KENDALL J. NEWMAN, Magistrate Judge.
Presently pending before the court is defendants Interstate Realty Management Company (erroneously sued as Interstate Realty Management aka IRM and The Michaels Organization) ("IRM") and Kimberlee Schreiber ("Schreiber") (collectively, "defendants") motion to dismiss pro se plaintiff Melanie Scheller's ("plaintiff") first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 16.)
However, on May 23, 2014, the parties filed a stipulation to continue the hearing until June 19, 2014, based on plaintiff's representation that she had found an attorney who might be willing to represent her. (ECF No. 26.) On May 27, 2014, the court approved the stipulation and rescheduled the hearing for June 19, 2014. (ECF No. 27.) The court's minute order further provided that:
(
Thereafter, on June 6, 2014, plaintiff filed an opposition to the motion to dismiss. (ECF No. 28.)
At the June 19, 2014 hearing, plaintiff appeared representing herself, and attorney Heath Havey appeared telephonically on behalf of defendants. After carefully considering the parties' written briefing, the parties' oral argument, the court's record, and the applicable law, the court recommends that defendants' motion to dismiss be granted, and that the action be dismissed with prejudice.
Plaintiff originally filed this action in the San Joaquin County Superior Court on November 14, 2013. After being served with the complaint and summons on January 13, 2014, defendants removed the action to this court by filing a notice of removal on February 11, 2014, which invoked the court's diversity of citizenship subject matter jurisdiction. (
Thereafter, on February 27, 2014, plaintiff filed a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 11.) On March 7, 2014, the court granted plaintiff's request to proceed in forma pauperis, and dismissed plaintiff's original complaint with leave to amend. (ECF No. 14.) At that time, the court noted:
(ECF No. 14 at 3.) In light of plaintiff's pro se status, the court provided plaintiff with some basic instruction regarding federal pleading requirements, including the requirement to plead sufficient facts in support of each claim to allow the court to draw a reasonable inference that the defendants are liable for the misconduct alleged. (
Subsequently, on April 2, 2014, plaintiff filed the operative first amended complaint. (
According to plaintiff, on June 27, 2012, while working part-time at a non-profit agency, plaintiff responded to an employment advertisement by defendant IRM for a property manager position in Bakersfield, California, which was placed on the Las Vegas, Nevada section of Craigslist. During a subsequent July 3, 2012 phone interview with IRM's district manager, Mary Kashishian, Ms. Kashishian apparently "expressed a desire to offer the position, but wanted to meet face to face to make an official offer." Plaintiff alleges that she gave notice to her former employer and prepared to relocate at her own expense based on her belief that an employment position in Bakersfield was secured. However, during the subsequent in-person meeting with Ms. Kashishian and an individual named Naomi Pereja on July 11, 2012, it was "made clear that the position was not in Bakersfield California, but rather in Needles, California and that the position was for an onsite Property Manager in a Senior Complex." Plaintiff claims that she had no choice but to accept the position in Needles, California, because she had already given notice to her prior job and made arrangements to relocate. (FAC ¶ 9.)
Plaintiff apparently started her employment for IRM around July 22, 2012, and at that time, she was presented with, and acknowledged receipt of, an IRM employee handbook. (FAC ¶ 4; ECF No. 1 at 28-71.) Although plaintiff was offered a position as site manager for a senior complex in Needles known as "Mesa Grande," plaintiff was told that she would first stay at a neighboring family complex, known as "Lilly Hill," for a two-week training period to familiarize herself with IRM procedures and to allow the vacating manager at Mesa Grande, Janet Mask, to vacate the manager's unit. (FAC ¶ 12.) However, after the two-week training period ended, plaintiff was purportedly informed that defendant and IRM Vice President Kimberlee Schreiber had decided not to terminate Janet Mask, but instead to allow her to take a "forced retirement" in February 2013. As such, plaintiff was required to continue residing at Lilly Hill and begin her position as site manager at Mesa Grande alongside the unwilling and disgruntled outgoing site manager, Janet Mask. (
According to the first amended complaint, plaintiff was then subjected to a hostile work environment, discrimination, retaliation, sexual harassment, and other acts of harassment until she left work on July 8, 2013. Plaintiff's allegations in this regard are largely conclusory, but she recounts a few incidents of purportedly unwarranted or invalid criticism (remarks in an employee review that plaintiff needed to work on communication skills, reprimands based on a private phone conversation in plaintiff's apartment concerning child support payments, and reprimands concerning a friend who visited and stayed with plaintiff); blame for remarks by plaintiff that she allegedly never made (remarks that plaintiff was "tight" with her supervisor and could get another employee fired); being required to work over the 4th of July holiday when other employees did not have to; being assigned a different supervisor; having to send her children away to stay with their father due to complaints about plaintiff's children coming into the office; being given work with unrealistic deadlines; and being shouted or sworn at. (FAC ¶ 26.) Plaintiff alleges that the outgoing manager, Janet Mask, on a daily basis made numerous remarks such as "this resident thinks you're a bitch" and "everybody hates you, no one wants you here," and purportedly incited the residents against plaintiff. (
