Sanders-Hollis v. State of CA, Health and Human Services Agency, Dept. of Social Services

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 Clarice Sanders-Hollis, No. 2:19-cv-00092-KJM-DB 12 Plaintiff, ORDER 13 Vv. 14 State of California, Health and Human Services 15 Agency, Department of Social Services, 16 Defendants. 17 In this employment discrimination action, plaintiff Clarice Sanders-Hollis alleges 18 | violations of the Age Discrimination in Employment Act (‘ADEA”), Title VII, and the Fair 19 | Employment and Housing Act (“‘FEHA”). On July 27, 2020, plaintiff filed her second amended 20 | complaint (“SAC”), ECF No. 34. Defendant California Department of Social Services moves to 21 | dismiss for failure to allege facts demonstrating a claim for relief. Mot., ECF No. 35. Plaintiff 22 | opposes. Opp’n, ECF No 36. Defendant has replied. Reply, ECF No. 38. On October 27, 2020, 23 | the court submitted the matter on the papers. Min. Order, ECF No. 37. For the reasons stated 24 | below, defendant’s motion to dismiss is denied. 25 The court assumes the parties’ familiarity with the facts and procedural history of this 26 | matter and incorporates by reference its summary of the claims and applicable legal standard 27 | under Federal Rule of Civil Procedure 12(b)(6) articulated in its prior September 20, 2019 order 28 | granting defendant’s motion to dismiss with leave to amend. See Prev. Order (Sept. 20, 2019) at 1 1–2, ECF No. 18. Accordingly, the court proceeds to analyze the merits of defendant’s instant 2 motion. 3 I. DISCUSSION 4 A. Incorporation by Reference 5 Plaintiff assserts nine claims: 1) discrimination in violation of FEHA; 2) failure to prevent 6 discrimination in violation FEHA; 3) harassment in violation of FEHA; 4) failure to prevent 7 harassment in violation of FEHA; 5) retaliation in violation of FEHA; 6) failure to engage in 8 good faith in the interactive process in violation of FEHA; 7) failure to accommodate in violation 9 of FEHA; 8) violation of Title VII of the Civil Rights Act; 9) violation of the Age Discrimination 10 in Employment Act. See generally SAC. Defendant argues plaintiff fails to allege facts 11 demonstrating a claim for relief for each of plaintiff’s nine claims, Mot. at 4, and posits the 12 complaint should be dismissed with prejudice based on undue delay or futility, id. at 6–7. 13 Additionally, defendant argues plaintiff’s pleading violates Federal Rule of Civil Procedure 10(b) 14 by “daisy chaining,” as it incorporates by reference all of the previous paragraphs in each of 15 plaintiff’s claims. Id. at 5. While plaintiff does incorporate by reference entire paragraphs, this 16 aspect of her pleading does not preclude a “clear presentation of the matters set forth” in 17 plaintiff’s complaint. Johnson v. Couturier, No. 05-2046, 2007 WL 9728989 , at *3 (E.D. Cal. 18 Jan. 19, 2007) (“Although incorporation by reference is favored, the allegations incorporated by 19 reference should be germane to the cause of action pleaded to “facilitate the clear presentation of 20 the matters set forth.”). It is clear from the complaint itself which allegations are relevant to each 21 cause of action. See generally SAC. Plaintiff’s use of incorporation by reference is not grounds 22 for dismissal. The court thus considers whether plaintiff states a claim, considering her nine 23 claims. 24 B. Pleading of Prima Facie Case Not Required 25 Defendant moves to dismiss, arguing the complaint is nearly identical to the previous 26 complaint, Mot. at 3, and the allegations are conclusory and do not provide sufficient factual 27 support, id. at 4–5. Plaintiff argues dismissal based on insufficient factual allegations would be 28 improper given this court’s ruling on defendant’s motion to dismiss the first amended complaint. 1 Opp’n at 2. In that order, the court granted defendant’s motion based on plaintiff’s failure to 2 plead exhaustion, Prev. Order (July 6, 2020) at 2–3, ECF No. 33, and did not reach defendant’s 3 other arguments challenging the sufficiency of plaintiff’s factual allegations, Prev. Mot. (Oct. 21, 4 2019) at 8–10, ECF No. 23. In light of the court’s prior decision, plaintiff argues she had no 5 reason to amend the complaint beyond adding exhaustion allegations and should be given leave to 6 amend if the complaint is now dismissed on other grounds. Opp’n at 2. 