ANTHONY W. ISHII, Senior District Judge.
This is an employment discrimination/harassment case brought by Plaintiff Maria Rascon ("Rascon") against Diversified Maintenance Systems, LLC ("DMS") and Best Buy Stores ("Best Buy"). Best Buy removed this case from the Kern County Superior Court. The operative complaint is the First Amended Complaint ("FAC"), which was filed on November 12, 2013. Rascon alleges six state law claims, including intentional infliction of emotional distress, negligent infliction of emotional distress, and four California Government Code § 12900 et seq. (the Fair Employment and Housing Act) ("FEHA") claims for sexual harassment, failure to prevent harassment, gender discrimination, and retaliation. DMS now moves to dismiss all claims alleged against it. For the reasons that follow, the motion will be granted in part and denied in part.
From the Complaint, DMS provides maintenance and cleaning services to Best Buy as a vendor. Rascon was employed by DMS from July 15, 2012 to October 30, 2012. Rascon was employed by DMS as a maintenance worker and was assigned to a Best Buy located in Bakersfield, California. Rascon typically worked 15-20 hours per week, and her duties included cleaning the men's and women's restrooms. Best Buy policy prohibits other employees from using the restrooms when the restrooms are being cleaned.
On July 30, 2012,
On August 5, 2012, Rascon placed the "closed for cleaning" sign on the door to the men's restroom and placed a large trashcan in front of the door. However, Rick again entered the restroom and entered a stall. Rascon exited the restroom in near tears and was embarrassed and humiliated. Rick laughed as Rascon exited the restroom.
On August 12, 2012, Rascon was cleaning the women's restroom. Rascon placed the "closed for cleaning" sign on the restroom door and placed a large trashcan in front of the door. Rick entered the bathroom, and then entered a stall while muttering profanity at Rascon. Rascon exited the bathroom and waited for Rick to leave.
On August 26, 2012, Rascon was cleaning the women's restroom. Rascon again placed the cleaning sign on the door and moved a trashcan in front of the door. Rick entered the restroom with a smirk on his face. Rick made comments that Rascon did not understand, entered a stall, and began to urinate. Rascon quickly exited the restroom and waited for Rick to exit.
On September 2, 2012, Rascon was cleaning the men's restroom. Rascon placed the cleaning sign on the door and moved a large trashcan in front of the door. Rick entered the restroom and began to use the urinal. Rascon left the restroom feeling embarrassed and offended.
On October 10, 2012, Rascon was cleaning the men's restroom. Rascon placed the cleaning sign on the door and moved a large trashcan in front of the door. Rick pushed the trashcan aside and cursed. Rick entered the restroom, unfastened his pants, and dropped his pants, thereby exposing his penis to Rascon. With his penis exposed, Rick walked to a urinal and began to urinate. Rascon was mortified, scared, embarrassed, and flustered. Rascon immediately averted her eyes, began to cry, and exited the restroom. Later that day, Rascon advised her DMS supervisor, Samuel Rodriguez, of what occurred that day and of the prior incidents with Rick. Rodriguez indicated that he would discuss the situation and Rascon's complaints with Best Buy, as well as Rick. Soon thereafter, Rodriguez told Rascon that Rick had been suspended and that Rascon would not see him again. Rascon took the next 7 days off in order to recover from the events of October 10.
On October 17, 2012, Rascon returned to work at the Best Buy. Rascon saw Rick in the store, and immediately called Rodriguez to inquire about the situation. Rodriguez responded that he would follow-up and find out what happened. Rascon continued on her regular routine at the store as best she could. As Rascon was in the process of returning her tools and supplies to the proper place in a storage room, Rick entered the storage room. In an agitated state of anger, Rick made several aggressive movements directed at Rascon, including throwing a manual pallet jack toward her in an apparent attempt to cause physical injury. Rascon immediately left the storage room and advised Best Buy supervisory personnel.
The Best Buy supervisors took Rascon into an office to discuss what had just occurred. One of the supervisors described himself as the Vice President of that store, and a second manager translated between English and Spanish for Rascon and the Vice President. The second manager advised Rascon that Rick had not been suspended because they were not previously advised of the situation. The two supervisors also advised that no investigation could be initiated without Rascon signing a complaint form. Rascon decided to take the paperwork home to review and complete. Rascon also informed Rodriguez that she required several days off to recover from the events of October 17.
