United States District Court, S.D. California
DOLORES GAINES, an individual; RYAN BAGSBY, an individual; MARIO HALL, JR., an individua, BRANISHA NEWBERRY, an individual; and KENYATA MARTIN, an individual, Plaintiff,
AT&T MOBILITY SERVICES, LLC, a Delaware Limited Liability Company; EMMANUEL MANNY MORALES, an Individual; and DOES 1 through 50, inclusive, Defendants.
ORDER DENYING AT&T'S MOTION TO COMPEL
ARBITRATION AND DENYING AT&T'S MOTION TO
STRIKE [ECF NOS. 30, 31]
Gonzalo P. Curiel, United States District Judge.
the Court are Defendant AT&T Mobility Services LLC's
(“AT&T”) Motion to Strike the First Amended
Complaint (ECF No. 30) and Motion to Compel Individual
Arbitration as to Plaintiffs Branisha Newberry and Kenyata
Martin (ECF No. 31). Defendant Emmanuel (Manny) Morales
(“Morales”) joins both motions. ECF Nos. 32, 33.
are five former African-American AT&T employees who
worked at the AT&T store in Mission Valley. Defendant
Emmanuel (Manny) Morales acted as the store's manager.
Plaintiffs bring this action under 42 U.S.C. § 1981,
alleging that Morales discriminated against Plaintiffs based
on their race, pushed out Plaintiffs based on his racist
animus, and retaliated against Plaintiffs who complained
about his behavior. Plaintiffs additionally allege that
AT&T's senior management tolerated and encouraged
Morales' behavior. Plaintiffs seek compensatory damages,
punitive damages, attorneys' fees and other costs
associated with this lawsuit, and declaratory and injunctive
to the First Amended Complaint (“FAC”), Morales
was hired in 2007 and was promoted from entry-level retail
sales consultant to become an Assistant Store Manager
(“ASM”). ECF No. 26 ¶ 27. Plaintiffs allege
that Morales received this promotion due to his close
personal friendship with Area Retail Sales Manager
(“ASRM”) Jesus Barraza. Id.
2010, two AT&T employees (not Plaintiffs) submitted
complaints about Morales and Barraza. The complaints alleged
that Morales specifically engaged in sexually inappropriate
behavior and psychologically abused employees. Id.
¶¶ 30-36. The complaints also noted that Morales
seemed “untouchable” due to his close personal
relationships with individuals in upper management positions.
Id. ¶¶ 30(d), 33(f). Plaintiffs allege
that AT&T investigated Morales in 2010 (at least in part
due to the aforementioned complaints), and Morales resigned
in order to avoid a potential termination. Id.
2012, AT&T rehired Morales as a retail sales consultant
(“RSC”) at one of AT&T's Las Vegas
offices. Plaintiffs allege that AT&T rehired Morales at
the behest of Barraza, who was then working as an ARSM at
AT&T's Las Vegas branch. Id. ¶ 37.
Barraza relocated to San Diego in August 2014 as a retail
store manager (“RSM”) of the Plaza Bonita store.
Id. ¶ 38. Barraza was then promoted to become
the ARSM of the south San Diego region, and Morales was hired
as the new RSM of the Plaza Bonita store to replace Barraza.
Id. ¶ 39. Plaintiffs allege that AT&T
promoted Morales at Barraza's behest. Id.
Mission Valley Store
Mission Valley AT&T store is the flagship store in San
Diego county and offered the most favorable promotion and
commission opportunities for Plaintiffs. Id.
¶¶ 97, 104. Plaintiffs allege that Barraza, with
the assistance of ARSM Joe Reichow, successfully lobbied for
Morales to be appointed as the RSM of AT&T's Mission
Valley store - the most prestigious and important AT&T
retail store in San Diego County. Id. ¶ 40.
Plaintiffs allege that Reichow, the ARSM of Central San Diego
and Morales' supervisor, supported Morales' promotion
since Morales had achieved positive sales results while
managing the Plaza Bonita store. Id. ¶ 43.
Morales began working as RSM at the Mission Valley store in
April 2015, there were seven African-American employees
working as subordinate employees at the store. Id.
¶ 52. Plaintiffs allege that once Morales was appointed
as RSM of the Mission Valley store, he began targeting the
African-American employees by harassing them and making
racist remarks towards them and to other employees about
them. Id. ¶¶ 50-51. Plaintiffs allege that
by August 30, 2016, when AT&T fired Morales for sexually
harassing multiple female employees, all seven of the
African-American employees had either been fired, resigned,
or transferred from the store due to Morales' conduct.
