Davis v. Advance Services, Inc.

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 DURIEL DAVIS, No. 2:22-cv-00343-MCE-JDP

12 Plaintiff,

13 v. MEMORANDUM AND ORDER

14 ADVANCE SERVICES, INC., et al.,

15 Defendants.

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17 Presently before the Court is a Motion to Dismiss Plaintiff Duriel Davis’ (“Plaintiff”)

18 Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)1 filed by the following

19 groups of Defendants: (1) Archer-Daniels-Midland Company, ADM Rice, Inc., and ADM

20 Milling Company (collectively, “ADM Corporate Defendants”); (2) Janet Escalante

21 (erroneously sued as Janette Escalante), Matthew House, and Johnny Barnett

22 (collectively, the “Individual Managers”); and (3) Carlos Guerrero (“Guerrero”)

23 (erroneously sued as Carlos Guerrera) (collectively with ADM Corporate Defendants and

24 Individual Managers, “Moving Defendants”).2 ECF Nos. 32 (“Moving Defs.’ Mot.”),

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1 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure.

27 2 Defendant Advance Services, Inc. (“Advance”) filed an Answer to the Complaint. ECF No. 7.

Defendants Rush Personnel Services, Inc. (“Rush”) and Omar Rosales (“Rosales”) have not yet appeared

28 in this action.

1 36 (“Pl.’s Opp’n”), 38 (“Moving Defs.’ Reply”). For the following reasons, that Motion is

2 GRANTED in part and DENIED in part.3

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4 BACKGROUND4

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6 In or around late 2017, Plaintiff, who is African American, began working for

7 Advance and/or ADM Corporate Defendants and/or Rush in Woodland, California, and is

8 still employed by them. Plaintiff alleges that since early 2019, he has been subjected to

9 a continuing series of similar and related discriminatory, harassing, and/or retaliatory

10 actions by all Defendants because of his race and/or Defendants’ perception of Plaintiff’s

11 race and/or because Plaintiff complained of and opposed unlawful actions that were

12 taken against him because of his race.

13 For example, in February 2019, Plaintiff alleges that his foreman/supervisor

14 Guerrero fashioned a noose out of a piece of rope, presented the noose to Plaintiff,

15 pretended to hang himself by the neck with it, and told Plaintiff, “This is for you.” On

16 September 23, 2020, Plaintiff alleges that his co-worker Rosales did the same thing by

17 fashioning a noose out of a piece of rope and telling Plaintiff, “It’s for you.” Another

18 incident allegedly occurred in June 2020, when Guerrero pointed Plaintiff out to another

19 employee, who was looking for a brownie Guerrero was supposed to bring for lunch, and

20 told the employee, “There is your brownie,” in reference to Plaintiff. A few months later,

21 in October 2020, Plaintiff alleges he was demoted from the shipping department to the

22 sanitation department because of his race and/or as retaliation for Plaintiff’s reporting of

23 discriminatory, harassing, and/or retaliatory conduct.

24 More generally, Plaintiff alleges that between June 2020 and the present, all

25 Defendants (1) ignored Plaintiff; (2) spoke in other languages to exclude Plaintiff from

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3 Because oral argument would not have been of material assistance, the Court ordered this

matter submitted on the briefs. E.D. Local Rule 230(g).

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4 Unless otherwise noted, the following recitation of facts is taken, primarily verbatim, from

28 Plaintiff’s Complaint. ECF No. 1 (“Compl.”).

1 conversations, including work-related conversations and information; (3) accused

2 Plaintiff of work-related and other misconduct; and (4) singled out Plaintiff for punishment

3 and/or discipline. Regarding the above events, Plaintiff claims that the Individual

4 Managers had actual and/or constructive knowledge of this conduct but they failed to

5 take all reasonable steps to prevent this conduct from occurring and take immediate and

6 appropriate corrective action. Finally, Plaintiff alleges that all Defendants aided and

7 abetted this harassing and retaliatory conduct by offering encouragement and/or

8 assistance to the perpetrator(s).

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10 STANDARD

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12 On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all

13 allegations of material fact must be accepted as true and construed in the light most

14 favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38

15 (9th Cir. 1996). Rule 8(a)(2) “requires only ‘a short and plain statement of the claim

16 showing that the pleader is entitled to relief’ in order to ‘give the defendant fair notice of

17 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly,

18 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A

19 complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual

20 allegations. However, “a plaintiff’s obligation to provide the grounds of his entitlement to

21 relief requires more than labels and conclusions, and a formulaic recitation of the

22 elements of a cause of action will not do.” Id. (internal citations and quotations omitted).

