JOSEPH C. SPERO, United States Chief Magistrate Judge.
Plaintiff Andrew Achal, a former employee of Gate Gourmet, filed his First Amended Complaint in federal court
Achal's First Amended Complaint ("FAC" or "Complaint") alleges that several months after beginning work with Gate Gourmet, Achal experienced religious and disability discrimination, which culminated in his termination. It also alleges that Gate Gourmet failed to furnish and maintain accurate wage statements as required by California Labor Code section 226(a). The Complaint focuses on the following incidents.
First, Achal alleges that his supervisor "began to retaliate" against him in April 2014, after he returned to work from his home country of Fiji to attend a Hindu funeral and religious observance. FAC ¶ 8. The FAC recounts in particular the comments made by Achal's supervisor regarding his return from Fiji, specifically that "it's about time you returned" and that it was "ridiculous for a religious ceremony to take so long." Id. at ¶ 8. It further alleges that following Achal's return, his supervisor began subjecting him to unfavorable scheduling, unreasonable work demands, and set him up for failure on one particular project. Id. at ¶ 9.
Second, Achal claims that the reason given by Gate Gourmet for terminating him — that he fraudulently sought benefits by causing his own disability — is both false and pretextual. Id. at ¶¶ 12-13. The Complaint describes how Achal fell from a platform at work, sustaining injuries that caused him to be off work for several weeks and to require ongoing medical care. Id. at ¶ 10. According to the Complaint, Gate Gourmet completed a worker's compensation claim for Achal, who returned to work with lifting and bending restrictions, but who was otherwise capable of performing his essential job functions with reasonable accommodations for those restrictions. Id. at ¶¶ 11-12. Achal alleges that instead of making reasonable accommodations for his injury and/or engaging him in the interactive process, Gate Gourmet terminated him. Id. at ¶ 12. According to the Complaint, Gate Gourmet issued a letter on October 10, 2014, which stated that it was terminating Achal for intentionally causing his disability. Id. at ¶ 13. Achal maintains that this assertion is false, and that Gate Gourmet had no basis for making this conclusion. Id.
In response to his termination, Achal filed an administrative complaint ("DFEH Complaint") with the California Department of Fair Employment and Housing ("DFEH") on February 9, 2015.
Id. Because Achal requested an immediate right to sue letter, DFEH did not pursue an investigation into the allegations, and issued Achal a right to sue letter that same day, February 9, 2015. FAC ¶ 15; DFEH Complaint (FAC Ex. A).
Third, Achal claims that Gate Gourmet failed to maintain and failed to furnish Gate Gourmet employees, himself included, with accurate itemized wage statements. Id. at ¶ 16. The Complaint describes how on at least some of its wage statements, Gate Gourmet failed to report only the last four digits of employees' social security numbers, failed to include the inclusive dates for the period for which employees are paid, or failed to set forth the address of the corporate employer. Id. On December 31, 2014, and on January 26, 2015, Achal notified the California Labor and Workforce Development Agency ("LWDA") and Gate Gourmet of Gate Gourmet's alleged violations of the state Labor Code.
Based on these core factual allegations, Achal brings seven claims for relief. Claims One through Five allege disability discrimination, failure to accommodate, failure to engage in the interactive process, religious discrimination, and failure to prevent discrimination, under the California Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code §§ 12940(a), (m), (n), (l), (k). FAC ¶¶ 25-54. Claims Six and Seven allege failure to furnish accurate wage statements and failure to maintain accurate wage statements under the California Labor Code Private Attorney General Act ("PAGA"), which allows aggrieved employees to seek civil penalties for actions taken by employers in violation of specified provisions of the California Labor Code. FAC ¶¶ 55-64.
Achal initially filed this action in the California Superior Court for the County of San Francisco on March 9, 2015. See Notice of Removal (dkt.1). Defendant Gate Gourmet removed this action to this Court on April 6, 2015. Id. On April 13, 2015, Gate Gourmet filed an initial Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6). See First Motion to Dismiss (dkt.8). Achal filed his First
Gate Gourmet moves to dismiss Achal's FEHA claims (Claims 1-5) with prejudice on the basis of two purported deficiencies. Mot. at 1.
First, Gate Gourmet argues that Claims One through Five should be dismissed because Achal fails to properly plead administrative exhaustion under FEHA. Mot. at 2. Gate Gourmet does not dispute that Achal filed an administrative complaint with the DFEH, nor does it dispute that Achal obtained a right to sue letter from DFEH. Rather, Gate Gourmet argues that Achal's DFEH Complaint is insufficiently specific in its allegations, and therefore fails to satisfy the exhaustion requirement. Mot. at 5. Because the timely filing of a DFEH complaint is a jurisdictional prerequisite to the bringing of a civil action for damages under FEHA, Gate Gourmet maintains that this Court should dismiss these claims. Id. In response, Achal argues that FEHA does not require "literary exactitude" in the allegations set forth in administrative complaints, and that Gate Gourmet's position relies on a misreading of the case law, FEHA, and its legislative intent. Opp'n at 4-6 (citing Soldinger v. Nw. Airlines, 51 Cal.App.4th 345, 381, 58 Cal.Rptr.2d 747 (1996)). Specifically, because courts are to liberally construe DFEH administrative complaints to ensure vindication of employees' FEHA rights, Achal maintains that the information contained in the DFEH Complaint suffices to satisfy the exhaustion requirement. Id. (citing 2 Cal.Code Regs. § 10003).
Second, Gate Gourmet argues that Claims One through Five should be dismissed because Achal has failed to allege sufficient facts in support of his FEHA claims to satisfy the pleading standard of Federal Rule of Civil Procedure 8(a). Mot. at 2 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In particular, Gate Gourmet contends that Achal fails to allege sufficient facts supporting the elements of his claims. Id. Achal asserts that the allegations pleaded in his FAC satisfy the liberal notice pleading requirements of Rule 8(a) and therefore should not be dismissed. Opp'n at 6-13.
Gate Gourmet moves to dismiss Achal's PAGA claims (Claims 6-7) with prejudice on the basis of two purported deficiencies. Mot. at 1.
First, Gate Gourmet argues that Claims Six through Seven should be dismissed because Achal has failed to plead them in compliance with Federal Rule of Civil Procedure 23, which governs class actions in federal courts. Id. at 17-21. Gate Gourmet argues that Achal's representative PAGA claims must be pleaded as Rule 23 class actions in federal court in order to satisfy Article III standing and the prudential standing limit against third party standing, as well as the Erie doctrine. Id. Achal disagrees that constitutional and prudential standing limits and the Erie doctrine preclude the Court from hearing his PAGA representative claims, because PAGA is primarily a law enforcement action and because PAGA creates substantive, and not merely procedural, rights. Opp'n at 15-18.
A complaint may be dismissed for failure to state a claim on which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(b)(6). "The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint." N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.1983). Generally, a plaintiff's burden at the pleading stage is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that "[a] pleading which sets forth a claim for relief... shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a).
