United States District Court, N.D. California
ORDER RE: DKT. NOS. 27, 32
PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE.
CVS Health Corporation, CVS Pharmacy, Inc., Garfield Beach
CVS, LLC, and CVS RX Services, Inc.'s (together,
“CVS”) motion to dismiss came on for hearing
before this court on September 4, 2019. Plaintiff Ryan Hyams
appeared through his counsel, Cathy Coble. Defendants
appeared through their counsel, Daniel Fears. Having read the
papers filed by the parties and carefully considered their
arguments and the relevant legal authority, and good cause
appearing, the court hereby rules as follows.
action stems from Hyams' former employment as a
pharmacist for CVS. First Amended Compl. (“FAC”),
Dkt. 22 ¶¶ 5, 13-16. The operative complaint
alleges eight causes of action, each against all defendants:
(1) Disparate Treatment Discrimination on the Basis of Race
and/or Color in Violation of the California Fair Employment
and Housing Act (“FEHA”); (2) Disparate Impact
Discrimination on the Basis of Race and/or Color in Violation
of FEHA; (3) Harassment on the Basis of Race and/or Color in
Violation of FEHA; (4) Retaliation for Complaining of
Discrimination and/or Harassment on the Basis of Race and/or
Color in Violation of FEHA; (5) Failure to Prevent,
Investigate, and Remedy Discrimination, Harassment, or
Retaliation in Violation of FEHA; (6) Intentional Infliction
of Emotional Distress; (7) Negligent Infliction of Emotional
Distress; and (8) Wrongful Termination in Violation of Public
was hired by CVS on December 15, 2015, after CVS acquired a
pharmacy located in a San Francisco Target store where
plaintiff had worked since June 2011. Id. ¶ 18.
Plaintiff “was the only Black full-time pharmacist out
of 64 pharmacists in his District and over 200 pharmacists in
his Region.” Id. ¶ 25. On or about May
19, 2017, plaintiff was selected by CVS for an audit of a
Drug Utilization Review (“DUR”) system, although
by the nature of the audit plaintiff was not informed that it
was occurring. Id. ¶ 26. The audit essentially
consisted of CVS creating a digital record of a fictitious
patient with various ailments and drug prescriptions,
designed to test pharmacists' detection of possible drug
interactions. Id. ¶¶ 27-29. When
undergoing the audit, plaintiff bypassed a warning screen
(which he was not trained on), made notations in the patient
file, and then approved the prescription. Id. ¶
29. Plaintiff marked the physical bag containing the
prescription for an in-person oral consultation regarding
drug interactions. Id. ¶ 31.
about July 18, 2017, CVS contacted plaintiff regarding the
DUR audit. Id. ¶ 37. Interactions between
plaintiff and CVS's human resources department ensued.
Id. ¶¶ 37-45. On or about August 25, 2017,
plaintiff was terminated in an in-person meeting, was told
that he was the only Black pharmacist employed by CVS in his
Region, and was told that he was the only individual selected
for the DUR audit. Id. ¶ 45.
3, 2018, plaintiff filed an administrative complaint with the
Department of Fair Employment and Housing
(“DFEH”), and he received a DFEH right-to-sue
letter on the same day. Id. ¶ 60; see
Defendants' RJN, Dkt. 28, Ex. A at ECF pp. 5-7 (the
August 21, 2018, plaintiff filed a civil complaint against
CVS in the Superior Court of the State of California, County
of San Francisco. Dkt. 3, Ex. A. The action was removed to
this court on October 12, 2018. Dkt. 1. The original
complaint stated seven of the same causes of action as the
FAC, but it did not state the FAC's second cause of
action for disparate impact discrimination. On June 26, 2019,
the parties submitted a joint stipulation to permit plaintiff
to file a FAC. On June 27, 2019, the court entered the
stipulated order, and plaintiff filed the FAC. Dkts. 21-22.
