YVONNE GONZALEZ ROGERS

ORDER GRANTING DEFENDANT'S

MOTION TO DISMISS DEFAMATION

CLAIM WITHOUT LEAVE TO AMEND

Plaintiff H. Demetrius Johnson brings this employment discrimination and defamation action against Defendant Haight Ashbury Medical Clinics, Inc. ("HAMC"). Plaintiff alleges claims of discrimination on the basis of race and disability, retaliation, and defamation.

Defendant has filed a Motion to Dismiss First Amended Complaint directed at only the defamation claim on the ground that Plaintiff has failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 50.

Having carefully considered the papers submitted and the pleadings in this action, and for the reasons set forth below, the Court hereby GRANTS the Motion to Dismiss without leave to amend the defamation claim.

I. REQUEST FOR JUDICIAL NOTICE

HAMC filed a Request for Judicial Notice in Support of Defendant's Motion to Dismiss Plaintiff's Complaint. Dkt. No. 51. The Court DENIES this Request because it is unnecessary to take judicial notice of documents in the record in this action.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, who proceedspro se, commenced his action on April 26, 2011. The Court previously summarized the claims in the original complaint as alleging: (1) retaliation based on participation in a protected activity; (2) failure to promote based on race, sexual orientation, and/or disability; and (3) defamation. Order Granting Defendants' Motion to Dismiss and Denying as Moot Plaintiff's Motion to Amend ("First Order"), Dkt. No. 39, at 2. On a prior motion to dismiss, the Court dismissed all of Plaintiff's claims. Id. at 9-10. Plaintiff was given leave to amend his claims of retaliation, failure to promote based on race and disability, and defamation against HAMC. Id. The claim against HAMC for failure to promote based on sexual orientation was dismissed with prejudice. Id. at 10. The Court also allowed leave to file a claim for discrimination based on an adverse employment action other than the alleged failure to promote. Id. In the FAC, Plaintiff now alleges claims for intentional discrimination on the basis of race and disability, retaliation, and defamation. FAC ¶¶ 7-10, Dkt. No. 47. He no longer alleges a claim for failure to promote.

To briefly summarize, Plaintiff alleges a series of discriminatory acts beginning in or around December 2005 which continued until his employment termination in May 2010. FAC ¶¶ 2-4. The alleged acts included that Defendant: (1) failed to conduct an investigation after a co-worker advised that it might be "too difficult for [Plaintiff]" to work with the HIV population; and (2) failed to give Plaintiff a scheduled pay raise following a promotion, but provided it to a Caucasian employee, and failed to retroactively pay him the correct amount. Id. ¶¶ 10(1) & (2). Further, Plaintiff alleges that following another promotion, a subordinate employee refused to implement certain protocols initiated by Plaintiff and instead, followed his own protocols with the support of former defendant and CEO John Eckstrom. Id. ¶ 10(3). In addition to challenging Plaintiff on many aspects of his management, this subordinate employee also made an allegedly discriminatory comment regarding African-Americans. Id. Plaintiff alleges that Defendant failed to respond to his internal complaint regarding this subordinate, and that he was placed on administrative leave for reaching out to the "Consortium (an umbrella group of organizations that oversaw grant compliance for the various organizations, including Defendant)" regarding whether the subordinate's self-imposed protocols raised any problems with Defendant's contract compliance. Id. Plaintiff filed a discrimination claim with the EEOC. Shortly thereafter, Defendant allegedly terminated his employment in retaliation for the EEOC claim. Id.

Defendant HAMC recognizes that the FAC contains claims under Title VII and moves to dismiss "only o[n] the claim for Defamation." Dkt. No. 50 ("Mot.") at 3. As to defamation, the Court previously held as follows:

Mr. Johnson's defamation claim is based on the following allegations: "I am request[ing] for Defamation of character = 100,000.00 (3 positions [I] would have gotten had [there] not been a connection with my past employer [i.e., HAMC.] Both [knew] of the situation without me telling them. (Progress Foundation and Providence House.)" 2d Compl. at 5. Defendants argue that the above allegations are not sufficient to plead causation because "Plaintiff's theory is based on an enormous leap, that, because he did not get any of the three positions, and because both companies allegedly knew of the situation with HAMC, Defendants must have defamed his character to those two companies." Mot. at 13 (emphasis in original).
As indicated by the above, although Defendants characterize the problem as a failure to plead causation, the thrust of the argument is, in fact, that Mr. Johnson has not pled a plausible claim for defamation, as required by Twombly and Iqbal. The Court agrees. Based on the allegations in the complaint, it is entirely speculative that Defendants made a defamatory statement or statements to the potential employers which caused Mr. Johnson not to get the positions with those companies.
Accordingly, the Court shall dismiss the claim for defamation. The dismissal, however, shall be without prejudice because it is not clear at this juncture that Mr. Johnson could not plead additional factual allegations to support a claim for defamation.

The FAC now alleges that: "Defendant engaged in defamation of Plaintiff's character to the extent that Plaintiff's administrative leave and termination impaired his relations with staff and other agencies in the community, and to the extent that Defendant divulged information about Plaintiff's difficulties with Defendant to prospective employers. Plaintiff applied for three positions with two nonprofit organizations, Progress Foundation and Providence House; both agencies knew of Plaintiff's difficulties with Defendant despite the fact that Plaintiff did not discuss these matters with these prospective employers." FAC ¶ 10(4). Plaintiff's demand for relief includes "$100,000 for defamation of character and resulting loss of employment opportunities." Id. at Demand ¶ (3).