In ruling on a motion to dismiss under Rule 12(b)(6), the court analyzes the complaint and takes "all allegations of material fact as true and construe[s] them in the light most favorable to the non-moving party." Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). Dismissal may be based on a lack of a cognizable legal theory or on the absence of facts that would support a valid theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988). A plaintiff need not plead a prima facie case in order to survive a motion to dismiss pursuant to Rule 12(b)(6). Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514-15, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); see also Starr v. Baca, 652 F.3d 1202 (9th Cir.2011) (reaffirming the holding of Swierkiewicz in light of Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) and Twombly). A complaint must however "contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562, 127 S.Ct. 1955 (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.1984)). "A pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). "Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Rather, the claim must be "`plausible on its face,'" meaning that the plaintiff must plead sufficient factual allegations to "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
Under California law "an employee must exhaust the ... administrative remedy" provided by FEHA, by filing an administrative complaint with the DFEH and obtaining a right to sue letter from the DFEH. Cal. Gov't Code §§ 12960, 12965; Romano v. Rockwell Int'l, 14 Cal.4th 479, 492, 59 Cal.Rptr.2d 20, 926 P.2d 1114 (1996). Once the DFEH has issued a right to sue letter (whether or not the agency investigated the charge), a claimant
In determining whether the exhaustion requirement has been met, California law dictates that FEHA provisions are to be liberally construed to accomplish its purposes, including the resolution of potentially meritorious claims on the merits. Richards v. CH2M Hill, Inc., 26 Cal.4th 798, 819, 111 Cal.Rptr.2d 87, 29 P.3d 175 (2001); 2 Cal.Code Regs. § 10003 ("The department shall liberally construe all complaints to effectuate the purpose of the laws the department enforces to safeguard the civil right of all persons to seek, obtain and hold employment without discrimination."); see also Stearns v. Fair Emp't Practice Comm'n, 6 Cal.3d 205, 214, 98 Cal.Rptr. 467, 490 P.2d 1155 (1971) (holding that DFEH charges should be construed liberally for same reasons that federal EEOC complaints should be construed liberally). California courts have held that when submitting allegations to the DFEH, "claimants are not held to specify the charges with literary exactitude." Soldinger, 51 Cal.App.4th at 381, 58 Cal.Rptr.2d 747; See Baker v. Children's Hosp. Med. Ctr., 209 Cal.App.3d 1057, 1064, 257 Cal.Rptr. 768 (1989). California courts may adjudicate claims not specifically made in DFEH complaints so long as the new claims are "like or reasonably related" to the allegations of the original administrative charge. Okoli v. Lockheed Technical Operations Co., 36 Cal.App.4th 1607, 1614, 43 Cal.Rptr.2d 57 (1995); Sandhu v. Lockheed Missiles & Space Co., 26 Cal.App.4th 846, 859, 31 Cal.Rptr.2d 617 (1994); Cal.Code Regs. § 10003 ("Where the facts alleged in a discrimination complaint support ... any other claim over which the department has jurisdiction, the department shall construe the complaint to include those claims within the scope of a discrimination claim, regardless of whether such other claims are expressly stated."). The Ninth Circuit has held that to do otherwise, requiring employees to return to the DFEH to amend the administrative complaint, would impose a "needless procedural barrier" to FEHA's enforcement. Oubichon v. N. Am. Rockwell Corp., 482 F.2d 569, 571 (9th Cir.1973).
In reviewing the exhaustion question in this case, the Court is required by Ninth Circuit law to construe Achal's DFEH complaint liberally. In light of this directive, the Court finds that Achal has adequately pleaded administrative exhaustion under FEHA, and declines to dismiss Claims One through Five on the basis of failure to exhaust administrative remedies under FEHA.
Achal attaches both the DFEH Complaint and the right to sue letter to the FAC, both of which become part of the pleading. FAC ¶ 15; Fed.R.Civ.P. 10(c). FEHA requires very little in the way of information that must be included in a DFEH complaint in order to obtain a right to sue letter. With respect to the charges alleged, California law only requires that a DFEH complaint include the following: (1) a description of the alleged act or acts of discrimination, harassment, or retaliation; (2) the date or dates of each alleged act of discrimination, harassment, or retaliation; and (3) each protected basis upon which the alleged discrimination or harassment was based.
Gate Gourmet contends that Achal has failed to exhaust his administrative remedies under FEHA because his DFEH Complaint is vague and conclusory, and fails to allege specific factual details to support his allegations. Mot. at 5-6. Gate Gourmet cites the language of Cal. Gov't Code § 12960(b), which states that "[a]ny person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, ... that shall set forth the particulars thereof and contain other information as may be required by the department." Mot. at 5 (quoting Cal. Gov't Code § 12960(b)) (emphasis added). Gate Gourmet asserts that "particulars" for the purpose of FEHA should be construed to impose a level of factual specificity akin to the Twombly and Iqbal pleading standard. Mot. at 5-6.
Gate Gourmet cites two cases in support of this interpretation, Martin v. Lockheed Missiles & Space Co., 29 Cal.App.4th 1718, 35 Cal.Rptr.2d 181 (1994), and Vizcaino v. Areas USA, Inc., No. CV 15-417-JFW (PJWx), ECF Dkt. No. 30 (C.D.Cal. Apr. 17, 2015). Mot. at 5-6. Both are inapplicable to the present case for similar reasons. Gate Gourmet cites Martin for its "holding that before a plaintiff can sue on an allegedly unlawful act, the plaintiff `must [have] specif[ied] that act in the administrative complaint.'" Martin, 29 Cal.App.4th at 1724, 35 Cal.Rptr.2d 181. However, Martin does not stand for the proposition which Gate Gourmet contends, that acts must be specified with particularity. In Martin, the plaintiff's claims were dismissed not because she failed to allege the dismissed claims in her DFEH complaint in sufficient detail, but rather because she failed to allege them in the DFEH complaint at all. Martin, 29 Cal. App.4th at 1725-27, 35 Cal.Rptr.2d 181. The plaintiff in Martin had filed separate administrative complaints, one with the DFEH for FEHA violations, and another with the EEOC for violations of Title VII. Id. at 1726, 35 Cal.Rptr.2d 181. When the plaintiff sought judicial relief for FEHA claims on allegations that she had made only in the EEOC complaint, but not in the DFEH complaint, the court dismissed those claims for failure to administratively exhaust her remedies under FEHA. Id.
Gate Gourmet also cites Vizcaino to argue that conclusory language will not suffice in DFEH complaints. Indeed, Gate Gourmet appears to have derived the bulk of its administrative exhaustion argument directly from that order. However, like in Martin, the primary issue in Vizcaino was the disconnect between the claims in the DFEH complaint and those alleged in the judicial complaint. Vizcaino, ECF Dkt. No. 30, at 4 ("Plaintiff's DFEH complaint contains only vague and conclusory allegations of sexual harassment, a claim that is not even alleged in the FAC."). To the extent that the Vizcaino court may have also applied an Iqbal-like pleading standard to judge the sufficiency of a DFEH complaint, the Court respectfully disagrees.
The Court declines to impose a high degree of specificity into DFEH complaints for purposes of administrative exhaustion, as Gate Gourmet suggests, because to do so would defy the well-established directive to interpret DFEH complaints liberally. The purpose of filing a charge with an administrative agency prior to filing a civil lawsuit is merely to enable that agency to investigate the charges and attempt to obtain voluntary compliance with the law. Soldinger, 51 Cal.App.4th at 381, 58 Cal.Rptr.2d 747. The FEHA administrative exhaustion requirement is not to be construed as an impediment to judicial vindication of employees' right to work free from discrimination. Oubichon, 482 F.2d at 571; Richards, 26 Cal.4th at 821, 111 Cal.Rptr.2d 87, 29 P.3d 175. Although Achal's DFEH complaint was sparsely pleaded, given the legislative directive to liberally construe DFEH complaints, the Court finds that it was sufficient to satisfy section 12960(b).