Plaintiff filed a complaint with the Department of Fair Employment and Housing ("DFEH") sometime in November 2012, but then participated in a meeting with defendant Schreiber that same month to avoid litigation. The discussions at the meeting were memorialized in meeting notes; plaintiff made a few changes to the notes, and defendant Schreiber subsequently agreed to those changes. (FAC ¶ 1; ECF No. 1 at 21-24.) Discussions at the meeting apparently included a potential transfer within the company. (
In February 2013, plaintiff was transferred to a position in Jackson, California, and in connection with that transfer, plaintiff signed a relocation agreement, whereby plaintiff was required to repay to IRM a pro-rated portion of her relocation expenses if she voluntarily terminated her employment within a certain period of the transfer. (FAC ¶ 7; ECF No. 1 at 78-79.) Plaintiff claims that her misfortunes continued at the Jackson, California position. In addition to some of the above-mentioned alleged conduct, plaintiff alleges that she was never given a promised copy of a property audit inspection by her acting supervisor, Erin Gibson. (FAC ¶ 21.) Furthermore, despite plaintiff receiving threats from some of the residents at the Jackson property, Ms. Gibson allegedly refused to terminate their leases due to the property's many vacancies, placing plaintiff "in physical and psychological danger." (Id. ¶ 29.)
Plaintiff alleges that she consequently suffered an emotional and psychological breakdown, stopped working around July 8, 2013, and has filed for and received disability insurance benefits and worker's compensation benefits. (FAC ¶¶ 2, 5, 32;
The first amended complaint asserts three causes of action for breach of contract; three causes of action for fraud; and seven state law tort causes of action (labeled as good faith and fair dealing, deception, violation of public policy, violation of rights, harassment, negligence by breach of obligation, and serious and willful misconduct). The first amended complaint seeks the following relief: injunctive relief (an order that defendants become knowledgeable with, implement, and adhere to certain company policies dispelling harassment and bullying); actual damages of $57,337.00 for each breach of contract, for a total of $172,011.00; $66,560.00 in general damages for each count of fraud, for a total of $199,680.00; $250,000 in punitive damages for each tort cause of action, for a total of $1,750,000.00 (with half to be paid to a non-profit organization); interest on damages; and reimbursement of legal expenses. (FAC ¶ 35.)
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint.
In considering a motion to dismiss for failure to state a claim, the court accepts all of the well-pled facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff.
In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice."
Although the court may not consider a memorandum in opposition to a defendant's motion to dismiss to determine the propriety of a Rule 12(b)(6) motion,
"A cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach."
Plaintiff's three breach of contract claims are based on plaintiff's contention that defendants breached the terms of three different documents: (a) the meeting notes concerning the November 2012 meeting between plaintiff and Schreiber, which plaintiff characterizes as a mediation agreement (FAC ¶¶ 1-3); (b) the IRM employee handbook (FAC ¶¶ 4-6); and (c) the February 2013 relocation agreement (FAC ¶¶ 7-8.)
As an initial matter, the court notes that, for purposes of resolving the motion to dismiss, it may consider the actual documents constituting the purported contracts, which were attached to plaintiff's original complaint and became a part of the public record in this case, even though those documents were not attached to the first amended complaint. In this case, plaintiff's first amended complaint refers to those documents; the documents, which constitute the purported contracts upon which the breach of contract claims are based, are central to plaintiff's claims; and although the parties disagree as to the legal significance of the documents, no party questions the authenticity of the documents.
Notably, in her opposition and at the hearing, plaintiff only objected to consideration of the documents based on the following provision of the court's prior order dismissing the original complaint with leave to amend:
(ECF No. 14 at 5.) However, that portion of the court's order was designed merely to ensure that plaintiff, as a pro se litigant, understood that the first amended complaint had to include all factual allegations necessary to support plaintiff's claims, and could not rely on the original complaint or other filings to complete the first amended complaint and state a cognizable claim. Nothing in the court's order precludes the consideration of documents properly incorporated by reference in the first amended complaint and forming the basis of plaintiff's claims under the applicable law discussed above. Furthermore, given that plaintiff initially included the documents with her original complaint, she cannot claim to be unfairly surprised by their consideration in this case.
