# Nanthavong v. United Parcel Service, Inc.

> District Court, E.D. California · May 15, 2024

URL: https://www.frixlaw.com/law-library/cases/10061302

## Case

- **Court:** District Court, E.D. California
- **Decided:** May 15, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 SAYSAMONE NANTHAVONG, No. 2:23-cv-02670-DJC-DB
12 Plaintiff,
13 v. ORDER

14 UNITED PARCEL SERVICE, INC., et al.,

15 Defendants.
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17 This action was originally filed in San Joaquin County Superior Court but was
18 subsequently removed to federal court by Defendants on the basis of federal question
19 jurisdiction. The Court previously partially granted a motion to dismiss Plaintiff’s
20 claims with leave to amend, and Plaintiff has since filed a First Amended Complaint
21 (“FAC”). (ECF No. 27.) Defendants UPS and Minor have now filed separate Motions to
22 Dismiss which are fully briefed. (See Def. UPS’s Mot.; Def. Minor’s Mot.; Pl.’s Opp’n to
23 Def. UPS’s Mot. (ECF No. 42); Pl.’s Opp’n to Def. Minor’s Mot. (ECF No. 43); Def. UPS’s
24 Reply (ECF No. 44); Def. Minor’s Reply (ECF No. 47).
25 For the reasons stated below, the Court will grant in part Defendant UPS’s
26 Motion to Dismiss and remand this action back to the state court.
27 ////
28 ////
1 BACKGROUND
2 I. Factual Allegations in the Complaint
3 In the FAC, Plaintiff Sasamone Nanthavong alleges that she suffered gender-
4 based discrimination and compensation inequality during her employment with
5 Defendant United Parcel Service, Inc. (“UPS”). (FAC ¶ 18.) Plaintiff states that she was
6 promoted to “On Role Supervisor” in October 2018 and later took a pay reduction to
7 move to a facility in Ceres, California. (Id. ¶ 20.) Plaintiff alleges that she experienced
8 “a series of troubling events” in which she was “coerced into signing uncertain
9 documentation, . . . subjected to security questioning, and . . . denied pay raises and
10 bonuses for two years.” (Id. ¶ 21.) Plaintiff was also subject to frequent relocations
11 and received less pay than others after she was placed on medical leave between May
12 and August 2020. (Id. ¶¶ 20–21, 25.)
13 On or about May 13, 2020, Plaintiff was allegedly called into work while on
14 vacation and, during her route, was attacked by a man with a knife. (Id. ¶¶ 39–40.)
15 After she escaped, “Plaintiff was instructed to finish her route and not make a report to
16 the police.” (Id. ¶ 41.) Plaintiff filed a police report on May 15, 2020, and later went to
17 Kaiser Hospital on May 17, 2020, where she was placed on medical leave until August
18 2020. (Id. ¶¶ 42–43.)
19 After Plaintiff returned to work in August, she was assigned to the Stockton UPS
20 Facility and faced harassment by a driver employed by Defendant UPS. (Id. ¶ 45.) On
21 December 22, 2020, Plaintiff was informed by managers working for Defendant UPS
22 that she would be placed on a leave of absence. (Id. ¶ 46.) Two days later, Plaintiff
23 claims she called the “UPS Discrimination Hotline” but did not receive a response. (Id.
24 ¶ 47.) Plaintiff remained on paid leave between December 2020 and March 2021. (Id.
25 ¶ 28.) Plaintiff claims that when she returned, her prior position was filled and “she
26 was moved to a different building with her raise removed.” (Id.) On undisclosed
27 dates, she engaged in “heated arguments” with Defendant Justin Minor, a Senior
28 Manager for Defendant UPS. (Id.)
1 In March 2022, Plaintiff did not receive “her MIP pay” which included pay raises.
2 (Id. ¶ 30.) On August 31, 2023, Defendant UPS terminated Plaintiff’s employment. (Id.
3 ¶¶ 33, 58.)
4 MOTIONS TO DISMISS
5 I. Legal Standard
6 A party may move to dismiss for “failure to state a claim upon which relief can
7 be granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted if the complaint
8 lacks a “cognizable legal theory” or if its factual allegations do not support a
9 cognizable legal theory. Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th
10 Cir. 2019) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
11 1988)). The court assumes all factual allegations are true and construes “them in the
12 light most favorable to the nonmoving party.” Steinle v. City and Cnty. of San
13 Francisco, 919 F.3d 1154, 1160 (9th Cir. 2019) (quoting Parks Sch. of Bus., Inc. v.
14 Symington, 51 F.3d 1480, 1484 (9th Cir. 1995)). If the complaint's allegations do not
15 “plausibly give rise to an entitlement to relief,” the motion must be granted. Ashcroft v.
16 Iqbal, 556 U.S. 662, 679 (2009).
17 A complaint need contain only a “short and plain statement of the claim
18 showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed
19 factual allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule
