Opinion
NO. CIV. S-06-1775 WBS EFB.
December 13, 2006
MEMORANDUM AND ORDER RE: MOTION TO DISMISS
Plaintiff John Greenly brought this action against his former employer, defendant Sara Lee Corporation ("Sara Lee"), as well as his former supervisor, defendant Gordon Mayberry, alleging harassment and rights violations under state and federal statutes and common law. Defendants move to dismiss various claims for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
I. Factual and Procedural Background
At all times relevant to this action, plaintiff John Greenly was employed by defendant Sara Lee as a Foreman in Bun Production. (Compl. ¶ 10; Req. for Judicial Notice Ex. 1 ("EEOC Complaint").) Plaintiff worked under the supervision of Production Manager defendant Gordon Mayberry. (Compl. ¶ 12.) Throughout the course of his employment, plaintiff was a member of the Bakery, Confectionery, Tobacco Workers and Grain Millers' International Union, Local Union No. 85 ("Union"). (First Mot. to Dismiss Ex. 1.) At all times, plaintiff's employment was governed by a collective bargaining agreement ("CBA"), negotiated between the Union and Sara Lee. (Id.)
According to plaintiff, beginning in 1990, he was subjected to a pattern of sexual and physical harassment, denial of promotions, retaliation, and discrimination on the basis of a work-induced disability. (Compl. ¶ 14; EEOC Complaint.) Based on this conduct, plaintiff filed a complaint on May 19, 2005, against Sara Lee with the Equal Employment Opportunity Commission ("EEOC") alleging sexual harassment by Mayberry. (EEOC Complaint.) On June 19, 2006, the EEOC indicated that it was terminating its processing of the complaint, and issued to plaintiff a "right to sue" letter. (Req. for Judicial Notice Ex. 3.)
On July 13, 2006, plaintiff filed a complaint in state court, which defendants removed to this court because it involved various questions of federal law. (Compl.) The complaint alleges twenty-three causes of action: 1) battery, against Mayberry; 2) assault, against Mayberry; 3) sexual battery, against Mayberry; 4) retaliation in violation of the Fair Employment and Housing Act ("FEHA"), California Government Code §§ 12900 et seq; 5) sexual harassment and a hostile work environment in violation of FEHA; 6) disability discrimination in violation of FEHA; 7) failure to prevent discrimination in violation of FEHA; 8) failure to accommodate for disability in violation of FEHA, against Sara Lee; 9) intentional infliction of emotional distress, against Mayberry; 10) negligent infliction of emotional distress; 11) negligence; 12) negligence per se; 13) negligent hiring, training, supervision and/or retention, against Sara Lee; 14) invasion of privacy; 15) defamation, against Mayberry; 16) intentional and/or negligent interference with existing contractual relationships; 17) intentional and/or negligent interference with prospective economic advantage; 18) wrongful termination in violation of FEHA, or in the alternative constructive discharge; 19) wrongful termination in violation of public policy; 20) breach of contract; 21) breach of implied covenant of good faith and fair dealing; 22) breach of duty to pay wages and provide rest breaks; and 23) retaliation for filing a workers compensation claim in violation of California Labor Code § 123a. (Compl.)
All causes of action are asserted against both defendants, except where otherwise noted.
On August 17, 2006, defendants filed a motion to dismiss pursuant to Rule 12(b)(6). (First Mot. to Dismiss.) Before a hearing was held on that motion, however, plaintiff filed a First Amended Complaint on September 20, 2006 ("FAC"), which mooted the motion to dismiss. (September 26, 2006 Minute Order.) The amended complaint indicated that plaintiff filed an additional complaint with the EEOC on July 17, 2006, alleging a variety of claims, and that a right to sue letter was then subsequently issued. (FAC ¶ 3.) Plaintiff also amended his fourteenth, sixteenth, seventeenth, and twenty-second causes of action, pleading in the alternative that a claim was stated for violation of the collective bargaining agreement under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a) ("LMRA"). (FAC ¶¶ 111, 120, 126, 144.) Finally, plaintiff asserted that he had "exhausted all appropriate grievance procedures" as required by the CBA, or in the alternative that he was excused from such a requirement because the "union breached its duty of fair representation." (Id.) Defendants again move to dismiss based on plaintiff's failure to state a claim, Fed.R.Civ.P. 12(b)(6). (Second Mot. to Dismiss.)