23 A court is not required to accept as true a “legal conclusion couched as a factual

24 allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at

25 555). “Factual allegations must be enough to raise a right to relief above the speculative

26 level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur R. Miller,

27 Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the pleading must

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1 contain something more than “a statement of facts that merely creates a suspicion [of] a

2 legally cognizable right of action”)).

3 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket

4 assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3 (internal citations and

5 quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard

6 to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of

7 the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing Wright &

8 Miller, supra, at 94, 95). A pleading must contain “only enough facts to state a claim to

9 relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . have not nudged their

10 claims across the line from conceivable to plausible, their complaint must be dismissed.”

11 Id. However, “a well-pleaded complaint may proceed even if it strikes a savvy judge that

12 actual proof of those facts is improbable, and ‘that a recovery is very remote and

13 unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

14 A court granting a motion to dismiss a complaint must then decide whether to

15 grant leave to amend. Leave to amend should be “freely given” where there is no

16 “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice

17 to the opposing party by virtue of allowance of the amendment, [or] futility of [the]

18 amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v.

19 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to

20 be considered when deciding whether to grant leave to amend). Not all of these factors

21 merit equal weight. Rather, “the consideration of prejudice to the opposing party . . .

22 carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183,

23 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that

24 “the complaint could not be saved by any amendment.” Intri-Plex Techs., Inc. v. Crest

25 Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d

26 1006, 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th

27 Cir. 1989) (“Leave need not be granted where the amendment of the complaint . . .

28 constitutes an exercise in futility . . . .”)).

1 ANALYSIS

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3 The Complaint asserts the following Claims for Relief: (1) Racial Discrimination in

4 Violation of 42 U.S.C. § 1981 (“§ 1981”) against Advance, ADM Corporate Defendants,

5 and Rush; (2) Racial Discrimination in Violation of California’s Fair Employment and

6 Housing Act, California Government Code §§ 12940 et seq. (“FEHA”), against Advance,

7 ADM Corporate Defendants, and Rush; (3) Harassment Based on Race in Violation of

8 FEHA against all Defendants; (4) Retaliation in Violation of FEHA against all Defendants;

9 and (5) Failure to Prevent and Cure Harassment and Discrimination in Violation of FEHA

10 against Advance, ADM Corporate Defendants, and Rush. See Compl., at 6–10. Moving

11 Defendants seek dismissal of all claims asserted against them on the basis that Plaintiff

12 fails to state a claim upon which relief may be granted.5 The Court will address each of

13 the claims in turn.

14 A. First and Second Claims for Relief: Racial Discrimination in Violation

of § 1981 and FEHA Against ADM Corporate Defendants

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Section 1981 provides that “[a]ll persons within the jurisdiction of the United

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States shall have the same right in every State and Territory to make and enforce

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contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws

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and proceedings for the security of persons and property as is enjoyed by white citizens

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. . .” 42 U.S.C. § 1981(a). “To establish his initial prima facie case of race

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discrimination, [Plaintiff] must show that: (1) he is a member of a protected class; (2) he

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was qualified for his position; (3) he experienced an adverse employment action; and

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(4) similarly situated individuals outside his protected class were treated more favorably,

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or other circumstances surrounding the adverse employment action give rise to an

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inference of discrimination.” Morrow v. City of Oakland, No. C 11-02351 LB, 2012 WL

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2133755, at *10 (N.D. Cal. June 12, 2012); see Fonseca v. Sysco Food Servs. of Ariz.,

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27 5 Moving Defendants moved to dismiss the First, Second, and Fifth Claims for Relief against all of

them, but Plaintiff confirmed in his Opposition brief that those claims are not asserted against the

28 Individual Managers or Guerrero. See Pl.’s Opp’n, at 6–7, 9.

1 Inc., 374 F.3d 840, 850 (9th Cir. 2004) (“Analysis of an employment discrimination claim

2 under § 1981 follows the same legal principles as those applicable in a Title VII

3 disparate treatment case.”).

4 Similarly, FEHA prohibits, in part, an employer from discriminating against an

5 employee “in compensation or in terms, conditions, or privileges of employment” on the

6 basis of race. See Cal. Gov’t Code § 12940(a). “To state a prima facie case of

7 discrimination under the FEHA, a plaintiff must allege and ultimately show that: (i) [he]

8 was a member of a protected class; (ii) [he] was qualified for the position [he] sought or

9 was performing competently in the position [he] held; (iii) [he] suffered an adverse

10 employment action; and (iv) the employer acted with a discriminatory motive.” Ayala v.

