Stewart v. Chick-Fil-A, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 Lindsey Stewart, Case No.: 19cv1780-CAB-BGS 12 Plaintiff, ORDER REGARDING (1) MOTION 13 v. TO DISMISS FIRST AMENDED COMPLAINT AND MOTION TO 14 Chick-Fil-A, et al, STRIKE[Doc. No. 28]; AND (2) 15 Defendants. MOTION TO TAKE LEAVE TO AMEND [Doc. No. 37] [16] 17 On September 17, 2019, Plaintiff Lindsey Stewart (“Plaintiff”), proceeding pro se, 18 filed a complaint against Danny Putnam, Becky Putnam, 3 Little Cows, Inc., dba Chick19 Fil-A (“3 Little Cows”), and Chick-Fil-A, Inc (the Franchisor), for employment 20 discrimination. [Doc. No. 1.] On November 6, 2019, Defendants filed motions to 21 dismiss and strike the original complaint. [Doc. Nos. 5 and 7.] On January 17, 2020, this 22 Court issued an order granting the motions to dismiss the original complaint with leave to 23 amend. [Doc. No. 21.] 24 On February 21, 2020, Plaintiff filed a First Amended Complaint (“FAC”). [Doc. 25 No. 22.] On March 12, 2020, Defendants Danny Putnam and 3 Little Cows filed a 26 motion to dismiss and strike the FAC. [Doc. No. 28.] On May 15, 2020, rather than 27 filing an opposition to Defendants’ motion, Plaintiff filed a Motion to Take Leave to 28 Amend. [Doc. No. 37.] On May 22, 2020, Defendants filed a reply brief in support of 1 their motion to dismiss and strike the FAC. [Doc. No. 38.] On June 4, 2020, Defendants 2 filed an opposition to the motion for leave to amend. [Doc. No. 39.] To date, Plaintiff 3 has not filed a reply to the opposition. 4 The Court deems the motions suitable for determination on the papers submitted 5 and without oral argument. See S.D. Cal. CivLR 7.1(d)(1). 6 ALLEGATIONS OF FAC 7 The gravamen of Plaintiff’s FAC continues to be that she allegedly observed 8 another employee sexually harass several younger females at work, reported this to her 9 superiors, and was then given a false negative performance review which led to her 10 termination. [FAC ¶¶14-20.] 11 MOTIONS TO DISMISS 12 A. Legal Standard 13 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 14 defense that the complaint “fail[s] to state a claim upon which relief can be granted”— 15 generally referred to as a motion to dismiss. The Court evaluates whether a complaint 16 states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil 17 Procedure 8(a)(2), which requires a “short and plain statement of the claim showing that 18 the pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual 19 allegations,’ . . . it [does] demand . . . more than an unadorned, the defendant-unlawfully20 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 21 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 22 “To survive a motion to dismiss, a complaint must contain sufficient factual 23 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 24 (quoting Twombly, 550 U.S. at 570 ); see also Fed. R. Civ. P. 12(b)(6). A claim is facially 25 plausible when the collective facts pled “allow . . . the court to draw the reasonable 26 inference that the defendant is liable for the misconduct alleged.” Id. There must be 27 “more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely 28 consistent with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. 1 (quoting Twombly, 550 U.S. at 557 ). The Court need not accept as true “legal 2 conclusions” contained in the complaint, id., or other “allegations that are merely 3 conclusory, unwarranted deductions of fact, or unreasonable inferences,” Daniels-Hall v. 4 Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). 5 B. Defendant Chick-Fil-A, Inc. 6 The FAC does not contain any allegations as to Defendant Chick-Fil-A, Inc. (the 7 Franchisor). Therefore, Defendant Chick-Fil-A, Inc. is HEREBY DISMISSED 8 WITHOUT PREJUDICE and shall continue to be TERMINATED from the case. 9 C. Defendant Andrews Lagasse Branch + Bell (ALBB). 10 The FAC improperly names ALBB, counsel for Defendants, as a defendant based on 11 alleged misconduct during an EEOC investigation, four months after her termination. 12 First, Plaintiff did not have leave to add ALBB as a party. FRCP, Rule 15(a)(1)(B). 