On October 23, 2012, Rascon contacted DMS's Human Resources Manager, Gladys Garcia. Rascon asked to be transferred to a different location so that she would not be required to work at the Bakersfield Best Buy store. Rascon feared that she would encounter Rick again and that Rick would be more aggressive because of Rascon's complaints. Garcia informed Rascon that DMS would accommodate Rascon's request as best they could.
On October 30, 2012, Garcia telephoned Rascon. Garcia informed Rascon that Best Buy had conducted an investigation, had reviewed videotapes of the incidents, and determined that Rascon's complaint was substantiated. As a result, Best Buy had terminated Rick. Rascon again explained that she did not want to return to the Bakersfield Best Buy because of the harassment that she had endured and again asked to be transferred. Garcia indicated that a transfer was not possible, and told Rascon to either return to the Bakersfield Best Buy or be terminated. Rascon indicated that she could not return, so Garcia terminated Rascon.
Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory.
DMS argues that, despite the normal practice, Rascon did not attach a copy of her California Department of Fair Employment and Housing ("DFEH") complaint or a notice of case closure. Further, FEHA administrative exhaustion is jurisdictional. The right to sue letter submitted by Rascon shows that she filed a complaint against Diversified Maintenance Systems, Inc., which is a Utah entity and is not DMS. Thus, there has been no exhaustion as to DMS. Dismissal of the FEHA claims should be without leave to amend because the one year limitations period for filing a DFEH complaint ran in October 2013.
In reply, DMS argues that leave to amend should not be granted. If Rascon's counsel had done complete and proper research, she would have found DMS and could have filed a proper DFEH complaint. DMS should not be prejudiced because incomplete research was performed. No case law permits equitable relief based on incomplete research. Further, Rascon gives no explanation about why she has not filed a DFEH complaint in the past two months as part of her pursuit of equitable relief. Such a failure to perfect requires the denial of equitable relief.
Rascon argues that she has exhausted all practical administrative remedies and DMS has not been prejudiced. As per Grant v. Comp USA, Inc., 109 Cal.App.4th 637 (2003), a right to sue letter is not a necessary pre-requisite to exhaustion of remedies. In that case, where a plaintiff had filed a DFEH complaint, the court of appeals ruled that a right to sue letter was not necessary. The alternative would have been to dismiss the case as time barred. In this case, a DFEH complaint was filed, but the wrong entity was named in the complaint. DMS has suffered no prejudice due to this because DMS had already been notified by Rascon several times of a potential sexual harassment situation. As alleged in the complaint, by choosing not to address Rascon's complaints, DMS signaled its intention not to address Plaintiff's complaint. As such, Rascon chose to request an automatic right to sue letter from DFEH. Thus, all practical administrative remedies have been exhausted.
Alternatively, Rascon argues that she should be permitted to file a new DFEH complaint because the statute of limitations has been tolled by operation of Government Code § 12960(d)(2), which tolls the limitation period for no longer than one year following a rebutted presumption of the identity of a person's employer. Further, when exhaustion of administrative remedies is a prerequisite to suit, the limitations period is tolled during the administrative proceeding. If the defendant is not prejudiced, the running of the statute of limitations is tolled. Here, the last unlawful practice was Rascon's termination on October 30, 2012, which means that the statute of limitations would have normally run out on October 30, 2013. However, Rascon filed her DFEH complaint and received an automatic right to sue letter on August 16, 2013. Thus, 295 days had passed at the time of the DFEH filing. This leaves 70 days remaining of the 1 year limitation period. Because limitations periods are tolled during the pendency of an administrative proceeding, and there is no prejudice to DMS, Rascon should be permitted to refile her DFEH complaint under the remaining 70 days.
The FEHA affords California employees broad protection against discrimination, harassment, and retaliation on any of a wide range of impermissible bases.
The FAC alleges that a DFEH complaint was filed.
In arguing that there has been sufficient compliance, Rascon relies on Grant v. Comp USA. In Grant, the plaintiff filed a timely complaint with the DFEH on March 31, 1995, and received a right to sue letter on April 11, 1995.