Plaintiff objects to the filing of this motion on the ground that no proof of service was filed therewith. (Opp'n to Mot. to Dismiss 11.) Plaintiff's objection is without merit, however, because the notice of electronic filing contains an electronic proof of service, indicating that the motion was served at 8:02 pm on October 4, 2006, to, among others, plaintiff's counsel Nathaniel Dale Potratz. See L.R. 5-135(g).
II. Discussion
A. Legal Standard
On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Cruz v. Beto, 405 U.S. 319, 322 (1972). The court may not dismiss for failure to state a claim unless "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Van Buskirk v. CNN, Inc., 284 F.3d 977, 980 (9th Cir. 2002). Dismissal is appropriate, however, where the pleader fails to state a claim supportable by a cognizable legal theory.Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988); see also Conley v. Gibson, 355 U.S. 41, 47 (1957) (complaint must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests").
In general, the court may not consider material other than the facts alleged in the complaint when deciding a motion to dismiss.Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996) ("A motion to dismiss . . . must be treated as a motion for summary judgment . . . if either party . . . submits materials outside the pleadings in support or opposition to the motion, and if the district court relies on those materials."). However, the court may consider materials of which it may take judicial notice, including matters of public record. Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Fed.R.Evid. 201(b) (defining the scope of judicial notice); see also Mack v. S. Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986) (noting that reliance on matters of public record "does not convert a Rule 12(b)(6) motion to one for summary judgment"), abrogated on other grounds by Astoria Fed. Sav. Loan Ass'n v. Solimino, 501 U.S. 104 (1991).
Plaintiff objects to defendants' failure to attach the exhibits to defendants' second Request for Judicial Notice. Defendants, however, filed an Amended Request for Judicial Notice, containing the relevant exhibits. (Am. Req. for Judicial Notice Exs. 1-3.) The court will therefore consider these documents. Cunningham v. Litton Indus., 413 F.2d 887, 889 n. 2 (9th Cir. 1969) (taking judicial notice of an EEOC decision).
Additionally, "a district judge may generally consider a document outside the complaint when deciding a motion to dismiss if the complaint specifically refers to the document and if its authenticity is not questioned." Inlandboatmens Union of Pac. v. Dutra Group, 279 F.3d 1075, 1083 (9th Cir. 2002) (citing Townsend v. Columbia Operations, 667 F.2d 844, 848-49 (9th Cir. 1982)) (upholding a District Court's consideration of a collective bargaining agreement, referred to in the complaint, on a motion to dismiss). When claims in a complaint require consideration of a collective bargaining agreement, a plaintiff cannot artfully plead so as to avoid mentioning the agreement, thereby avoiding federal preemption issues. Inlandboatmens Union, 279 F.3d at 1083; Young v. Anthony's Grottos, Inc., 830 F.2d 993, 997 (9th Cir. 1997) ("The district court, however, properly looked beyond the face of the complaint to determine whether the contract claim was in fact a section 301 claim for breach of a collective bargaining agreement . . .").
In this case, plaintiff concedes that a collective bargaining agreement was in place. (FAC ¶¶ 111, 120, 126, 136, 144.) Thus, this court may properly consider the CBA, submitted as an exhibit to defendants' first motion to dismiss, without converting this motion into a motion for summary judgment. (First Mot. to Dismiss Ex. 1.)
B. Labor Management Relations Act
1. Preemption under § 301
Defendant argues that plaintiff's ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, sixteenth, seventeenth, twentieth, twenty-first, and twenty-second claims are all preempted under the LMRA. (Second Mot. to Dismiss 4-9.) It is well established that § 301 of the LMRA, 29 U.S.C. § 185(a), allows for preemption of state law claims which are "dependent upon" or "inextricably intertwined with" a collective bargaining agreement.; Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985). The Supreme Court has articulated two general instances when this may occur: 1) when the "claims [are] founded directly on rights created by collective-bargaining agreements" and 2) "where the right is created by state law . . . [but the application of state law] requires the interpretation of a collective bargaining agreement." Hayden v. Reickerd, 957 F.2d 1506, 1509 (9th Cir. 1992) (quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 411-12 (1988)).
