JON S. TIGAR, District Judge.
Before the Court are Defendant CH2M Hill, Inc.'s Motion to Dismiss and Request to Strike. ECF Nos. 55, 64-1. For the reasons stated below, the motion to dismiss is granted and the request to strike is denied.
For purposes of deciding this motion and request, the Court accepts as true the following allegations from Plaintiff's First Amended Complaint, ECF No. 53 ("FAC").
Plaintiff Hakim Gulaid, appearing pro se, is a resident of California who alleges that he was constructively discharged from his employment with Defendant CH2M Hill, Inc. ("CH2M") on March 4, 2014 and that he was forced to resign due to discriminatory and harassing conduct. FAC at 2-3.
Gulaid was excited about his job but it was cut short "due to unlawful discrimination, racial harassment, and retaliation that he experienced during his employment."
Plaintiff had to leave Oakland, California and move himself and his family to Djibouti.
Gulaid filed a complaint with the California Department of Fair Employment and Housing ("DFEH") on February 20, 2015, which provided him with a Right to Sue Notice on February 26, 2015.
Gulaid filed his FAC in this Court on April 1, 2016 and brings the following claims: (1) violation of 42 U.S.C. §§ 1981, 1983; (2) retaliation (presumably, in violation of 42 U.S.C. § 1981); (3) violation of the California Fair Employment and Housing Act ("FEHA"); (4) retaliation (presumably, in violation of the FEHA); (5) negligent hiring, retention, and supervision; (6) breach of contract; (7) fraud and misrepresentation; and (8) wrongful termination. FAC at 6-11.
On April 14, 2016, Defendant CH2M filed a motion to dismiss the FAC. ECF No. 55. Defendant also filed a request for judicial notice, ECF No. 56, of the complaint Plaintiff filed with the DFEH on February 20, 2015, ECF No. 56-1, Ex. A. On April 28, 2016, Plaintiff filed an opposition to the motion to dismiss, ECF No. 61, and submitted a declaration in support, ECF No. 62, along with three exhibits: his first offer letter from CH2M dated December 10, 2013,
This Court has subject matter jurisdiction over Plaintiff's claims under 42 U.S.C. §§ 1981, 1983, and jurisdiction over Plaintiff's remaining claims pursuant to 28 U.S.C. § 1367.
"When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond."
"[A] motion to strike materials that are not part of the pleadings may be regarded as an invitation by the movant to consider whether [the materials] may properly be relied upon."
"Motions to strike are generally not granted unless it is clear that the matter sought to be stricken could have no possible bearing on the subject matter of the litigation."
Defendant requests that the Court strike the entirety of Plaintiff's Declaration, including Declaration Exhibits A-C. ECF No. 64-1. Defendant argues that the declaration is "wholly improper" and that its assertions are "inadmissible on an evidentiary basis," including for reasons of relevance, improper legal conclusions, lack of foundation, hearsay, and lack of authentication. See
As a preliminary matter,
Defendant does not argue that the materials are "redundant, immaterial, impertinent, or scandalous" or that they "have no possible bearing on the subject matter of the litigation."
The Court therefore denies Defendant's Request to Strike. Instead, the Court interprets the request as an invitation to consider the propriety of relying on the challenged documents in ruling on the motion to dismiss.
In its Reply, Defendant argues that the Court should not consider Plaintiff's Declaration in ruling on the motion to dismiss because "the assertions in Mr. Gulaid's declaration are neither referred to in his First Amended Complaint, nor are they judicially noticeable." ECF No. 64-1 at 1. The Court agrees that the declaration's assertions do not qualify for an exception to the general rule that the scope of a Rule 12(b)(6) analysis is limited to the complaint. Therefore, the Court will not consider the declaration's allegations in ruling on the motion to dismiss.
The exhibits attached to Plaintiff's Declaration, however, may properly be considered as incorporated by reference. Declaration Exhibits A (the first offer letter), B (the second offer letter), and C (the document including the QC Manager job description) are all referenced by the FAC. See FAC at 4 ("Defendants sent an Offer Letter to Plaintiff');
While Defendant raises evidentiary objections to the admissibility of the Declaration Exhibits (arguing "relevance," "improper legal conclusion," and "inadmissible hearsay"), ECF No. 64-1 at vit 14-16, Defendant does not appear to dispute the authenticity of these documents, see
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the ground upon which it rests." Fed. R. Civ. P. 8(a)(2);
"A document filed pro se is to be liberally construed and apro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers."