The Court does not find Grant to be helpful. Grant involved a timely administrative complaint that presumably named the correct employer-defendant, and a failure by DFEH to resolve the matter within the time specified by Government Code § 12965. Rascon's case has neither of these key characteristics. No administrative complaint against DMS has been filed with DFEH, and DFEH has not failed to resolve any complaint by Rascon against DMS. Because there has been no administrative charge filed against DMS, Grant has no application to this case.
Rascon has cited no cases besides Grant. The Court is aware of no authority that would excuse Rascon's failure to file a DFEH administrative complaint against DMS. In the absence of a filed DFEH administrative complaint against DMS, Rascon may not pursue her four FEHA claims against DMS in this lawsuit.
Rascon relies on Elkins v. Derby, 12 Cal.3d 410 (1974) with respect to equitable tolling. In Elkins, prior to filing a lawsuit against her employer for personal injury, Elkins sought compensation through the workmen's compensation system.
The Court does not find that Elkins applies. Consistent with Elkins, the California Supreme Court has held that § 12960's one year limitation period can be equitably tolled "during the period when an aggrieved party's claims are being addressed in an alternate forum."
With respect to § 12960(d)(2), the California Supreme Court has described that particular provision as providing "a one-year extension in certain instances of delayed discovery of the identity of the actual employer."
Here, Rascon has submitted the declaration of her counsel's paralegal. The declaration describes the efforts made to ascertain Rascon's employer. The paralegal declares that he utilized Rascon's paystub, which identified "Diversified Maintenance Systems" as the employer.
The Court is not convinced that Rascon has adequately invoked § 12960(d)(2). Assuming that the paystubs may be considered the equivalent of a W-2 Form, per § 12928, the presumption created by Rascon's paystubs is that "Diversified Maintenance Systems" of Tampa, Florida is Rascon's employer. Cf. Cal. Gov. Code § 12928;
It is true that Exhibit B identifies an entity with a similar name as DMS. However, that is only part of the picture. The California Secretary of State's website allows three different "search types" when conducting a "Business Search" for a business entity: a search for "Corporation," a search for "Limited Liability Company/Limited Partnership," and a search for "Entity Number."
Because the last discriminatory act allegedly committed by DMS occurred on October 30, 2012, Rascon had until October 30, 2013 to file a DFEH complaint. DMS filed this motion to dismiss on December 9, 2013, and Rascon filed her opposition invoking § 12960(d)(2) on December 30, 2013. Obviously, the one year limitations period had run before December 2013. Additionally, the Court's docket and Rascon's opposition indicate that Rascon discovered that DMS was her actual employer prior to October 30, 2013. Rascon represents that Diversified Maintenance Systems, Inc.'s counsel contacted her counsel shortly after the August 2013 Complaint
In light of the above, the Court concludes that the one year limitations period for filing a DFEH complaint against DMS has run. Rascon has not established that she is entitled to either the tolling of § 12960(d)(2) or the tolling in Elkins. Because Rascon did not file a DFEH complaint against DMS within the § 12960(d) one year limitations period, she may not proceed with her FEHA claims against DMS in this Court.
DMS argues that the NIED claim is barred by California's worker's compensation law. Emotional distress claims that result from an employment relationship are barred under the exclusivity provision of the workers' compensation law. Negligent actions are covered acts, and Rascon's claims all arose in the course and scope of her employment with DMS.
Rascon argues that California cases recognize that harassment and discrimination are not normal incidents of employment, and claims based on such conduct are not preempted by the workers' compensation law. Here, the conduct of Rick constitutes harassment and discrimination. Thus, the NIED claim is not preempted.
NIED is not an independent tort, rather it is the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply.
In the employment context, injuries sustained and arising out of the course of employment are generally subject to the exclusivity provisions of the California workers' compensation law.
The basis for this cause of action is unclear. Rascon's opposition focuses on Rick's conduct, but the FAC alleges that defendants breached a statutory duty to take all reasonable steps necessary to prevent discrimination and harassment.
Reliance on Rick's conduct is problematic. Rick is alleged to be a Best Buy employee, not a DMS employee.
With respect to the failure to prevent harassment, the Court reads the FAC as alleging that DMS did not investigate or contact Best Buy regarding Rascon's first complaint about Rick.