After considering the documents upon which plaintiff's breach of contract claims are based, the court concludes that these claims fail to state a claim upon which relief can be granted. As for the first claim, the meeting notes concerning the November 2012 meeting between plaintiff and Schreiber are nothing more than a memorialization of the discussions at that meeting. Even though it listed some proposals and action points to address plaintiff's concerns, the notes are simply not reasonably susceptible to interpretation as an enforceable contract. Notably, the acknowledgement that plaintiff signed with respect to the meeting notes also merely acknowledged that she agreed with the contents of the notes, reading: "By signature below, I do hereby acknowledge and affirm that I have received and reviewed the typewritten notes from the meeting held in Laughlin Nevada, on November 30, 2012, between me, Kimberlee Schreiber, and Aaron Richards, and am in agreement as to the contents as presented." (ECF No. 1 at 21-24.) Plaintiff's conclusory characterization of the meeting notes as a "mediation agreement" (FAC ¶ 1) does not transform the document into a contract.
Plaintiff's second breach of contract claim, which is based on the IRM employee handbook, also lacks merit, because the handbook expressly and unambiguously provides, in bold print, that it does not confer contractual rights of any kind:
(ECF No. 1 at 29.) The handbook further states that "[t]he Company also reserves the right, in its sole discretion, to amend, modify, change, cancel, terminate or withdraw any or all of the policies, rules, benefits, sections and provisions of this Handbook at any time, unilaterally, with or without prior notice, in its sole discretion." (
Plaintiff's third breach of contract claim is based on the February 2013 relocation agreement, which states, in part:
(ECF No. 1 at 78.) Plaintiff alleges that this agreement created an 18-month employment term, and that defendants breached this contract by not having paid plaintiff for the full 18 months of salary. (FAC ¶¶ 7-8.) However, contrary to plaintiff's contention, the agreement on its face merely sets forth the terms for repayment of transfer/relocation costs if plaintiff voluntarily quits her job at the Jackson property within 18 months of the transfer. Indeed, plaintiff's first amended complaint acknowledged that "failure to remain at that site or maintain employment with the company would result in the Plaintiff having to repay the expenses of the relocation." (FAC ¶ 7.) No reasonable person could construe the agreement as providing a contractual right to continued employment for an 18-month term.
Additionally, plaintiff's own subjective interpretation is further undermined by her designation as an at-will employee in the IRM employee handbook:
(ECF No. 1 at 30.)
Therefore, plaintiff's breach of contract claims are subject to dismissal. Because these claims cannot be cured by the inclusion of additional facts or better pleading, they should be dismissed with prejudice.
"The elements of a California fraud claim are: (1) misrepresentation (false representation, concealment or nondisclosure); (2) knowledge of the falsity (or `scienter'); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage."
Plaintiff's first claim of fraud is premised on her allegation that IRM misleadingly represented the Needles, California job as being an employment position in Bakersfield, California. However, in the first amended complaint, plaintiff admits that she was told that the position would be in Needles before she accepted the job, and as such, she could not have suffered any resulting harm from the alleged misrepresentation. (FAC ¶ 9.)
In support of the second fraud claim, plaintiff alleges, as noted above, that although she was offered a position as site manager for a senior complex in Needles known as "Mesa Grande," plaintiff was told that she would first stay at a neighboring family complex, known as "Lilly Hill," for a two-week training period to familiarize herself with IRM procedures and to allow the vacating manager at Mesa Grande, Janet Mask, to vacate the manager's unit. (FAC ¶ 12.) However, after the two-week training period ended, plaintiff was purportedly informed that Schreiber had decided not to terminate Janet Mask, but instead to allow her to take a "forced retirement" in February 2013. As such, plaintiff was required to continue residing at Lilly Hill and begin her position as site manager at Mesa Grande alongside the allegedly unwilling and disgruntled outgoing site manager, Janet Mask. (
Plaintiff fails to articulate with the requisite particularity how these allegations plausibly amount to a fraud claim. As an initial matter, there is no indication that IRM's alleged representations regarding plaintiff's position at Mesa Grande were false representations at the time they were made. In fact, according to plaintiff's own allegations, Schreiber later simply changed her mind with respect to terminating Janet Mask, necessitating a realignment. To be sure, broken promises of future conduct may under some circumstances be actionable when the promise is made without any intention of performing it.
Plaintiff's third fraud claim vaguely alleges that Schreiber falsely represented to plaintiff that IRM properties in California held different job descriptions and duties than those of IRM properties in other parts of the country, and that she would present plaintiff with the appropriate job description for her job. According to plaintiff, Schreiber ultimately failed to provide her with the job description. This fraud claim likewise fails, because, even assuming arguendo that Schreiber's statement was false, plaintiff does not and cannot plausibly allege that she justifiably relied on that statement in taking some type of action or failing to take some type of action, resulting in cognizable damages. Although she claims that Schreiber's false statements were "made in order to mislead and justify offenses that had been made against Plaintiff and lead to continued disorder and hostility in the work place" (FAC ¶ 15), that allegation is entirely conclusory.
