# Goins v. United Parcel Service Inc > District Court, N.D. California · December 13, 2022 URL: https://www.frixlaw.com/law-library/cases/10073774 ## Case - **Court:** District Court, N.D. California - **Decided:** December 13, 2022 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10073774 ## Opinion text 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GALENA GOINS, et al., Case No. 21-cv-08722-PJH 8 Plaintiffs, 9 v. ORDER GRANTING MOTION TO DISMISS 10 UNITED PARCEL SERVICE INC, et al., Re: Dkt. No. 27 11 Defendants. 12 13 14 Defendants’ motion to dismiss the first amended complaint (“FAC”) came on for 15 hearing before this court on December 8, 2022. Plaintiffs appeared through their 16 counsel, Tiega-Noel Varlack. Defendants appeared through their counsel, Elizabeth A. 17 Brown. Having read the papers filed by the parties and carefully considered their 18 arguments and the relevant legal authority, and good cause appearing, the court hereby 19 GRANTS the motion to dismiss, for the reasons stated at the hearing. 20 As discussed at the hearing, the FAC lacks clarity and is rife with conclusory 21 statements while failing to provide even a formulaic recitation of the facts comprising the 22 elements of each claim. It is impossible to determine if the claims have been sufficiently 23 exhausted because it is not clear what each plaintiff and each defendant actually did and 24 what specific policies are being challenged. For the same reason, it is impossible to 25 determine if viable claims are properly pleaded and whether the class allegations can 26 survive. Even though defendants seek a dismissal with prejudice, the court GRANTS 27 leave to amend the first six causes of action (“charges” 1–6), including for violation of 1 of the Equal Pay Act (“EPA”); violation of the California Equal Pay Act (“CEPA”); and 2 unfair competition under California Business and Professions Code § 17200 (“UCL”). 3 See Dkt. 26. The court provides below the legal standards for each of the remaining 4 claims to clarify the necessary elements that must be factually pleaded to state a viable 5 claim. 6 “Disparate treatment occurs ‘where an employer has treated a particular person 7 less favorably than others because of a protected trait.’” Wood v. City of San Diego, 678 8 F.3d 1075, 1081 (9th Cir. 2012) (quoting Ricci v. DeStefano, 557 U.S. 557, 577 (2009)). 9 To state a prima facie case of disparate treatment, a plaintiff must show that “(1) she 10 belongs to a protected class; (2) she was qualified for her position; (3) she was subject to 11 an adverse employment action; and (4) similarly situated individuals outside her 12 protected class were treated more favorably.” Davis v. Team Elec. Co., 520 F.3d 1080, 13 1089 (9th Cir. 2008). “A disparate-treatment plaintiff must establish that the defendant 14 had a discriminatory intent or motive for taking a job-related action.” Wood, 678 F.3d at 15 1081 (quotation marks omitted). 16 On the other hand, to state a claim for disparate impact discrimination under Title 17 VII, a plaintiff must allege (1) a significant disparity with respect to employment for the 18 protected group, (2) the existence of a specific employment practice or set of practices, 19 and (3) a causal relationship between the identified practice and the disparity. Liu v. 20 Uber Techs. Inc., 551 F. Supp. 3d 988, 990 (N.D. Cal. 2021) (citing Freyd v. University of 21 Oregon, 990 F.3d 1211, 1224 (9th Cir. 2021)).1 Plaintiffs’ counsel explained at the 22 hearing that the first two causes of action are intended to include both disparate impact 23 and treatment. That is not apparent from a plain reading of the FAC. Given the 24 distinctions between the elements for disparate treatment and disparate impact, the two 25 theories should be pleaded separately to improve clarity. 26 1 It is important to note that at the pleading stage, it is not necessary to establish a prima 27 facie case of discrimination under the burden-shifting framework set forth in McDonnell 1 The elements of a prima facie case for discrimination under FEHA are closely 2 related to the Title VII prima facie requirements. Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 3 317, 354 (2000) (“Because of the similarity between state and federal employment 4 discrimination laws, California courts look to pertinent federal precedent when applying 5 our own statutes.”). 6 “To make out a case under the Equal Pay Act, a plaintiff must prove that an 7 employer is paying different wages to employees of the opposite sex for equal work. The 8 jobs held by employees of opposite sexes need not be identical, but they must be 9 ‘substantially equal.’” Hein v. Oregon Coll. of Educ., 718 F.2d 910, 913 (9th Cir. 1983) 10 (citation omitted). The plaintiff must present a comparison of “the jobs in question,” not 11 “the individuals who hold the jobs.” Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1074 (9th 12 Cir. 1999). The California Equal Pay Act is nearly identical to the federal statute and 13 subject to the same analysis. Green v. Par Pools Inc., 111 Cal.App.4th 620, 623 (2003) 14 (citing Cal. Lab. Code § 1197.5). The FAC fails to provide any details about either the 15 work performed by plaintiffs or by similarly situated comparators, making evaluation of 16 these causes of action impossible. 17 To state a claim under California Business and Professions Code § 17200, a 18 plaintiff must allege that the defendant engaged in an “unlawful, unfair, or fraudulent 19 business act.” Cal. Bus. & Prof. Code § 17200. As the California Supreme Court has 20 explained, “section 17200 ‘borrows’ violations of other laws and treats them as unlawful 21 practices independently actionable” under the UCL. Saunders v. Superior Court, 27 22 Cal.App.4th 832, 839 (1994) (quoting Farmers Ins. Exchange v. Superior Court, 2 Cal.4th 23 377, 383 (1992)); see also Friedman v. AARP, Inc., 855 F.3d 1047, 1052 (9th Cir. 2017). 24 Accordingly, this cause of action is dependent on the viability of the others. 25 As stated at the hearing, plaintiffs’ cause of action for civil RICO is DISMISSED 26 WITH PREJUDICE. Based on the pleadings and argument at the hearing, the court finds 27 that any attempt at amendment would be futile. Defendant Ricardo Moreno is also 1 acknowledged by plaintiffs’ counsel, plaintiffs’ allegations under the Lilly Ledbetter Fair 2 Pay Act should not be enumerated as a separate cause of action in any amended 3 pleading, as they were asserted solely with the intent of extending the statute of 4 limitations for the EPA claims. Accordingly, that cause of action is also DISMISSED. 5 Finally, and as also discussed at the hearing, plaintiffs shall file their second 6 amended complaint on or before January 23, 2023. Defendant’s responsive pleading 7 shall be filed on or before February 24, 2023. No new claims or parties may be added to 8 the amended pleading without leave of court or consent of the remaining defendant. By 9 separate order the parties have been ordered to address an ambiguity noted by the court 10 after the hearing on this motion.2 See Dkt. 34. 11 IT IS SO ORDERED. 12 Dated: December 13, 2022 13 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 2 At the September 15, 2022, Case Management Conference, the parties suggested that a stipulation for plaintiffs to amend the complaint might be possible. The court advised 27 that if no stipulation was entered, plaintiffs must move to amend to add parties or --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10073774. Public record. Not legal advice.