Here, the FAC alleges regularly occurring and escalating instances of crude and bazaar behavior by Rick leading up to Rascon's complaint to DMS, including his use of the women's restroom and exposing his genitals. The FAC further alleges that Best Buy management told Rascon that they had not in fact been informed of Rick's conduct, despite what DMS management had told Rascon. In other words, the FAC demonstrates a complaint about sexual harassment and DMS's failure to act on that complaint. Given the nature of the negligence and the nature of Rascon's complaints and Rick's conduct, the Court cannot hold that Rascon's NIED claim is preempted by the workers' compensations laws.
DMS argues that neither it nor any of its employees engaged in the alleged harassment. Instead, the only allegedly wrongful acts attributed to DMS is a failure to prevent harassment and rejecting Rascon's request for a transfer, which resulted in a termination. California recognizes that routine personnel decisions cannot form the basis of an IIED claim. DMS's conduct does not as a matter of law demonstrate the kind of outrageous conduct necessary for an IIED claim.
Rascon argues that the FAC sets forth numerous examples of Rick's conduct towards her. This includes undressing and exposing his genitalia, using bathroom stalls without closing the door, and uttering lewd or profane comments. The FAC also alleges that the Defendants' conduct consisted of sexual, gender, physical, verbal, and visual harassment, which was outrageous. The FAC is plausible and provides Defendants adequate notice of the claims against them.
The elements of the tort of IIED are: (1) extreme and outrageous conduct by the defendant; (2) the defendant's intention of causing, or reckless disregard of the probability of causing, emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.
It is not clear which acts Rascon is relying on to hold DMS liable. Rascon's opposition focuses on the conduct of Rick, but the FAC incorporates all previous paragraphs, which would include the termination, the failure to transfer, and a failure to prevent further harassment by Rick. Again, although Rascon has not elaborated, the Court will view this latter act as based on a failure by DMS to investigate/contact Best Buy after Rascon first complained about Rick.
With respect to Rick's conduct, Rick is alleged to be a Best Buy employee, not a DMS employee.
With respect to acts by DMS identified in the FAC, none of those acts are sufficiently "outrageous" to support an IIED claim. Terminations and job assignments, which would be akin to transfers, are generally considered normal personnel management decisions, and will not form the basis of an IIED claim, even if improperly motivated.
In sum, Rascon has not explained how Rick's conduct can be attributed to DMS, and the specific acts of DMS that are identified in the FAC have not been shown to be sufficiently "outrageous" to support an IIED claim. Therefore, dismissal of this cause of action is appropriate.
DMS moves to dismiss all claims alleged against them. Dismissal of the FEHA claims is appropriate because Rascon has never filed a DFEH complaint against DMS, and the one year limitation period to file such a complaint has passed. Because there has been no explanation why amendment would not be futile, dismissal of the FEHA claims will be without leave to amend.
Partial dismissal of the NIED is appropriate. The intentional acts of DMS in terminating and refusing to transfer Rascon, and the intentional acts of Rick, cannot form the basis of a NIED claim. Dismissal of any NIED claims based on these acts will be without leave to amend. However, dismissal of the NIED claim based on DMS's failure to investigate or contact Best Buy, i.e. failure to prevent harassment, is inappropriate because this claim is grounded in sexual harassment and thus, is not preempted by the workers' compensation law.
Finally, dismissal of the IIED claim is appropriate because the conduct that is clearly attributable to DMS is not sufficiently "outrageous." As for the conduct of Best Buy employee Rick, Rascon has not explained how Rick's conduct can be attributed to DMS. Because it is not clear to the Court at this time that amendment would be futile, dismissal of the IIED claim will be with leave to amend.
Accordingly, IT IS HEREBY ORDERED that:
1. DMS's motion to dismiss the first four causes of action is GRANTED and these causes of action against DMS are DISMISSED WITHOUT LEAVE TO AMEND;
2. DMS's motion to dismiss the fifth cause of action for intentional infliction of emotional distress is GRANTED and that cause of action against DMS is DISMISSED WITH LEAVE TO AMEND;
3. DMS's motion to dismiss the sixth cause of action for negligent infliction of emotional distress is GRANTED IN PART in that claims based on the conduct of Best Buy employee Rick, and claims based on DMS's termination, failure to transfer, and failure to prevent harassment are DISMISSED WITHOUT LEAVE TO AMEND;
4. Plaintiff may file an amended complaint within twenty (20) days of service of this order; and
5. If Plaintiff does not file an amended complaint, DMS may file an answer within twenty-seven (27) days of service of this order.