The Court declines to dismiss Achal's FEHA claims for failure to adequately plead exhaustion of remedies.
A plaintiff need not plead a prima facie case in order to survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Swierkiewicz, 534 U.S. at 514-15, 122 S.Ct. 992; see also Starr, 652 F.3d at 1215-16 (reaffirming the holding of Swierkiewicz in light of Iqbal and Twombly); Sheppard v. David Evans & Assocs., 694 F.3d 1045, 1050 n.2 (9th Cir.2012) (same). The Ninth Circuit has interpreted Iqbal and Twombly to hold that (1) to be entitled to the presumption of truth, allegations in a complaint may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively; and (2) the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. Starr, 652 F.3d at 1216. While a plaintiff need not plead facts constituting all elements of a prima facie employment discrimination case in order to survive a Rule 12(b)(6) motion to dismiss, courts nevertheless look
FEHA provides, in pertinent part, that it is an unlawful employment practice "[f]or an employer, because of the... physical disability ... of any person, to refuse to hire or employ the person or... discharge the person from employment... or to discriminate against the person in compensation or in terms, conditions or privileges of employment." Cal. Gov't Code § 12940(a). A prima facie disability discrimination case requires that Achal show that he (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations; and (3) was subjected to an adverse employment action because of the disability or perceived disability. Wills v. Super. Ct., 195 Cal.App.4th 143, 159-60, 125 Cal.Rptr.3d 1 (2011). FEHA defines "physical disability" as a condition that both affects one or more bodily system and limits a major life activity, including working.
Achal specifically alleges that he fell from a platform at work, sustaining orthopedic injuries. FAC ¶ 10. Achal then alleges that Gate Gourmet filed a workers' compensation form in response to his injury. Id. at ¶ 11. While not explicit, the Court can infer that the disability for which Achal filed a workers' compensation claim is the collection of physical limitations
Achal's FAC sufficiently pleads specific, non-conclusory facts that place Gate Gourmet on notice of the disability discrimination claim against it and that, taken as true, plausibly suggest an entitlement to relief. Although Achal's FAC is thin on this claim, it does make factual allegations that go beyond reciting the elements of a claim of disability discrimination. These allegations are neither "bald" nor "conclusory," and hence are entitled to the presumption of truth. Starr, 652 F.3d at 1216 (quoting Iqbal, 556 U.S. at 681, 129 S.Ct. 1937). The allegations support a plausible inference that Achal had a disability, could nevertheless perform the essential duties of his position, and suffered an adverse employment action (termination) on the basis of his disability. Although Achal's own allegations reveal that Gate Gourmet offered a non-discriminatory reason for Achal's termination — specifically, that Gate Gourmet believed Achal was fraudulently seeking benefits — Achal alleges that Gate Gourmet conducted no investigation that would serve as a basis for making this accusation. FAC ¶ 13. This gives rise to a plausible inference, at least for purposes of this motion, that the proffered reason was pretextual, and that his disability was at least a substantial motivating factor in his termination. See Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112-13 (9th Cir.2011) ("A plaintiff may demonstrate pretext ... by showing that the employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable."). For the reasons set forth above, the Court finds that Achal's claim for disability discrimination adequately states a claim.
FEHA makes it unlawful "for an employer ... to fail to make reasonable accommodation for the known physical ... disability of an applicant or employee." Cal. Gov't Code § 12940(m). Under FEHA, an employer's failure to reasonably accommodate a disabled employee is a violation of the statute in and of itself. The elements of a prima facie claim for failure to make reasonable accommodation claim are: (1) the plaintiff has a disability covered by FEHA; (2) the plaintiff is qualified to perform the essential functions of the position; and (3) the employer failed to reasonably accommodate the plaintiff's disability. Scotch v. Art Inst. of Cal. — Orange Cnty., Inc., 173 Cal.App.4th 986, 1010, 93 Cal.Rptr.3d 338 (2009). "Reasonable accommodation" means a "modification or adjustment to the workplace that enables a disabled employee to perform the essential functions of the job held or desired." Taylor v. Trees, Inc., 58 F.Supp.3d 1092, 1111 (E.D.Cal.2014); see
To face liability under section 12940(m), an employer must have been aware of the employee's disability. King v. United Parcel Serv., Inc., 152 Cal.App.4th 426, 443, 60 Cal.Rptr.3d 359 (2007) ("`[The] employee can't expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge.'" (quoting Prilliman v. United Air Lines, Inc., 53 Cal.App.4th 935, 954, 62 Cal.Rptr.2d 142 (1997))). Ordinarily, an employee is responsible for requesting accommodation for his or her disability, unless the employer itself recognizes that an employee has a need for such accommodation. Brown v. Lucky Stores, 246 F.3d 1182, 1188 (9th Cir.2001). Once aware, the employer has an affirmative duty to reasonably accommodate, which is not extinguished by one effort. Swanson v. Morongo Unified Sch. Dist., 232 Cal.App.4th 954, 969, 181 Cal.Rptr.3d 553 (2014). It is the employee's responsibility to understand his own condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee. Id. An employee seeking reasonable accommodation cannot, however, make an employer provide one specific accommodation if another is provided instead, so long as that accommodation is reasonable and effective. Hanson, 74 Cal.App.4th at 228, 87 Cal.Rptr.2d 487. Nor are employees entitled to the "best" accommodation. Id.
Achal has alleged sufficient facts to support his claim that Gate Gourmet failed to make reasonable accommodations for his disability. Here, while Achal's claim is thin, Achal does allege that Gate Gourmet was aware of his disability, and that he returned to work with lifting and bending restrictions. FAC ¶¶ 11-12. As described above in the context of his disability discrimination claim, Achal has alleged sufficient facts to plausibly suggest, at least for the purposes of this motion, that Gate Gourmet terminated him at least in part because of his disability. Regardless of whether Gate Gourmet accommodated Achal's disability at any one point, Gate Gourmet had a continuous duty to make these accommodations so long as Achal's disability required them. Swanson, 232 Cal.App.4th at 969, 181 Cal.Rptr.3d 553. Achal has alleged facts suggesting that instead of upholding its duty to make reasonable accommodations for his disability, Gate Gourmet "[sought] a pretextual reason for terminating [him]." FAC ¶ 12. The Court is persuaded that Achal's second claim, failure to make reasonable accommodations for his disability, meets the minimum pleading requirements set forth by Iqbal and Twombly. The Court therefore denies Gate Gourmet's motion to dismiss with regard to Claim Two of Achal's FAC.