11 Frito Lay, Inc., 263 F. Supp. 3d 891, 905 (E.D. Cal. 2017).

12 At issue here is whether Plaintiff suffered an adverse employment action. See

13 Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (under Title VII, “an

14 adverse employment action is one that ‘materially affect[s] the compensation, terms,

15 conditions, or privileges of . . . employment.’”) (citation omitted) (alterations in original);

16 Ayala, 263 F. Supp. 3d at 905 (adverse employment actions under FEHA include

17 “termination, demotion, failing to promote, denial of an available job, adverse job

18 assignments, official discipline, and significant changes in compensation or benefits.”).

19 Plaintiff alleges, in part, that (1) his move from the shipping department to the sanitation

20 department constituted a demotion, (2) he was accused “of work-related and other

21 misconduct,” and (3) he was “singl[ed] [] out for punishment and/or discipline.” Compl.

22 ¶¶ 26(d)–(e). As a result, Plaintiff claims he “suffered actual damages, including lost

23 income, benefits, promotional and career opportunities.” Id. ¶¶ 29, 34.

24 Moving Defendants argue that Plaintiff fails to allege why any of these actions are

25 adverse. See, e.g., Moving Defs.’ Mot., at 17 (“Plaintiff does not allege a difference in

26 pay or benefits from the Shipping Department to the Sanitation Department, or a

27 difference in any other condition, so as to support his conclusory statement that the

28 move was ‘a demotion.’”). However, adverse employment actions “are not limited only to

1 so-called ultimate employment actions such as termination or demotion, but also the

2 entire spectrum of employment actions that are reasonably likely to adversely and

3 materially affect an employee’s job performance or opportunity for advancement in his or

4 her career.” Hicks v. Netflix, Inc., 472 F. Supp. 3d 763, 775 (C.D. Cal. 2020) (citing

5 Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1054 (2005)) (internal quotation marks

6 omitted). Viewing the Complaint as a whole and accepting the allegations as true, the

7 Court can reasonably infer, at this stage, that the department change, accusations of

8 workplace misconduct, and being subjected to discipline materially affected Plaintiff’s

9 employment and opportunity for advancement. Therefore, Moving Defendants’ Motion to

10 Dismiss the First and Second Claims for Relief is DENIED.

11 B. Third Claim for Relief: Harassment Based on Race in Violation of

FEHA Against Moving Defendants

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“To establish a prima facie claim for harassment and hostile work environment

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under the FEHA, a plaintiff must allege and demonstrate that: (i) [he] is a member of a

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protected group; (ii) [he] was subjected to harassment because [he] belonged to this

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group; and (iii) the alleged harassment was so severe or pervasive that it created a

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hostile work environment.” Ayala, 263 F. Supp. 3d at 909–10. “Courts consider the

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totality of the circumstances in evaluating whether a hostile work environment exists,

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including ‘the frequency of the discriminatory conduct[;] its severity[;] whether it is

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physically threatening or humiliating, or a mere offensive utterance; and whether it

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unreasonably interferes with an employee’s work performance.’” Id. at 910 (quoting

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Miller v. Dep’t of Corr., 36 Cal. 4th 446, 462 (2005)).

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1. Individual Managers

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Plaintiff seeks to hold the Individual Managers liable under an aiding and abetting

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theory of harassment. See Pl.’s Opp’n, at 6 (citing, in part, Smith v. BP Lubricants USA

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Inc., 64 Cal. App. 5th 138, 146 (2021) (stating “individuals and entities who are not the

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plaintiff’s employer may be liable under FEHA for aiding and abetting the plaintiff’s

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employer’s violation of FEHA.”)). On the other hand, Moving Defendants argue that

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1 “employees may be held personally liable for any harassment that they themselves have

2 committed,” and thus “liability does not extend to employees who did not engage in

3 harassing conduct.” See Moving Defs.’ Mot., at 15 (citing, in part, Fiol v. Doellstedt,

4 50 Cal. App. 4th 1318, 1326–30 (1996) (holding that “a supervisory employee is not

5 personally liable under the FEHA, as an aider and abettor of the harasser, for failing to

6 take action to prevent the . . . harassment of a subordinate employee.”)). As such,

7 Moving Defendants contend that because there are no allegations that the Individual

8 Managers personally participated in harassing conduct, this claim should be dismissed

9 against them. Under either approach, the Court finds the result is the same.