The Court must "accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party."
Defendant argues that Plaintiff's claims under 42 U.S.C. §§ 1981, 1983, his FEHA claims, and his additional state law claims should all be dismissed. ECF No. 55 at 5. The Court discusses these claims in turn below.
Plaintiff alleges in his first count that Defendants violated Section 1981 by discriminating against him on the basis of race, religion, and national origin. ECF No. 53 at 6. He states that Defendants did so by "creating, fostering, and accepting, ratifying and/or otherwise failing to prevent or to remedy a hostile work environment that included, among other things, severe and pervasive harassment of Plaintiff because of [his] protected status."
While Plaintiff's second count does not allege violation of any specific statute or public policy, it appears to attempt to state a claim for retaliation in violation of Section 1981.
Defendant argues that Plaintiff's first and second counts must fail because Section 1981 only protects "persons within the jurisdiction of the United States," 42 U.S.C. § 1981(a), and therefore "does not apply to claims of discrimination by employees working overseas," ECF No. 55 at 9. 42 U.S.C. Section 1981(a) provides that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory . . . and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens" (emphasis added). "Acts of Congress normally do not have extraterritorial application unless such an intent is clearly manifested."
Defendant cites to
While Plaintiff correctly notes that
Plaintiff argues that he nevertheless states a claim under Section 1981 because "[he] alleges that some of the discriminatory conduct occurred while he was in California," ECF No. 61 at 6 (citing
Plaintiff's position is unpersuasive. Even interpreted in the light most favorable to Plaintiff, the scant allegation that Defendant decided to require that Plaintiff "report to an individual in violation of the project contract" while Plaintiff was still in California does not plausibly allege a Section 1981 civil rights violation.
Therefore, the motion to dismiss Plaintiff's first and second claims under Section 1981 is granted without prejudice.
"`To state a claim under § 1983, a plaintiff [1] must allege the violation of a right secured by the Constitution and laws of the United States, and [2] must show that the alleged deprivation was committed by a person acting under color of state law.' Dismissal of a § 1983 claim following a Rule 12(b)(6) motion is proper if the complaint is devoid of factual allegations that give rise to a plausible inference of either element."
Defendant argues that Plaintiff's Section 1983 claim should be dismissed because Section 1983 only applies to governmental acts and "[n]o governmental entity is party to this matter." ECF No. 55 at 9 n.3. Plaintiff does not allege any facts demonstrating a Section 1983 violation, see
Plaintiff alleges in his third count that Defendant violated the FEHA through the same discriminatory conduct that supports his Section 1981 claims. ECF No. 53 at 8-9. Plaintiff's FAC newly asserts that "Mr. Bird would direct Plaintiff and Weinmuller from his office in California," that "[t]he Company's management team, including Mr. Bird, treated [Plaintiff] so poorly that he was forced to resign," and that "Mr. Bird failed to respond to Plaintiff's reports of discrimination and harassment, and filed [sic] to initiate an investigation regarding the same."
Plaintiff pleads neither harassment, failure to take all reasonable steps to prevent discrimination and harassment, nor hostile work environment as additional causes of action under the FEHA. See
"Before filing a civil action alleging FEHA violations, an employee must exhaust his or her administrative remedies with DFEH. Specifically, the employee must file an administrative complaint with DFEH identifying the conduct alleged to violate FEHA."
But "[t]he function of an administrative complaint is to provide the basis for an investigation into an employee's claim of discrimination against an employer, and not to limit access to the courts."
Defendant argues that Plaintiff's third and fourth claims fail because Plaintiff did not adequately exhaust his administrative remedies under the FEHA. ECF No. 55 at 13-14. Defendant cites to Plaintiff's DFEH Complaint, which states in pertinent part:
ECF No. 56-1, Ex. A at 6.
Defendant argues that Plaintiff's DFEH Complaint "makes no mention of any conduct connected to California" and that Plaintiff "cannot amend his civil lawsuit to incorporate claims of conduct in California, as he failed to exhaust his administrative remedies with regard to any such claims." ECF No. 55 at 14.