20 demands more than unadorned accusations; “sufficient factual matter” must make the
21 claim at least plausible. Iqbal, 556 U.S. at 678. In the same vein, conclusory or
22 formulaic recitations of elements do not alone suffice. Id. (citing Twombly, 550 U.S. at
23 555). This evaluation of plausibility is a context-specific task drawing on “judicial
24 experience and common sense.” Id. at 679.
25 II. Discussion
26 Defendants have separately moved to dismiss all of Plaintiff’s claims with the
27 exception of Plaintiff’s Fair Employment and Housing Act Harassment claim against
28 Defendant UPS. This includes Plaintiff’s Seventh Cause of Action, his sole federal
1 claim. Given that the Court previously dismissed this claim and that this action will
2 necessarily survive Defendants’ motions due to Plaintiff’s remaining Harassment claim,
3 the Court will first consider whether to grant Defendant UPS’s Motion as to Plaintiff’s
4 Seventh Cause of Action and whether leave to amend is warranted as to that claim, as
5 the dismissal of that claim without leave to amend will necessitate remand of this
6 action.
7 a. Defendant UPS’s Motion to Dismiss Plaintiff’s Equal Pay Act Claim
8 Defendant’s Motion to Dismiss is granted as to Plaintiff’s Equal Pay Act (“EPA”)
9 claim as Plaintiff has failed to allege sufficient facts to state a claim. The test for
10 whether Plaintiff has established a prima facie case for a violation of the EPA is
11 “whether the plaintiff is receiving lower wages than the average of wages paid to all
12 employees of the opposite sex performing substantially equal work and similarly
13 situated with respect to any other factors, such as seniority, that affect the wage scale.”
14 Hein v. Oregon Coll. Of Educ., 718 F.2d 910, 916 (9th Cir. 1983). These allegations
15 must also satisfy the “single establishment” requirement by establishing a
16 discrimination in the payment of wages between employees “within a single
17 establishment[.]” Bartlet v. Berlitz School of Language of America, Inc., 698 F.2d 1003,
18 1005 (9th Cir. 1983).
19 The Court previously dismissed this claim as Plaintiff had not alleged she was
20 paid differently than similarly qualified individuals doing the same job at the same
21 establishment. The FAC contains some additional allegations regarding the pay
22 differences between Plaintiff and other employees. Specifically, Plaintiff alleges that
23 she was paid less than another male employee at the same establishment despite the
24 male employee having “the same position as [P]laintiff” and being promoted to that
25 position later. (FAC ¶ 131–32.) Plaintiff also includes what appears to be a separate
26 allegation that another male employee, Alfonso Ramirez, in the same position and
27 location was making a higher wage despite being promoted at the same time. (FAC
28 ¶ 130.) Notably absent however, are any allegations establishing the similarly situated
1 nature of Plaintiff and the two male comparators. Plaintiff only states that these two
2 fellow employees had “the same position” and alleges that one was promoted at the
3 same time as her and that one was promoted at a later date. She does not allege that
4 these fellow employees were performing roles that required the same skill, effort, and
5 responsibility under similar working conditions, instead relying solely on the time of
6 their promotion and their title.
7 Plaintiff cannot state an EPA claim simply based on an alleged difference in pay
8 from two other male counterparts simply because they hold the same title. Courts
9 have been clear that to state a prima facie EPA claim a plaintiff must be able to allege
10 that she was receiving lower compensation than similarly qualified individuals in the
11 same establishment who are in roles that require the same skill, effort, and
12 responsibility and that are performed under similar working conditions. See Hein, 718
13 F.2d at 916; see also Goins, 2023 WL 3047388, at *13; Werner v. Advance Newhouse
14 P’ship, LLC, No. 1:13–cv–01259–LJO–JLT, 2013 WL 4487475, at *5 (E.D. Cal. Aug 19,
15 2013) (dismissing EPA claim where Plaintiff had not sufficiently alleged that male
16 counterparts were in jobs that involved similar skill, effort, and responsibilities as well
17 as being performed under similar working conditions); Davis v. Inmar, Inc., No. 21-cv-
18 03779-SBA, 2022 WL 3722122, at *5 (N.D. Cal. Aug. 29, 2022) (granting motion to
19 dismiss EPA claims where the plaintiff failed to allege that her single male
20 comparator’s roles “required substantially equal skill, effort, and responsibility, and
21 were performed under similar working conditions”). While Plaintiff has now alleged
22 she was paid less than some male employees at the same establishment, she has not