7 As a threshold matter, the type of employment discrimination claims plaintiff brings, filed 8 under federal and California law, call for the same analysis. Guz v. Bechtel Nat’l, Inc., 24 Cal. 9 4th 317, 354 (2000). A motion to dismiss tests only the complaint’s “legal sufficiency.” Navarro 10 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). An employment discrimination complaint need not 11 contain specific facts establishing a prima facie case, rather, it must contain only a short and plain 12 statement of the claim sufficient to give the employer notice. Swierkiewicz v. Sorema N. A., — 13 — 534 U.S. 506, 508 (2002) (plaintiff pleading he was terminated because of his national origin and 14 age, describing events leading to his termination, and including the ages and nationalities of 15 individuals involved with his termination “easily satisfie[d] the requirements of Rule 8(a).”). 16 While a prima facie case is not required to survive a motion to dismiss, a complaint must survive a 17 motion to dismiss if it goes beyond notice pleading to plead a plausible prima facie case of 18 discrimination. Sheppard v. David Evans & Assoc., 694 F.3d 1045 , 1050 & n.2 (9th Cir. 2012). 19 “District courts in this circuit regularly look to the elements of a prima facie case to inform a 20 decision on a motion to dismiss.” Cervantes v. Stockton Unified Sch. Dist., No. 15-60, 2015 WL 21 3507416, at *4 (E.D. Cal. June 3, 2015) (citing Jinadasa v. Brigham Young Univ.-Hawaii, No. 22 14-00441, 2015 WL 3407832 , at *3 (D. Haw. May 27, 2015) (noting “the elements of a prima 23 facie case . . . are a useful tool in assessing whether [the plaintiff] meets the requirement in Rule 24 8(a)” and collecting cases)). While the particulars of a prima facie case of discrimination vary 25 from case to case, there must be a general showing plaintiff: (1) is a member of a protected class; 26 (2) was qualified for a position; and (3) suffered an adverse employment action in circumstances 27 that suggest a discriminatory motive. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 802 28 (1973). A plaintiff must commonly resort to circumstantial evidence of a discriminatory motive. 1 See, e.g., U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 , (1983) (“There will 2 seldom be ‘eyewitness’ testimony as to the employer’s mental processes.”). “An inference of 3 discrimination can be established by showing the employer had a continuing need for the 4 employee[’s] skills and services in that their various duties were still being performed . . . or by 5 showing that others not in their protected class were treated more favorably.” Diaz v. Eagle 6 Produce Ltd. P’ship, 521 F.3d 1201 , 1207–08 (9th Cir. 2008) (citation and marks omitted). The 7 McDonnell Douglas test “is an evidentiary standard, not a pleading requirement” meant to 8 supplant the pleading standard applicable in resolving a Rule 12(b)(6) motion. See Swierkiewicz, 9 534 U.S. at510–11. 10 The court finds plaintiff’s second amended complaint survives the motion to dismiss 11 because plaintiff has gone beyond the minimum pleading requirements to plead a plausible prima 12 facie case with respect to each of her nine claims. The court analyzes each of the nine claims in 13 turn. 14 C. State and Federal Discrimination Claims (Claims 1, 8 and 9) 15 “Title VII prohibits both intentional discrimination (known as ‘disparate treatment’) as 16 well as, in some cases, practices that are not intended to discriminate but in fact have a 17 disproportionately adverse effect on minorities (known as ‘disparate impact’).” Ricci v. 18 DeStefano, 557 U.S. 557, 577 (2009). Under both Title VII and FEHA, the elements of a prima 19 facie case of disparate treatment discrimination are evidence of membership in a protected class, 20 satisfactory job performance, an adverse employment action, and evidence of discriminatory 21 motive. See, e.g., McDonnell Douglas, 411 U.S. at 802 ; Reynaga v. Roseburg Forest Prod., — 22 — 847 F.3d 678, 691 (9th Cir. 2017) (discrimination based on race); Villiarimo v. Aloha Island Air, 23 Inc., 281 F.3d 1054, 1062 (9th Cir. 2002) (discrimination based on gender); Stevenson v. Superior 24 Court, 16 Cal. 4th 880, 905 (1997) (discrimination based on age; plaintiff must be over forty 25 years old). 