10 Here, the only specific allegations related to the Individual Managers are that they

11 “had actual and/or constructive knowledge of the actions by Defendants’ employees and

12 [they] failed to take all reasonable steps to prevent this conduct from occurring and failed

13 to take immediate and appropriate corrective action.” See, e.g., Compl. ¶ 26. Even

14 more generally, the Complaint alleges that “all Defendants, and each of them, aided and

15 abetted in this harassing and retaliatory conduct by offering encouragement and/or

16 assistance.” See id. However, Plaintiff does not allege on how each Individual Manager

17 knew about the alleged conduct or how they encouraged or assisted said conduct.

18 Furthermore, there is nothing in the Complaint indicating how the Individual Managers

19 acted in concert to harass Plaintiff. See Smith, 64 Cal. App. 5th at 146 (stating that the

20 “common basis for liability for . . . aiding and abetting . . . is concerted wrongful action.”).

21 Plaintiff also alleges that all Defendants “ignor[ed] Plaintiff, [spoke] in other

22 languages to exclude Plaintiff from conversations, including work-related conversations

23 and information, accus[ed] Plaintiff of work-related and other misconduct, and singl[ed]

24 Plaintiff out for punishment and/or discipline.” Id. ¶ 26(d). Assuming these allegations

25 pertain to the Individual Managers, they are also too conclusory because they do not

26 indicate which Individual Manager committed these acts let alone how each one

27 committed them. The Court thus cannot determine whether the actions of the Individual

28 Managers constitute as harassment.

1 Ultimately, Plaintiff’s general and conclusory allegations that the Individual

2 Managers knew about and/or aided and abetted any harassment in violation of FEHA

3 are insufficient. Accordingly, Moving Defendants’ Motion to Dismiss the Third Claim for

4 Relief as to the Individual Managers is GRANTED with leave to amend.

5 2. Guerrero

6 Plaintiff alleges two events involving Guerrero, the first one being that, in February

7 2019, he “fashioned a noose out of a piece of rope, presented the noose to Plaintiff, []

8 pretended to hang himself by the neck with the noose[,] . . . [and] told Plaintiff ‘This is for

9 you’.” Compl. ¶ 26(a). Second, in June 2020, Guerrero allegedly “pointed Plaintiff out to

10 another employee . . . and told the employee ‘There is your brownie’, in reference to

11 Plaintiff.” Id. ¶ 26(b). Moving Defendants argue that these two incidents, which occurred

12 months apart, cannot be considered severe or pervasive to qualify as harassment. See

13 Moving Defs.’ Mot., at 18.

14 “In general, the Ninth Circuit has found that such ‘isolated’ incidents, occurring

15 sporadically over a long period of time, are not severe or pervasive enough to alter the

16 conditions of employment.” Henry v. Regents of the Univ. of Cal., 37 F. Supp. 3d 1067,

17 1085 (N.D. Cal. 2014), aff’d, 644 F. App’x 787 (9th Cir. 2016) (“Henry”) (collecting

18 cases). However, “[t]he Ninth Circuit has held that ‘[i]f a single incident can ever suffice

19 to support a hostile work environment claim, the incident must be extremely severe,’ and

20 a California court of appeals has similarly held, in a FEHA harassment case, that an

21 incident ‘must be severe in the extreme and generally must include either physical

22 violence or the threat thereof.’” Id. at 1086 (quoting Brooks v. City of San Mateo, 229

23 F.3d 917, 926 (9th Cir. 2000); Herberg v. Cal. Inst. of the Arts, 101 Cal. App. 4th 142,

24 151 (2002)).

25 Accepting Plaintiff’s allegations as true for purposes of this Motion, those

26 pertaining to Guerrero and the noose alone are without doubt extremely severe and a

27 threat of physical violence. Unlike Henry, where the plaintiff failed to “provide[] evidence

28 that the noose was directed at him personally (either by being placed in his personal

1 work area such as his locker, or containing a note or a picture indicating that he was the

2 target of the display),” 37 F. Supp. 3d at 1086, Guerrero’s actions were clearly directed

3 at Plaintiff when he presented the noose to him, pretended to hang himself with it, and

4 said, “This is for you.” If “a single display of a noose [can be] sufficient to defeat

5 summary judgment[,]” id. (collecting cases), then it is certainly enough to defeat a Rule

6 12(b)(6) motion to dismiss. Therefore, Moving Defendants’ Motion to Dismiss this claim

7 as to Guerrero is DENIED.

