Opinion
CIV. NO. 2:16-00951 WBS KJN
07-25-2016
JAMES ARKENS, Plaintiff, v. COUNTY OF SUTTER, RON SULLENGER, JIM WHITEAKER, DAN FLORES, NATE BLACK, IN THEIR OFFICIAL CAPACITIES AS SUTTER COUNTY EMPLOYEES, AND DOES 1-50, Defendants.
MEMORANDUM AND ORDER RE: MOTION TO DISMISS
Plaintiff James Arkens brought this wrongful termination and discrimination action against defendants the County of Sutter (the "County"), County Board of Supervisors Ron Sullenger, Jim Whiteaker, and Dan Flores, and County Auditor Nate Black. Defendants now move to dismiss plaintiff's Complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
I. Factual and Procedural Background
The County hired plaintiff as its Chief Administrative Officer ("CAO") on January 1, 2013 for a term of three years. (Compl. ¶ 17, Ex. A (Docket No. 1).) Between March 2013 and July 2014, plaintiff and Supervisor Sullenger had a strained working relationship after Sullenger allegedly requested certain health and retirement benefits that plaintiff explained could not be provided. (Id. ¶¶ 23-26.) In April 2015, County Auditor Black informed the auditors, County Counsel's Office, the District Attorney, and Sullenger that plaintiff had allegedly embezzled $2.5 million from a County energy project. (Id. ¶¶ 32-34.) The following month, the Board of Supervisors (the "Board") allegedly took plaintiff's performance evaluation off the agenda because of the embezzlement accusations. (Id. ¶ 27.) Plaintiff and Supervisor Whiteaker's working relationship allegedly deteriorated shortly thereafter. (Id. at ¶ 29.) In July or August of 2015, plaintiff allegedly informed Supervisor Flores that a contemplated land purchase presented a conflict of interest for Flores and other county officials. (Id. ¶ 37.)
In September 2015, plaintiff went on medical leave because he was experiencing frequent panic attacks and "felt very awkward because of the daily treatment by his superiors and County Officials." (Id. ¶ 46.) On October 15, 2015, without providing plaintiff an opportunity to rebut the embezzlement accusations, the Board informed plaintiff that it did not intend to renew his contract and allegedly told him that, "if he did not immediately accept the County's Offer to resign, he would be placed on Administrative leave." (Id. ¶ 20.) Plaintiff was placed on administrative leave and was allegedly constructively discharged. (Id. ¶¶ 22, 46.)
In addition to the embezzlement accusations, the Board allegedly placed plaintiff on administrative leave and decided not to renew his contract because of plaintiff's age. (Id. ¶¶ 61-62.) Prior to placing plaintiff on administrative leave, several Supervisors allegedly "made comments" about plaintiff's age and "commented out loud" about when he would retire. (Id. ¶ 42.)
Plaintiff initiated this action in May 2016 and asserts claims for (1) wrongful discharge in violation of public policy against all defendants; (2) defamation against the County and Black; (3) violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634, against the County, Sullenger, Whiteaker, and Flores; (4) "federal and state retaliation" against all defendants; (5) intentional infliction of emotional distress against all defendants; and (6) negligent infliction of emotional distress against all defendants. Defendants now move to dismiss the Complaint in its entirety pursuant to Rule 12(b)(6).
II. Analysis
On a motion to dismiss under Rule 12(b)(6), the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). To survive a motion to dismiss, a plaintiff must plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his entitle[ment] to relief' requires more than labels and conclusions . . . ." Twombly, 550 U.S. at 555 (alteration in original) (citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, " and "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678.
"The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal quotation marks and citation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
1. Official versus Individual Capacity
Defendants contend that the claims against the individual defendants should be dismissed because plaintiff sued those defendants in their official capacities. (See Compl. ¶¶ 12-15.) Although unnecessary disputes and confusion frequently arise based on the capacity in which a defendant is sued in the complaint, determining the appropriate capacity from the allegations in the complaint is neither impossible nor difficult. Simply stated, if a plaintiff seeks to have a public officer pay damages, the suit is generally against the officer in his individual capacity; and if the plaintiff seeks to have the public officer perform an official act, the suit is generally against the officer in his official capacity. See Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1990); Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir. 1995). Because of this distinction, a majority of the circuits have rejected the argument that a plaintiff is required to allege the capacity in which a defendant is sued. Biggs, 66 F.3d at 59. Instead, the majority approach "look[s] to the substance of the plaintiff's claim, the relief sought, and the course of proceedings to determine the nature of a [] suit . . . ." Id. (citing cases from the Second, Fifth, Seventh, Ninth, Tenth, and Eleventh circuits).