13 Second, ALBB did not employ Plaintiff and, therefore, it cannot be a defendant in any of 14 her employment-related claims. Therefore, Defendant ALBB is DISMISSED 15 WITHOUT PREJUDICE and it shall be TERMINATED from the case. 16 D. Defendants Danny Putnam and 3 Little Cows. 17 a. Gender Discrimination. 18 To establish a prima facie case under Title VII, a plaintiff must offer proof: (1) that 19 the plaintiff belongs to a class of persons protected by Title VII; (2) that the plaintiff 20 performed his or her job satisfactorily; (3) that the plaintiff suffered an adverse 21 employment action; and (4) that the plaintiff's employer treated the plaintiff differently 22 than a similarly situated employee who does not belong to the same protected class as the 23 plaintiff. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 24 Here, Plaintiff’s claim for gender discrimination fails for several reasons. First, 25 she continues to fail to identify which defendants are being sued for each claim. 26 However, assuming the claim is brought against her employer, 3 Little Cows, it fails to 27 state a cause of action, as she fails to allege how she suffered an adverse employment 28 action because of her gender. Rather, Plaintiff’s gender discrimination claim continues to 1 relate only to her retaliation claim. Finally, Plaintiff’s allegations regarding Mr. Dufon 2 relate to events that occurred after her termination and therefore cannot support a claim 3 for gender discrimination. Therefore, the motion to dismiss the claim for gender 4 discrimination is GRANTED WITHOUT LEAVE TO AMEND. 5 b. Sexual Harassment. 6 A prima facie hostile work environment claim is established by a showing by the 7 plaintiff that: (a) she belongs to a protected group (female); (b) she was subjected to 8 unwelcome sexual harassment; (c) the harassment complained of was based on sex; and 9 (d) the harassment complained of was sufficiently pervasive so as to alter the conditions 10 of employment and create an abusive working environment. Priest v. Rotary, 634 11 F.Supp. 571, 582 (N.D. Cal. 1986)(citations omitted). 12 Plaintiff’s claim for hostile work environment harassment is also deficient. First, 13 Plaintiff was not given leave to add this new claim. FRCP Rule 15(a)(1)(B). Moreover, 14 Plaintiff fails to identify which defendants are being sued on this claim. Finally, Plaintiff 15 fails to allege that she was subjected to sexual harassment or that she personally 16 witnessed harassment to the point that it created an abusive working environment. 17 Rather, she alleges that she reported sexual harassment of other younger female 18 employees, which is the basis of her retaliation claim. Therefore, the motion to dismiss 19 the sexual harassment claim is GRANTED WITHOUT LEAVE TO AMEND. 20 c. Age Discrimination. 21 To establish a prima facie case of age discrimination under the ADEA, plaintiff 22 must show that she was: “(1) at least forty years old, (2) performing [her] job 23 satisfactorily, (3) discharged, and (4) either replaced by substantially younger employees 24 with equal or inferior qualifications or discharged under circumstances otherwise ‘giving 25 rise to an inference of age discrimination.’ ” Diaz v. Eagle Produce, Ltd., 521 F.3d 1201 , 26 1207 (9th Cir.2008) (citation omitted). 27 Plaintiff’s claim for age discrimination also fails. First, it does not identify the 28 defendants. Second, Plaintiff fails to allege how her age led to her termination. Rather, 1 she continues to allege that her letter to management regarding harassment of others is 2 what led to her termination. Therefore, the motion to dismiss the claim for age 3 discrimination is GRANTED WITHOUT LEAVE TO AMEND. 4 d. Retaliation. 5 Under Title VII, a plaintiff may establish a prima facie case of retaliation by 6 showing that (1) she engaged in activity protected under Title VII, (2) the employer 7 subjected her to an adverse employment decision, and (3) there was a causal link between 8 the protected activity and the employer's action. Passantino v. Johnson & Johnson 9 Consumer Prods. Inc., 212 F.3d 493 , 506 (9th Cir. 2000)(citations omitted). 