23 alleged any facts that establish these male employees were performing similar roles to
24 her besides the fact that both she and the male employees had the same title. This
25 fact is insufficient as it fails to establish that Plaintiff had similar responsibility and
26 experience to her male comparators. See EEOC v. Maricopa Cnty. Cmty. Coll. Dist.,
27 736 F.2d 510, 513 (9th Cir. 1984).
28 ////
1 As such, Defendant UPS’s Motion to Dismiss Seventh Cause of Action is
2 granted.
3 b. Leave to Amend
4 The Court does not grant Plaintiff leave to amend her claim under the EPA. “In
5 general, leave to amend is only denied if it is clear that amendment would be futile
6 and that the deficiencies of the complaint could not be cured by amendment.” Cabo
7 Distrib. Co. v. Brady, 821 F. Supp. 601, 608 (N.D. Cal. Oct. 22, 1992) (internal citations
8 and quotations omitted); see also Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)
9 (en banc) (“[A] district court should grant leave to amend ... unless it determines that
10 the pleading could not possibly be cured by the allegation of other facts.” (citation
11 omitted)).
12 Here, it is apparent that amendment would be futile. The Court previously
13 granted leave to amend this claim and explained what allegations were required to
14 state a claim under the EPA, but as noted above, Plaintiff was unsuccessful in stating a
15 claim in amending the complaint. Moreover, this is not the first time Plaintiff has had
16 these claims dismissed. As noted by Defendant UPS, Plaintiff was previously involved
17 in another action raising similar claims in which she also used Mr. Ramirez as a male
18 comparator. See Goins v. United Parcel Service Inc., No. 21-cv-08722-PJH, 2023 WL
19 3047388, at *13 (N.D. Cal. Apr. 20, 2023). The district court in the Goins action
20 specifically highlighted the same issues with Plaintiff’s EPA claim noted above. Goins,
21 2023 WL 3047388, at *13 (“Nanthavong . . . falls short of stating a claim because she
22 held different job duties than the man she identifies for comparison. The SAC
23 acknowledges that the man paid more than her, Alfonso Ramirez, held additional
24 responsibility . . . . Such differential responsibility and differential pay do not violate
25 equal pay principles.”) Despite the fact that Plaintiff was clearly made aware of the
26 deficiency of the claims as presented before this Court, Plaintiff has still failed to allege
27 sufficient facts to satisfy the requirements to state a claim under the EPA.
28 ////
1 Accordingly, the Court does not grant Plaintiff leave to amend his Seventh
2 Cause of Action as it is clear that amendment would be futile. See Cabo Distrib., 821
3 F. Supp. at 608.
4 c. Remand
5 Defendants originally removed this action to this Court with jurisdiction based
6 on the federal question present in Plaintiff’s claim under the EPA and with
7 supplemental jurisdiction over the state law claims. (See ECF No. 1 at 3–4.) As the
8 Court has now dismissed Plaintiff’s Seventh Cause of Action, the EPA claim, without
9 leave to amend, the Court lacks federal question jurisdiction over this action.
10 Accordingly, the Court will remand this case back to the San Joaquin County Superior
11 Court for further proceedings. See Boyko v. Terveno, LP, No. 15-cv-2088-JM (JLB);
12 2016 WL 308592, at *5 (S.D. Cal. Jan. 26, 2016) (remanding state law claims after
13 dismissing the sole federal claim creating the basis for jurisdiction); Mota v. Tri-City
14 Healthcare Dist., No. 3:18-cv-02775-AJB-NLS, 2019 WL 1546953, at *2 (S.D. Cal. Apr.
15 5, 2019) (same); Flores v. Countrywide Home Loans, Inc., No. 10-cv-1653-AHM
16 (MANx), 2010 WL 5068905, at *1 (C.D. Cal. Dec. 3, 2010) (same). The remainder of
17 Defendant UPS’s Motion to Dismiss and the entirety of Defendant Minor’s Motion to
18 Dismiss will be denied as moot.
19 CONCLUSION
20 For the reasons stated, it is hereby ordered that:
21 1. Defendant UPS’s Motion to Dismiss (ECF No. 35) is GRANTED IN PART as to
22 Plaintiff’s Seventh Cause of Action.
23 2. Plaintiff’s Seventh Cause of Action is dismissed without leave to amend for
24 failure to state a claim and this action is remanded to the San Joaquin
25 County Superior Court for further proceedings.
26 3. Defendant UPS’s Motion to Dismiss (ECF No. 35) is DENIED IN PART AS
27 MOOT.
28 4. Defendant Minor’s Motion to Dismiss (ECF No. 38) is DENIED AS MOOT.
1 5. The Clerk of Court is directed to remand the case to the San Joaquin County
2 Superior Court and close this case.
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j IT IS SO ORDERED.
8 | Dated: _May 14, 2024 “Darel A CDbnetto
Hon. Daniel alabretta
? UNITED STATES DISTRICT JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10061302. Public record. Not legal advice.