Majo v. Sony Interactive Entertainment LLC

[7] 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 EMMA MAJO, Case No. 21-cv-09054-LB 12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS 14 SONY INTERACTIVE Re: ECF No. 24 ENTERTAINMENT LLC, [15] Defendant. [16] 17 INTRODUCTION 18 This is a putative class and collective action against Sony Interactive Entertainment alleging 19 pervasive gender discrimination at Sony. The named plaintiff — a female former employee — 20 brought individual, class, and collective claims, alleging that (1) she was harassed, denied 21 promotion, demoted, and terminated, all because of gender bias, and (2) Sony employees who are 22 female or identify as female do not receive the same compensation as similarly situated male 23 employees and are denied promotions.1 24 The plaintiff’s first amended complaint (FAC) has thirteen claims: one collective claim on 25 behalf of herself and a nationwide class under the Fair Labor Standards Act (FLSA) as amended by [27] 1 First Am. Compl. (FAC) – ECF No. 22. Citations refer to material in the Electronic Case File (ECF); 1 the Equal Pay Act; six state-law class claims on behalf of herself and a California class; one claim 2 on behalf of herself and both classes under the Declaratory Judgment Act, 28 U.S.C. § 2201 ; and 3 five individual claims under state law.2 Sony moved to dismiss the FAC under Federal Rule of Civil 4 Procedure 12(b)(6), mainly on the ground that the plaintiff alleges only unactionable run-of-the-mill 5 personnel activity and thus does not plausibly plead claims. It also moved to strike the claims under 6 Rule 12(f) on the ground that the allegations are “highly individual” and do not establish that a class 7 or collective action is procedurally proper.3 8 The court grants the motion to dismiss (with leave to amend) for most claims because the 9 allegations are mostly conclusory, but the following individual claims survive: statutory and 10 common-law wrongful termination, whistleblower retaliation under Cal. Lab. Code § 1102.5 (b), 11 and retaliation under the California Fair Employment and Housing Act (FEHA). Because the court 12 dismisses the federal claim, though, it does not have jurisdiction over the state claims and so 13 dismisses all claims. The court denies the motion to strike without prejudice because it is premature 14 to decide it based on an inadequately pled complaint. [15] 16 STATEMENT 17 1. Allegations Regarding Individual Claims 18 The plaintiff alleged that she was harassed, denied promotion, demoted, and terminated 19 “because of gender bias, because she is a female, and because she spoke up about gender bias.”4 20 The specific allegations in the FAC are as follows. 21 The plaintiff worked at Sony from 2015 until 2021. (She does not describe her job title or 22 responsibilities.)5 During that time, she was never promoted and could not find out how to get 23 promoted, despite asking multiple managers and her mentor.6 When she asked, her managers would [24] 25 2 Id. (¶¶ 79–199). [26] 3 Mot. – ECF No. 24. 4 FAC – ECF No. 22 (¶ 78). [5] Id. at 13 (¶ 64), 16 (¶ 77). 1 “say something to the effect of, ‘yeah we should talk about that.’”7 Even though she had a direct 2 subordinate for several years, she was never a manager.8 At one point, her “requests for a path to 3 management resulted in the creation of a plan for more levels within [her] department instead of any 4 communication that tasks, behavior modification, or knowledge was needed on [her] part.”9 5 She alleges she was effectively demoted. She at first reported to a vice president, but “after 6 asking about how to get promoted, she was then told to report to a manager below the VP.” The 7 change was ostensibly because the VP “did not have time to handle subordinates,” but the plaintiff 8 “noticed that other male co-workers continued reporting to the VP.”10 9 In 2021, Sony terminated the plaintiff “[s]oon after” she “submitted a signed statement to Sony 10 detailing the gender bias she [had] experienced.” The termination was ostensibly because her 11 department was being eliminated, but she was not “a member of the department being dissolved.”11 12 There are other allegations about gender bias. “Sony has managers (e.g., Yu Sugita) who will not 13 be alone in a room with a female with the door closed” and who will speak only to male colleagues 14 even if a female is present.12 (The plaintiff does not specify that Sugita was her manager.) When the 15 plaintiff wanted something done, she needed to send the request through a male because if she 16 communicated with Sugita directly, he would ignore her. A “request would garner a response when it 17 came from a male intern,” but a “a virtually identical request would be ignored if it came from a 18 higher-level female employee.”13 At one point, the plaintiff left the “Security Governance, Risk, and 19 Compliance” department because she thought promotion was unavailable (although the FAC also 20 alleges she left the department because she was asked to and felt she had no choice because of office [7] Id. at 14 (¶ 69). [8] Id. at 14–15 (¶ 71). 25 9 Id. at 14 (¶ 68). [10] Id. (¶ 70). [11] Id. at 16 (¶ 77). [12] Id. at 14 (¶ 66). 