26 With respect to claims 1, 8 and 9, defendant primarily argues the complaint lacks 27 “identifying facts.” Mot. at 5. But plaintiff spells out her protected categories: race, gender and 28 age. SAC ¶ 6. Plaintiff alleges she was qualified for her position, as shown by her employee 1 awards and lack of reprimands before the alleged discrimination began. Id. Plaintiff alleges 2 adverse action, claiming she faced harassment, reprimands, and increased scrutiny. Id. ¶¶ 6–8. 3 Plaintiff alleges discriminatory motive, inferred by the more favorable treatment of employees 4 outside of plaintiff’s protected classes and the comments individuals made regarding plaintiff’s 5 race, age and culture. Id. ¶¶ 7, 8. While plaintiff’s current complaint may not include any names 6 and only a few dates, plaintiff nonetheless pleads a plausible prima facie case for disparate 7 treatment discrimination for purposes of claims 1, 8 and 9. See Sheppard, 694 F.3d at 1050 n.2 8 (“where a plaintiff pleads a plausible prima facie case of discrimination, the plaintiff’s complaint 9 will be sufficient to survive a motion to dismiss”). Plaintiff’s disparate treatment discrimination 10 claims survive the motion to dismiss. 11 “A claim of disparate impact challenges ‘employment practices that are facially neutral in 12 their treatment of different groups but that in fact fall more harshly on one group than another and 13 cannot be justified by business necessity.’” Stout v. Potter, 276 F.3d 1118, 1121 (9th Cir. 2002) 14 (quoting Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324 , 335 n.15 (1977); 15 42 U.S.C. § 2000e-2(k)(1)(A)(i)). “A plaintiff establishes a prima facie case of disparate impact 16 by showing a significant disparate impact on a protected class caused by a specific, identified, 17 employment practice or selection criterion.” Stout, 276 F.3d at 1121–22 (citing Wards Cove 18 Packing Co., Inc. v. Atonio, 490 U.S. 642 , 656–57 (1989); Rose v. Wells Fargo & Co., 902 F.2d 19 1417, 1424 (9th Cir. 1990)). 20 Here, plaintiff alleges the defendant has a facially neutral, merit-based system for 21 determining transfers. SAC ¶ 17. Plaintiff alleges she has a disability, id. ¶ 9, and alleges 22 defendant’s system, however facially neutral, has a disparate impact on individuals with 23 disabilities as it impedes their transfer requests. Id. ¶ 17. While plaintiff does not allege 24 statistical evidence supports the causation element of the disparate impact case at this stage, she 25 is not required to at this stage. Swierkiewicz, 534 U.S. at 514 (“[A]n employment discrimination 26 complaint need not include [specific facts establishing a prima facie case] and instead must 27 contain only 'a short and plain statement of the claim showing that the pleader is entitled to 28 relief.'” (quotation marks omitted)). 1 The court finds plaintiff has provided sufficient allegations and her claims for disparate 2 treatment and disparate impact survive the motion to dismiss. 3 D. Harassment (Claim 3) 4 To state a claim for harassment under the FEHA, a plaintiff must allege facts showing the 5 harassment was “severe enough or sufficiently pervasive to alter the conditions of employment 6 and create a work environment that qualifies as hostile or abusive to employees.” Hughes v. Pair, — 7 — 46 Cal. 4th 1035, 1043 (2009) (quoting Miller v. Dep’t of Corrs., 36 Cal. 4th 446, 462 (2005)); 8 Andrade v. Staples, Inc., No. 14-7786, 2014 WL 5106905 , *3 (C.D. Cal. Oct. 9, 2014) 9 (“Harassment, under FEHA, ‘can take the form of discriminatory intimidation, ridicule, and insult 10 that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and 11 create an abusive working environment.’” (quoting Rehmani v. Superior Court, 204 Cal. App. 4th 12 945, 951 (2012)). Defendant claims the harassment allegations here fail because plaintiff does 13 not identify who harassed her, when they did, and for how long. Mot. at 5. However, plaintiff 14 does identify the individuals who “subjected [her] to harassment and discrimination” by title, 15 alleging they were her supervisors. SAC ¶ 6. Given defendant’s level of access to plaintiff’s 16 employment records, defendant is in a position to identify plaintiff’s supervisors and therefore 17 also investigate and defend this claim. 