Plaintiff responds that he adequately exhausted his administrative remedies because he named David Bird in the body of his DFEH Complaint, ECF No. 61 at 9-10, and specifically alleged that he "complained about the harassment to Dave Bird, VP and nothing was done," ECF No. 56-1, Ex. A at 6. In support of his argument, Plaintiff cites to
The Court concludes that a DFEH administrative investigation would reasonably be expected to encompass Plaintiff's potential legal claims under the FEHA for California-based discrimination, harassment, failure to take all reasonable steps to prevent discrimination and harassment, hostile work environment, and retaliation. See Sosa, 920 F.2d at 1456. While Defendant's Reply reiterates that "Plaintiff's administrative complaint to the DFEH . . . confirms that the only conduct violating FEHA occurred in Djibouti, by others also in Djibouti," ECF No. 64 at 5, Plaintiff's Administrative Complaint clearly accused California Supervisor David Bird of knowingly failing to remedy discrimination and harassment Plaintiff suffered. ECF No. 56-1, Ex. A at 6.
Liberally construed, Plaintiff's DFEH Complaint therefore exhausted Plaintiff's administrative remedies as to Plaintiff's FEHA claims. See
As stated above, the Court construes Plaintiff's third and fourth counts to attempt to state claims under the FEHA for discrimination, harassment, failure to take all reasonable steps to prevent discrimination and harassment, hostile work environment, and retaliation. In support of these claims, Plaintiff makes the following allegations: "Mr. Bird failed to respond to Plaintiff's reports of discrimination and harassment," ECF No. 53 at 5; "Defendants did not supply [Plaintiff] will the assistance that he needed" to relocate his family close to Djibouti on a timely basis, "excluded Plaintiff from important meetings with management and with the client," and "failed to provide material information related to the performance of the job, [and] failed to provide a properly working computer,"
In its prior order, the Court dismissed Plaintiff's FEHA claims for failure to allege any connection to conduct in California, and advised that "[a]ny amended pleading must identify the specific California-based conduct that was connected to the alleged discriminatory conduct." ECF No. 48 at 6. "[E]mployees located outside of California are not themselves covered by the protections of [the FEHA] if the wrongful conduct did not occur in California and it was not ratified by decision makers or participants located in California." Cal. Code Regs. tit. 2, § 11008;
Plaintiff argues that he sufficiently establishes a factual nexus between David Bird's conduct in California and the discrimination Plaintiff suffered in Djibouti. ECF No. 61 at 8. He points to his allegations that "Mr. Bird would direct Plaintiff and Weinmuller from his office in California," ECF No. 53 at 5; that "Mr. Bird failed to respond to Plaintiff's reports of discrimination and harassment, and filed [sic] to initiate an investigation regarding the same,"
It is important to note, however, that general allegations of Defendants' conduct in California alone are not sufficient. The operative inquiry is whether Plaintiff has plausibly alleged "a factual nexus" between the California-based activities and the discriminatory conduct. The Court therefore examines Plaintiff's individual claims within this framework.
"It is an unlawful employment practice . . . [f]or an employer, because of [an employee's] race, religious creed, color, [or] national origin . . . to discriminate against [the employee] in compensation or in terms, conditions, or privileges of employment." Cal. Gov't Code § 12940. To violate the FEHA prohibition on discrimination, an employer must take "some official action with respect to the employee, such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action."
Here, while Plaintiff does allege specific indignities he suffered (such as being excluded from meetings, being ignored at meetings, and being denied a properly working computer), FAC at 5, his factual allegations do not demonstrate that Defendants' conduct created conditions so intolerable that he had no reasonable alternative but to quit. See
Though Plaintiff alleges that he was treated "so poorly that he was forced to resign," FAC at 5, this claim is conclusory without support from factual allegations. Therefore, even liberally construed, Plaintiff fails to allege facts from which the Court can conclude that Defendant discriminated against Plaintiff from California in violation of the FEHA.
"To prevail on a hostile workplace/harassment claim under FEHA, an employee must show that she was subjected to verbal or physical conduct related to a protected trait, that the conduct was unwelcome, and that the conduct was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment."
None of Plaintiff's specific factual allegations, such as that he was denied timely relocation assistance, supervised by Mr. Weinmuller in violation of the project contract, excluded from or ignored at meetings, never introduced to David Bird, and denied the information and properly working computer he needed to do his job, FAC at 5-6, constitutes harassment as defined above. To the extent Plaintiff attempts to directly allege harassment, the allegations are both conclusory and insufficient to demonstrate a "concerted pattern" of conduct. See, e.g.,
Therefore, Plaintiff fails to adequately state a claim for harassment in violation of the FEHA.
