breaks and frequently stood over Plaintiff as
she worked. Id. ¶¶ 18, 20. Plaintiff told
the Supervisor that she intended to report him to HR, but
when she requested the spreadsheet, he said it had
disappeared. Id. ¶¶ 20-21. Then, in August
2018, two coworkers made racially disparaging remarks to
Plaintiff. Id. ¶ 22.
September 2018, Plaintiff met with HR about the
Supervisor's treatment and her coworkers' comments.
Id. ¶ 23. Shortly after the meeting, another
coworker called her a snitch and warned her to watch her
back. Id. ¶ 25. Plaintiff reported the
coworker's conduct to HR, and in October 2018, she met
with HR again to further discuss what she felt was
discriminatory treatment. Id. ¶¶ 26-27.
After this meeting, Plaintiff was reassigned to a new
supervisor and instructed not to interact with the Supervisor
anymore. Id. ¶ 30. Still, on October 25, 2018,
the Supervisor sat next to Plaintiff and criticized her
performance. Id. ¶ 31. Again, Plaintiff
complained to HR, and in January 2019, she learned that the
Supervisor no longer worked for Defendant. Id.
¶¶ 32, 34-35.
on these facts, Plaintiff believes she was discriminated
against on the basis of her race and age and retaliated
against after engaging in protected activity. Id.
¶¶ 36-37. Plaintiff alleges adverse employment
actions, including increased criticism of her work
performance and cell phone use, which were criticisms not
given to other similarly situated employees who were not
African American or over 40 years old. Id. ¶
37. On May 13, 2019, Plaintiff filed a Complaint in Santa
Clara Superior Court against Defendant alleging race and age
discrimination, retaliation, and failure to prevent
discrimination and retaliation under California's Fair
Employment and Housing Act (“FEHA”). See
generally Id. On June 26, 2019, Defendant removed the
case to this Court. Notice of Removal, ECF 1.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can
be granted ‘tests the legal sufficiency of a
claim.'” Conservation Force v. Salazar,
646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro
v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). When
determining whether a claim has been stated, courts accepts
as true all well-pled factual allegations and construes them
in the light most favorable to the plaintiff. Reese v. BP
Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir.
2011). However, courts need not “accept as true
allegations that contradict matters properly subject to
judicial notice” or “allegations that are merely
conclusory, unwarranted deductions of fact, or unreasonable
inferences.” In re Gilead Scis. Sec. Litig.,
536 F.3d 1049, 1055 (9th Cir. 2008). While a complaint need
not contain detailed factual allegations, it “must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is facially plausible when it
“allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
moves to dismiss all four of Plaintiff's causes of action
for failure to state a claim under Rule 12(b)(6).
See Motion at 1. Plaintiff counters that
Defendant's motion contradicts the Ninth Circuit's
expansive view of what constitutes an adverse employment
action. See Opp. at 1, ECF 14. Specifically,
Plaintiff alleges eight adverse employment actions taken by
either the Supervisor or her coworkers. See Id. She
argues that Defendant inappropriately narrows what
constitutes an adverse employment action and mischaracterizes
injurious remarks as stray. See Id. at 4, 5.
Meanwhile, Defendant contends that Plaintiff fails to allege
facts sufficient to support a finding that she suffered an
adverse employment action. See Motion at 9, 12. For
the reasons discussed below and at the hearing, the Court
GRANTS Defendant's motion, WITH LEAVE TO AMEND.
Plaintiff has not sufficiently alleged that she suffered an
adverse employment action. To establish employment
discrimination or retaliation under FEHA, it is not enough to
show “that the employee has been subjected to an
adverse action or treatment that reasonably would deter an
employee from engaging in the protected activity.”
McRae v. Department of Corrections &
Rehabilitation, 142 Cal.App.4th 377, 386 (2006) (citing
Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028,
1051-52 (2005)). Instead, an employee must show that she
“has been subjected to an adverse employment action
that materially affects the terms, conditions, or
privileges of employment.” Id. (emphasis
added). In other words, the employer's actions must have
“a detrimental and substantial effect” on a
worker's employment. Id. However, any inquiry
into an adverse employment action considers “the unique
circumstances of the affected employee as well as the
workplace context of the claim.” Yanowitz, 36
Cal.4th at 1052.
Plaintiff fails to allege facts sufficient to show a
detrimental and substantial effect on her employment. In her
Complaint, Plaintiff cites reprimands of her job performance
as adverse employment actions but provides little detail
about them. See Opp. at 4; Compl. ¶¶ 16,
18, 20, 27-28, 31, 37. An employer's criticism of poor
work performance is not enough to constitute an adverse
employment action. See Murray v. County of Orange,
No. SACV 10-01675 JVS (MLGx), 2012 WL 12921900, at *3 (C.D.
Cal. Dec. 19, 2012) (finding that a supervisor's
“comments and criticism . . . alone do not
suffice” nor do they detrimentally impact the terms or
conditions of employment).
Plaintiff has not sufficiently alleged that her
coworkers' remarks constitute an adverse employment
action. See Opp. at 5. The Complaint alleges one
instance of two coworkers' disparaging remarks in August
2018 and a threat from another coworker in September 2018.
Compl. ¶¶ 22-23, 25-26. However, Plaintiff misses
the point. Fellow employees' conduct that is
“reasonably likely to do no more than anger or upset an
employee” does “not materially affect the terms,
conditions, or privileges of employment.” Beagle v.
Rite Aid Corp., No. C 08-1517 PJH, 2009 WL 3112098, at
*7 (N.D. ...