1 politics). After being told that she could return to her former department any time that there was an 2 opening, she applied but never heard back about her application.14 3 Sony’s human-resources department “creates resistance when women try to get promoted” by 4 “losing track of females seeking promotion” and denying females promotion because of their 5 current job titles, “without a real examination of [their] skills.”15 By contrast, Sony promotes a 6 “notable” number of men “out of cycle” (meaning, not during “in cycle” promotions at the time of 7 annual performance reviews). The plaintiff knows of no female out-of-cycle promotions.16 8 When she joined Sony, the plaintiff’s department was about forty percent female, but over time 9 there was a “shift towards more and more males.” “As of 2021, Sony is dominated by males.”17 10 The plaintiff has also “heard [Sony] managers make gender-biased comments about female 11 workers” (such as saying, “[w]e can understand she is not performing well because she has a lot 12 going on at home”), but she never heard like comments about men.18 [13] 14 2. Class and Collective Allegations 15 Sony employees “who are female or identify as female . . . were not compensated equally to 16 male employees who performed substantially similar work” and “were denied promotions.”19 17 “Even though nearly half of [Sony] PlayStation owners are females,” a third-party gender-balance 18 survey “revealed that Sony’s Executive Committee was 100% male” and gave Sony “the worst 19 possible rating . . . because [it] did not have any females in either Staff or Line leadership roles.”20 20 The class and collective definitions are as follows. [14] Id. at 14–15 (¶¶ 68, 73). [15] Id. at 16 (¶ 76). 25 16 Id. at 15–16 (¶ 75). [17] Id. at 13 (¶ 65). [18] Id. at 15 (¶ 72). [19] Id. at 4 (¶ 13). 1 For the collective action under the Equal Pay Act claim, the proposed “Nationwide Class” is 2 “[a]ll individuals employed by Sony Interactive Entertainment, LLC in the United States at any 3 time during the time period beginning three years prior to the filing of this Complaint through the 4 date of trial in this action who are either (a) female or (b) identify as female.”21 5 For the state-law class claims, the proposed California Class is “[a]ll individuals employed by 6 Sony Interactive Entertainment, LLC in California at any time during the time period beginning 7 four years prior to the filing of this Complaint through the date of trial in this action who are either 8 (a) female or (b) identify as female.”22 The proposed “Former Employee Subclass” is “members of 9 the California Class who are no longer employed by Sony.”23 10 The FAC contains basic allegations for the class claims about numerosity, common questions 11 of law and fact, typicality, adequacy of representation, and the requirements for Rule 26(b)(2) and 12 (b)(3) classes. It also recites basic allegations about collective claims under the Equal Pay Act 13 pursuant to the FLSA, 29 U.S.C. § 216 (b).24 14 The plaintiff attached declarations from female Sony employees, among other documents, to 15 her opposition.25 The court does not consider them in evaluating Sony’s motion. See, e.g., Hal 16 Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542 , 1555 n.19 (9th Cir. 1989) (district 17 court generally must disregard material outside the pleadings in considering a motion to dismiss); 18 Graves v. Sw. & Pac. Specialty Fin., Inc., No. C 13-1159 SBA, 2013 WL 5945851 , at *4 (N.D. 19 Cal. Nov. 4, 2013) (“The grounds for a motion to strike must be readily apparent from the face of 20 the pleadings or from materials that may be judicially noticed.”). [24] 25 21 FAC – ECF No. 22 at 12 (¶ 55). [22] Id. at 6 (¶ 23). [23] Id. (¶ 24). [24] Id. at 6–12 (¶¶ 29–54), 13 (¶¶ 59–63). 1 3. Relevant Procedural History 2 The FAC has thirteen claims: (1) denial of equal pay for equal work, in violation of the FLSA 3 as amended by the Equal Pay Act (claim one on behalf of the plaintiff and the nationwide class); 4 (2) declaratory judgment (claim two on behalf of the plaintiff and all class members); (3) six state5 law claims (claims three through eight) on behalf of the plaintiff and the California class: denial of 6 equal pay in violation of California’s Equal Pay Act, Cal. Lab. Code §§ 1197.5 et seq. & 1194.5; 7 discrimination and harassment in the form of unequal pay and a failure to promote, in violation of 8 Cal. Gov’t Code § 12940 et seq.; failure to prevent and investigate discrimination and harassment 9 in violation of Cal. Gov’t Code § 12940 et seq.; failure to pay final wages in violation of Cal. Lab. 10 Code §§ 201–203; unfair competition in violation of California’s Unfair Competition Law (UCL), [11] Cal. Bus. & Prof. Code § 17200 ; and a claim under California’s Private Attorneys General Act 12 (PAGA) based on the Labor Code violations; and (4) five state-law claims (claims nine through 13 thirteen) brought by the plaintiff individually: wrongful termination; intentional and negligent 14 infliction of emotional distress; discrimination and harassment in the form of wrongful 15 termination, in violation of Cal. Gov’t Code § 12940 et seq.; and retaliatory discharge in violation 16 of Cal. Lab. Code §§ 232.5 & 1102.5.26 17 The court has federal-question jurisdiction under 28 U.S.C. § 1331 and supplemental 18 jurisdiction over the plaintiff’s state-law claims under 28 U.S.C. § 1367 . All parties consented to 19 magistrate-judge jurisdiction under 28 U.S.C. § 626.27 The court held a hearing on April 14, 2022. [20] 21 STANDARD OF REVIEW 22 1. Motion to Dismiss — Rule 12(b)(6) 23 A complaint must contain a “short and plain statement of the claim showing that the pleader is 24 entitled to relief” to give the defendant “fair notice” of what the claims are and the grounds upon 25 which they rest. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A [27] 26 FAC – ECF No. 22 at 16–36 (¶¶ 79–199). 1 complaint does not need detailed factual allegations, but “a plaintiff’s obligation to provide the 2 ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic 3 recitation of the elements of a cause of action will not do. Factual allegations must be enough to 4 raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (cleaned up). 5 To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual 6 allegations, which when accepted as true, “state a claim to relief that is plausible on its face.” 7 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); NorthBay Healthcare Grp., Inc. v. Kaiser Found. Health 8 Plan, Inc., 838 F. App’x 231 , 234 (9th Cir. 2020). “[O]nly the claim needs to be plausible, and not 9 the facts themselves.” NorthBay, 838 F. App’x at 234 (citing Iqbal, 556 U.S. at 696 ); see Interpipe 10 Contracting, Inc. v. Becerra, 898 F.3d 879 , 886–87 (9th Cir. 2018) (the court must accept the factual 11 allegations in the complaint “as true and construe them in the light most favorable to the plaintiff”) 12 (cleaned up). “A claim has facial plausibility when the plaintiff pleads factual content that allows the 13 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, [14] 556 U.S. at 678 . “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for 15 more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads 16 facts that are merely consistent with a defendant’s liability, it stops short of the line between 17 possibility and plausibility of ‘entitlement to relief.’” Id. (cleaned up). Still, “a formulaic recitation of 18 the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 . 19 If a court dismisses a complaint, it should give leave to amend unless the “pleading could not 20 possibly be cured by the allegation of other facts.” United States v. United Healthcare Ins. Co., 848 21 F.3d 1161, 1182 (9th Cir. 2016) (cleaned up). [22] 23 2. Motion to Strike — Rule 12(f) 24 The court may “strike from a pleading an insufficient defense or any redundant, immaterial, 25 impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “[T]he function of a 12(f) motion to 26 strike is to avoid the expenditure of time and money that must arise from litigating spurious issues 27 by dispensing with those issues prior to trial.” Sidney–Vinstein v. A.H. Robins Co., 697 F.2d 880 , 1 the matter to be stricken clearly could have no possible bearing on the subject of the litigation. If 2 there is any doubt whether the portion to be stricken might bear on an issue in the litigation, the 3 court should deny the motion.” Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048 , 1057 4 (N.D. Cal. 2004) (cleaned up). “With a motion to strike, just as with a motion to dismiss, the court 5 should view the pleading in the light most favorable to the nonmoving party.” Id. “Ultimately, 6 whether to grant a motion to strike lies within the sound discretion of the district court.” Cruz v. 7 Bank of N.Y. Mellon, No. 12-cv-00846-LHK, 2012 WL 2838957 , at *2 (N.D. Cal. July 10, 2012) 8 (citing Whittlestone, Inc. v. Handi–Craft Co., 618 F.3d 970, 973 (9th Cir. 2010)). [9] 10 ANALYSIS 11 Sony moved to dismiss, generally on the ground that the plaintiff failed to allege facts to 12 sustain her claims.28 The court dismisses most claims on this ground without prejudice. The 13 following individual claims survive: statutory and common-law wrongful termination, 14 whistleblower retaliation under Cal. Lab. Code § 1102.5 (b), and FEHA retaliation. But because 15 the court dismisses the federal claim, it does not have jurisdiction over the state claims and thus 16 dismisses the entire complaint. The court denies the motion to strike class allegations without 17 prejudice until the filing of any amended complaint. [18] 19 1. Motion to Dismiss 20 1.1 FLSA/Equal Pay Act Collective Claim for Nationwide Class (Claim One) 21 Claim one — a putative nationwide collective claim for wage discrimination under the FLSA 22 as amended by the federal Equal Pay Act (and an individual claim by the plaintiff) — is dismissed 23 because the plaintiff failed to allege any relevant facts. 24 “The principle of the Equal Pay Act, 29 U.S.C. § 206 (d), is that employees doing equal work 25 should be paid equal wages, regardless of sex.” Maxwell v. City of Tucson, 803 F.2d 444 , 445–46 26 (9th Cir. 1986). “To establish a prima facie case [under the Act], a plaintiff must show that the [27] 1 employer pays different wages to employees of the opposite sex for substantially equal work.” 2 E.E.O.C. v. Maricopa Cnty. Cmty. Coll. Dist., 736 F.2d 510, 513 (9th Cir. 1984). The plaintiff 3 must present a comparison of “the jobs in question,” not “the individuals who hold the jobs.” 4 Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1074 (9th Cir. 1999). “[N]o intent to discriminate need 5 be shown.” Maxwell, 803 F.2d at 446 . 6 Jobs are “substantially equal” if they satisfy a two-part analysis. Stanley, 178 F.3d at 1074 . First, 7 the plaintiff must show that they have a “common core of tasks, i.e., a significant portion of the two 8 jobs is identical.” Id. Second, “the court must then determine whether any additional tasks, 9 incumbent on one job but not the other, make the two jobs substantially different.” Id. (cleaned up). 