Because Plaintiff does not sufficiently state claims for discrimination or harassment under the FEHA, as a matter of law Plaintiff therefore also does not sufficiently state a claim for failure to take all reasonable steps to prevent such conduct. See
"The elements for a claim of hostile environment under FEHA are: (1) the plaintiff belongs to a protected group; (2) the plaintiff was subjected to unwelcome harassment because of being a member of that group; and (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment."
To state a claim for retaliation under the FEHA, a "[p]laintiff must show that he or she engaged in protected activity and was thereafter subjected to adverse employment action by his or her employer because of that protected activity."
Plaintiff has not shown that he was subject to an adverse employment action by his employer. Therefore, Plaintiff also does not sufficiently state a claim for retaliation in violation of the FEHA.
In sum, because Plaintiff does not adequately state a claim for any cause of action under the FEHA, the motion to dismiss Plaintiff's FEHA claims is granted without prejudice.
Plaintiff's remaining causes of action bring claims for negligent hiring, retention, and supervision; for breach of contract; for fraud and misrepresentation; and for wrongful termination. Defendant argues that all of these counts should be dismissed for failure to state a plausible claim. The Court considers each claim in turn.
Under California law, a defendant employer may be liable for the acts of his agents where the employer "is either negligent or reckless in the hiring or supervision of the agent."
Here, the only amended allegation added to this claim in the FAC is that Defendants breached their duty to Plaintiff "to provide a workplace free of harassment and discrimination, by negligently hiring Mr. Bird and Mr. Weinmuller." ECF No. 53 at 10 (emphasis added). However, Plaintiff's FAC still contains no allegations as to why Defendant's hiring of Mr. Bird and Mr. Weinmuller was negligent or reckless. Plaintiff argues in his Opposition that it can be inferred from the FAC that "Defendant should have known that Bird and Weinmuller were unfit, because of their discriminatory tendencies," ECF No. 61 at 10, but he provides no allegations identifying either individual's prior "discriminatory tendencies" or how Defendant should have known of these proclivities. Accordingly, Plaintiff's claim for negligent hiring, retention and supervision is dismissed without prejudice.
To prevail on a breach of contract claim, a plaintiff must prove "(1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff"
In its order of March 10, 2016, the Court dismissed Plaintiff's breach of contract claim for failing to identify contractual terms that were violated and for failing to identify specific conduct that violated those terms. ECF No. 48 at 7. In his FAC, Plaintiff alleges that Defendant's conduct towards him "clearly breached the terms of the Offer Letter and company policies." ECF No. 53 at 5;
In his Opposition, Plaintiff offers two theories of breach of contract. First, he argues that Defendant breached its contract with Plaintiff by violating commitments to not engage in discrimination and retaliation, as well as by violating the duty of good faith and faith dealing. ECF No. 61 at 11. However, Plaintiff's FAC fails to support this theory by identifying specific contract terms that were violated or specific conduct by Defendant that violated its obligation of good faith and fair dealing.
Plaintiff also argues that Defendant breached its contract with Plaintiff by allowing Project Manager Weinmuller to supervise him instead of David Bird. ECF No. 61 at 11. This argument relies on Plaintiff's three Declaration Exhibits: his December 10, 2013 offer letter, ECF No. 62, Decl. Ex. A, at 6 ("As the Project Quality Control Manager, you will be Exempt Employee under the management and day-to-day supervision of the Project Manager, Michael Weinmuller"); his December 18, 2013 offer letter, ECF No. 62, Decl. Ex. B, at 14 ("In your position you will report to David Bird"); and Declaration Exhibit C, which defines the QC Manager position, ECF No. 62, Decl. Ex. C, at 22 ("The QC Manager shall manage the QC organization and shall report to an officer of the firm and shall not be subordinate to the Project Superintendent or the Project Manager").
As an initial matter, the offer letters do not support Plaintiff's claim. The December 10, 2013 offer letter provides that Plaintiff would be "under the day-to-day supervision of the Project Manager, Michael Weinmuller." ECF No. 62, Decl. Ex. A, at 6, while the December 18, 2013 offer letter provides that Plaintiff will "report to David Bird." ECF No. 62, Decl. Ex. B, at 14. Together, the letters appear to provide that Plaintiff would be supervised by both David Bird and Michael Weinmuller. Indeed, Plaintiff's allegations support this interpretation: Plaintiff alleges that "Mr. Weinmuller was Plaintiff's supervisor on a daily basis in all practical respects" but that "Mr. Bird would direct Plaintiff . . . from his office in California." ECF No. 53 at 5.
