a 7 franchisor also must “retain[] or assume[] a general right of control over factors such as 8 hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of the 9 workplace behavior of the franchisee’s employees.”
How later courts described this case
- a 7 franchisor also must “retain[] or assume[] a general right of control over factors such as 8 hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of the 9 workplace behavior of the franchisee’s employees.”
- noting that claims dismissed with leave to amend 18 which are not re-alleged in an amended pleading may be “considered waived if not 19 repled.’’
- explaining whether employers are joint depends primarily on whether they 25 exercised common control over the employees
- “[A]n amended pleading supersedes the original.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 Lindsey Stewart, Case No.: 19cv1780-CAB-BGS
12 Plaintiff,
ORDER REGARDING MOTIONS
13 v. TO DISMISS AND STRIKE [Doc.
Nos. 5 and 7]
14 Chick-Fil-A, et al,
15 Defendants.
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Plaintiff Lindsey Stewart (“Plaintiff”), a non-prisoner, proceeding pro se, has filed
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a complaint for employment discrimination. [Doc. No. 1.] On November 6, 2019,
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Defendants Danny Putnam, Becky Putnam, and 3 Little Cows, Inc. dba Chick-Fil-A filed
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a motion to dismiss the complaint and to strike certain portions of the complaint. [Doc.
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No. 5.] On November 25, 2019, Defendant Chick-Fil-A, Inc. also filed a motion to
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dismiss the complaint. [Doc. No. 7.] On December 23, 2019, Plaintiff filed oppositions
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to both motions. [Doc. Nos. 17, 18.] On January 10, 2020, Defendants filed replies to
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the oppositions. [Doc. Nos. 19 and 20.] The Court deems the motions suitable for
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determination on the papers submitted and without oral argument. See S.D. Cal. CivLR
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7.1(d)(1).
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ALLEGATIONS OF COMPLAINT
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Plaintiff’s complaint asserts that it is an action for age, gender, and retaliation
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1 discrimination pursuant to 42 U.S.C. §2000 et seq., Title VII of the Civil Rights Act of
2 1964 (“Title VII”), and the Age Discrimination in Employment Act of 1964 (“ADEA”).
3 [Doc. No. 1 at ¶¶ 1-2.] Plaintiff alleges that she is a 62-year-old female who worked at
4 a Chick-Fil-A franchise owned by the Putnams and 3 Little Cows and located in
5 Encinitas, California (the “Restauarant”). [Doc. No. 1 at ¶¶ 5 and 7.] Plaintiff further
6 alleges that Defendant Chick-Fil-A, the franchisor, has control over the Putnams and
7 participates in employment decisions at the Restaurant. [Complaint ¶¶ 10-15.] Plaintiff
8 further alleges that on December 19, 2018, she was wrongfully terminated in retaliation
9 for her reporting of sexual harassment of younger-aged females. [Doc. No. 1 at ¶¶ 5, 7
10 and 21.] The Complaint sets forth two counts: (1) “corporate failure to supervise their
11 franchises against discrimination claim for relief age gender discrimination;” and (2)
12 “corporate failure to supervise their franchises claim for relief retaliation for reporting
13 sexual harassment.” [Doc. No. 1 at 7-8.]
14 MOTIONS TO DISMISS
15 A. Legal Standard
16 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the
17 defense that the complaint “fail[s] to state a claim upon which relief can be granted”—
18 generally referred to as a motion to dismiss. The Court evaluates whether a complaint
19 states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil
20 Procedure 8(a)(2), which requires a “short and plain statement of the claim showing that
21 the pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual
22 allegations,’ . . . it [does] demand . . . more than an unadorned, the defendant-unlawfully-
23 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
24 Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
25 “To survive a motion to dismiss, a complaint must contain sufficient factual
26 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.
27 (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially
28 plausible when the collective facts pled “allow . . . the court to draw the reasonable
1 inference that the defendant is liable for the misconduct alleged.” Id. There must be
2 “more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely
3 consistent with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id.
4 (quoting Twombly, 550 U.S. at 557). The Court need not accept as true “legal
5 conclusions” contained in the complaint, id., or other “allegations that are merely
6 conclusory, unwarranted deductions of fact, or unreasonable inferences,” Daniels-Hall v.
7 Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).
8 B. Defendant Chick-fil-A, Inc.
9 Defendant Chick-fil-A, Inc. argues that Plaintiff has failed to state a claim against
10 it because Plaintiff does not and cannot allege facts to show that she was actually
11 employed by Chick-fil-A, Inc.