10 This claim is dismissed because the plaintiff merely recited the elements of the claim and did 11 not allege any specific facts. For example, she does not describe her work or how her work was 12 substantially equal to the work of any male allegedly paid more than she was paid. 13 1.2 State-Law California-Class Claims (Claims Three Through Eight) 14 The plaintiff brought six state-law claims on behalf of herself and the California Class. She did 15 not plausibly plead the claims. 16 First, claim three (for a violation of the California Equal Pay Act, Cal. Lab. Code § 1197.5 ) fails for the same reasons as the federal Equal Pay Act claim. “The California Equal Pay Act is [17] nearly identical to the federal civil rights provision, and California courts rely upon federal case [18] law to interpret the state statute.” Negley v. Jud. Council of Cal., No. C 08-03690 MHP, 2010 WL 19 11545605, at *5 (N.D. Cal. June 21, 2010); Hall v. Cnty. of Los Angeles, 148 Cal. App. 4th 318 , [20] 323 n.4 (2007). [21] Second, claim four is for discrimination (based on both disparate-treatment and disparate22 impact theories) and harassment, in connection with compensation and failure to promote, under [23] the FEHA, Cal. Gov’t Code § 12940(a) & (j). The claim and its subclaims — disparate-treatment [24] discrimination in compensation, disparate-treatment discrimination in failure to promote, [25] disparate-impact discrimination, and harassment — are not plausibly pled. [26] As to wage discrimination, claim four fails for the same reasons the Equal Pay Act claims fail. [27] “[W]hen a plaintiff asserts a discriminatory compensation claim under FEHA, [it] must meet the 1 same standard as an Equal Pay Act claim.” Negley, 2010 WL 11545605 , at *5 (collecting cases); 2 see also Guz v. Bechtel Nat’l Inc., 24 Cal. 4th 317, 354 (2000). 3 As to discrimination in the form of failure to promote, the FAC has insufficient factual 4 allegations to support the claim. The Act prohibits employers from discriminating based on sex, gender, gender identity, or gender expression. Cal. Gov’t Code § 12940(a). To maintain a claim for [5] discrimination, the plaintiff must establish that (1) she is a member of a protected class, (2) she was [6] qualified for the position, (3) she experienced an adverse employment action, and (4) similarly [7] situated individuals outside the protected class “were treated more favorably, or other circumstances [8] surrounding the adverse employment action give rise to an inference of discrimination.” Fitch v. [9] S.F. Unified Sch. Dist., No. 15-cv-02769-SI, 2015 WL 6551668 , at *5 (N.D. Cal. Oct. 29, 2015). [10] The FAC is mostly conclusory. It does plausibly allege that the plaintiff was qualified to be [11] promoted (because her managers expressed receptivity to promoting her).29 But there are no [12] allegations that raise an inference of discrimination. For example, there are no allegations that males [13] who were given out-of-cycle promotions were similarly situated to the plaintiff. There are [14] allegations that Sony’s human-resources department “creates resistance when women try to get [15] promoted” by various methods, but the FAC does not allege that those methods were used against [16] the plaintiff.30 Kannan v. Apple Inc., No. 5:17-cv-07305-EJD, 2018 WL 3820857 , at *6 (N.D. Cal. [17] Aug. 10, 2018) (dismissing a FEHA failure-to-promote claim where the plaintiff failed to allege 18 circumstances establishing an inference of discrimination because “[he] does not allege, for 19 example, that he had similar qualifications to . . . other people” treated more favorably). 20 As to disparate-impact discrimination, the plaintiff did not dispute Sony’s argument that the 21 claim is not plausibly pled.31 In any event, her allegations are conclusory. 22 As to the harassment theory of claim four, it also fails. As Sony contended, the plaintiff’s 23 “claims are grounded in unactionable personnel management actions such as demotions, [25] 26 29 FAC – ECF No. 22 at 14 (¶ 69). [30] Id. at 16 (¶ 76). 31 Opp’n – ECF No. 26 at 17–19 (arguing only that the plaintiff’s “disparate impact claims can satisfy 1 termination, and promotions, which cannot form the basis of a harassment claim within the 2 meaning of” the Act.32 Reno v. Baird, 18 Cal. 4th 640, 647 (1998). 3 The Act prohibits harassment of employees because of their sex, gender, gender identity, or 4 gender expression. Cal. Gov’t Code § 12940(j). To state a claim for harassment under the Act, the 5 plaintiff must allege that (1) she is a member of a protected group, (2) she was subjected to 6 harassment for belonging to the group, and (3) the “alleged harassment was so severe that it 7 created a hostile work environment.” Lawler v. Montblanc N. Am., 704 F.3d 1235, 1244 (9th Cir. 8 2013) (citing Aguilar v. Avis Rent a Car Sys., Inc., 21 Cal. 4th 121 , 129–30 (1999)). The 9 harassment must be a “concerted pattern . . . of a repeated, routine or a generalized nature.” Id. 10 “Isolated incidents that do not exist in a concerted pattern can also fulfill the ‘severe or pervasive’ 11 prong, but only if such isolated incidents consist of a physical assault or the threat thereof.” 12 Landucci v. State Farm Ins. Co., 65 F. Supp. 3d 694 , 703–04 (N.D. Cal. 2014) (cleaned up). 