More importantly, through the December 10, 2013 offer letter, Defendant expressly retained "the right at all times to change any aspect of [Plaintiff's] employment (including [Plaintiff's] job responsibilities . . . company policies, practices, procedures . . . [or] management processes." ECF No. 62, Decl. Ex. A, at 10. In light of this language, the offer letters do not demonstrate how Plaintiff's supervisorial relationship with Mr. Weinmuller constituted a breach of any contract terms.
Plaintiff's Exhibit C, which states that "The QC Manager . . . shall report to an officer of the firm and shall not be subordinate to the Project Superintendent or the Project Manager," provides the strongest evidence that Plaintiff should not have been supervised by Project Manager Weinmuller. ECF No. 62, Decl. Ex. C, at 22. But even viewed in the light most favorable to Plaintiff, this language does not negate Plaintiff's apparent assent to the terms of the first offer letter, wherein Defendant reserved the right to modify the terms of Plaintiff's employment. See ECF No. 62, Decl. Ex. A at 10.
Plaintiff therefore fails to sufficiently state a claim for breach of contract. Accordingly, the motion to dismiss Plaintiff's claim for breach of contract is dismissed without prejudice.
To plead a cause of action for fraud, a plaintiff must allege "(1) a knowingly false representation by the defendant, (2) an intent to defraud or to induce reliance, (3) justifiable reliance, and (4) resulting damages."
Here, Plaintiff alleges that "Defendants actively and aggressively recruited and hired Plaintiff knowing that they had animus toward Plaintiff based upon his race, religion, and national origin," and that he accepted his assignment on Djibouti over other potential opportunities "due to Defendants' representations that he would enjoy the full support of Defendant's resources related to the position that he would hold and that he would be treated in a manner consistent with this [sic] policies of non-discrimination and prohibition of harassment." ECF No. 53 at 11. In his Opposition, Plaintiff argues it can be inferred from his FAC that Defendants specifically represented that he would be supervised by David Bird, "but actually never intended to follow through with such a statement, but rather would assignment him to work with a team of racist white men." ECF No. 61 at 12;
Outside of general statements, Plaintiff's FAC does not allege any conduct that indicates Defendant's knowledge that they purportedly held animus toward Plaintiff, or their related fraudulent intent. Furthermore, any reliance Plaintiff may have had on a representation that he would be supervised by David Bird appears substantially less justifiable in light of the first offer letter's terms expressly reserving Defendant's "right at all times to change any aspect of [Plaintiff's] employment," including job responsibilities and management processes. See ECF No. 62, Decl. Ex. A, at 10. Moreover, even putting the reservation of rights to one side, the Court is not aware of any authority that a general statement that an employee will be supervised by a particular person creates an enforceable obligation that the employer not be supervised by someone else.
Accordingly, the motion to dismiss Plaintiff's claim for fraud and misrepresentation is granted with leave to amend.
Plaintiff's final claim is for wrongful termination. ECF No. 53 at 11. Under California law, "[t]he elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm."
Defendant argues that "this claim should fail because it is entirely derivative of his statutory claims." ECF No. 55 at 16. Courts, however, have disagreed. See
Leave to amend should be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). Plaintiff has amended his complaint once and this will be the second motion to dismiss granted in full against him. Nevertheless, Plaintiff has identified specific additional allegations that he could plead should this motion to dismiss be granted.
For the foregoing reasons, Defendant's Motion to Dismiss is granted with leave to amend and Defendant's Request to Strike is denied. Any amended complaint must be filed within 21 days of the issuance of this order.
Plaintiff is encouraged to directly attach to any amended complaint any supporting exhibits on which his claims rely so that any such exhibits are formally incorporated into the pleadings.
Plaintiff is also encouraged to seek the assistance of the Legal Help Center in amending his complaint. The Legal Help Center is located at 450 Golden Gate Avenue, 15th Floor, Room 2796, San Francisco, California. Assistance is provided by appointment only. Litigants may schedule an appointment by signing up in the appointment book located on the table outside the door of the Center or by calling the Legal Help Center appointment line at 415-782-8982. Plaintiffs may also wish to consult the Northern District of California manual,
514 F.3d 856, 860 (9th Cir. 2007). Defendant does not attempt to show bad faith.