Section 301 of the LMRA states that, "Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties. . . ." 29 U.S.C. § 185(a).
However, not all claims stemming from conduct in the workplace are necessarily preempted by the LMRA. See Allis-Chalmers, 471 U.S. at 211-212 (noting that "not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement is pre-empted by § 301"). In particular, if a dispute can be resolved without the court being required to consider the CBA, preemption will not be implicated.Lingle, 486 U.S. at 413 (noting that a claim "may depend for its resolution upon both the interpretation of a collective bargaining agreement and a separate state-law analysis that does not turn on the agreement. In such a case, federal law would govern the interpretation of the agreement, but the separate state-law analysis would not be thereby pre-empted.").
2. State Law Claims
a. Claims Twenty, Twenty-One, Twenty-Two
Claims twenty and twenty-one are for breach of contract and breach of implied covenant of good faith and fair dealing, respectively. Both of these claims directly relate to an interpretation of the CBA contract, for that is what was purportedly breached. Claim twenty-two is for failure to pay wages and provide rest breaks, which is founded on rights created by, and only by, the CBA. (CBA Section 4 ("hours"), Section 7 ("wages").) Analysis of these claims cannot be accomplished without looking to the CBA, therefore these four claims are preempted by the LMRA. Allis-Chalmers, 471 U.S. at 213.
b. Claims Sixteen and Seventeen
Claims sixteen and seventeen are for negligent and/or intentional interference with existing contractual relationships and negligent and/or intentional interference with prospective economic advantage, respectively. Both of these theories are state common law causes of action based on protecting "contractual rights or expectancies." Woods v. Fox Broadcasting Sub., Inc., 129 Cal.App.4th 344, 350 (2005). Because the contractual rights at issue necessarily arise out of the CBA, these claims against Mayberry are preempted.
Technically, these claims constitute four theories of recovery: negligent interference with existing contractual relationships; intentional interference with existing contractual relationships; negligent interference with prospective economic advantage; and intentional interference with prospective economic advantage.
As against Sara Lee, it is well established that a party to a contract cannot be found liable under either of these theories of law. Id. ("[A] party to the plaintiff's contract cannot be liable under any of the four theories. If the defendant is a party to the contract, the plaintiff is relegated to a cause of action for breach of that contract.") (citing Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal.4th 503, 514 (1994). Indeed, these causes of action must be reconciled with the longstanding "prohibition against liability of contracting parties." Allied Equipment, 7 Cal.4th at 513-514. Therefore, the court will dismiss these claims as against Sara Lee.
c. Claims Nine and Ten
Claims nine and ten are for intentional and negligent infliction of emotional distress, respectively. The claim for intentional infliction of emotional distress is brought solely against Mayberry, based on his "harassing, hostile, and discriminatory treatment" of plaintiff, while the negligence claim is brought against both defendants based on the failure to provide a non-hostile, non-harassing, and non-discriminatory work environment. To support a claim for emotional distress under California law, conduct must be "so extreme and outrageous `as to go beyond all possible bounds of decency.'" Cook v. Lindsay Olive Growers, 911 F.2d 233, 239 (9th Cir. 1990) (citing Alcorn v. Anbro Eng'g, Inc., 2 Cal.3d 493, 499 n. 5 (1970)).
Plaintiff's allegations in claims nine and ten include accusations that Greenly was "denied Saturday shift differential pay and work breaks, denied promotions," and that he was "demoted in retaliation for [his] complaints." (FAC ¶ 14.) From this, as well as other "harassment," plaintiff asserts he was harmed. (FAC ¶¶ 83, 93, 98, 101.) All of these accusations, however, involve work conditions explicitly covered by the CBA. (CBA Sections 3 (seniority in promotions), 4 (hours), 7 (wages).) Therefore, in order to assess whether defendants' conduct in this regard was "outrageous," the court must consider the CBA. Miller v. AT T Network Sys., 850 F.2d at 543, 550 (9th Cir. 1988) ("Actions that the collective bargaining agreement permits might be deemed reasonable in virtue of the fact that the CBA permits them."). Claims nine and ten are therefore preempted.