13 “Harassment” under the Act differs from discrimination. Harassment “consists of actions 14 outside the scope of job duties which are not of a type necessary to business and personnel 15 management.” Reno, 18 Cal. 4th at 647 . Thus, personnel-management action must be analyzed in 16 the context of discrimination as opposed to harassment. Id. at 646–47 (hiring and termination 17 decisions, job assignments, and promotions or demotions “do not come within the meaning of 18 harassment”); Lewis v. UPS, Inc., 252 F. App’x 806, 808 (9th Cir. 2007) (threat of termination 19 cannot be analyzed as harassment because it is a personnel-management action). But “some 20 official employment actions done in furtherance of a supervisor’s managerial role can also have a 21 secondary effect of communicating a hostile message” if done in an “unnecessarily demeaning” 22 manner and if “the actions establish a widespread pattern of bias.” Roby v. McKesson Corp., 47 23 Cal. 4th 686 , 708–09 & n.10 (2009) (examples include “shunning of Roby during staff meetings,” 24 “belittling of Roby’s job,” and “reprimands of Roby in front of Roby’s coworkers”). 25 Here, the plaintiff mainly alleges personnel-management actions as the basis of her harassment 26 claim. For example, she alleges that Sony’s “harassing actions . . . includ[ed] preventing females [27] 1 from being promoted and preventing females from equal payment.”33 As an example of 2 harassment, the plaintiff pointed to a manager’s being more receptive to requests from male 3 interns than higher-level female employees, and managers’ job-related gender-biased comments 4 about female employees.34 But this conduct related to the performance of job duties is a personnel5 management action that is not actionable FEHA harassment. 6 Third, the FAC did not plausibly plead claim five for failure to prevent and investigate 7 discrimination and harassment, in violation of the FEHA. 8 The Act prohibits employers from “fail[ing] to take all reasonable steps necessary to prevent 9 discrimination and harassment.” Cal. Gov’t Code § 12940(k). To state a claim for failure to 10 prevent discrimination or harassment under the Act, a plaintiff must allege that (1) she was 11 subjected to discrimination or harassment, (2) the defendant failed to take all reasonable steps 12 necessary to prevent the discrimination or harassment, and (3) this failure caused the plaintiff to 13 suffer injury, damage, loss or harm. Lelaind v. City and Cnty. of San Francisco, 576 F. Supp. 2d 14 1079, 1103 (N.D. Cal. 2008). It follows that a claim under subsection (k) cannot proceed in the 15 absence of an underlying discrimination or harassment claim. Kohler v. Inter–Tel Techs., 244 F.3d 16 1167 , 1174 n.4 (9th Cir. 2001); Trujillo v. Transit Dist., 63 Cal. App. 4th 280 , 286–89 (1988). 17 Because the plaintiff has not plausibly pled underlying claims of discrimination or harassment, 18 the failure-to-prevent claim also fails. And although the FAC asserts that a claim for failure to 19 prevent also arises from California common law, the plaintiff’s briefing addresses only the Act.35 20 Thus, the failure-to-prevent claim is dismissed. 21 Fourth, claim six (for failure to pay final wages, in violation of Cal. Lab. Code §§ 201–03) is 22 dismissed because the plaintiff did not oppose Sony’s motion to dismiss it.36 [26] 33 FAC – ECF No. 22 at 22 (¶ 113). 34 Opp’n – ECF No. 26 at 26 (citing FAC – ECF No. 22 at 14–15 (¶¶ 67, 72)). [27] 35 FAC – ECF No. 22 at 23–24 (¶¶ 121, 126); Opp’n – ECF No. 26 at 26. 1 Fifth, the plaintiff’s derivative claims under the UCL and PAGA (claims seven and eight) fail 2 because the underlying claims fail. See, e.g., Reyna v. WestRock Co., No. 20-cv-01666-BLF, 2020 3 WL 5074390 , at *11–*12 (N.D. Cal. Aug. 24, 2020). 4 1.3 Individual Claims (Claims Nine Through Thirteen) 5 Claims nine through thirteen are the plaintiff’s individual claims. Only the following 6 individual claims (claims nine, twelve, and thirteen) survive: statutory and common-law wrongful 7 termination, whistleblower retaliation under Cal. Lab. Code § 1102.5 (b), and retaliation under the 8 FEHA. The rest are not plausibly pled. 9 First, the motion to dismiss is denied as to the claim for wrongful termination in violation of 10 public policy under California common law (claim nine). 11 “[W]hen an employer’s discharge of an employee violates fundamental principles of public 12 policy, the discharged employee may maintain a tort action and recover damages traditionally 13 available in such actions.” Tameny v. Atl. Richfield Co., 27 Cal. 3d 167, 170 (1980). “[T]he elements 14 of a claim for wrongful termination in violation of public policy are (1) an employer-employee 15 relationship; (2) an adverse employment action; (3) that the adverse employment action violated 16 public policy; and (4) the adverse employment action caused the employee damages.” Hollie v. 17 Concentra Health Servs., Inc., No. C 10-5197 PJH, 2012 WL 993522 , at *7 (N.D. Cal. Mar. 23, 18 2012) (citing Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 900 (2008) and Haney v. Aramark 19 Uniform Servs., Inc., 121 Cal. App. 4th 623, 641 (2004)). In other words, “the plaintiff must establish 20 the existence of a public policy and a nexus between the public policy and an employee’s 21 termination.” Id. (citing Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238 , 1258–59 (1994)). 