Washington v. Lowe's HIW Inc.

75 F.Supp.3d 1240

Lisa Washington, Plaintiff

v.Lowe's HIW Inc., et al., Defendants.

No. 3:14–cv–02984–CRB

United States District Court, N.D. California.

Signed December 16, 2014

Lisa Washington, Union City, CA, pro se.

Michael Brett Burns, Hunton and Williams, LLP, Lara Villarreal Hutner, Krystal Noel Lopilato, Villarreal Hutner PC, San Francisco, CA, for Defendants.

ORDER GRANTING MOTIONS TO DISMISS, DENYING MOTION TO FILE SECOND AMENDED COMPLAINT, AND DENYING AS MOOT MOTION FOR EXTENSION OF TIME

CHARLES R. BREYER, UNITED STATES DISTRICT JUDGE

Now before the Court are three motions to dismiss pro se Plaintiff Lisa Washington's First Amended Complaint (“FAC”): one filed by a group of eight individual defendants (dkt. 20), one filed by individual defendant Robert Niblock (dkt. 26), and one filed by individual defendant Rena Love Galimba (dkt. 27). Because the FAC fails to state a plausible claim for relief on any of its alleged causes of action, the Court GRANTS all three motions to dismiss the FAC. Certain circumstances in this case, as explained below, also warrant DENYING LEAVE TO AMEND, which entails DENYING Plaintiff's pending motion to file a Second Amended Complaint (see dkt. 19 & 25) and DENYING AS MOOT Plaintiff's pending motion for an extension of time to serve the summons and Second Amended Complaint (dkt. 29).

I. BACKGROUND

Plaintiff is a former employee of a Lowe's retail store in Fremont, California, where she worked from December 2011 until she was involuntarily terminated in May 2014. FAC ¶ 12. Plaintiff alleges that, during her employment with Lowe's, she was told by former store Human Resources Manager Raynetta Hart¹ that she would receive a pay increase she calls a “90 day STAR increase,” but that she never received this increase. FAC ¶ 13. She alleges that, after she asked why she did not receive the pay increase, she was subjected to “rude and hostile treatment.” FAC ¶ 14. She also alleges that her duties and responsibilities were reduced, she was excluded from team meetings with management, was unfairly accused of stealing, was subjected to “distant, cold, and unfriendly” attitudes from co-workers, was paid less than males were, was not offered a promotion, was not interviewed for a full-time position, and was wrongfully terminated. FAC ¶¶ 15–16.

Plaintiff filed a Complaint and motion for leave to proceed in forma pauperis on June 27, 2014. Compl. and Mot. IFP (dkts. 1 and 2). On July 16, 2014, this Court adopted Magistrate Judge Westmore's recommendation that the motion to proceed in forma pauperis be granted and that the Complaint be dismissed with leave to amend because it failed to state a claim upon which relief may be granted. Order (dkt. 8). On August 13, 2014, Plaintiff filed her FAC. (Dkt. 11). Lowe's filed its Answer to the FAC on September 26, 2014. (Dkt. 17).

Later that same day, Plaintiff filed a motion for leave to file a Second Amended Complaint (“SAC”), which she styled as a motion to amend the FAC. Mot. SAC (dkt. 19). Three days later, on September 29, 2014, individual defendants Jason McNutt, Edward Oliveira, Jeff Reynolds, Amy Hernandez, Santiago Pena, Sylvia LeRoy, Ming Chung, and Diane Smith (the “Individual Defendants”) filed a joint motion to dismiss Plaintiff's FAC. Defendants Rena Love Galimba and Robert Niblock thereafter each filed motions to dismiss Plaintiff's FAC.

II. LEGAL STANDARD

A. MOTION TO DISMISS

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed for failure to state a claim upon which relief may be granted. Dismissal may be based on either “the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). For purposes of evaluating a motion to dismiss, a Court “must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). However, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ; Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir.1994). Moreover, a “pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Rather, a complaint must plead “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). A claim is plausible “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. “Courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007).