d. Claims Eleven and Twelve
Claims eleven and twelve are for negligence and negligence per se. These two claims are brought against both defendants, and like claim ten, are based on the failure to provide a non-hostile, non-harassing, and non-discriminatory work environment. A claim based on negligence requires an inquiry into the reasonableness of defendants' conduct, within the context of duties owed plaintiff. See e.g., Gdowski v. Louie, 84 Cal.App.4th 1395 (2000) ("reasonableness is . . . at the heart of a negligence claim"). As with the analysis above regarding a claim for emotional distress, in order for the court to assess the "reasonableness" of defendants' conduct, it must consider the conduct within the context of the duties created by the CBA. Indeed, the CBA is the source of those duties which defendants purportedly violated. Claims eleven and twelve are therefore preempted.
e. Claim Thirteen
Claim thirteen is brought against Sara Lee, alleging negligence in the hiring, training, supervision, and retention of Mayberry. (FAC ¶¶ 104-107.) Any decision to hire, discipline, or ultimately fire an employee is clearly one which is governed by the provisions and procedures of the CBA. (CBA Section 3 (dismissals).) Thus, any inquiry into the reasonableness of Sara Lee's conduct regarding such decisions would necessitate an interpretation of the CBA. Therefore, this claim is preempted.
f. Claim Fourteen
Claim fourteen is for invasion of privacy, and is based on Mayberry's supposed disclosure of private facts about Greenly as well as Mayberry's "intrusion into plaintiff's home." California's right to privacy requires both that an individual have a "personal and objectively reasonable expectation of privacy" and that the expectation "has been infringed by an unreasonable . . . intrusion." Alarcon v. Murphy, 201 Cal.App.3d 1, 5 (1988). The Ninth Circuit has clarified that for a privacy right to be so inextricably intertwined with a collective bargaining agreement so as to result in preemption, the agreement must contain a waiver or some other explicit mention of those privacy rights affected. Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 693 (9th Cir. 2001) (refusing to find preemption for invasion of privacy claims where conduct was not covered by a collective bargaining agreement).
By contrast, in this situation there is nothing in the CBA that acts to affect plaintiff's right to privacy or to be free from intrusion. Indeed, there is nothing in the CBA even arguably related to this claim. It is not enough that such topics might be the subject of a provision in the CBA — an actual provision must exist. Id. (preemption is proper where an "existing provision of a CBA . . . can reasonably be said to be relevant to the resolution of the dispute") (emphasis added). Nor is it sufficient that the invasions of privacy happened to take place in the work context. Lingle, 486 U.S. at 407 ("[T]hese purely factual questions pertain to the conduct of the employee and the conduct and motivation of the employer. Neither . . . requires a court to interpret any term of a collective-bargaining agreement.") (emphasis added). Because, in this context, plaintiff's right to privacy is a "nonnegotiable state law right," this claim is not preempted. Id. at 697.
2. Exhaustion under § 301
When the LMRA preempts a state law claim, that claim may be effectively re-characterized as one brought under § 301 for breach of the collective bargaining agreement. Young, 830 F.2d at 997. Finding a state-law claim completely pre-empted effectively "supplants it with a federal claim." Id. at 998. All of the state-law claims preempted above by the LMRA will therefore be considered by this court as a claim under § 301. The basis of a claim under § 301 is founded on an allegation that there has been a breach of contract between an employer and a labor organization representing employees in an industry affecting commerce. 29 U.S.C. § 185.
It is well established, however, that an "employee seeking a remedy for an alleged breach of the collective bargaining agreement between his union and employer must attempt to exhaust any exclusive grievance and arbitration procedures established by that agreement before he may maintain a suit against his union or employer under § 301(a) of the Labor Management Relations Act."Clayton v. Int'l Union, United Auto., Aerospace, and Agr. Implement Workers of Am., 451 U.S. 679, 681 (1981) (citingRepublic Steel Corp. v. Maddox, 379 U.S. 650, 652-653 (1965)). Moreover, because the grievance procedures contained in most collective bargaining agreements mandate that any decisions are final and binding, in order for an employee to recover under § 301 he must also show that his union breached its duty of representation. Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 564 (1990); DelCostello v. Int'l Bd. of Teamsters, 462 U.S. 151, 163-164 (1983).