The only relief plaintiff specifically requests in his prayer for relief is damages, and plaintiff can seek damages against the officers only in their individual capacities. The court will therefore treat plaintiff's claims for damages against Sullenger, Whiteaker, Flores, and Black as against them in their individual capacities.
For the first time at oral argument, plaintiff informed the court and defendants that he intended his request "[f]or such other relief as the Court may deem proper" to include a request that defendants reinstate him. Such relief, if actually requested, would be against the officers in their official capacities.
2. Tamney Claim
Under the California Supreme Court's decision in Tameny v. Atlantic Richfield Co., "when an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions." 27 Cal. 3d 167, 170 (1980). Pursuant to California Government Code subsection 815(a), however, "[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person," unless otherwise provided by statute. Cal. Gov't Code § 815(a). Because a common law claim for wrongful termination in violation of public policy was judicially-created in Tameny and is not codified in any statute, subsection 815(a) bars the claim against public entities. Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 900 (2008).
While section 815 does not similarly limit the liability of individual defendants, "a Tameny action for wrongful discharge can only be asserted against an employer," thus "[a]n individual who is not an employer cannot commit the tort of wrongful discharge in violation of public policy." Id. In his opposition, plaintiff nonetheless argues that defendants fail to "distinguish between the individual defendants who are merely supervisory or management employees of defendant County of Sutter and those individual defendants who are elected officials and policy-makers of County of Sutter." (Pl.'s Opp'n at 5:10-15 (Docket No. 10).) Plaintiff does not, however, cite a single case suggesting that such a distinction is relevant under a Tamney claim. In fact, whether an official has policymaking authority is relevant in other contexts such as 42 U.S.C. § 1983 when determining whether a plaintiff can bring a claim against the municipality itself, not the individual official. See generally Goldstein v. City of Long Beach, 715 F.3d 750, 753 (9th Cir. 2013).
Accordingly, because subsection 815(a) precludes plaintiff from asserting a Tameny claim against the County and a Tameny claim also cannot be brought against the individual officials, the court must grant defendants' motion to dismiss plaintiff's wrongful termination in violation of public policy claim with prejudice. See Airs Aromatics, LLC v. Op. Victoria's Secret Stores Brand Mgmt., Inc., 744 F.3d 595, 600 (9th Cir. 2014) ("A district court may dismiss a complaint without leave to amend if 'amendment would be futile.'").
3. Defamation
Although the County claims it is also immune from plaintiff's defamation claim under subsection 815(a), subsection 815.2(a) provides that "[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative." Cal. Gov't Code § 815.2(a). Unlike a Tameny claim, which can be brought only against the employer, a defamation claim may be brought against an employee, and the County would be liable under subsection 815.2(a) to the same extent as its employee if the employee was acting in the scope of his or her employment. Accord Thomas v. City of Richmond, 9 Cal. 4th 1154, 1157 (1995) (recognizing that "[a] public entity, as the employer, is generally liable for the torts of an employee committed within the scope of employment if the employee is liable, " but the public entity generally is not liable if the individual employee is immune); Nadel v. Regents of Univ. of Cal., 28 Cal. App. 4th 1251, 1259 (1st Dist. 1994) (applying subsection 815.2(a) to defamation claims against the public entity).
Under California law, "[t]he elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage." Wong v. Tai Jing, 189 Cal. App. 4th 1354, 1369 (6th Dist. 2010) (citing Taus v. Loftus, 40 Cal. 4th 683, 720 (2007)). The Supreme Court has held that the Constitution "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); see also McCoy v. Hearst Corp., 42 Cal. 3d 835, 860 (1986) (internal quotation marks and citation omitted) (same). Here, plaintiff alleges that his position as CAO is the "highest position" in the County, (Compl. ¶ 17), and he concedes in his opposition that he was a public official for purposes of his defamation claim, (Pl.'s Opp'n at 6:21-22).
California Civil Code subsection 47(c)(1) also provides that a communication is privileged if it is made "without malice, to a person interested therein, [] by one who is also interested . . . ." Cal. Civ. Code § 47(c)(1). "Insofar as the common- interest privilege is concerned, malice is not inferred from the communication itself." Noel v. River Hills Wilsons, Inc., 113 Cal. App. 4th 1363, 1370 (4th Dist. 2003). "The malice necessary to defeat a qualified privilege is actual malice which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable ground for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff's rights." Taus, 40 Cal. 4th at 721 (internal quotation marks and citations omitted).