Id. ¶ 52.
allege that Morales engaged in a pattern of unfair criticism
and discipline, micro-management, assignment of less
desirable tasks, and open hostility towards Plaintiffs,
motivated by his racial animus.
Dolores Gaines is a seventy-year-old African-American woman
who worked at the AT&T Mission Valley store between 2008
and 2015. Id. ¶ 53. Gaines alleges that Morales
was openly hostile towards her, lodged unfair attacks and
criticisms of her performance, assigned her to less desirable
duties, and indicated that he was trying to replace her with
a younger, female Hispanic employee. Id.
¶¶ 55-56, 58-63. Gaines alleges that she reported
her concerns to ARSM Reichow and her report was dismissed.
Id. ¶ 57. Gaines left AT&T's employ in
August 2015. Id. ¶ 66.
Ryan Bagsby is a 42-year-old African-American male who worked
for AT&T between 2014 and 2015 at the AT&T Mission
Valley store. Bagsby alleges that Morales unfairly attacked
Bagsby's performance in an effort to undermine
Bagsby's success, misrepresented AT&T's paternity
leave policy to Bagbsy's detriment and told Bagsby that
he would need to find another job. Id. ¶¶
68-75. Bagsby left AT&T's employ in October 2015.
Id. ¶ 76.
Branisha Newberry is a 26-year-old African-American woman.
She began working at AT&T in 2013 and is currently
working as an ASM for AT&T in San Diego County.
Id. ¶ 87. Newberry worked at the Mission Valley
Store and prior to Morales' arrival, Newberry had been
told that she was considered to be a high performer and was a
candidate to be promoted to a management position.
Id. ¶ 88. Newberry alleges that Morales
unfairly treated Newberry with respect to her attire choices
and requests for accommodations for medical appointments.
Id. ¶¶ 89-93. Specifically, Newberry
alleges that Morales treated her and other African-American
employees less favorably than he treated the young, primarily
Hispanic, female employees who did not object to his sexual
conduct and comments. Id. ¶ 96. Newberry
transferred to another AT&T location, which was in effect
a demotion, decreasing her earnings based on her commissions.
Id. ¶ 97.
Mario Hall is a 33-year-old African-American male who worked
for AT&T between 2013 and 2015. He worked at the Mission
Valley store starting in 2014. Id. ¶ 77. The
FAC alleges that Hall was on a path towards advancement at
AT&T and was selected to take part in a
management-training program. Id. ¶¶ 78.
However, Morales removed Hall from the program without
explanation. Id. ¶¶ 79-80. Plaintiffs
allege that Morales had previously announced his intention to
get rid of both Hall and Newberry, who were seen as the two
most promising newer employees at the Misison Valley store.
Id. ¶ 81. Hall complained to ARSM Reichow that
Morales had unfairly removed him from the management-training
program, but Reichow “scoffed” at this complaint.
Id. ¶ 82. Hall also petitioned Reichow to
transfer to another location so that he could continue
advancing in his career at AT&T, but Reichow declined
Hall's request. Id. ¶ 83. Due to Hall's
complaint to Reichow, Morales retaliated against Hall and
terminated him. Id. ¶¶ 85-86.
Kenyata Martin is a 42-year-old African-American male who
began working for AT&T in 2006 and specifically began at
the Mission Valley store in 2012. Id. ¶¶
98-99. The FAC alleges that Morales targeted Martin unfairly
by criticizing him for no legitimate reason, acting openly
hostile towards Martin, and assigning him less desirable
assignments. Id. ¶ 99. The FAC also alleges
that Morales made derogatory remarks about Martin's skin
color and when Martin complained about these remarks to
Reichow, Reichow did not take any action to help Martin or to
discipline Morales. Id. ¶¶ 100-104. In
November 2015, Martin transferred to the Downtown San Diego
location, which is a less favorable location. Id.
and June of 2016, two female Hispanic employees reported
Morales' sexual harassment - including inappropriate
remarks and conduct - and racist remarks. Id.
¶¶ 105-106. In August 2016, AT&T initiated an
investigation into Morales' sexual harassment of female
employees and on August 30, 2016, AT&T terminated
Morales' employment. Id. ¶ 107. Plaintiffs
allege that AT&T has failed to acknowledge, remedy, or
disapprove of Morales' ...