12 To establish a prima facie case of retaliation or harassment under Title VII,
13 Plaintiff must show she had an employment relationship with the party who carried out
14 the discriminatory or retaliatory conduct. See generally 42 U.S.C. § 2000e-2(a). Also, she
15 must show the defendant meets the statutory definition of an employer, which is “a
16 person engaged in an industry affecting commerce who has fifteen or more employees for
17 each working day in each of twenty or more calendar weeks in the current or preceding
18 calendar year, and any agent of such a person....” 42 U.S.C § 2000e(b).
19 Two or more employers may be considered “joint employers” if both employers
20 control the employee’s terms and conditions of employment. Wynn v. NBC, 234 F. Supp.
21 2d 1067, 1093 (C.D. Cal. 2002); Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d
22 990, 993 (6th Cir. 1997); N.L.R.B. v. Browning-Ferris Indus. of Pennsylvania, Inc., 691
23 F.2d 1117, 1123 (3d Cir. 1982); see also Boire v. Greyhound Corp., 376 U.S. 473, 475
24 (1964) (explaining whether employers are joint depends primarily on whether they
25 exercised common control over the employees).
26 To establish a “joint employment” relationship, the complaint must allege facts
27 satisfying the following elements: (1) The nature and degree of control each employer
28 had over the others' employees; (2) day-to-day supervision and discipline over each
1 other’s employees; (3) authority to hire and fire the employee and to set employment
2 conditions; and (4) control over employment records and over methods and amounts of
3 payment of the other’s employees. Wynn, 234 F. Supp. 2d at 1093.
4 In the context of franchisor-franchisee relationships, the analysis focuses on the
5 extent to which the franchisor retains and exercises control over the day-to-day details of
6 employment. Salazar v. McDonald’s Corp., 944 F.3d 1024, 1032 (9th Cir. 2019) (a
7 franchisor also must “retain[] or assume[] a general right of control over factors such as
8 hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of the
9 workplace behavior of the franchisee’s employees.”) citing Patterson v. Domino’s Pizza,
10 LLC, 60 Cal.4th 474, 497 (2014).
11 Here, while Plaintiff makes conclusory allegations about Chick-fil-A being a joint
12 employer, she does not make any specific allegations as to how Chick-fil-A exercised
13 day-to-day control of the details of employment. In her opposition, Plaintiff references a
14 text message exchange between “Landon” (employee of the franchisor) and “Jason
15 Stewart” (employee of the franchisee) concerning an issue between “Alex” and Eden
16 Biden” that occurred in February 2018. First, these allegations are not contained in the
17 Complaint. Moreover, it is unclear how a text message that occurred months before
18 Plaintiff’s employment and did not concern or involve Plaintiff, shows that Chick-fil-A
19 was her joint employer. Nevertheless, the Court will provide Plaintiff another
20 opportunity to amend the complaint to make specific allegations that show how Chick-fil-
21 A (the franchisor) exerted day-to-day control over the franchisee’s employees, such that
22 it should be held liable as a joint employer.
23 Accordingly, Defendant Chick-fil-A’s motion to dismiss [Doc. No. 7] is
24 GRANTED WITH LEAVE TO AMEND.
25 C. Defendants Danny Putnam, Becky Putnam and 3 Little Cows, Inc.
26 It appears the gravamen of Plaintiff’s complaint is that she allegedly observed
27 another employee sexually harass several younger females at work, reported this to her
28 superiors, and was then given a false negative performance review which led to her
1 termination. [Complaint ¶¶18-21.] This is, in essence, a claim for retaliation under Title
2 VII.1
3 The claims in Plaintiff’s complaint, however, are entitled “corporate failure to
4 supervise their franchises against discrimination claim for relief age gender
5 discrimination” and “corporate failure to supervise their franchises claim for relief
6 retaliation for reporting sexual harassment.” Defendants argue that there are no such
7 claims under the law. The Court agrees that the complaint is unclear as to Plaintiff’s
8 theory of liability. While there can certainly be liability under Title VII for age and
9 gender discrimination, and for retaliation, and under the common law for an employer’s
10 negligent supervision of an employee, Plaintiff has failed to provide any legal authority
11 for a claim for “corporate failure to supervise franchises.” Plaintiff must provide more
12 clarity as to her legal theory.
13 Defendants also argue that it is unclear which claims are brought against which
14 named defendants. Plaintiff has sued two corporate entities and two individuals, but she
15 does not specify how each defendant is liable. Plaintiff must allege the basis of her claim
16 against each defendant to satisfy Federal Rule of Civil Procedure 8(a)(2), which requires
17 a short and plain statement of the claim to put defendants on sufficient notice of the
18 allegations against them. Gauvin v. Trombatore, 682 F.Supp. 1067, 1071 (N.D. Cal.