B. LEAVE TO AMEND

In determining whether to grant a motion to amend, a court considers five factors: “(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether the plaintiff has previously amended his complaint.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir.2004) (citing Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.1995) ). “However, each is not given equal weight. Futility of amendment can, by itself, justify the denial of a motion for leave to amend.” Bonin, 59 F.3d at 845. And, it is “the consideration of prejudice to the opposing party that carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.2003) (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir.1987) ). Under Federal Rule of Civil Procedure 15(a), a court freely gives leave to amend “when justice so requires.”

III. DISCUSSION

A. MOTIONS TO DISMISS

Plaintiff's FAC raises an employment discrimination claim against her former employer Lowe's HIW, Inc. and eleven individual defendants. Although Plaintiff's pro se FAC is difficult to discern at times, it appears to allege claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”) and California's Fair Employment Housing Act (“FEHA”) for discrimination, sexual harassment, retaliation, wrongful termination in violation of public policy, breach of the implied covenant of good faith and fair dealing, and various fraud claims.

Now before the Court are three motions to dismiss Plaintiff's FAC: one collectively filed by eight of the individual defendants, all of whom are or were Lowe's employees and are referred to herein as the “Individual Defendants;”² one by Defendant Robert Niblock, who is Lowe's CEO, Chairman of the Board, and President; and one by Defendant Rena Love Galimba, who was a Lowe's Human Resources Manager at the time of Plaintiff's employment. All three Motions to Dismiss are GRANTED as to all claims.

The Individual Defendants, Robert Niblock, and Rena Love Galimba move to dismiss the FAC pursuant to Federal Rule of Civil Procedure 12(b)(6) on four grounds: First, they argue that Plaintiff's claims of discrimination, retaliation, harassment, equal pay, wrongful termination in violation of public policy, and breach of the implied covenant of good faith and fair dealing fail as a matter of law because non-employer individual defendants cannot be held liable for employment claims. Second, they argue that Plaintiff has not alleged facts giving rise to a plausible claim for sexual harassment. Third, they argue Plaintiff has failed to exhaust administrative remedies. Fourth, they argue Plaintiff has failed to allege facts giving rise to a plausible claim for fraud, civil RICO conspiracy, and civil RICO mail fraud under the heightened specificity required by Federal Rule of Civil Procedure 9(b) and fails to identify alleged fraudulent conduct.

1. Plaintiff's First, Third, Fourth, Fifth, Sixth, and Eighth Causes of Action—Federal Claims

The Individual Defendants, Robert Niblock, and Rena Love Galimba correctly argue that Plaintiff's First, Third, Fourth, Fifth, Sixth, and Eighth causes of action against them must be dismissed because, as a matter of law, non-employer individuals cannot be liable for the claims stated therein under Title VII or the ADEA. These causes of action allege claims of sex discrimination, sexual harassment, retaliation, equal pay, age discrimination, and sexually hostile work environment. Plaintiff asserts that these claims are brought pursuant to federal law, specifically Title VII and the ADEA. See FAC ¶ 8.

The Ninth Circuit has consistently held that non-employer individuals cannot be held personally liable under Title VII or the ADEA. See, e.g., Holly D. v. California Institute of Technology, 339 F.3d 1158, 1179 (9th Cir.2003) (affirming the district court's grant of summary judgment in favor of an individual defendant because “[w]e have consistently held that Title VII does not provide a cause of action for damages against supervisors or fellow employees”); Pink v. Modoc Indian Health Project, Inc., 157 F.3d 1185, 1189 (9th Cir.1998) (“[C]ivil liability for employment discrimination does not extend to individual agents of the employer who committed the violations, even if that agent is a supervisory employee.”); Miller v. Maxwell's Intern. Inc, 991 F.2d 583, 587–88 (9th Cir.1993) (“[I]ndividual defendants cannot be held liable for damages under Title VII,...