Here, plaintiff alleges that Black was working on the County's annual independent audit and "drafted a letter to the Auditors" that accused plaintiff of embezzling $2.5 million from an energy project. (Compl. ¶¶ 32-33.) Black allegedly sent this letter to the auditors, County Counsel's Office, and the District Attorney and informed Sullenger of the alleged embezzlement. (Id. ¶¶ 30, 34.) Plaintiff does not dispute that Black's report of alleged embezzlement comes within the common interest privilege of subsection 47(c)(1). (See Pl.'s Opp'n at 6:11-7:27); see also Deaile v. Gen. Tel. Co. of Cal., 40 Cal. App. 3d 841, 849 (2d Dist. 1974) ("[A]n employer is privileged in pursuing its own economic interests and that of its employees to ascertain whether an employee has breached his responsibilities of employment . . . .").
Plaintiff therefore must plausibly allege that Black's statements about the alleged embezzlement were made with actual malice in order to maintain a defamation claim as a public official and overcome the common interest privilege. "[M]alice focuses upon the defendant's state of mind, not his [or her] conduct. Mere negligence in inquiry cannot constitute lack of reasonable or probable cause." Noel, 113 Cal. App. 4th at 1370 (internal quotations marks and citation omitted) (alterations in original).
Although Rule 9(b) provides that "[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally," Fed. R. Civ. P. 9(b), the Supreme Court recognized in Iqbal that such allegations still require sufficient factual support. As the Court explained, "'generally' is a relative term and, "[i]n the context of Rule 9, it is to be compared to the particularity requirement applicable to fraud or mistake" and "merely excuses a party from pleading [] intent under an elevated pleading standard." Iqbal, 556 U.S. at 686; see also Biro v. Conde Nast, 807 F.3d 541, 544 (2d Cir. 2015) (recognizing that the Supreme Court has not "precisely articulated the effect of Iqbal and Twombly on defamation cases, . . . [but] Iqbal makes clear that, Rule 9(b)'s language notwithstanding, Rule 8's plausibility standard applies to pleading intent").
Without any factual support, plaintiff alleges that Black "intended to harm" him and "should have recognized that such publication would cause [him] harm." (Compl. ¶ 57.) While plaintiff alleges that Black was "told by the County Counsel's Office that the allegations were not true and that he should drop his issues with [plaintiff]," (id. ¶¶ 34, 35), he does not allege when that statement was made or any facts from which it could be inferred that Black was reckless in not simply accepting that statement at face value. To the contrary, plaintiff alleges that the District Attorney convened a grand jury to investigate the embezzlement accusations. (Id. ¶¶ 35-36.) The District Attorney cannot convene a grand jury without good reason to do so. Cf. Guillory v. Superior Ct., 31 Cal. 4th 168, 174 (2003) ("The prosecutor alleges the facts contained in the indictment and is bound by rule 5-110 of the California Rules of Professional Conduct, which prohibits prosecutors from 'institut[ing] or caus[ing] to be instituted criminal charges when the member knows or should know that the charges are not supported by probable cause.'"). When the District Attorney thought the accusations merited investigation by the grand jury, it can hardly be said without more that Black was reckless as to the truth or falsity of the suspected embezzlement. Nor is there a single alleged fact from which to infer that Black harbored ill will or hatred toward plaintiff.
Paragraph 57 actually alleges that "Defendant Brown intended to harm Plaintiff Arkens or should have recognized that such publication would cause [plaintiff] harm." (Compl. ¶ 57 (emphasis added).) Because plaintiff asserts his defamation claim against only the County and Black and none of the defendants have the last name "Brown," the court assumes this was a typographical error.
Accordingly, because the Complaint lacks any factual content from which the court could draw the reasonable inference that Black acted with actual malice, the court must grant defendants' motion to dismiss his defamation claim.
4. ADEA
The ADEA makes it unlawful to "fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). To establish a prima facie case under the ADEA, a plaintiff must show "he was (1) at least forty years old, (2) performing his job satisfactorily, (3) discharged, and (4) either replaced by substantially younger employees with equal or inferior qualifications or discharged under circumstances otherwise 'giving rise to an inference of age discrimination.'" Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citation omitted). Defendants do not dispute that plaintiff sufficiently alleged satisfactory job performance and, while it is surprising plaintiff neglects to allege his age anywhere in the Complaint, he does allege that he was over forty, (Compl. ¶¶ 17-19, 61). Defendant contends his ADEA claim nonetheless fails because plaintiff does not plausibly allege he was constructively discharged or replaced by someone substantially younger or under circumstances giving rise to an inference of age discrimination.