18 Plaintiff asserts she experienced a hostile work environment based on her race, gender and 19 age. Id. ¶ 7. Specifically, plaintiff alleges her supervisors “subjected [p]laintiff to slurs, 20 stereotypes, and tropes about [p]laintiff’s protected categories” including by using the “‘n’ word,” 21 claiming plaintiff had trouble working with a supervisor because plaintiff was older than the 22 supervisor, intimidating plaintiff by raising their voices, calling plaintiff “stupid” and “retarded,” 23 and threatening violence in plaintiff’s presence. Id. 24 Plaintiff states a claim for harassment based on race, gender and age based on her 25 allegations in the second amended complaint. 26 E. Failure to Prevent Discrimination and Harassment (Claims 2 and 4) 27 “Under FEHA, it is an unlawful employment practice for an employer to fail ‘to take all 28 reasonable steps necessary’ to prevent discrimination, harassment, and retaliation from 1 occurring.” Brewer v. Leprino Foods Co., Inc., No. 16-1091, 2019 WL 1206702 , *5 (E.D. Cal. 2 Mar. 14, 2019 ) (citing Cal. Gov’t Code § 12940(k)); Taylor v. City of Los Angeles Dep’t of Water 3 & Power, 144 Cal. App. 4th 1216 , 1239–40 (2006)). To state such a claim, plaintiff must plead: 4 “(1) plaintiff was subjected to discrimination, harassment, or retaliation; (2) defendant failed to 5 take reasonable steps to prevent discrimination, harassment, or retaliation; and (3) this failure 6 caused plaintiff to suffer injury, damage, loss or harm.” Brewer, 2019 WL 1206702 , at *5 7 (quoting Leland v. City & Cty. of San Francisco, 576 F. Supp. 2d 1079, 1103 (N.D. Cal. 2008)). 8 As discussed above, plaintiff sufficiently pleads underlying claims of discrimination and 9 harassment. Plaintiff alleges she reported the harassment to defendant’s management staff and 10 defendant’s EEO office. SAC ¶ 9. Plaintiff further alleges defendant failed to prevent or address 11 the discrimination, and more specifically, defendant did not investigate the complaints or 12 discipline the supervisors involved. Id. ¶ 21. Plaintiff alleges defendant’s inaction caused her to 13 continue to suffer harassment and discrimination, which affected her mental health. Id. ¶¶ 13,14. 14 Plaintiff states a claim for failure to prevent discrimination and harassment. 15 F. Retaliation (Claim 5) 16 “To establish a prima facie case of FEHA retaliation, a plaintiff must allege, in order 17 ultimately to show: (i) that she engaged in a protected activity; (ii) the employer subjected her to 18 an adverse employment action; and (iii) a causal link existed between her protected activity and 19 the employer’s action.” Ayala v. Frito Lay, Inc., 263 F. Supp. 3d 891, 911 (E.D. Cal. 2017) 20 (citing Dawson v. Entek Int’l, 630 F.3d 928, 936 (9th Cir. 2011); Yanowitz v. L’Oreal USA, Inc., — 21 — 36 Cal. 4th 1028, 1042 (2005)) (citation omitted). “A plaintiff engages in protected activity if she 22 opposes unlawful employment practices, when that opposition is based on a ‘reasonable belief’ 23 that the employer’s actions are unlawful.” Ayala, 263 F. Supp. 3d at 911 (citing Moyo v. Gomez, — 24 — 40 F.3d 982, 984 (9th Cir. 1994)). A causal link between the protected activity and adverse 25 action can be pled by invoking circumstantial evidence, “including the employer’s knowledge of 26 the protected activity and the proximity in time between the protected action and the adverse 27 employment act.” Id. (citing Dawson, 630 F.3d at 936 ; Jordan v. Clark, 847 F.2d 1368 , 1376 28 (9th Cir. 1988)). 1 Plaintiff alleges she was retaliated against after lodging complaints with management and 2 the EEO office about the harassment targeting her, SAC ¶ 9, and that she suffered adverse actions 3 as a result including continued harassment, failure to promote, and changes in her employment 4 conditions. Id. ¶¶ 14–16. Accordingly, plaintiff sufficiently pleads a prima facie case of 5 retaliation. 6 G. Reasonable Accommodation (Claim 7) 7 FEHA makes it an unlawful employment practice “[f]or an employer . . . to fail to make 8 reasonable accommodation for the known physical or mental disability of an applicant or 9 employee.” Cal. Gov’t Code § 12940(m). “In order to state a claim for failure to provide 10 reasonable accommodation, [a p]laintiff must allege that [she] suffers from a physical or mental 11 disability, that [she] is a qualified individual, and that [d]efendant failed to reasonably 12 accommodate [p]laintiff’s disability.” Alejandro v. ST Micro Elecs., Inc, 129 F. Supp. 3d 898 , 13 910 (N.D. Cal. 2015) (citing Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 256 (2000)). 