Under FEHA, an employer's failure "to engage in a timely, good faith, interactive process with the employee ... to determine effective reasonable accommodations" is a violation of the statute
The Court finds that Claim Three of Achal's FAC pleads sufficient non-conclusory facts to plausibly state a claim for relief. Achal alleges that Gate Gourmet failed to engage him in "timely, good faith, or interactive discussions." FAC ¶ 39. While also thin on this claim, Achal has sufficiently alleged that he had a disability of which Gate Gourmet was aware. He has also sufficiently alleged facts suggesting that Gate Gourmet's proffered reason for his termination was pretextual, and that his disability was actually a substantial motivating factor in his termination. As discussed above in the context of Achal's failure to accommodate claim, Achal has sufficiently alleged a need for reasonable accommodations for his disability, which would give rise to Gate Gourmet's obligation to engage him in a good faith interactive process. Achal alleges that instead of doing so, Gate Gourmet "[sought] a pretextual basis to terminate him," and ultimately did terminate him. Id. at ¶ 12-13. This suffices at the pleadings stage to give Gate Gourmet fair notice of the claim against it and to allow Gate Gourmet to prepare an effective defense. The Court therefore denies Gate Gourmet's motion to dismiss with regard to Claim Three of Achal's FAC.
FEHA provides, in pertinent part, that it is an unlawful employment practice "[f]or an employer, because of the... religious creed ... of any person, to refuse to hire or employ the person or ... discharge the person from employment... or to discriminate against the person in compensation or in terms, conditions or privileges of employment." Cal. Gov't Code § 12940(a). To establish a prima facie discrimination claim under FEHA, a plaintiff must show that (1) he is a member of a protected class; (2) he is qualified for his position; (3) he experienced an adverse employment action; and (4) other similarly situated employees outside of the protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. Slatkin v.
As to his religious discrimination claim, Achal alleges that he is a member of the Hindu faith. FAC ¶ 7. Achal alleges that he requested time off from work to return to Fiji for a Hindu funeral and religious observance. Id. Achal further alleges that Gate Gourmet granted this time off, and that Achal was not at work from April 26, 2014 through May 16, 2014. Id. Upon his return, Achal alleges that his supervisor, Adolfo Clavo, made disparaging comments regarding his absence, including his opinion that it was "ridiculous for a religious ceremony to take so long." Id. at ¶ 8. From the above allegations, the Court can infer that Gate Gourmet was aware of Achal's Hindu faith. Achal alleges that, following these comments, Clavo gave him unfavorable scheduling and made unreasonable work demands. Id. at ¶ 9. Achal specifically alleges that Clavo set him up for failure on a particular assignment, resulting in a negative write-up. Id. While Achal does not explicitly set forth his qualifications for his position with Gate Gourmet, he does allege that Gate Gourmet conceded that Achal performed "in good standing" and that there was "never any question" as to his job performance during his employment with Gate Gourmet. Id. at ¶ 12. The Court can infer from these allegations that Achal was qualified for the position. Achal describes the circumstances surrounding his termination, including his allegation that despite admitting that it had not pursued independent investigation into the matter, Gate Gourmet terminated him for purportedly fraudulently seeking benefits. Id. at ¶¶ 13-14.
Claim Four of Achal's FAC regarding section 12940(a) sufficiently pleads specific, non-conclusory facts that place Gate Gourmet on notice of the religious discrimination claim against it and that, taken as true, plausibly suggest an entitlement to relief. Although Achal's FAC is also relatively thin on this claim, it does make factual allegations that go beyond reciting the elements of a religious discrimination claim. The allegations set forth in Claim Four of Achal's FAC as regards section 12940(a) are neither "bald" nor "conclusory," and hence are entitled to the presumption of truth. Starr, 652 F.3d at 1216 (quoting Iqbal, 556 U.S. at 681, 129 S.Ct. 1937). The allegations support a plausible inference that Achal is a member of a protected class, that he was qualified for his position, that he suffered adverse employment actions (at the very least, a negative
FEHA also makes it an unlawful employment practice for an employer "to discharge a person from employment... or to discriminate against a person ... because of a conflict between the person's religious belief and observance and any employment requirement, unless the employer... demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance ... but is unable to reasonably accommodate the religious belief or observance without undue hardship." Cal. Gov't Code § 12940(l). While not required to plead all the elements of a prima facie case at the pleading stage, a successful section 12940(l) claim requires that a plaintiff show (1) the employee sincerely held a religious belief; (2) the employer was aware of that belief; and (3) the belief conflicted with an employment requirement. Friedman v. S. Cal. Permanente Med. Grp., 102 Cal.App.4th 39, 45, 125 Cal.Rptr.2d 663 (2002). A
While FEHA does not explicitly define "conflict" as it regards an employment requirement, applicable California regulations and both federal and state case law establish that an employee's attendance at a religious observance that requires him to be absent from work during normally scheduled hours or that requires him to work a different schedule altogether qualifies as a "conflict" for purposes of FEHA religious discrimination claims. See Cal. Fair Emp't & Hous. Comm'n v. Gemini Aluminum Corp., 122 Cal.App.4th 1004, 1016, 18 Cal.Rptr.3d 906 (2004) (employment conflict existed sufficient to support section 12940(l) claim
Achal has alleged sufficient facts to state a section 12940(l) religious belief or observance discrimination claim. Achal's allegations made with regards to his section 12940(l) claim support a plausible inference that Gate Gourmet discharged him at least partially on the basis of a conflict between his religious belief or observance and his employment duties. Specifically, Achal pleaded that he is a member of the Hindu faith, and that he took time off from work to attend a Hindu funeral and Hindu religious observance.
Gate Gourmet argues that because Achal's time off request was granted, "Plaintiff's time away could not conflict with any requirement that Plaintiff be at work." Reply at 7. This argument, however, speaks only to the issue of whether the employer made reasonable accommodations of that religious belief or observance. That Gate Gourmet may have provided reasonable accommodation for Achal's religious needs does not preclude the possibility that Gate Gourmet later discriminated against Achal on the basis of the conflict. Although neither party cited authority addressing this issue directly, it would significantly undermine the purpose of the statute if merely accommodating a conflict in the first instance could serve to insulate an employer from liability for terminating an employee based on the conflict. To use a hypothetical example based loosely on the Cook case discussed briefly above, section 12940(l) would be ineffective if an employer could comply by excusing an employee from work on his Saturday sabbath but greeting him with a termination notice when he returned to work Sunday morning. Accordingly, all that is required at
FEHA makes it unlawful "[f]or an employer ... to fail to take all reasonable steps necessary to prevent discrimination and harassment ... from occurring." Cal. Gov't Code § 12940(k). A plaintiff seeking to recover on a failure to prevent discrimination claim under FEHA must show that (1) he was subjected to discrimination; (2) defendant failed to take all reasonable steps to prevent discrimination; and (3) this failure caused plaintiff to suffer injury, damage, loss or harm. Lelaind v. City & Cnty. of San Francisco, 576 F.Supp.2d 1079, 1103 (N.D.Cal.2008). The employer's duty to prevent harassment and discrimination is affirmative and mandatory. Northrop Grumman Corp. v. Workers' Comp. Appeals Bd., 103 Cal.App.4th 1021, 1035, 127 Cal.Rptr.2d 285 (2002). No liability can arise for failing to take necessary steps to prevent discrimination, however, except where discriminatory conduct actually took place and was not prevented. Trujillo v. N. Cnty. Transit Dist., 63 Cal.App.4th 280, 289, 73 Cal.Rptr.2d 596 (1998) ("[T]he statutory language [does not] support[] recovery on such a private right of action where there has been a specific factual finding that no such discrimination or harassment actually occurred."). Some examples of "reasonable steps" available to remedy harassment, discrimination, or retaliation under FEHA include "affirmatively raising the subject of harassment, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under California law, and developing methods to sensitize all concerned." 2 Cal.Code Regs. § 11019(b). Other reasonable steps an employer might take include the establishment and promulgation of antidiscrimination policies and the implementation of effective procedures to handle discrimination-related complaints and grievances. Gemini Aluminum Corp., 122 Cal.App.4th at 1025, 18 Cal.Rptr.3d 906. The causation element of a section 12940(k) claim requires an employee show that the discriminatory conduct was a "substantial factor" in causing his harm. CACI No. 2527; Alamo v. Practice Mgmt. Info. Corp., 219 Cal.App.4th 466, 480, 161 Cal.Rptr.3d 758 (2013). Termination from employment is an injury sufficient to support recovery under a section 12940(k) failure to prevent discrimination claim. See Gemini Aluminum Corp., 122 Cal.App.4th at 1025, 18 Cal.Rptr.3d 906.