The one exception to the exhaustion requirement excuses plaintiff from pursuing all grievance procedures where the union breached its duty of fair representation. See generally Clayton, 451 U.S. 679.
In this case, the CBA at issue contains detailed procedures to be pursued in the case of an employee grievance, and provides that any decisions by the Board are "final and binding on all parties." (CBA Section 25 ("Adjustment Board and Procedure").) When plaintiff filed his original complaint in this action, there was no mention made of any effort on his part to pursue any of the remedies outlined in the CBA. (Compl.) In plaintiff's amended complaint, in an apparent effort to cure this deficiency, plaintiff summarily asserts that he "pursued and exhausted all appropriate grievance procedures pursuant to the Sara Lee collective bargaining agreement and/or Plaintiff is excused from the exhaustion requirement on the grounds that the union breached its duty of fair representation." (FAC ¶¶ 111, 120, 126, 144.)
Under the liberal federal standards, these general allegations are sufficient at the pleading stage to allow the recharacterized § 301 claim to go forward. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513, 515 (2002) (unanimous Court holding that "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions" and "[a] requirement of greater specificity for particular claims is a result that must be obtained by the process of amending the Federal Rules, and not by judicial interpretation"); see also Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003) (the court is required to accept all allegations as true). Because the court finds ten of the claims above to be preempted, these claims will be recharacterized as a claim for violation of the collective bargaining agreement arising under § 301. Young, 830 F.2d at 997.
3. Statute of Limitations
Defendants contend that, even if plaintiff's claims are recharacterized under federal law, plaintiff would be time-barred from bringing a § 301 claim. (Mot. to Dismiss 10.) The Supreme Court has held that actions under the LMRA are governed by the six-month statute of limitations set out in § 10(b) of the National Labor Relations Act. DelCostello, 462 U.S. at 154 (citing 29 U.S.C. § 160(b)). Claims outside of that six-month period are subject to dismissal. Id. at 155. Defendant, citing the EEOC complaint filed on May 19, 2005, argues that the last noted incident of improper conduct by Sara Lee or Mayberry occurred on April 15, 2005. (Mot. to Dismiss 10.)
The FAC, however, states that plaintiff filed a second complaint with the EEOC on July 17, 2006, alleging additional and more recent violations. Moreover, plaintiff does not specifically confine his factual allegations in the FAC to any particular time period, but instead contends that the hostile behavior continued up until his August, 2006, dismissal. (FAC ¶ 14; Opp'n to Mot. to Dismiss 5.) For the purposes of this motion, the court accepts these assertions as true. Balistreri, 901 F.2d at 699.; Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 502 n. 15 (1968). The simple fact that incidents of harassment also occurred outside of the six-month period does not bar suit for continuing violations. See e.g., Anthony v. County of Sacramento, 898 F. Supp. 1435, 1443 (E.D. Cal. 1995) ("hostile environment harassment . . . by its nature involves an ongoing course of conduct rather than a single discrete act"). Therefore, plaintiff has sufficiently alleged that defendants' conduct occurred within the six-month period prior to filing the complaint.
4. Section 301 Claims Against Mayberry
By definition, a suit by an employee under § 301 can be brought only against an "employer," who is party to the collective bargaining agreement. 29 U.S.C. § 185(a) (granting jurisdiction to the District Courts over suits "between an employer and a labor organization representing employees"). In an effort to maintain a § 301 claim against Mayberry, plaintiff summarily "alleges that Mayberry is a party to the collective bargaining agreement." (Opp'n to Mot. to Dismiss 4.) This unsupported assertion is directly contradicted by the CBA, which contains as signatories only Sara Lee and the Union. (First Mot. to Dismiss Ex. 1 at 40.) The court will therefore dismiss all preempted state-law claims, re-characterized as a claim under § 301, as against Mayberry.
C. FEHA Claims
Plaintiff brings four claims under FEHA. FEHA prohibits unlawful employment discrimination on the basis of sex, disability, and other protected classifications. California Government Code §§ 12900 et seq. In order for a federal court to exercise jurisdiction over a FEHA claim, however, a plaintiff must first timely file an administrative complaint with the Department of Fair Employment and Housing ("DFEH"), and then receive from the DFEH a notice of a "right to sue." Cal. Gov. Code § 12965.
Claim Four for retaliation; claim six for disability discrimination; claim seven for failure to prevent; and claim eight for unlawful failure to accommodate. (FAC ¶¶ 40-45, 53-59, 60-67, 68-76.)
As a result of a work-sharing agreement between the EEOC and the DFEH, each agency is designated as the agent of the other for the purposes of processing FEHA complaints. 29 C.F.R. 1626.10(c). Thus, while plaintiff's first administrative complaint was filed with the EEOC, this is sufficient to satisfy the exhaustion requirement.
In order for an administrative complaint to be timely, it must be filed within "one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred." Cal. Gov. Code § 12960; Romano v. Rockwell Int'l, Inc., 14 Cal.4th 479, 492 (1996). Under California law, failure to exhaust these remedies generally precludes a party from bringing a valid federal claim.Carter v. Smith Food King, 765 F.2d 916, 921 (9th Cir. 1985) (citations omitted); Romano, 14 Cal.4th at 492.
1. Exhaustion of Administrative Remedies
Defendants argue that all four FEHA claims must be dismissed because plaintiff failed to exhaust his administrative remedies in a timely manner, based on the fact that: 1) plaintiff's second FEHA complaint was filed four days after the instant lawsuit; 2) plaintiff fails to allege that this second FEHA complaint was timely; and 3) plaintiff fails to allege against whom the second FEHA complaint, and subsequent "right-to-sue" notice, were directed. (Mot. to Dismiss 10-13.)
Defendants are correct that a "right to sue" notice must be received before a lawsuit may be filed. Indeed, plaintiff filed this lawsuit four days before filing his second EEOC complaint on July 17, 2006. The Supreme Court has firmly established, however, that the requirement of a "right-to-sue" letter is not a jurisdictional prerequisite, but merely a condition precedent that is subject to waiver, estoppel, and equitable tolling. Wrighten v. Metro. Hospitals, Inc., 726 F.2d 1346, 1351 (9th Cir. 1984) (citing Zipes v. TWI, Inc., 455 U.S. 385, 393 (1982)). California courts therefore allow plaintiffs to "cure" a premature suit, with the subsequent receipt of a "right to sue" letter after a complaint has been filed, "provided there is not evidence showing that the premature filing precluded the state from performing its administrative duties or that the defendant was prejudiced by such filing." Edwards v. Occidental Chemical Corp., 892 F.2d 1442, 1445 (9th Cir. 1990) (citingWrighten, 726 F.2d at 1351.).
Plaintiff did file a previous complaint with the EEOC on May 19, 2005. However, the scope of a federal action brought under FEHA is defined by the scope of the claims contained in the original administrative complaint. Green v. L.A. County Superintendant of Schools, 883 F.2d 1472, 1475-76 (9th Cir. 1989). Plaintiff's first "right-to-sue" letter, in response to his 2005 EEOC complaint, was only for a charge of sexual harassment. While administrative charges are to be liberally construed, so as to allow plaintiffs to proceed on claims that are "like or reasonably related to" the EEOC charges, see Sosa v. Hiraoka, 920 F.2d 1451, 1458 (9th Cir. 1990), this court would find it hard to reason that charges of disability discrimination are "reasonably related" to charges of sexual discrimination.
Defendants, in the present motion, contend that this July 17, 2006, EEOC complaint and subsequent "right-to-sue" letter are a sham, because plaintiff has not produced these documents. At this stage of litigation, however, plaintiff is not required to produce evidence — mere factual allegation is sufficient. However, it goes without saying that, should plaintiff be unable to eventually produce the "right-to-sue" letter, all FEHA claims will fail.
In this case there is nothing to indicate that the EEOC was precluded from performing its administrative functions as a result of the premature suit. Because a premature lawsuit is always subject to a motion to dismiss at any time before a "right to sue" letter is received, it is unlikely that allowing plaintiff to "cure" a premature filing will encourage parties to bypass the administrative procedures of the EEOC. Wrighten, 726 F.2d at 1351 (citing Pinkard v. Pullman-Stanrdard, 678 F.2d 1211, 1218 (5th Cir. 1982)). Moreover, defendants have not shown any way in which they would be prejudiced by allowing plaintiff to proceed. The fact that plaintiff filed an earlier EEOC charge in 2005 effectively put defendants on notice as to at least a portion of the offending conduct, as well as plaintiff's interest in seeking relief for defendant Mayberry's conduct. Accordingly, plaintiff may proceed with his FEHA claims.