Defendant argues that the FAC fails to state a claim for defamation under Federal Rule of Civil Procedure 12(b)(6). Mot. at 4-6. Relying on practically the same arguments as on the prior motion to dismiss, it argues that Plaintiff's claim is not plausible and does not sufficiently plead the requisite facts to support his claim. Id. at 5-7. Specifically, Defendant contends that the claim is not sufficiently specific, that Plaintiff has failed to plead causation and a lack of malice, and that he may be barred by the statute of limitations.

Plaintiff filed an opposition to the pending motion on January 26, 2012. Dkt. No. 58. His bullet-pointed opposition stated the following five sentences about the defamation claim:

• Program Manager from Ark of Refuge directly stated to the Plaintiff, "I was told you had been terminated for sleeping with a coworker.["]
• Haight Ashbury would have the dates/times of the incidents in question.
• San Francisco is a very small and close community (as it relates to non profits working together and knowing each other)[.]
• Two known staff members talked directly to these agencies, one (1) was a staff person who worked directly with the Plaintiff, the other was the Development Director who had been instructed to contact agencies, etc[.] to let them know of Plaintiff H. Demetrius Johnson's absence.
• Wrongful termination on May 4, 2010.

III. DISCUSSION

A. Legal Standard on Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)

As stated in the First Order, a motion to dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In considering such a motion, a court must take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party, although "conclusory allegations of law and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal." Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). While "a complaint need not contain detailed factual allegations . . . it must plead 'enough facts to state a claim to relief that is plausible on its face.'" Id. "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." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) ("Twombly"). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than sheer possibility that a defendant acted unlawfully." Id. at 1949.

B. Defamation

The tort of defamation "involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage." Taus v. Loftus, 40 Cal. 4th 683, 720 (2007) (internal citations omitted); see Cal. Civ. Code §§ 45-46. For there to be a publication, there must be some communication—whether oral or written. Cal. Civ. Code §§ 45-46. A statutory privilege exists for communications made by "a current or former employer" that are "concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, [and that are] made without malice." Cal. Civ. Code § 47(c). The communication must be made "upon [the] request of[] one whom the employer reasonably believes is a prospective employer of the applicant." Id. Further, this statute "authorizes a current or former employer, or the employer's agent, to answer whether or not the employer would rehire a current or former employee."Id.; see Neal v. Gatlin, 35 Cal. App. 3d 871, 877 (Cal. Ct. App. 1973) ("It is well established that a former employer may properly respond to an inquiry from a potential employer concerning an individual's fitness for employment, and if it is not done maliciously such response is privileged.").

C. Plaintiff's Defamation Allegations Fail to State a Claim.

The First Order explicitly stated that in re-pleading the claim, "Mr. Johnson must include in the amended claim factual allegations to make a plausible claim for defamation." First Order at 10. Specifically, the Court explained that the allegations in the original complaint were "entirely speculative that Defendants made a defamatory statement or statements to the potential employers which caused Mr. Johnson not to get the positions with those companies." Id. at 9. The FAC does not cure this deficiency.

The FAC vaguely alleges that "Defendant divulged information about Plaintiff's difficulties with Defendant to prospective employers" and that "both agencies knew of Plaintiff's difficulties with Defendant despite the fact that Plaintiff did not discuss these matters with these prospective employers." FAC ¶ 10(4) (emphasis added). Nowhere in the FAC does Plaintiff explain what statements about his "difficulties" were made to the prospective employers. Without these facts, Plaintiff cannot establish there was a publication or communication. In Plaintiff's Opposition, he explains that "Program Manager from Ark of Refuge directly stated to the Plaintiff, 'I was told you had been terminated for sleeping with a coworker.[']" Opp. at 2. However, Plaintiff does not allege that Ark of Refuge was a prospective employer, nor does the FAC ever mention sleeping with a coworker. Compare Opp. at 2 with FAC ¶ 10(4). And while Plaintiff seems to conclude that Defendant must have made this statement to Ark of Refuge because of the "very small and close [nonprofit] community" in San Francisco, the FAC does not allege any facts regarding the statements that were made by Defendant to either prospective employer. Indeed, Plaintiff indicates he cannot provide any facts regarding the alleged statements of his "difficulties" by stating in his Opposition that "Haight Ashbury would have the dates/times of the incidents in question." Opp. at 2.

Without articulating in any way, shape, or form in the FAC what statements were made by Defendant to Plaintiff's prospective employers, he likewise fails to meet the additional elements of defamation regarding the false nature of the statements, how they were defamatory, or how they injured him or his reputation. His claim, in its entirety, is still "entirely speculative." First Order at 9; Twombly, 550 U.S. at 555.

Plaintiff was provided with an opportunity to cure the deficiencies of the original complaint and set forth allegations to state a claim of defamation. Plaintiff has failed to do so and there appears to be no circumstances under which Plaintiff can plausibly state a claim. Because Plaintiff is unable to cure the deficiencies of this claim through further amendment, leave to amend would be futile and the claim should be dismissed with prejudice.

IV. CONCLUSION

For the foregoing reasons, Defendant's Motion to Dismiss as to the defamation claim only is GRANTED WITH PREJUDICE. This Order terminates Dkt. No. 50. Pursuant to Fed. R. Civ. P. 12(f) and consistent with this Order, the Court hereby strikes the FAC ¶ 10(4) and the Demand for Relief

contained in the FAC at ¶ (3). See Dkt. No. 47.

IT IS SO ORDERED.

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YVONNE GONZALEZ ROGERS

UNITED STATES DISTRICT COURT JUDGE