The Court finds that Gate Gourmet is not entitled to a dismissal with respect to Achal's claim for failure to prevent discrimination. As Achal correctly points out in his Opposition, a failure to prevent discrimination claim is "essentially derivative of a discrimination claim." Opp'n at 13 (citing Trujillo, 63 Cal. App.4th at 289, 73 Cal.Rptr.2d 596). As discussed above, Achal pleaded sufficient facts to support his claims of both disability and religious discrimination. Achal has therefore adequately pleaded the requisite foundation of discrimination required for a section 12940(k) claim. Further, Achal pleaded several facts, that taken as true, support a plausible inference
The California legislature enacted PAGA to allow aggrieved employees, acting as private attorneys general, to recover civil penalties for Labor Code violations when the labor law enforcement agencies could not keep pace with the growth of the labor market. Halliwell v. A-T Solutions, 983 F.Supp.2d 1179, 1182 (S.D.Cal.2013). The statute was not enacted as a means of recovering damages or restitution, but rather as a means of "deputizing" citizens as private attorneys general to enforce the Labor Code. Reyes v. Macy's, Inc., 202 Cal.App.4th 1119, 1123, 135 Cal.Rptr.3d 832 (2011). A PAGA plaintiff, therefore, may not bring a claim on his own behalf, but must bring it as a representative action including other current or former employees of the alleged violator. Id.
PAGA defines "aggrieved employee" as "any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed." Cal. Lab.Code § 2699(c). Prior to bringing a civil action, an aggrieved employee is required to fulfill the administrative exhaustion prerequisites set forth by Labor Code section 2699.3.
Gate Gourmet argues that Achal's PAGA claims are barred by his failure to plead satisfaction of the class certification
Although the Ninth Circuit has not yet decided whether class certification under Rule 23 is required to bring a representative PAGA claim in federal court, the majority of courts in this district that have addressed the issue have held that "representative PAGA claims need not be certified under Rule 23 to proceed" in light of the purpose of a PAGA representative action, which is "to vindicate the public through the imposition of civil penalties as opposed to conferring a private benefit upon the plaintiff and the represented employees." Gallardo v. AT & T Mobility, LLC, 937 F.Supp.2d 1128, 1137 (N.D.Cal. 2013) (citing cases) (internal quotation marks omitted). Speaking on the issue of whether PAGA actions are sufficiently similar to Rule 23 to trigger Class Action Fairness Act ("CAFA") jurisdiction, the Ninth Circuit declared that "Rule 23 and PAGA are more dissimilar than alike." Baumann v. Chase Inv. Servs. Corp., 747 F.3d 1117, 1124 (9th Cir.2014). Before and after Baumann, courts in this district have routinely held that "PAGA actions, though representative, need not be brought as class actions under Rule 23." See Willner v. Manpower Inc., 35 F.Supp.3d 1116, 1135 (N.D.Cal.2014) ("[T]he vast majority of courts in this district... have held that representative PAGA claims need not be certified under Rule 23 to proceed....") (internal citations and quotation marks omitted); Villalpando v. Exel Direct Inc., No. 12-CV-04137 JCS, 2014 WL 1338297, at *20-21 (N.D.Cal. Mar. 28, 2014); Ortiz v. CVS Caremark Corp., No. C-12-05859 EDL, 2014 WL 1117614, at *2 (N.D. Cal. Mar. 19, 2014); Gallardo v. AT & T Mobility, LLC, 937 F.Supp.2d 1128, 1138 (N.D.Cal. 2013); Moua v. Int'l Bus. Machines Corp., No. 5:10-CV-01070 EJD, 2012 WL 370570, at *3 (N.D.Cal. Jan. 31, 2012). Likewise, the California Supreme Court has conclusively held that PAGA claims do not need to satisfy class action requirements to proceed in state court. See Arias v.Super. Ct., 46 Cal.4th 969, 981-86, 95 Cal.Rptr.3d 588, 209 P.3d 923 (2009). The Arias court recognized that state class-certification requirements did not apply to PAGA claims because, unlike a class action, which seeks recovery on behalf of individual employees, an employee suing under PAGA steps into the shoes of California's labor law enforcement agencies. Id. at 986, 95 Cal.Rptr.3d 588, 209 P.3d 923.
Gate Gourmet argues that this Court should adopt the minority opinion — that because PAGA is a procedural statute allowing for recovery to unnamed non-parties, an individual plaintiff lacks standing to recover on behalf of these third parties absent class certification. See, e.g., Taylor v. W. Marine Prods., Inc., No. C 13-04916 WHA, 2014 WL 1248162, at *2 (N.D. Cal. Mar. 26, 2014) (applying the more stringent Rule 23 standard to representative PAGA claims, "because Article III `require[s] a plaintiff to show, inter alia, that he has actually been injured by the defendant's challenged conduct.'"); Halliwell, 983 F.Supp.2d at 1184; Fields v. OSP, Inc., No. CV 12-1238 CAS, 2012 WL 2049528, at *5 (C.D. Cal. June 4, 2012); Ivey v. Apogen Techs., Inc., No. 11CV366 DMS NLS, 2011 WL 3515936, at *3 (S.D.Cal. Aug. 8, 2011); Thompson v. APM Terminals Pac. Ltd., No. C 10-00677 JSW, 2010 WL 6309364, at *2 (N.D.Cal. Aug. 26, 2010) ("To the extent Plaintiff here seeks to bring a representative PAGA action on behalf of other non-party, unnamed aggrieved employees in federal court, such a claim must meet the requirements of Rule 23."); Adams v. Luxottica U.S. Holdings Corp., No. SA CV
These courts base their decisions on the Article III standing requirement that a plaintiff show that he has actually been injured by the defendant's challenged conduct, Taylor, 2014 WL 1248162, at *2, and the federal prudential standing limit against third party standing, which requires a plaintiff assert his own legal rights and interests, and prohibits him from raising the rights of parties not before the court. Ivey, 2011 WL 3515936, at *3. Accordingly, Gate Gourmet argues that Achal's PAGA claims must satisfy Rule 23 because the represented unnamed aggrieved employees' "interests are plainly represented, and ... will gain or lose rights depending on how the private action is adjudicated." Mot. at 20. This position relies on the assumption that "PAGA claims are representative actions brought on behalf of other aggrieved employees," rather than a law enforcement action representing the interest of the state. McKenzie v. Fed. Express Corp., 765 F.Supp.2d 1222, 1234 (2011) (quoting Mendez v. Tween Brands, Inc., No. 2:10-cv-00072-MCE-DAD, 2010 WL 2650571, at *4 (E.D.Cal. July 1, 2010)). The Court respectfully disagrees, however, with the minority of courts who take this view.
