Davis v. Advance Servs.

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DURIEL DAVIS, Plaintiff, v. ADVANCE SERVICES, INC., et al., Defendants.

No. 2:22-cv-00343-MCE-JDP

United States District Court, E.D. California

July 19, 2023

MEMORANDUM AND ORDER

MORRISON ENGLAND, JR, SENIOR UNITED STATES DISTRICT JUDGE

Presently before the Court is a Motion to Dismiss Plaintiff Duriel Davis' (“Plaintiff”) Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)^[1] filed by the following groups of Defendants: (1) Archer-Daniels-Midland Company, ADM Rice, Inc., and ADM Milling Company (collectively, “ADM Corporate Defendants”); (2) Janet Escalante (erroneously sued as Janette Escalante) Matthew House, and Johnny Barnett (collectively, the “Individual Managers”); and (3) Carlos Guerrero (“Guerrero”) (erroneously sued as Carlos Guerrera) (collectively with ADM Corporate Defendants and Individual Managers, “Moving Defendants”).^[2] ECF Nos. 32 (“Moving Defs.' Mot.”) 36 (“Pl.'s Opp'n”), 38 (“Moving Defs.' Reply”). For the following reasons, that Motion is GRANTED in part and DENIED in part.^[3]

BACKGROUND^[4]

In or around late 2017, Plaintiff, who is African American, began working for Advance and/or ADM Corporate Defendants and/or Rush in Woodland, California, and is still employed by them. Plaintiff alleges that since early 2019, he has been subjected to a continuing series of similar and related discriminatory, harassing, and/or retaliatory actions by all Defendants because of his race and/or Defendants' perception of Plaintiff's race and/or because Plaintiff complained of and opposed unlawful actions that were taken against him because of his race.

For example, in February 2019, Plaintiff alleges that his foreman/supervisor Guerrero fashioned a noose out of a piece of rope, presented the noose to Plaintiff, pretended to hang himself by the neck with it, and told Plaintiff, “This is for you.” On September 23, 2020, Plaintiff alleges that his co-worker Rosales did the same thing by fashioning a noose out of a piece of rope and telling Plaintiff “It's for you.” Another incident allegedly occurred in June 2020, when Guerrero pointed Plaintiff out to another employee, who was looking for a brownie Guerrero was supposed to bring for lunch, and told the employee, “There is your brownie,” in reference to Plaintiff. A few months later, in October 2020, Plaintiff alleges he was demoted from the shipping department to the sanitation department because of his race and/or as retaliation for Plaintiff's reporting of discriminatory, harassing, and/or retaliatory conduct.

More generally, Plaintiff alleges that between June 2020 and the present, all Defendants (1) ignored Plaintiff; (2) spoke in other languages to exclude Plaintiff from conversations, including work-related conversations and information; (3) accused Plaintiff of work-related and other misconduct; and (4) singled out Plaintiff for punishment and/or discipline. Regarding the above events, Plaintiff claims that the Individual Managers had actual and/or constructive knowledge of this conduct but they failed to take all reasonable steps to prevent this conduct from occurring and take immediate and appropriate corrective action. Finally, Plaintiff alleges that all Defendants aided and abetted this harassing and retaliatory conduct by offering encouragement and/or assistance to the perpetrator(s).

STANDARD

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. However, “a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (internal citations and quotations omitted). A court is not required to accept as true a “legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the pleading must contain something more than “a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”)).

Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3 (internal citations and quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice' of the nature of the claim, but also ‘grounds' on which the claim rests.” Id. (citing Wright & Miller, supra, at 94, 95). A pleading must contain “only enough facts to state a claim to relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Id. However, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.'” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

A court granting a motion to dismiss a complaint must then decide whether to grant leave to amend. Leave to amend should be “freely given” where there is no “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of [the] amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to be considered when deciding whether to grant leave to amend). Not all of these factors merit equal weight. Rather, “the consideration of prejudice to the opposing party . . . carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that “the complaint could not be saved by any amendment.” Intri-Plex Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (“Leave need not be granted where the amendment of the complaint . . . constitutes an exercise in futility . . . .”)).

ANALYSIS

The Complaint asserts the following Claims for Relief: (1) Racial Discrimination in Violation of 42 U.S.C. § 1981 (“§ 1981”) against Advance, ADM Corporate Defendants, and Rush; (2) Racial Discrimination in Violation of California's Fair Employment and Housing Act California Government Code §§ 12940 et seq. (“FEHA”), against Advance, ADM Corporate Defendants, and Rush; (3) Harassment Based on Race in Violation of FEHA against all Defendants; (4) Retaliation in Violation of FEHA against all Defendants; and (5) Failure to Prevent and Cure Harassment and Discrimination in Violation of FEHA against Advance, ADM Corporate Defendants, and Rush. See Compl., at 6-10. Moving Defendants seek dismissal of all claims asserted against them on the basis that Plaintiff fails to state a claim upon which relief may be granted.^[5] The Court will address each of the claims in turn.

A. First and Second Claims for Relief: Racial Discrimination in Violation of § 1981 and FEHA Against ADM Corporate Defendants

Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . .” 42 U.S.C. § 1981(a). “To establish his initial prima facie case of race discrimination, [Plaintiff] must show that: (1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.” Morrow v. City of Oakland, No. C 11-02351 LB, 2012 WL 2133755, at *10 (N.D. Cal. June 12, 2012); see Fonseca v. Sysco Food Servs. of Ariz.,Inc., 374 F.3d 840, 850 (9th Cir. 2004) (“Analysis of an employment discrimination claim under § 1981 follows the same legal principles as those applicable in a Title VII disparate treatment case.”).

Similarly FEHA prohibits, in part, an employer from discriminating against an employee “in compensation or in terms, conditions, or privileges of employment” on the basis of race. See Cal. Gov't Code § 12940(a). “To state a prima facie case of discrimination under the FEHA, a plaintiff must allege and ultimately show that: (i) [he] was a member of a protected class; (ii) [he] was qualified for the position [he] sought or was performing competently in the position [he] held; (iii) [he] suffered an adverse employment action; and (iv) the employer...