22 For an actionable Tameny claim, a relevant public policy must be implicated. The policy must 23 be: “(1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the sense that it 24 ‘inures to the benefit of the public’ rather than serving merely the interests of the individual; (3) 25 well established at the time of discharge; and (4) substantial and fundamental.” Freund v. 26 Nycomed Amersham, 347 F.3d 752, 758 (9th Cir. 2003) (quoting City of Moorpark v. Super. Ct., [27] 18 Cal. 4th 1143 , 1159 (1998)). The plaintiff bears the burden of identifying the public policy 1 California, “public policy cases fall into one of four categories: the employee (1) refused to violate 2 a statute; (2) performed a statutory obligation; (3) exercised a constitutional or statutory right or 3 privilege; or (4) reported a statutory violation for the public’s benefit.” Green v. Ralee Eng’g Co., [4] 19 Cal. 4th 66, 76, 90 (1998) (holding that a public policy may also be premised on an 5 administrative regulation). 6 The plaintiff’s Tameny claim is predicated on her wrongful-termination claim under the 7 FEHA.37 Because the latter claim is plausible (as discussed below), the Tameny claim is too. 8 Peterson v. U.S. Bancorp Equip. Fin., Inc., No. C 10-0942 SBA, 2010 WL 2794359 , at *6 (N.D. 9 Cal. July 15, 2010) (a FEHA violation can support a Tameny claim). 10 Second, claim ten (for intentional infliction of emotional distress) is dismissed because it is 11 premised only on personnel-management activity. 12 In California, “[a] cause of action for intentional infliction of emotional distress exists when 13 there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or 14 reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering 15 severe or extreme emotional distress; and (3) actual and proximate causation of the emotional 16 distress by the defendant’s outrageous conduct.” Kelley v. Conco Cos., 196 Cal. App. 4th 191 , 215 17 (2011) (cleaned up). “A defendant’s conduct is outrageous when it is so extreme as to exceed all 18 bounds of that usually tolerated in a civilized community.” Id. (cleaned up). 19 “A simple pleading of personnel management activity is insufficient to support a claim of 20 intentional infliction of emotional distress, even if improper motivation is alleged.” Janken v. GM 21 Hughes Elect, 46 Cal. App. 4th 55, 80 (1996). Examples of personnel-management activity are 22 “hiring and firing, job or project assignments, . . . promotion or demotion, performance 23 evaluations, the provision of support, the assignment or non-assignment of supervisory functions, 24 deciding who will and who will not attend meetings, . . . and the like.” Id. at 64–65. 25 The plaintiff’s claim is mostly about personnel management (within the meaning of Janken): 26 Sony managers’ receptivity to employees’ ideas, willingness to speak to employees at meetings, [27] 1 and decisions to demote, not promote, and terminate her and others.38 Those allegations cannot 2 support the claim. The one allegation that could potentially support the claim is that Sony 3 managers made gender-biased comments about female employees.39 But that does not amount to 4 the extreme conduct needed to plead the claim. Kelley, 196 Cal. App. 4th at 215 ; Semore v. Pool, [5] 217 Cal. App. 3d 1087, 1104 (1990) (where “[n]o program of supervisorial harassment is alleged,” 6 the “plaintiff has not alleged . . . conduct that exceeds all bounds usually tolerated by a decent 7 society”). Thus, the claim fails. 8 Third, the plaintiff claims negligent infliction of emotional distress (claim eleven).40 Sony 9 contends that the plaintiff did not plead a duty and instead alleged only intentional conduct.41 10 Negligent infliction of emotional distress is a form of the tort of negligence and has the 11 following elements: (1) duty, (2) breach of duty, (3) causation, and (4) damages. Huggins v. Longs 12 Drug Stores Cal., Inc., 6 Cal. 4th 124, 129 (1993); see Burgess v. Super. Ct., 2 Cal. 4th 1064 , 1072 13 (1992). A duty to the plaintiff may be “imposed by law, be assumed by the defendant, or exist by 14 virtue of a special relationship.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 985 (1993) 15 (citing Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc., 48 Cal. 3d 583, 590 (1989)). 16 Under California law, there is ordinarily no duty to avoid negligently causing emotional 17 distress to another. Id. at 984. A plaintiff must allege a duty owed her regarding her emotional 18 condition or allege that her emotional distress arises out of the defendant’s breach of some other 19 legal duty. Id. at 984–85; see also Brahmana v. Lembo, No. C–09–00106 RMW, 2010 WL 20 290490, at *2 (N.D. Cal. Jan. 15, 2010). And in a case like this, which involves “direct victim” 21 liability, there must be a duty “that is assumed by the defendant or imposed on the defendant as a 22 matter of law, or that arises out of a relationship between” the parties. Marlene, 48 Cal. 3d at 590 . [26] 38 FAC – ECF No. 22 at 13–16 (¶¶ 64–78). 39 Id. at 15 (¶ 72). [27] 40 Id. at 30–31 (¶¶ 166–70). 1 The claim is dismissed because it is about intentional rather than negligent conduct. Galarpe v. 2 United Airlines, Inc., No. 17-CV-06514-EMC, 2018 WL 348161 , at *8 (N.D. Cal. Jan. 10, 2018) 3 (acts of employment discrimination and harassment are inherently intentional). 