First, the state supreme court has recognized that PAGA representative claims are "a type of qui tam action." Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal.4th 348, 382, 173 Cal.Rptr.3d 289, 327 P.3d 129 (2014). It is well-established that citizen-relators bringing qui tam suits on behalf of the government have Article III standing. Vt. Agency of Natural Res. v. United States ex. rel. Stevens, 529 U.S. 765, 777-78, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) ("We think this history well nigh conclusive ... it leaves no room for doubt that a qui tam relator under the FCA has Article III standing."). The traditional requirements for enforcement by a citizen in a qui tam suit are (1) that the statute exacts a penalty; (2) that part of the penalty be paid to the informer; and (3) that, in some way, the informer be authorized to bring suit to recover the penalty. Sanders v. Pac. Gas & Elec. Co., 53 Cal.App.3d 661, 671, 126 Cal.Rptr. 415 (1975). PAGA conforms to the qui tam requirements, except that a portion of the penalty goes not only to the citizen bringing the suit, but also to all employees aggrieved by the Labor Code violation. Iskanian, 59 Cal.4th at 382, 173 Cal.Rptr.3d 289, 327 P.3d 129. The purpose of PAGA is not to recover damages or restitution, but to create a means of "deputizing" citizens as private attorneys general to enforce the Labor Code. Reyes, 202 Cal.App.4th at 1123, 135 Cal.Rptr.3d 832; Amalgamated Transit Union, Local 1756, AFL-CIO v.Super. Ct., 46 Cal.4th 993, 1003, 95 Cal.Rptr.3d 605, 209 P.3d 937 (2009) ("In bringing an action under PAGA, the aggrieved employee acts as the proxy or agent of state labor law enforcement agencies, representing the same legal right and interest as those agencies, in a proceeding designed to protect the public, not to benefit private parties"). PAGA plaintiffs do not assert the rights of third party employees, but instead represent the interests of the state labor law enforcement agency. McKenzie, 765 F.Supp.2d at 1234. The state labor law agency on whose behalf the representative plaintiff sues is therefore "always the real party in interest in the suit." Iskanian, 59 Cal.4th at 382, 173 Cal.Rptr.3d 289, 327 P.3d 129.
Second, the rights of the non-party aggrieved employees are not estopped
Gate Gourmet cites the Ninth Circuit's decision in Urbino v. Orkin Services of California, 726 F.3d 1118 (9th Cir.2013), to argue that PAGA claims are not law enforcement actions, but rather claims held by individuals. Urbino, 726 F.3d at 1122; Mot. at 18. Gate Gourmet mischaracterizes, however, the applicability of Urbino to the case at bar. Particularly, Gate Gourmet's assertion that Urbino "confirms that [representative PAGA] claims must be brought pursuant to Rule 23" goes well beyond the holding of that case. Mot. at 18. In Urbino, the Ninth Circuit considered the question of whether civil penalties sought to be recovered by an aggrieved employee under PAGA could be aggregated to meet the amount in controversy requirement for federal diversity jurisdiction. Urbino, 726 F.3d at 1122. The Ninth Circuit answered in the negative; that a representative plaintiff bringing a PAGA claim may not aggregate the individual wage and hour claims of aggrieved employees since those claims are held individually. Id.
Urbino does not stand for a requirement that PAGA claims heard in federal court be brought pursuant to Rule 23. Contrary to Gate Gourmet's arguments, that opinion did not reach a definitive conclusion on the nature of PAGA claims. Instead, it considered the possibility that the state is the
Gate Gourmet also argues that because PAGA is a procedural statute, the Erie doctrine requires that Rule 23 govern the adjudication of representative claims in federal court. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-79, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (establishing that federal courts are to apply state substantive law and federal procedural law to diversity cases); Mot. at 21. Most of the courts holding that PAGA claims must satisfy Rule 23 rely on the preliminary determination that PAGA is a procedural statute rather than one creating substantive rights. E.g., Ivey, 2011 WL 3515936, at *8-9; Thompson, 2010 WL 6309364, at *2-3; Adams, 2009 WL 7401970, at *6. Under a procedural construction of PAGA, it follows that "`a plaintiff whose cause of action is perfectly viable in state court under state law may nonetheless be foreclosed from litigating the same cause of action in federal court, if he cannot' meet federal procedural and jurisdictional requirements," since federal courts must apply federal procedural rules in diversity cases. Thompson, 2010 WL 6309364, at *2 (quoting Lee v. Am. Nat'l Ins. Co., 260 F.3d 997, 1001 (9th Cir.2001).
Gate Gourmet relies on Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court, 46 Cal.4th 993, 95 Cal.Rptr.3d 605, 209 P.3d 937 (2009), to argue that PAGA is a procedural statute and does not create substantive rights. Mot. at 21. However, Amalgamated Transit decided only whether PAGA is "substantive" in the sense that it creates an individually assignable property interest. Amalgamated Transit, 46 Cal.4th at 1003, 95 Cal.Rptr.3d 605, 209 P.3d 937. Because the PAGA right of action was created to "protect the public," the California Supreme Court declined to recognize that PAGA created an alienable property right. Id.
That PAGA is not "substantive" in that sense, however, does not mean the label "substantive" is inapplicable for purposes of other legal doctrines. See Cunningham v. Leslie's Poolmart, Inc., No. CV 13-2122 CAS, 2013 WL 3233211, at *6 (C.D. Cal. June 25, 2013). Analogizing to qui tam actions, the court in Cunningham recognized that both PAGA and qui tam actions provide a procedural mechanism that has been "characterized as a substantive right to pursue a claim for relief." Id. at *7 ("Since a plaintiff's right under PAGA to pursue a bounty through a representative action is closely analogous to a qui tarn relator's right ... an aggrieved employee's rights under PAGA should also be characterized as substantive.") (citing Hughes Aircraft Co. v. U.S. ex rel. Schumer, 520 U.S. 939, 948, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997)). A number of other federal courts have held that PAGA's provisions creating representative claims for civil penalties are substantive under Erie and therefore must be applied in federal court, unlike mere procedural state rules. Moua, 2012 WL 370570, at *3; Willner v. Manpower Inc., No. C 11-02846 JSW, 2012 WL 1570789, at *7-9 (N.D.Cal. May
For the reasons set forth above, the Court holds that Achal does not need to plead the class certification requirements of Rule 23 in order to proceed on his representative PAGA claims. The Court will follow the view of the majority of courts in this district in holding that because PAGA claims are not class actions, and because these claims are law enforcement actions for the public interest, there are no Article III, prudential standing, or Erie doctrine issues precluding Achal from pursuing his representative non-class PAGA claims. The Court therefore declines to dismiss Claims Six through Seven of Achal's FAC on the ground that they are not pleaded in accordance with Rule 23.