For the reasons discussed above, the court finds plaintiff's fraud claims to be frivolous and implausible, and therefore concludes that granting further leave to amend as to such claims would be futile. As such, the court recommends that the fraud claims be dismissed with prejudice.
Plaintiff's seven state law tort claims are vague and conclusory, and many of them do not contain any alleged facts whatsoever. Significantly, when plaintiff's conclusory and formulaic allegations are set aside, the tort claims do not allege any specific protected activity, protected class (other than potentially sex, as discussed below), or facts demonstrating public policy violations. Instead, the first amended complaint largely sets forth griping and grievances regarding various employment conditions, e.g. having to work over a holiday period, criticism from supervisors, plaintiff not being allowed to have a friend stay with her, allegedly unrealistic work demands, a change of supervisors, being shouted and sworn at by co-workers, etc. As noted above, plaintiff alleges that she suffered an emotional and psychological breakdown, stopped working around July 8, 2013, and has filed for and received temporary disability insurance benefits and worker's compensation benefits. (FAC ¶¶ 2, 5, 32;
Any emotional distress and psychological breakdown suffered by plaintiff as a result of the above-mentioned grievances in the workplace are subject to the exclusive remedy provision of California's worker's compensation law.
However, consistent with its obligation to liberally construe the pleadings of a pro se litigant, the court observes that plaintiff's first amended complaint at least broadly raised the prospect of a potential hostile workplace environment sexual harassment claim under California's Fair Employment and Housing Act, Cal. Gov't Code §§ 12900 et seq. ("FEHA"). The California courts have recognized that a claim for emotional distress arising out of sexual harassment is not barred by worker's compensation exclusivity.
In this case, plaintiff alleged that an IRM maintenance supervisor and nonsupervisory employee as to plaintiff, Mike Harding, made inappropriate comments to plaintiff, such as "maybe I should start wearing high heels so you can't look down on me," or, when he walked behind plaintiff and noted a black heart tattooed on her lower backside, saying "Oh, that's where your heart is." (FAC ¶ 24.) These isolated remarks in themselves are plainly insufficient to state a hostile work environment sexual harassment claim, because they do not constitute conduct that is sufficiently severe or pervasive to alter the conditions of plaintiff's employment and create an abusive work environment. Furthermore, the alleged comments appear to have been made more because of Mr. Harding's subjective views regarding plaintiff's personality as opposed to her sex. Nevertheless, it was theoretically plausible that plaintiff could allege additional facts to state a proper hostile work environment sexual harassment claim against defendant IRM.
At the hearing, plaintiff acknowledged that, apart from the above-mentioned statements, Mr. Harding's offenses against plaintiff consisted largely of general griping, smart remarks, and refusal to take directions from plaintiff. Plaintiff initially suggested that she thought that this conduct was gender-based, but upon further questioning as to the factual basis for that contention, plaintiff stated that it was not the focus of her complaint, that she's "got nothing," and would just let the issue go. Plaintiff also confirmed that she was not claiming that any of her bosses or supervisors at IRM sexually harassed her, or otherwise treated her differently based on her gender. Thus, in light of plaintiff's representations, the court concludes that granting further leave to amend to assert a hostile workplace environment sexual harassment claim against IRM would be futile.
The court recognizes plaintiff's assertions in the first amended complaint and at the hearing that the former site manager, Janet Marks, allegedly yelled, swore, and made hateful remarks towards plaintiff on a daily basis, causing plaintiff emotional distress. But plaintiff also conceded at oral argument that Ms. Marks's conduct was not based on plaintiff's sex or some other protected class, but instead because Ms. Marks was purportedly disgruntled at being let go and having to work with her successor. Thus, while the court is sympathetic to plaintiff's alleged mental and emotional condition, and does not wish to discount any emotional distress she may have suffered, such alleged harm is subject to the exclusive remedy provision of California's worker's compensation law, and plaintiff's allegations do not give rise to any actionable tort law claim against defendants.
For the reasons discussed above, plaintiff's first amended complaint fails to state a claim upon which relief can be granted. Additionally, after carefully considering plaintiff's written briefing, as well as her statements at oral argument, the court concludes that granting further leave to amend would be futile. Accordingly, IT IS HEREBY RECOMMENDED that:
In light of these recommendations, IT IS ALSO HEREBY ORDERED that:
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served on all parties and filed with the court within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
IT IS SO ORDERED AND RECOMMENDED.