4 Fourth, the plaintiff claimed discrimination, retaliation, and harassment in her termination, in 5 violation of the FEHA and California common law (claim twelve).42 Sony contended that this claim 6 should be dismissed because it is unintelligible and because (as to retaliation) causation was not 7 plausibly pled.43 In her opposition, the plaintiff characterized this claim as one for “discrimination 8 and retaliation” under the Act.44 The court dismisses only the subclaim for harassment. 9 To the extent this claim alleges harassment in the form of the plaintiff’s termination in 10 violation of the Act, termination decisions cannot be harassment, as discussed above. Reno, 18 11 Cal. 4th at 646–47. Thus, the harassment claim is dismissed. 12 The claim for discrimination in the plaintiff’s termination is plausibly pled. The elements are 13 the same as for the claim for discrimination in form of a failure to promote. Fitch, 2015 WL 14 6551668, at *5. There are plausible allegations for all elements. For example, it is plausible that 15 the plaintiff was qualified for the position that she had when she was terminated because she held that position for six years, and her managers expressed receptivity to promoting her.45 [16] As for retaliation in violation of the Act, the claim is also plausibly pled. The Act prohibits [17] employers from retaliating against employees for complaining of discrimination. Cal. Gov’t Code [18] § 12940(h). The plaintiff must establish a prima facie case of retaliation by showing that “(1) she [19] engaged in a protected activity, (2) she suffered an adverse employment action, and (3) there was a [20] causal link between her activity and the employment decision.” Stegall v. Citadel Broad. Co., 350 21 F.3d 1061 , 1065–66 (9th Cir. 2004) (cleaned up); Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 22 1028, 1042 (2005) (collecting cases). [23] Contrary to Sony’s argument, the plaintiff plausibly pled causation. She alleged that she was [26] 42 FAC – ECF No. 22 at 31–34 (¶¶ 171–88). 43 Mot. – ECF No. 24 at 34. [27] 44 Opp’n – ECF No. 26 at 29. 1 terminated “[s]oon after” her complaint of gender bias and that Sony gave a false explanation for her 2 termination.46 That is enough at the pleadings stage. Shahrivar v. City of San Jose, 752 F. App’x 415 , 3 419 (9th Cir. 2018) (applying the same standard as in FEHA retaliation claims and holding that 4 “when adverse employment decisions are taken within a reasonable period of time after complaints of discrimination have been made, retaliatory intent may be inferred”); Haro v. Therm-X of Cal., Inc., [5] No. 15-cv-02123-JCS, 2015 WL 5121251 , at *7 (N.D. Cal. Aug. 28, 2015) (denying a motion to [6] dismiss a FEHA retaliation claim based on the plaintiff’s allegations that “he was terminated [7] reasonably soon after complaining about harassment,” “he performed his job satisfactorily,” and the [8] defendant “offered conflicting explanations of the termination”) (cleaned up). [9] Finally, claim thirteen is for whistleblower retaliation in violation of Cal. Lab. Code §§ 10 232.5(c) and 1102.5(b).47 [11] Under § 232.5(c), “[n]o employer may . . . [d]ischarge, formally discipline, or otherwise [12] discriminate against an employee who discloses information about the employer’s working [13] conditions.” In this context, disclosure “means to reveal something that was hidden and not [14] known.” Guthmann v. Classic Residence Mgmt. Ltd. P’ship, No. 16-CV-02680-LHK, 2017 WL 15 3007076, at *17–*18 (N.D. Cal. July 14, 2017) (quoting Mize-Kurzman v. Marin Cmty. Coll. [16] Dist., 202 Cal. App. 4th 832, 858 (2012)). [17] The plaintiff’s § 232.5(c) claim is dismissed because she did not plausibly allege that the [18] information she disclosed was not known. She alleged only that she “submitted a signed statement [19] to Sony detailing the gender bias she ha[d] experienced at Sony.”48 She alleged a fact that [20] seemingly contradicts the notion that her disclosure was unknown: “Sony’s discriminatory [21] employment practices, policies, and procedures are centrally established and implemented at the [22] highest levels of Sony.”49 Because of this contradiction about whether the bias was hidden, the court [23] dismisses the claim. [26] 46 Id. at 16 (¶ 77); Opp’n – ECF No. 26 at 29. 47 FAC – ECF No. 22 at 34–36 (¶¶ 189–99). [27] 48 Id. at 16 (¶ 77). 1 Section 1102.5 is a “whistle-blower” protection statute. Ferretti v. Pfizer Inc., No. 11-cv2 04486 LHK, 855 F. Supp. 2d 1017, 1023 (N.D. Cal. 2012). The provision that Sony allegedly 3 violated prohibits employers from retaliating against employees for disclosing information “if the 4 employee has reasonable cause to believe that the information discloses a violation of state or 5 federal statute” or “a local, state, or federal rule or regulation.” Cal. Lab. Code § 1102.5 (b). 6 To establish a prima facie claim for retaliation under § 1102.5, an employee must show “(1) 7 that he engaged in protected activity, (2) that he was thereafter subjected to an adverse 8 employment action by his employer, and (3) that there was a causal link between the protected 9 activity and the adverse employment action.” Love v. Motion Indus., Inc., 309 F. Supp. 2d 1128 , 10 1134 (N.D. Cal. 2004) (citing Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52, 69 (2000)). 11 To show that she engaged in protected activity, the employee must have disclosed a violation of a 12 specific statute, rule, or regulation. See id. at 1134–35; La v. San Mateo Cnty. Transit Dist., No. 13 14-cv-01768-WHO, 2014 WL 4632224 , at *5 (N.D. Cal. Sept. 16, 2014). 