19 1988).
20 Finally, Plaintiff has not sufficiently alleged a claim for gender or age
21 discrimination. To establish a prima facie case under Title VII, a plaintiff must offer
22 proof: (1) that the plaintiff belongs to a class of persons protected by Title VII; (2) that
23 the plaintiff performed his or her job satisfactorily; (3) that the plaintiff suffered an
24 adverse employment action; and (4) that the plaintiff's employer treated the plaintiff
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26 1Under Title VII, a plaintiff may establish a prima facie case of retaliation by showing that (1) she
engaged in activity protected under Title VII, (2) the employer subjected her to an adverse employment
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decision, and (3) there was a causal link between the protected activity and the employer's action.
28 Passantino v. Johnson & Johnson Consumer Prods. Inc., 212 F.3d 493, 506 (9th Cir. 2000)(citations
1 differently than a similarly situated employee who does not belong to the same protected
2 class as the plaintiff. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).2
3 In the first claim, Plaintiff states that it is an “age gender discrimination” claim, but she
4 does not sufficiently allege how defendants discriminated against her based on her age or
5 gender, nor does she allege how she was treated differently from other similarly-situated
6 employees who were not in the same protected class as Plaintiff. In addition, Plaintiff’s
7 single allegation setting forth why she believes she was terminated only relates to her
8 retaliation cause of action. (Complaint ¶21). Finally, Plaintiff’s only specific allegation
9 regarding a discriminatory motive based on her age and gender is in connection with the
10 Restaurant’s EEOC response, which is unrelated to Plaintiff’s termination, as Plaintiff did
11 not file her EEOC complaint until one month after her termination. (Complaint ¶24). It is
12 simply unclear how Plaintiff’s age or gender led to her termination.
13 Accordingly, Defendants Putnam and 3 Little Cow’s motion to dismiss [Doc. No.
14 5] is GRANTED WITH LEAVE TO AMEND.
15 MOTION TO STRIKE
16 Pursuant to Federal Rule of Procedure Rule 12(f), the Court may strike “from any
17 pleading any insufficient defense or any redundant, immaterial, impertinent, or
18 scandalous matter.” Fed.R.Civ.P. 12(f). Motions to strike generally will not be granted
19 unless it is clear that the matter to be stricken could not have any possible bearing on the
20 subject matter of the litigation. See LeDuc v. Kentucky Central Life Insurance Co., 814
21 F.Supp. 820, 830 (N.D.Cal.1992). Allegations “supplying background or historical
22 material or other matter of an evidentiary nature will not be stricken unless unduly
23 prejudicial to defendant.” Id. Moreover, allegations which contribute to a full
24 understanding of the complaint as a whole need not be stricken. See id.
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26 2 Similarly, to establish a prima facie case of age discrimination under the ADEA, plaintiff must show
that she was: “(1) at least forty years old, (2) performing [her] job satisfactorily, (3) discharged, and (4)
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either replaced by substantially younger employees with equal or inferior qualifications or discharged
28 under circumstances otherwise ‘giving rise to an inference of age discrimination.’ ” Diaz v. Eagle
1 Here, Defendants Putnam and 3 Little Cows move to strike the Restaurant’s EEOC
2 || response (attached as an exhibit to the complaint), as well as any references in the
3 complaint to the EEOC response, on the grounds that it is immaterial to the action. Given
4 leave to amend the complaint has been granted, the motion to strike [Doc. No. 5] is
5 || DENIED WITHOUT PREJUDICE.
6 CONCLUSION
7 For the reasons set forth above, the motions to dismiss are GRANTED WITH
8 || LEAVE TO AMEND and the motion to strike is DENIED WITHOUT PREJUDICE.
? Plaintiff shall have until February 21, 2020 to file a First Amended Complaint
10 || that cures the pleading deficiencies noted above. If Plaintiff does not file a First
11 || Amended Complaint by February 21, 2020, the case will be dismissed.
12 Plaintiff is cautioned that the First Amended Complaint must be complete in itself
13 || without reference to her original pleading. Defendants not named and any claims not re-
14 || alleged in the First Amended Complaint will be considered waived. See S.D. Cal. CivLR
15 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th
16 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty.,
17 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend
18 which are not re-alleged in an amended pleading may be “considered waived if not
19 repled.’’)
20 IT IS SO ORDERED.
Dated: January 17, 2020 i i
73 Hon. Cathy Ann Bencivengo
44 United States District Judge
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