"[C]onstructive discharge occurs when the working conditions deteriorate, as a result of discrimination, to the point that they become sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer." Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000) (internal quotation marks and citations omitted). The plaintiff must show that conditions were "so intolerable and discriminatory as to justify a reasonable employee's decision to resign," which requires "some aggravating factors, such as a continuous pattern of discriminatory treatment." Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987) (internal quotation marks and citation omitted). "Where a plaintiff fails to demonstrate the severe or pervasive harassment necessary to support a hostile work environment claim, it will be impossible for her to meet the higher standard of constructive discharge." Brooks, 229 F.3d at 930. The Ninth Circuit sets the "bar high for a claim of constructive discharge because federal antidiscrimination policies are better served when the employee and employer attack discrimination within their existing employment relationship, rather than when the employee walks away and then later litigates whether his employment situation was intolerable." Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007).
Although plaintiff appears to base his ADEA claim on his alleged constructive discharge, he does not allege that he resigned from his employment with the County. According to plaintiff's Complaint, the Board "request[ed] his resignation" and told him that, "if he did not immediately accept the County's Offer to resign, he would be placed on Administrative leave." (Compl. ¶ 20.) Plaintiff alleges he was subsequently placed on administrative leave in October 2015, not that he resigned. (See id. ¶ 46 ("In September 2015, prior to Arkens being placed on administrative leave on October 15, 2015 Arkens started having frequent panic attacks and felt very awkward because of the daily treatment by his superiors and County Officers. Arkens thereafter filed a Workers Compensation Claim, sought medical attention and was placed on stress leave. One Month later Arkens was placed on administrative leave.") (emphasis added).)
Plaintiff also does not allege how long he remained on administrative leave or whether it was paid or unpaid, which are necessary to determine whether he plausibly alleges constructive termination. Compare, e.g., Herzog v. Banner Churchill Cmty. Hosp., No. 3:09-CV-567 ECR RAM, 2010 WL 1418867, at *4 (D. Nev. Apr. 7, 2010) ("The act of placing Plaintiff on paid administrative leave, alone, is insufficient to support a charge of constructive discharge."), and Stearns-Groseclose v. Chelan Cty. Sheriff's Dep't, No. 04-CV-0312 RHW, 2006 WL 195788, at *17 (E.D. Wash. Jan. 17, 2006) ("The Court finds that a reasonable person in Plaintiff's position, on paid administrative leave pending the results of an internal investigation, would not be forced to resign, just as Plaintiff did not resign."), with White v. Honeywell, Inc., 141 F.3d 1270, 1279 (8th Cir. 1998) ("We are not prepared to say that 'quit' is the magic word in a constructive discharge instruction. A person who has suffered a forced unpaid medical leave of absence, from which she is unable to return and which resulted from objectively intolerable working conditions, is in no better position than one who was forced to quit as a result of objectively intolerable conditions."), and Violan v. On Lok Senior Health Servs., No. 12-CV-05739 WHO, 2013 WL 6907153, at *13 (N.D. Cal. Dec. 31, 2013) ("Courts have denied summary judgment on constructive termination claims where the plaintiff has not formally resigned and is on an extended medical leave of absence.").
Moreover, while plaintiff's Complaint and opposition brief are far from a model of clarity, the Complaint also seems to allege that plaintiff's contract automatically renewed for another three years and thus the Board's decision not to renew the contract was essentially a decision to terminate him. The inability to decipher whether plaintiff is pursuing an ADEA claim based on his constructive discharge, the Board's termination of him after his contract allegedly renewed, the Board's decision not to renew his contract, or an entirely different theory of his discharge falls short of giving defendants notice of the claim it must defend against. See Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011) ("[C]onfusing complaints . . . impose unfair burdens on litigants and judges. . . . Defendants are . . . put at risk that . . . plaintiffs will surprise them with something new at trial which they reasonably did not understand to be in the case at all, and that res judicata effects of settlement or judgment will be different from what they reasonably expected.") (internal quotation marks and citation omitted); Salazar v. County of Orange, 564 F. App'x 322, 322 (9th Cir. 2014) ("A complaint should fully set[ ] forth who is being sued, for what relief, and on what theory, with enough detail to guide discovery." (internal quotation marks and citation omitted) (alteration in original)).