14 Sony argued that the plaintiff did not sufficiently allege that she disclosed to Sony a violation of 15 a specific rule, regulation, or statute.50 But the disclosure itself need not specify the relevant rule, 16 regulation, or statute; the issue is whether it is plausible that “the disclosed activity . . . violate[s] 17 any federal or state statute, rule, or regulation.” Love, 309 F. Supp. 2d at 1134 . Here, the disclosed 18 activity was “gender bias” that plausibly violates the FEHA. Thus, the § 1102.5(b) claim survives. 19 There is a case pending before the California Supreme Court concerning whether a plaintiff 20 claiming § 1102.5(b) retaliation must, as with § 232.5(c) claims, show that the plaintiff disclosed 21 information not previously known by the employer. People v. Kolla’s Inc., No. G057831, 2021 22 WL 1851487 , at *5 (Cal. Ct. App. May 10, 2021), review granted (Sept. 1, 2021) (No. S269456). 23 The outcome of the case may affect the pleading standard. 24 1.4 Declaratory Judgment Claim (Claim Two) 25 Claim two seeks a declaratory judgment as to the rights of the plaintiff and all class members [27] 1 under 28 U.S.C. § 2201.51 Sony contended that the claim should be dismissed because it is 2 redundant and because the predicate claims should be dismissed.52 The request is redundant because 3 it is coextensive with the other claims. It is therefore dismissed. See, e.g., Achal v. Gate Gourmet, 4 Inc., 114 F. Supp. 3d 781, 819 (N.D. Cal. 2015) (dismissing a claim for declaratory relief where it 5 “is commensurate with the relief sought through [the plaintiff’s] substantive claims”). [6] 7 2. Motion to Strike 8 Sony moved to strike the class allegations for the Nationwide and California Classes on the 9 grounds that (1) for the Nationwide Class, the plaintiff did not “sufficiently allege [that] 10 conditional certification is even a remote or realistic possibility,” and (2) for the California Class, 11 she did not show ascertainability, adequacy, typicality, commonality, predominance, or 12 manageability.53 The plaintiff countered that “Sony’s attempt to adjudicate all class action issues is 13 premature” at the pleadings stage and in any case, she “has sufficiently alleged all facts necessary 14 to prevail on certification.”54 The court denies the motion to strike without prejudice until any 15 further amended complaint is filed. 16 Class allegations generally are not tested at the pleadings stage and instead are tested after one 17 party has filed a motion for class certification. See, e.g., Thorpe v. Abbott Labs., Inc., 534 F. Supp. 18 2d 1120, 1125 (N.D. Cal. 2008); In re Wal–Mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 19 609, 615 (N.D. Cal. 2007). Nonetheless, as the Supreme Court has explained, “[s]ometimes the 20 issues are plain enough from the pleadings to determine whether the interests of the absent parties 21 are fairly encompassed within the named plaintiff’s claim.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 22 147, 160 (1982). Thus, a court may grant a motion to strike class allegations if it is clear from the 23 complaint that the class claims cannot be maintained. See, e.g., Sanders v. Apple Inc., 672 F. Supp. 24 2d 978, 990–91 (N.D. Cal. 2009). Such a motion can be granted with leave to amend. Id. at 991. [26] 51 Id. at 18 (¶¶ 88–90). 52 Mot. – ECF No. 24 at 13 n.1. [27] 53 Id. at 20–22, 26–32 & n.16. 1 The court denies the motion to strike. The plaintiff's allegations are still in flux; the opposition 2 || attached eight new declarations from female Sony employees, among other documents.* These 3 declarations may yield new allegations, and Rule 23 generally demands a “rigorous analysis” that 1 4 || aided by targeted information. See, e.g., Perkins v. LinkedIn Corp., 53 F. Supp. 3d 1190, 1221 (N.I 5 Cal. 2014 ) (“[T]he ‘rigorous analysis’ contemplated by the Supreme Court’s recent class 6 certification rulings requires . . . development of the record.”). It therefore would be premature to 7 decide the class-certification issue based on an initial complaint that is largely conclusory. Jue v. g Costco Wholesale Corp., No. C 10-00033 WHA, 2010 WL 889284 , at *6 (N.D. Cal. Mar. 11, 2010 9 (it was “premature to evaluate the sufficiency of the class allegations in the current complaint” 10 where all claims were dismissed and “different factual allegations” were specifically anticipated in future complaint); Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) " (“[T]he better and more advisable practice for a District Court to follow is to afford the litigants an opportunity to present evidence as to whether a class action [is] maintainable.”). = 8 For now, the plaintiff has mostly not alleged plausible claims, so the court denies the motion to 4 strike without prejudice. The defendant may raise the argument again in a subsequent motion to 1S strike. [16] CONCLUSION M The court dismisses the complaint with leave to amend and denies without prejudice the 18 motion to strike. The plaintiff may file a second amended complaint within 28 days and must 19 attach as an exhibit a blackline of the second amended complaint against the FAC. This resolves 20 ECF No. 24. 71 IT IS SO ORDERED. 22 Dated: April 21, 2022 LAE [23] 24 LAUREL BEELER United States Magistrate Judge [27] 28 || * Ilg Decl. — ECF No. 27; Exs. 1-13 to id. - ECF Nos. 27-1 to 27-13.