8 3. ADM Corporate Defendants

9 Moving Defendants rely on the same arguments pertaining to Guerrero above in

10 seeking dismissal of this claim against the ADM Corporate Defendants. Because the

11 Court finds that Plaintiff has alleged a viable FEHA harassment claim against Guerrero,

12 it follows that the claim should proceed against the ADM Corporate Defendants as well.

13 Accordingly, Moving Defendants’ Motion to Dismiss on this ground is DENIED.

14 C. Fourth Claim for Relief: Retaliation in Violation of FEHA Against

Moving Defendants

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1. Individual Managers and Guerrero

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Moving Defendants argue that Plaintiff can only pursue his FEHA retaliation claim

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against his employer, meaning that there is no individual liability for supervisors or other

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employees. See Moving Defs.’ Mot., at 13–14, 17. Plaintiff does not address this

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contention in his Opposition brief but in any case, Moving Defendants are correct. See

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Jones v. Lodge at Torrey Pines P’ship, 42 Cal. 4th 1158, 1173 (2008) (holding that “the

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employer is liable for retaliation under [FEHA], but nonemployer individuals are not

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personally liable for their role in that retaliation.”). Because the law is clear and Plaintiffs

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did not oppose this contention, leave to amend would be futile. The Motion to Dismiss

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this claim against the Individual Managers and Guerrero is thus GRANTED without leave

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to amend.

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1 2. ADM Corporate Defendants

2 Moving Defendants seek to dismiss this claim against the ADM Corporate

3 Defendants on the same grounds as the discrimination and harassment claims above.

4 See Moving Defs.’ Mot., at 22. Because the Court finds that Plaintiff has stated viable

5 discrimination and harassment claims against the ADM Corporate Defendants, their

6 Motion to Dismiss the FEHA retaliation claim fails for those same reasons is thus

7 DENIED.

8 D. Fifth Claim for Relief: Failure to Prevent and Cure Harassment and

Discrimination in Violation of FEHA Against ADM Corporate

9 Defendants

10 Moving Defendants argue that because “Plaintiff’s alleged claims of discrimination

11 and harassment are legally deficient[,] [f]or this reason alone, Plaintiff’s failure-to-prevent

12 claim will not succeed.” Id. As previously stated, the discrimination and harassment

13 claims are proceeding against the ADM Corporate Defendants and Moving Defendants

14 have not offered any alternative argument as to why this claim should be dismissed.

15 The Motion to Dismiss the Fifth Claim for Relief is therefore DENIED.

16 E. Amendment

17 In his Opposition brief, Plaintiff states that he “could plead additional facts about

18 circumstances occurring after the events pled in the first complaint, including that plaintiff

19 was terminated as a result of his race and as retaliation, filed a subsequent DFEH

20 complaint about the termination, and has suffered and continues to suffer injuries.” Pl.’s

21 Opp’n, at 10. If he so desires, Plaintiff is directed to file a motion for leave to amend the

22 Complaint to add such claims as set forth below.

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24 CONCLUSION

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26 For the reasons set forth above, Moving Defendants’ Motion to Dismiss, ECF

27 No. 32, is GRANTED in part and DENIED in part. The Third Claim for Relief as to the

28 Individual Managers is DISMISSED with leave to amend. The Fourth Claim for Relief as

1 | to the Individual Managers and Guerrero is DISMISSED without leave to amend.

2 | Moving Defendants’ Motion is otherwise DENIED. Not later than thirty (30) days after

3 | the date this Memorandum and Order is electronically filed, Plaintiff may (but is not

4 || required to) file either (1) an amended complaint consistent with this Memorandum and

5 | Order, or (2) a motion for leave to amend the Complaint as indicated in the immediately

6 | preceding section. If a motion for leave to amend is filed, Plaintiff need not file an

7 | amended complaint along with it. Following the Court’s disposition of the motion for

8 | leave to amend, it will permit Plaintiff additional time to file an amended complaint

9 | consistent with the foregoing. If, however, neither an amended complaint nor a motion

10 | for leave to amend is timely filed, the claims dismissed by virtue of this Memorandum

11 | and Order will be deemed dismissed without leave to amend upon no further notice to

12 | the parties.

13 IT |S SO ORDERED.

14 | Dated: July 19, 2023

Mater LEK

Whig { AX Xo -

‘6 SENIOR UNITED STATES DISTRICT JUDGE

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