Plaintiff alleges that his employment contract with the County provided that it would automatically renew for an additional three years unless the County gave him notice ninety days prior to termination of the contract and thus the October 15, 2015 notice of non-renewal was several days past this deadline. (Compl. ¶ 21.) Plaintiff attached his employment contract with the County as an exhibit to his Complaint and it provides for 120 days of advance notice of intent not to renew, not ninety. (See id. Ex. A ("At the end of the three-year term, this agreement shall automatically renew for an additional term of three years unless the Board, by 120-days advanced written notice, notifies Employee of its intent to terminate the agreement."); see United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (explaining that a court may consider documents attached to the complaint when deciding a motion to dismiss). --------
Plaintiff also alleges only that his replacement was "younger" than him, but does not allege any facts from which the court could infer she was substantially younger than him. (Compl. ¶ 42.) In fact, plaintiff alleges that his replacement had commented that plaintiff "wasn't as old as her parents," (id. ¶ 44), which suggests that the age difference between the two of them might not have been substantial.
Nor does he plausibly allege that the Board made a decision under circumstances giving rise to an inference of age discrimination. Plaintiff merely alleges that "several" supervisors made "comments" about his age and "commented out loud 'when [he] would retire.'" (Id. ¶ 42.) While he alleges that Flores was aware of plaintiff's age before plaintiff was hired and had inquired about when plaintiff planned to retire, (id. ¶ 43), it is not plausible to infer that Flores discriminated against plaintiff on the basis of his age only three years after deciding to hire him despite his age. Plaintiff also alleges that a friend of Flores mentioned to Flores that plaintiff "was old." (Id. ¶ 44.) A mere comment that a person is "old" does not raise the inference of discrimination against that person because of his or her age. Not only is the context of this statement unknown, "old" is a meaningless and relative term. To the twelve year old, an eighteen year old may be "old," but to the seventy year old, a sixty-five year old may not be "old" at all.
Accordingly, because the "discharge" giving rise to plaintiff's ADEA claim remains unclear and plaintiff fails to allege sufficient facts to plausibly support his conclusory allegation that his age was a motivating factor in any decision, the court must grant plaintiff's motion to dismiss plaintiff's ADEA claim.
5. Federal and State Retaliation
In his fourth claim for relief, plaintiff generally alleges that he participated in "protected activity" when he did not comply with requests made against County policy and was "constructively terminated" for participating in that protected activity. (Id. ¶¶ 64-67.) Plaintiff does not, however, identify the statutory or common law federal and state rights giving rise to his retaliation claim. When numerous federal and state statutes prohibit retaliation for engaging in an activity protected by the particular statute, plaintiff cannot shift the burden to the court or defendants to determine which statute or common law right, if any, gives rise to his claim. Moreover, the only factual allegations in the Complaint involving plaintiff's refusal to comply with requests made against County policy were requests Sullenger allegedly made for certain health and retirement benefits between March 2013 and July 2014. Plaintiff does not include any factual allegations giving rise to the plausible inference that the Board considered those incidents in making its October 15, 2015 decision not to renew his contract. Accordingly, because plaintiff has failed to comply with even the liberal notice requirements of Rule 8, the court must grant defendants' motion to dismiss plaintiff's generic claim for "federal and state retaliation."
6. Negligent and Intentional Infliction of Emotional Distress
"California's Workers' Compensation Act ["WCA"] provides an employee's exclusive remedy against his or her employer for injuries arising out of and in the course of employment." Melendrez v. Ameron Int'l Corp., 240 Cal. App. 4th 632, 638 (2d Dist. 2015) (internal quotation marks and citations omitted). "[A]n employee's emotional distress injuries are subsumed under the exclusive remedy provisions of workers' compensation" unless the employer's conduct (1) "contravenes fundamental public policy" or (2) "exceeds the risks inherent in the employment relationship." Livitsanos v. Superior Ct., 2 Cal. 4th 744, 754 (1992) (citations omitted).
"The exception for conduct that 'contravenes fundamental public policy' is aimed at permitting a Tameny action to proceed despite the workers' compensation exclusive remedy rule," not a claim for intentional infliction of emotional distress. Miklosy, 44 Cal. 4th at 902-02; see also Thomas v. Starz Entm't LLC, No. 2:15-CV-09239 CAS MRW, 2016 WL 844799, at *8 (C.D. Cal. Feb. 29, 2016) (explaining that the "'fundamental public policy' exception is of exceedingly limited import" after the Miklosy court limited it to Tameny claims); see also Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 24 Cal. 4th 800, 822 (2001) (recognizing that the public policy exception has also been applied to wrongful termination under California's Fair Employment and Housing Act and statutory whistleblower claims).