As is relevant to Achal's claim, California Labor Code section 226(a) requires that every employer furnish, at the time of each payment of wages, "an accurate itemized statement in writing showing... (6) the inclusive period for which the employee is paid, and (7) the name of the employee and only the last four digits of his or her social security number or an employee identification number other than a social security number." Cal. Lab.Code § 226(a). A claim against an employer for violating Labor Code section 226(a) requires a showing of three elements: (1) a violation of the statute; (2) the violation was knowing and intentional; and (3) an injury resulted from the violation. Cal. Lab.Code § 226(e); Willner, 35 F.Supp.3d at 1128. Here, Gate Gourmet argues that Achal's PAGA claims fail because he has not adequately pleaded the elements of a section 226(a) violation, specifically as required by section 226(e).
The inclusive dates required by section 226(a)(6) refer to the start and end date of the pay period and necessarily must include the start date in order to give substance to the word "inclusive." Willner, 35 F.Supp.3d at 1129. A failure to include the start date of the pay period in a statement constitutes a violation of section 226(a)(6). McKenzie, 765 F.Supp.2d at 1229 (holding that the defendant "violated Labor Code Section 226(a)(6) by failing to include the beginning date for the pay period in its wage statements").
To comply with section 226(a)(7), the text of the statute requires that an employer
Whether a violation was "knowing and intentional" is a question of fact. Willner, 35 F.Supp.3d at 1131. This standard requires more than a violation of section 226(a) alone, and requires a showing that the employer knew that facts existed that brought its actions or omissions within the provisions of section 226(a). Id. at 1130-31. "Knowing and intentional" failure does not include "an isolated and unintentional payroll error due to a clerical or inadvertent mistake." Cal. Lab.Code § 226(e)(3). At the pleading stage, however, "[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Fed.R.Civ.P. 9(b); Reinhardt v. Gemini Motor Transport, 879 F.Supp.2d 1138, 1142 (E.D.Cal.2012). A simple allegation that an employer's failure to provide accurate wage statements was "knowing and intentional" suffices to state a claim under section 226. Reinhardt, 879 F.Supp.2d at 1141.
An aggrieved employee is held to have suffered injury under section 226(a) if his employer fails to provide accurate and complete information as required by any one or more of items under sections 226(a)(1) to (9) and the employee cannot "promptly and easily determine" from the wage statement alone one or more of the following: "(i) the amount of gross or net wages paid or any other information required to be provided pursuant to items (2) to (4), (6), and (9); ... (iii) the name and address of the employer; or (iv) the name of the employee and only the last four digits of his social security number or an employee identification number." Cal. Lab.Code § 226(e)(2)(B). Section 226(e) further defines "promptly and easily determine" as meaning "a reasonable person would be able to readily ascertain the information without reference to other documents or information." Cal. Lab.Code § 226(e)(2)(C). An employee is said to have suffered injury under section 226(a) where a wage statement fails to include the start date of a pay period as required by section 226(a)(7), and the employee must refer to outside sources to verify which days of work are included in her paycheck. McKenzie, 765 F.Supp.2d at 1230 (employee suffered injury as she was required to refer to either a calendar, employer manual, or work schedule to verify days of work included in a wage statement missing a start date). Other injuries under section 226(a) may be shown through the possibility of not being paid overtime, employee confusion over whether they received all wages owed them, difficulty and expense involved in reconstructing pay
With respect to his PAGA failure to furnish claim, Achal alleges that Gate Gourmet has failed to furnish him and other employees with accurate wage statements that state "(1) only the last four digits of the employee's social security number and (2) the inclusive dates of the period for which the employee is paid." FAC ¶ 16(a). Gate Gourmet misunderstands Achal's argument as to section 226(a)(7). Achal alleges that Gate Gourmet violated that subsection by including his full social security number, as opposed to only the last four digits. Id. at ¶ 56, Opp'n at 13. Gate Gourmet instead responds to an argument not made by Achal — that Gate Gourmet violated section 226(a)(7) by failing to include either social security information or an employment identification number.
The Court finds that Claim Six of Achal's FAC, failure to furnish accurate wage statements, states a claim for relief.
California Labor Code section 226(a) also requires that "[t]he deductions made from payment of wages shall be recorded... and a copy of the statement and the record of the deductions shall be kept on file by the employer for at least three years." Cal. Lab.Code § 226(a). For the purpose of this section, copy "includes a duplicate ... or a computer-generated record that accurately shows all the information required by [section 226(a)]." Id. Achal alleges that the computer-generated record kept by Gate Gourmet violated sections 226(a)(6) and (8), because it fails to state the inclusive dates of the period for which the employee is paid and the address of the legal entity who is the employer.
Achal alleges that Gate Gourmet failed to maintain for him and other employees a copy of accurate and sufficient wage statements spanning back at least three years. FAC ¶ 61. Specifically, Achal alleges that the computer-generated record of his statements fails to state "the address of the legal entity that is the employer" and fails to state "the inclusive dates of the period for which the employee is paid for each pay period." Id. at ¶ 16. Achal then alleges generally that this failure was done "intentionally and willfully" and that as a result of this failure, "Achal and the current and other former employees have been damaged." Id. at ¶¶ 62-63.
The Court dismisses Achal's failure-to-maintain claim against Gate Gourmet to the extent that it is based on a failure to include the start dates of the pay periods on the record of his past wage statements pursuant to section 226(a)(6), because the Court is satisfied that Achal can promptly and easily determine the start dates from the attached record alone. While not explicit, the start dates of the pay periods are clear from the record furnished, where the consecutive pay period end dates are listed in succession. Dkt. 7, Ex. A. Achal has alleged no further facts suggesting that the record alone is insufficient to deduce the start dates of the pay periods.
The Court is satisfied, however, that Achal has adequately alleged that Gate Gourmet failed to maintain for him and other Gate Gourmet employees accurate and complete wage statements as required by California Labor Code section 226(a)(8), and that he suffered injury as a result. By incorporating the record of his past wage statements provided to him by Gate Gourmet, which lack Gate Gourmet's address, Achal has pleaded sufficient facts to plausibly suggest that he was unable to promptly and easily determine Gate Gourmet's address from the record alone, as required by the Labor Code. For the reasons set forth in the preceding section, Achal's general allegation that this failure was both "intentional[] and willful[]" suffices for purposes of this motion to plead a knowing and intentional violation. FAC ¶ 62. While it is conceivable that Gate Gourmet maintains other records in compliance with the statute, that is a question
Gate Gourmet also moves to dismiss Achal's prayer for punitive damages and injunctive and declaratory relief for his FEHA claims (Claims 1-5).
Punitive damages are available for violations of FEHA "where the defendant has been guilty of oppression, fraud, or malice."