10 Plaintiff’s claim for retaliation as to Defendant 3 Little Cows is sufficiently 11 pleaded. Plaintiff alleges she observed another employee sexually harass several younger 12 females at work, reported this to her superiors, and was then given a false negative 13 performance review which led to her termination. [FAC ¶¶14-20.] This states a claim 14 for retaliation under Title VII. While Plaintiff sets forth a viable claim for retaliation, she 15 does not identify the specific defendant. Given that retaliation claims may only be 16 asserted against the employer, the Court will allow the claim to go forward as to 17 Defendant 3 Little Cows only. Therefore, the motion to dismiss the fourth cause of 18 action is DENIED as to Defendant 3 Little Cows and GRANTED as to all other 19 defendants.1 20 MOTION TO STRIKE 21 Pursuant to Federal Rule of Procedure Rule 12(f), the Court may strike “from any 22 pleading any insufficient defense or any redundant, immaterial, impertinent, or 23 scandalous matter.” Fed.R.Civ.P. 12(f). Motions to strike generally will not be granted 24 unless it is clear that the matter to be stricken could not have any possible bearing on the 25 subject matter of the litigation. See LeDuc v. Kentucky Central Life Insurance Co., 814 [28] 1 Given that there are no claims remaining as to Defendant Danny Putnam, he is HEREBY 1 F.Supp. 820, 830 (N.D.Cal.1992). Allegations “supplying background or historical 2 material or other matter of an evidentiary nature will not be stricken unless unduly 3 prejudicial to defendant.” Id. Moreover, allegations which contribute to a full 4 understanding of the complaint as a whole need not be stricken. See id. 5 Here, Defendants seek to strike all references to the Restaurant’s response to 6 Plaintiff’s EEOC charge, as well as any references to ALBB’s post-termination legal 7 representation of Defendants during the EEOC investigation. While the EEOC response 8 (and similarly ALBB’s conduct) may not, in and of itself, support a claim for retaliation 9 because it occurred post-termination, the response may lead to the discovery of relevant 10 information. Therefore, the Court cannot, at this time, conclude that the allegations 11 “could not have any possible bearing” on the litigation. Therefore, the motion to strike 12 the allegations is DENIED. 13 MOTION TO TAKE LEAVE TO AMEND 14 Rather than oppose the motion to dismiss, Plaintiff has filed a motion to amend her 15 complaint, but she does not attach a proposed amended complaint, as is required by Local 16 Rule 15(b). Moreover, Plaintiff does not explain how an amended complaint would cure 17 the pleading deficiencies previously identified by the Court. Rather, Plaintiff argues that 18 she should be allowed to conduct discovery before providing a proposed amended 19 complaint. However, Plaintiff must satisfy the [Federal Rules of Civil Procedure] Rule 8 20 pleading requirements “before the discovery stage, not after it.” Mujica v. AirScan Inc., [21] 771 F.3d 580 , 593 & fn. 7 (9th Cir. 2014)(emphasis in original). Therefore, the motion to 22 take leave to amend is DENIED. 23 CONCLUSION 24 For the reasons set forth above, the Court orders as follows: 25 1) The motion to take leave to amend [Doc. No. 37]is DENIED; 26 2) The motion to strike is DENIED; 27 3) The motion to dismiss the FAC is GRANTED IN PART AND DENIED IN 28 PART AS FOLLOWS: The motion to dismiss is GRANTED as to all claims 1 and defendants EXCEPT that the fourth cause of action for retaliation shall 2 proceed against Defendant 3 Little Cows only;” 3 4) Defendant 3 Little Cows shall answer the FAC, as amended by this order, by 4 July 6, 2020. 5 IT IS SO ORDERED. 6 || Dated: June 15, 2020 ( é i Hon. Cathy Ann Bencivengo 8 United States District Judge [26] 2T YO 28 > To reiterate, the FAC shall now proceed only as to the claim for retaliation and only as to Defendant 3 Little Cows. All other claims and defendants have been DISMISSED.