On July 11, 2019, CVS filed an answer to the FAC. Dkt. 23. On
July 30, 2019, defendants filed the present motion to dismiss
the FAC's second claim for disparate impact
discrimination. Dkt. 27.
the pleadings are closed-but early enough not to delay
trial-a party may move for judgment on the pleadings.”
Fed.R.Civ.P. 12(c). “Judgment on the pleadings is
properly granted when, accepting all factual allegations in
the complaint as true, there is no issue of material fact in
dispute, and the moving party is entitled to judgment as a
matter of law. Analysis under Rule 12(c) is substantially
identical to analysis under Rule 12(b)(6) because, under both
rules, a court must determine whether the facts alleged in
the complaint, taken as true, entitle the plaintiff to a
legal remedy.” Chavez v. United States, 683
F.3d 1102, 1108 (9th Cir. 2012) (internal quotation marks and
citations omitted); accord Dworkin v. Hustler Magazine
Inc., 867 F.2d 1188, 1192 (9th Cir. 1989) (“The
principal difference between motions filed pursuant to Rule
12(b) and Rule 12(c) is the time of filing.”).
move to dismiss under two alternate grounds. First, they move
under Rule 12(b). A motion to dismiss pursuant to Rule 12(b)
“must be made before pleading if a responsive pleading
is allowed.” Fed.R.Civ.P. 12(b). Because defendants
filed an answer before asserting their Rule 12(b) defense,
the Rule 12(b) motion is untimely and is therefore DENIED.
See Dkt. 23 (answer).
alternative, defendants move to dismiss under Rule 12(c). The
parties agree that Rule 12(c) is an appropriate vehicle for
defendants' motion, and the court presently considers
defendants' Rule 12(c) motion.
suing for a FEHA violation, an employee must exhaust his
administrative remedies by filing a timely and sufficient
complaint (called a “charge”) with the DFEH and
receiving a right-to-sue notice. Cal. Gov't Code
§§ 12960, 12965(b); Rodriguez v. Airborne
Express, 265 F.3d 890, 896-97 (9th Cir. 2001).
“The scope of the written administrative charge defines
the permissible scope of the subsequent civil action.
Allegations in the civil complaint that fall outside of the
scope of the administrative charge are barred for failure to
exhaust.” Id. at 897 (citation omitted).
treatment is the most easily understood type of
discrimination. The employer simply treats some people less
favorably than others because of their race, color, religion,
sex, or other protected characteristic. Liability in a
disparate-treatment case depends on whether the protected
trait actually motivated the employer's decision. By
contrast, disparate-impact claims involve employment
practices that are facially neutral in their treatment of
different groups but that in fact fall more harshly on one
group than another and cannot be justified by business
necessity. Under a disparate-impact theory of discrimination,
a facially neutral employment practice may be deemed
illegally discriminatory without evidence of the
employer's subjective intent to discriminate that is
required in a disparate-treatment case.” Raytheon
Co. v. Hernandez, 540 U.S. 44, 52-53 (2003) (internal
quotation marks, citations, and alterations omitted).
“Because these claims arise from different theories, a
party cannot rely on allegations supporting one to
administratively exhaust the other.” Lindsey v.
United Airlines, Inc., No. 17-cv-00753-WHA, 2017 WL
2404911, at *2-3 (N.D. Cal. June 2, 2017) (citing Brown
v. Puget Sound Elec. Apprenticeship & Training
Trust, 732 F.2d 726, 729-30 (9th Cir. 1984)); accord
De Los Santos v. Panda Exp., Inc., No. 10-cv-01370-SBA,
2010 WL 4971761, at *4 (N.D. Cal. Dec. 3, 2010) (collecting
parties do not dispute that plaintiff has exhausted his
disparate treatment claim. The parties also do not dispute
that plaintiff must separately exhaust his administrative
remedies with respect to his disparate impact claim in order
to pursue that theory of discrimination in this civil action.
Plaintiff argues that he has exhausted his administrate
remedies with respect to this disparate impact theory for two
reasons. First, plaintiff argues that his DFEH Charge
actually asserted a discrimination claim based on disparate
impact. Second, plaintiff argues that even if his DFEH ...