Under the second exception, an employer's conduct may exceed the risks inherent in the employment relationship when the conduct has "a 'questionable' relationship to the employment," the injury "did not occur while the employee was performing service incidental to the employment and [] would not be viewed as a risk of the employment," or the employer "stepped out of [its] proper role[]." Cole v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d 148, 161 (1987). In contrast, "when the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances, an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer's decisions as manifestly unfair, outrageous, harrassment [sic], or intended to cause emotional disturbance resulting in disability." Id. at 160; see also Charles J. Vacanti, M.D., Inc., 24 Cal. 4th at 821 ("[T]ermination, a known risk of any employment relationship, does not, by itself, insulate a cause of action from the exclusive remedy provisions.").
The conduct plaintiff alleges gives rise to his negligent and intentional infliction of emotional distress claims is not entirely clear because his Complaint merely incorporates all the factual allegations preceding those claims. (See Compl. ¶¶ 68, 73.) Nor does plaintiff attempt to identify the conduct underlying these claims in his opposition. Nonetheless, all of the conduct alleged in plaintiff's Complaint occurred during and because of his employment with the County and was a "normal part of the employment relationship." Plaintiff alleges only that the Board did not renew his employment contract and placed him on administrative leave, (id. ¶¶ 20, 38), some of the Supervisors were hostile toward plaintiff or avoided interacting with him, (id. ¶¶ 23-26, 29-30, 37), the Board delayed his annual performance evaluation, and the County Auditor reported plaintiff had allegedly embezzled money from a County project, (id. ¶¶ 32-34).
Although plaintiff alleges some of the defendants acted intentionally and for a wrongful purpose, including discriminating against him based on his age, an employee cannot "avoid the exclusive remedy provisions of the Labor Code by characterizing the employer's decisions as manifestly unfair, outrageous, harrassment [sic], or intended to cause emotional disturbance." Cole, 43 Cal. 3d at 160. "[T]he critical issue is whether the alleged acts, bereft of their motivation, can ever be viewed as a normal aspect of the employer relationship." Charles J. Vacanti, M.D., Inc., 24 Cal. 4th at 822; see also Cole, 43 Cal. 3d at 160 ("If characterization of conduct normally occurring in the workplace as unfair or outrageous were sufficient to avoid the exclusive remedy provisions of the Labor Code, the exception would permit the employee to allege a cause of action in every case where he suffered mental disability merely by alleging an ulterior purpose of causing injury."); see also Jones v. Dep't of Corr. & Rehab., 152 Cal. App. 4th 1367, 1382 (4th Dist. 2007) ("Even if the discriminatory conduct [plaintiff] complained about 'may be characterized as intentional, unfair or outrageous, it is nevertheless covered by the workers' compensation exclusivity provisions.'").
Accordingly, because plaintiff's exclusive remedy for the emotional distress he allegedly suffered from defendants' conduct lies under the WCA, the court must grant defendants' motion to dismiss plaintiff's negligent and intentional infliction of emotional distress claims with prejudice.
The court will also strike plaintiff's requests for punitive damages against the County and on his ADEA claim, which plaintiff concedes are not available. (Pl.'s Opp'n at 12:20-24, 13:1-3); see also Cal. Gov't Code § 818 ("Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant."); Ahlmeyer v. Nev. Sys. of Higher Educ, 555 F.3d 1051, 1059 (9th Cir. 2009) ("Compensatory damages for pain and suffering and punitive damages are not available under the ADEA . . . .").
IT IS THEREFORE ORDERED that defendants' motion to dismiss plaintiff's wrongful termination in violation of public policy, negligent infliction of emotional distress, and intentional infliction of emotional distress claims be, and the same hereby is, GRANTED and those claims are DISMISSED WITH PREJUDICE; and defendants' motion to dismiss plaintiff's defamation, ADEA, and "federal and state retaliation" claims be, and the same hereby is, GRANTED and those claims are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that plaintiff's requests for punitive damages against the County and on his ADEA claim be, and the same hereby are, stricken from the Complaint.
Plaintiff has twenty days from the date this Order is signed to file an amended complaint, if he can do so consistent with this Order. Dated: July 25, 2016
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE