Opinion
No. C 11-04845 LB
05-17-2012
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. UNIVERSITY COLLEGE OF CHAPMAN UNIVERSITY, et al., Defendants.
ORDER DENYING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT
[Re: ECF No. 14]
INTRODUCTION
The United States Equal Employment Opportunity Commission ("EEOC") brought an age discrimination lawsuit against Chapman University and Brandman University (collectively, "Defendants") on behalf of Defendants' former employee David Branham. First Amended Complaint ("FAC"), ECF No. 8 at 1. Defendants moved to dismiss the First Amended Complaint on the ground that the EEOC fails to sufficiently allege its claims for retaliation, harassment, and constructive discharge in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634. Upon consideration of the record and the parties' papers, the court DENIES Defendants' motion.
Citations are to the Electronic Case File ("ECF") with pin cites to the electronic page number at the top of the document, not the pages at the bottom.
Pursuant to this District's Civil Local Rule 7-1(b), the court finds this matter to be suitable for determination without oral argument and vacates the May 24, 2012 hearing.
BACKGROUND
David Branham was employee of Chapman University and/or its subsidiary, University College of Chapman University ("UCCU") (which later became Brandman University), from at least February 2007 through May 14, 2008. See generally FAC, ECF No. 8. The EEOC alleges that in June 2007, when Mr. Branham was approximately 64 years old, one of Mr. Branham's co-workers "lodged allegations of age discrimination with UCCU." FAC, ECF No. 8 at 6, ¶ 25. Two months later, in August 2007, "a Human Resources official from Defendant Chapman University interviewed Mr. Branham as part of its internal investigation of [his co-worker's] allegations of age discrimination, and Mr. Branham provided evidence in support of his coworker's claims of discrimination." Id. From that point forward, the EEOC alleges that Defendants retaliated and harassed Mr. Burnham until he was constructively discharged on May 14, 2008. Id. at 1, 6-9, ¶¶ 24-39.
In support of these conclusions, the EEOC alleges that "since at least August 2007," Defendants "unjustifiably provid[ed] Mr. Branham with a negative annual performance evaluation, subject[ed] him to unjustified verbal and written warnings, impos[ed] burdensome additional duties that no other employee in Mr. Branham's position on the campus had to complete, and over-scrutiniz[ed] his programs and performance on a near-daily basis." Id. at 7, ¶¶ 26-27. The EEOC also alleges that, again "since at least August 2007," Defendants "yell[ed] at Mr. Branham and subject[ed] him to humiliating treatment at weekly staff meetings, set[] him up for failure in front of Defendants' executive administrators, and subject[ed] him to ageist comments, such as that he was "too old to relate to students." Id. at 8, ¶¶ 31-32. The EEOC alleges that, by doing these things, Defendants subjected Mr. Burnham to disparate terms and conditions of employment and harassment, which, in turn, "caused a working environment so abusive and intolerable that Mr. Branham was constructively discharged" on May 14, 2008. Id. at 7-9, ¶¶ 26-27, 31-32, 36-37.
The EEOC, which has the authority to enforce the provisions of the ADEA under 29 U.S.C. § 626(b), filed the instant action on September 30, 2011. Complaint, ECF No. 1. On January 23, 2012, it filed a First Amended Complaint as matter of course pursuant to Federal Rule of Civil Procedure 15(a)(1). FAC, ECF No. 8. Defendants moved to dismiss the First Amended Complaint on March 23, 2012. Motion, ECF No. 14. The EEOC timely opposed Defendants' motion, and Defendants filed a reply. Opposition, ECF No. 19; Reply, ECF No. 20.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss can be made and granted when the complaint fails to state a claim upon which relief can be granted. In considering a motion to dismiss, a court must accept as true all well-pleaded factual allegations and construe them in the light most favorable to the plaintiff. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 550 (2007); Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Vasquez v. Los Angeles Cnty., 487 F.3d 1246, 1249 (9th Cir. 2007). The presumption of truth does not extend, however, to factual allegations that are conclusory or simply recite the elements of a cause of action. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
The accepted factual allegations must state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). "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 citation and quotation marks omitted). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks omitted). If the court dismisses the complaint, it should grant leave to amend even if no request to amend is made "unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F. 3d 1122, 1127 (9th Cir. 2000) (quoting Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990)).
DISCUSSION
As stated above, the EEOC brought claims for retaliation, harassment, and constructive discharge in violation of the ADEA. The ADEA "makes it unlawful for an employer to retaliate against an employee for opposing the employer's discriminatory practices or participating in any investigation or proceeding under the ADEA[.]" O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir. 1996). See 29 U.S.C. § 623(d). The Ninth Circuit applies the same standard in both ADEA and Title VII retaliation cases. See Hashimoto v. Dalton, 118 F.3d 671, 675 n.1 (9th Cir. 1997) ("[T]he ADEA anti-retaliation provision is 'parallel to the anti-retaliation provision contained in Title VII,' . . . 'cases interpreting the latter provision are frequently relied upon in interpreting the former.'" (quoting Passer v. Am. Chem. Soc., 935 F.2d 322, 330 (D.C. Cir. 1991))); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1441 (9th Cir. 1990) ("We rely on cases involving retaliation claims brought under Title VII or Section 1981 as well as the ADEA. Few published opinions involve ADEA retaliatory claims. Those circuits that have considered ADEA retaliation claims have generally adopted the analysis used in Title VII cases without comment.").
Generally, to prevail on a retaliation claim, a plaintiff ultimately must show that he or she engaged in a protected activity, that the defendant subjected him or her to an adverse action, and that there was a causal link between the protected activity and the defendant's action. Bergene v. Salt River Proj. Agr. Imp. and Power Dist., 272 F.3d 1136, 1140-41 (9th Cir. 2001).
To prevail on a hostile workplace/harassment claim, a plaintiff generally must show that he or she was subjected to verbal or physical conduct, that the conduct was unwelcome, and that the conduct was sufficiently severe or pervasive to alter the conditions of his or her employment and create an abusive work environment. Vasquez, 349 F.3d at 642.
A "constructive discharge occurs when the working conditions deteriorate, as a result of discrimination, to the point that they become sufficiently extraordinary and egregious." Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000) (citations omitted). To prevail on a constructive discharge claim, a plaintiff generally must show that "when, looking at the totality of the circumstances, 'a reasonable person in [the plaintiff's] position would have felt that he [or she] was forced to quit because of intolerable and discriminatory working conditions.'" Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987) (quoting Satterwhite v. Smith, 744 F.2d 1380, 1381 (9th Cir. 1984)). "This test establishes an objective standard; the plaintiff need not show that the employer subjectively intended to force the employee to resign." Id. (citing Satterwhite, 744 F.2d at 1383; Nolan v. Cleland, 686 F.2d 806, 814 n.17 (9th Cir. 1982)). "As a result, the answer turns on the facts of each case." Satterwhite, 744 F.2d at 1382.
In essence, Defendants' argue that post-Twombly and post-Iqbal, the EEOC fails to sufficiently plead any of these three claims in the First Amended Complaint. See generally Motion, ECF No. 14; see also Reply, ECF No. 20 at 5-7. The EEOC argues that it does sufficiently plead them. See generally Opposition, ECF No. 19. As stated above, in order to survive a motion under Rule 12(b)(6), a complaint must contain sufficient factual allegations to "state a claim for relief that is plausible on its face." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads sufficient factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556). Further, pleadings consisting of "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. (quoting Twombly, 550 U.S. at 555) ("Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice.").
The parties cite to numerous non-binding federal district court and out-of-Circuit federal appellate opinions, but the court finds them largely to be distinguishable, especially given that "[d]etermining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. 679. Rather than compare the factual allegations in the EEOC's First Amended Complaint to the factual allegations made (or not made) in the opinions cited by the parties, the court instead will discuss whether the factual allegations made here are sufficient under the standards articulated by the United States Supreme Court.
Twombly, as Defendants concede, explicitly did not overturn the Supreme Court's holding in Swierkievicz v. Sorema N.A. that an employment discrimination complaint under ADEA and Title VII need not contain specific facts establishing a prima facie case, but instead "must contain only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Swierkievicz v. Sorema N.A., 534 U.S. 506, 508 (2002) (quoting Fed. R. Civ. P. 8(a)(2)). See Twombly, 550 U.S.at 569-70 (discussing Swierkievicz). The plaintiff in Swierkievicz brought claims under the ADEA and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that he was terminated on account of his age and national origin. Swierkievicz, 534 U.S. at 509. His complaint described the events leading up to his termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination. Id. at 514. In light of Rule 8(a)(2)'s notice pleading standard, the Court concluded that this was enough to give the defendant notice of the plaintiff's claims and the grounds upon which they rested. Id.
Given Rule 8's notice pleading standard and Swierkievicz's holding that facts establishing all of the prima facie elements do not necessarily have to be alleged, the court finds that the factual allegations in the EEOC's First Amended Complaint are sufficient to survive a motion to dismiss. As described above, the EEOC alleged that Mr. Burnham provided evidence with respect to Defendants' investigation of a co-worker's age discrimination claim. It also alleges that Defendants "subject[ed] [Mr. Burnham] to unjustified verbal and written warnings," "impos[ed] burdensome additional duties that no other employee in Mr. Branham's position on the campus had to complete," and "over-scrutiniz[ed] his programs and performance on a near-daily basis." These are all activities necessarily performed by a supervisor. In addition, the EEOC alleges that at points between August 2007 and May 14, 2008, at least one of Defendants' employees "yell[ed] at Mr. Branham and subject[ed] him to humiliating treatment at weekly staff meetings, set[] him up for failure in front of Defendants' executive administrators, and subject[ed] him to ageist comments, such as that he was "too old to relate to students." This treatment, the EEOC alleges, "caused a working environment so abusive and intolerable that Mr. Branham was constructively discharged" on May 14, 2008. These allegations set forth plausible claims for retaliation, harassment, and constructive discharge. While the EEOC might have been able to include additional allegations, such as which of Defendants' employees committed these acts and what the warnings and burdensome duties were, the allegations as pled are sufficient for Defendants to investigate the claims and to answer the First Amended Complaint.
The court is mindful that, by law, the EEOC files a complaint only after having investigated the charge, found reasonable cause to believe the charge was true, and failed to eliminate the problem by "informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5(b), (f)(1). See FAC, ECF No. 8 at 6, ¶ 23.
CONCLUSION
Based on the foregoing, Defendants' motion to dismiss is DENIED. IT IS SO ORDERED.
LAUREL BEELER
United States Magistrate Judge