"[B]y selecting the term `managing agent,' and placing it in the same category as `officer' and `director,' the Legislature intended to limit the class of employees whose exercise of discretion could result in a corporate employer's liability for punitive damages." White, 21 Cal.4th at 573, 88 Cal.Rptr.2d 19, 981 P.2d 944. Whether a supervisor is a managing agent under the California Civil Code "does not necessarily hinge on their level in the corporate hierarchy," but rather, "the critical inquiry is the degree of discretion the employees possess in making decisions that will ultimately determine corporate policy." Id. at 1105; Glovatorium, Inc. v. NCR Corp., 684 F.2d 658, 661 (9th Cir. 1982). Corporate policy for the purpose of punitive damages are those "general principles which guide a corporation, or rules intended to be followed consistently," Cruz v. HomeBase, 83 Cal.App.4th 160, 167, 99 Cal.Rptr.2d 435 (2000), and that "affect a substantial portion of the company
Achal focuses his claim for punitive damages under FEHA on the actions of Brett Appleberg, Appleberg's unnamed supervisor, and Paula Morales, in approving his termination. FAC ¶¶ 13-14; Opp'n at 18-19. Achal alleges that Brett Appleberg, who consults on and is responsible for approving all of Gate Gourmet's employee terminations, issued him a termination letter on October 6, 2014, in which he "accused Achal of willfully injuring himself and making a fraudulent claim for benefits" after Gate Gourmet purportedly performed an extensive review and investigation. FAC ¶ 13. Achal further alleges that this conclusion was not reached by Gate Gourmet's workers' compensation carrier, and that Appleberg later admitted before an administrative law judge that Gate Gourmet had not actually conducted any independent investigation into the circumstances of his fall or nature and extent of his injuries. Id. Achal then alleges that his termination and the "false accusations of fraud leveled against him were reviewed and/or approved by Appleberg, Appleberg's direct supervisor, and regional workers' compensation manager Paula Morales." Id. at ¶ 14. According to Achal, this was a false and pretextual reason, and his termination was actually due to his disability and religious needs. Id.
While the Court is satisfied that Achal has pleaded sufficient factual allegations, taken as true, that could constitute malice, fraud, or oppression,
The law does not impute every employee's malice, fraud, or oppression to a corporation. Cruz, 83 Cal.App.4th at 167, 99 Cal.Rptr.2d 435. Instead, punitive damages require proof of ratification of such an act among corporate leaders, who are the corporation's officers, directors, or managing agents. Id. To equate mere supervisory status with managing agent status would be to create a rule defeating the Legislature's intent, and would make corporate employers liable for punitive damages in most employment cases. White, 21 Cal.4th at 575, 88 Cal.Rptr.2d 19, 981 P.2d 944. The Court finds that Achal has failed to include any allegation that plausibly suggests that Appleberg, Appleberg's supervisor, or Morales exercised, or had the ability to exercise, substantial discretionary authority over decisions that ultimately determined corporate policy in some aspect of Gate Gourmet's business. The Court therefore dismisses Achal's prayer for punitive damages with leave to amend if Achal is aware of any facts that plausibly suggest corporate ratification.
Achal seeks injunctive relief under California Government Code section 12965(c), which allows courts to grant "any relief a court is empowered to grant in a civil action" which "may include a requirement that the employer conduct training for all employees, supervisors, and management on the requirements of [FEHA], the rights and remedies of those who allege a violation of this part, and the employer's internal grievance procedures." Cal. Gov't Code § 12965(c); FAC Prayer for Relief ¶ 3. Besides an Order requiring Gate Gourmet to conduct training as set forth by statute, Achal also seeks a cease-and-desist letter requiring Gate Gourmet to halt its discriminatory practices, an Order requiring that Gate Gourmet develop and implement a policy for reasonably accommodating its employees, and an Order requiring that Gate Gourmet develop and implement an internal grievance procedure for employee complaints regarding discrimination, failure to make reasonable accommodations, and failure to engage employees in the interactive process. FAC Prayer for Relief ¶ 3. Gate Gourmet opposes Achal's request for injunctive relief on the grounds that Achal lacks standing to seek this relief. Mot. at 24-25. According to Gate Gourmet, because Achal is a former employee of Gate Gourmet and does not intend to return to work there, he cannot demonstrate a real or imminent threat of injury by the continuation of Gate Gourmet's current employment practices. Id.
While a court may grant injunctive relief in FEHA cases where appropriate to halt discriminatory practices, Harris, 56 Cal.4th at 234, 152 Cal.Rptr.3d 392, 294 P.3d 49, a plaintiff in federal court must demonstrate standing separately for each form of relief sought. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). In federal court, the constitutional requirement that a plaintiff have standing is equally applicable to state law claims. See Qwest Corp. v. City of Surprise, 434 F.3d 1176, 1180 (9th Cir.2006); Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1021-22 (9th Cir.2004) (reversing district court's conclusion that plaintiff had standing to pursue injunctive relief under state law).
Achal makes only one argument responding to Gate Gourmet's assertion that he lacks standing to seek injunctive relief.
The Court finds that Achal does not have standing to pursue injunctive relief against Gate Gourmet. Achal does not dispute that he is no longer employed by Gate Gourmet. See FAC ¶ 13-14. Further, because he alleges no facts indicating that he intends to return to work for Gate Gourmet in the future, Achal's allegations do not establish any threat of real and immediate future harm to Achal himself as a result of Gate Gourmet's employment practices should the Court not grant the injunctive relief he requests. The fact that FEHA allows a court to order injunctive relief does not alter the standing analysis. Because Achal has not alleged facts establishing a sufficient likelihood that he will again be wronged by Gate Gourmet's allegedly improper employment practices, he
Gate Gourmet moves to dismiss Achal's prayer for declaratory relief as to his legal rights and obligations with respect to his FEHA claims on the ground that a determination on these claims would be entirely "unnecessary and redundant," because these claims are to be addressed by the substantive relief sought. Mot. at 25. In his Opposition, Achal does not present any arguments specific to his prayer for declaratory relief to refute Gate Gourmet's argument.
A claim for declaratory relief is unnecessary where an adequate remedy exists under some other cause of action. Mangindin v. Wash. Mut. Bank, 637 F.Supp.2d 700, 708 (N.D.Cal.2009); StreamCast Networks, Inc. v. IBIS LLC, No. C 05-04239, 2006 WL 5720345, at *4-5 (C.D.Cal. May 2, 2006). Declaratory relief should be denied when it will neither clarify or settle the legal relations in issue nor terminate the proceedings and afford relief from the uncertainty and controversy that the parties face. United States v. Washington, 759 F.2d 1353, 1356-57 (9th Cir. 1985). Further, "[t]he purpose of a judicial declaration of rights ... is to enable parties to shape their conduct so as to avoid a breach.... [I]n short, the remedy is to be used in the interests of preventative justice, to declare rights rather than execute them." Babb v. Superior Court, 3 Cal.3d 841, 848, 92 Cal.Rptr. 179, 479 P.2d 379 (1971) (internal quotations omitted).
Here, Achal seeks general declaratory relief associated with his FEHA causes of action. FAC Prayer for Relief ¶ 3. Upon review of Achal's other causes of action, the Court finds that the declaratory relief Achal seeks is commensurate with the relief sought through his substantive claims. Because Achal's prayer for declaratory relief if duplicative and unnecessary, the Court dismisses Achal's prayer for declaratory relief.
For the reasons stated above, Gate Gourmet's Motion is GRANTED as to Achal's requests for punitive damages and injunctive and declaratory relief, which are dismissed with leave to amend. If Achal is aware of facts supporting those requests, and wishes to file an amended complaint, he may do so no later than August 4, 2015. Achal may not make any amendments other than the addition of allegations to cure the pleading defects described above, absent permission of the Court. Gate Gourmet's Motion is DENIED as to the remainder of Achal's claims, except that Claim Seven is DISMISSED to the extent that it relies on an alleged violation of California Labor Code section 226(a)(6).