2. Claim Seven as Against Mayberry
Defendants additionally contend that, as a matter of law, claim seven (failure to prevent unlawful sexual discrimination) cannot be brought against Mayberry, because he was the actual perpetrator of the harassment at issue.
Defendants also argue that claim eight (failure to provide reasonable accommodations) is similarly inappropriate against Mayberry. Plaintiff, however, only brings claim eight against Sara Lee. (FAC 10.)
The "failure to prevent" cause of action originates in California Government Code § 12940(j)(1), which makes it "unlawful if the [company], or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action." This provision is, by definition, a means of imposing vicarious liability on theemployer for the actions of its employees. State Dept. Of Health Svcs. v. Superior Court, 31 Cal.4th 1026, 1040-1042 (2003); Hope v. Cal. Youth Auth., 134 Cal.App.4th 577, 593 (2005). It is not a catch-all cause of action that can be brought against any and all employees in the company who failed to prevent the harassment from occurring, least of all against the actual harassing employee.
Plaintiff's reasoning would extend liability under FEHA to an illogical conclusion, whereby an individual could be found directly liable for harassing an employee as well as for the failure to prevent his own harassing conduct. Plaintiff may, of course, bring a direct action against Mayberry for harassment, which he successfully alleges in claim five, but the present claim is improper. The court will therefore dismiss claim seven against Mayberry.
D. California Labor Code § 132a
California Labor Code § 132a(1) makes it unlawful for any employer to discriminate against any employee in retaliation for filing a workers' compensation claim. Defendants argue that, based on California Labor Code § 5300, plaintiff's twenty-third claim must be dismissed for lack of jurisdiction because the Workers' Compensation Appeals Board ("WCAB") is the exclusive forum for claims under § 132a. (Mot. to Dismiss 14.) Plaintiff, on the other hand, cites to City of Moorpark v. Superior Court, 18 Cal.4th 1143, 1155 (1998), for the proposition that "workers' compensation is not the exclusive remedy for violations of . . . 132a." (Opp'n to Mot. to Dismiss 10.)
California Labor Code 5300 provides that proceedings "[f]or the recovery of compensation, or concerning any right or liability arising out of or incidental thereto" "shall be instituted before the [Workers' Compensation] [A]ppeals [B]oardand not elsewhere. . . ." (emphasis added).
In fact, the California Supreme Court in Moorpark clarified that for a plaintiff alleging disability discrimination, § 132a was not the exclusive remedy — a plaintiff could also look to FEHA or common law principles for relief. Moorpark, 18 Cal.4th at 1158 (holding that for disability discrimination, "section 132a does not provide an exclusive remedy and does not preclude an employee from pursuing FEHA and common law wrongful discharge remedies"). Nonetheless, for claims that are brought under § 132a, "the Workers Compensation Appeals Board [is] the exclusive forum. . . ." Id. at 1156. Thus, while plaintiff has various alternative means of recovery based on his allegation of disability discrimination, a claim under § 132a is only proper before the WCAB. Accordingly, the court will dismiss this claim.
IT IS THEREFORE ORDERED that:
(1) defendants' motion to dismiss claim seven as against defendant Mayberry, and claims sixteen and seventeen as against defendant Sara Lee be, and the same hereby is, GRANTED;
(2) defendants' motion to dismiss claim twenty-three be, and the same hereby is, GRANTED;
(3) defendants' motion to dismiss claims nine, ten, eleven, twelve, thirteen, sixteen (as against defendant Mayberry), seventeen (as against defendant Mayberry), twenty, twenty-one, and twenty-two be, and the same hereby is, GRANTED. Plaintiff is hereby given thirty days from the date of service of this order to amend his complaint eliminating these preempted claims and stating instead a claim against defendant Sara Lee under § 301 of the LMRA, consistent with the requirements set forth herein.
IT IS FURTHER ORDERED that, in all other respects, defendants' motion to dismiss be, and the same hereby is, DENIED.