14 Defendant argues for dismissal, saying plaintiff does not identify her disability, to whom 15 she submitted her transfer request, or when she asked for the accommodation. Mot at 5. Here as 16 well, however, plaintiff’s allegations are sufficient to allow defendant to investigate by checking 17 their own internal records. Plaintiff alleges she informed management and defendant’s EEO 18 office of the harassment she was experiencing and asserted the harassment was worsening her 19 disability, “which adversely affected [p]laintiff’s mental health.” SAC ¶ 9. She pleads that 20 defendant granted plaintiff leave under the Family Medical Leave Act based on her disability. Id. 21 ¶ 11. Plaintiff requested a transfer to another department as a reasonable accommodation. Id. 22 ¶ 10. Plaintiff alleges she was denied the request and defendant “failed to engage in the 23 interactive process in good faith by failing to explore any other accommodation.” Id. ¶¶ 12–13. 24 Plaintiff’s allegations state a prima facie case for denial of reasonable accommodation of 25 the disability for which defendant granted her leave. 26 H. Failure to Engage in Good Faith in an Interactive Process (Claim 6) 27 “Under FEHA, an employer’s failure ‘to engage in a timely, good faith, interactive 28 process with the employee . . . to determine effective reasonable accommodations’ is a violation 1 of the statute separate from any failure to make reasonable accommodations for a qualified 2 employee’s disability.” Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781 , 799–800 (N.D. Cal. 3 2015) (quoting Cal. Gov’t Code § 12940(n)); Wilson v. Cty. of Orange, 169 Cal. App. 4th 1185 , 4 1193 (2009). “FEHA imposes on employers a mandatory obligation to engage in the interactive 5 process once an employee requests an accommodation for his or her disability, or when the 6 employer itself recognizes the need for one.” Achal, 114 F. Supp. 3d at 800 (citing Brown v. 7 Lucky Stores, Inc., 246 F.3d 1182, 1188 (9th Cir. 2001)). “Once initiated, the employer has a 8 continuous obligation to engage in the interactive process in good faith.” Id. (citing Swanson v. 9 Morongo Unified Sch. Dist., 232 Cal. App. 4th 954, 971 (2014), as modified on denial of reh’g 10 (Dec. 23, 2014)). The interactive process “requires communication and good-faith exploration of 11 possible accommodations between employers and individual employees with the goal of 12 identifying an accommodation that allows the employee to perform the job effectively.” Yeager 13 v.Corr. Corp. of Am., 944 F. Supp. 2d 913, 919 (E.D. Cal. 2013) (internal quotation marks 14 omitted). “To prevail on a section 12940(n) claim, an employee must identify a reasonable 15 accommodation that would have been available at the time the interactive process should have 16 occurred.” Achal, 114 F. Supp. 3d at 800 (citing Nealy v. City of Santa Monica, 234 Cal. App. 17 4th 359, 379 (2015)). Plaintiffs are not required to identify such a reasonable accommodation at 18 the pleading stage, however, because often “[e]mployees do not have at their disposal the 19 extensive information concerning possible alternative positions or possible accommodations 20 which employers have [available].” Id. (quoting Scotch v. Art Inst. of California, 173 Cal. App. 21 4th 986, 1018 (2009)). 22 As discussed above, plaintiff alleges she has a disability, sought reasonable 23 accommodation from defendant and was denied the transfer. SAC ¶¶ 9–10. Plaintiff further 24 alleges defendant did not provide her with an alternative accommodation and did not engage in an 25 interactive process to negotiate an accommodation. Id. ¶¶ 12–14. 26 Plaintiff sufficiently states a claim for failure to engage in an interactive process. 27 ///// 1 II. CONCLUSION 2 For the above reasons, plaintiff states a claim for each of her nine claims. Accordingly, 3 defendant’s motion to dismiss is denied. 4 This order resolves ECF No. 35. 5 IT IS SO ORDERED. 6 DATED: July 1, 2021.