Wilson v. Timec Services Co.,. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 MARVONTE WILSON and DOMONIQUE No. 2:23-cv-00172 WBS KJN DANIELS, individually and on 13 behalf of all others similarly situated, 14 MEMORANDUM AND ORDER RE: Plaintiffs, DEFENDANTS’ MOTION TO DISMISS 15 SECOND AMENDED COMPLAINT v. 16 TIMEC SERVICES COMPANY, INC.; 17 FERROVIAL SERVICES INFRASTRUCTURE, INC.; VALERO 18 REFINING COMPANY-CALIFORNIA; DISA GLOBAL SOLUTIONS; and DOES 19 1 through 50, inclusive, 20 Defendants. 21 22 ----oo0oo---- 23 Plaintiffs Marvonte Wilson and Domonique Daniels 24 brought this putative class action in Solano County Superior 25 Court against Timec Services Company, Inc. (“Timec”); Ferrovial 26 Services Infrastructure, Inc. (“Ferrovial”); Valero Refining 27 Company-California (“Valero”); and DISA Global Solutions 28 (“DISA”). Plaintiffs allege employment discrimination based on 1 race in violation of Title VII of the Civil Rights Act of 1964 2 (“Title VII”), 42 U.S.C. § 2000e, and the California Fair 3 Employment and Housing Act (“FEHA”), Cal. Gov. Code § 12940; and 4 negligence under California law. (Second Am. Compl. (“SAC”) 5 (Docket No. 77).) Defendant DISA now moves to dismiss the Second 6 Amended Complaint’s employment discrimination claims (Docket No. 7 82), joined by defendants Timec, Ferrovial, and Valero (Docket 8 Nos. 83-85). 9 I. Factual Background1 10 Defendants Timec, Ferrovial, and Valero are businesses 11 in the refinery industry. (SAC ¶¶ 8-9.) At all relevant times, 12 Ferrovial owned Timec.2 (Id. ¶ 8.) 13 Defendant DISA is a drug-testing company providing 14 services to hundreds of employers in the refining, chemical, and 15 petrochemical industries, including defendants Timec/Ferrovial 16 and Valero. (Id. ¶¶ 10, 19.) DISA operates the DISA 17 Contractor’s Consortium (“DCC”), an online platform that provides 18 information about whether employees are compliant with DISA’s 19 drug-testing policies. (See id. ¶ 19.) When an employee fails 20 to comply with DISA’s drug-testing policies, he or she is 21 designated as “inactive” on DCC. (Id.) To regain “active” 22 status, employees must pay DISA to either take a retest or 23 complete a substance abuse course. (See id.) DISA uses a 24 variety of drug-testing methods, including urine, blood, and hair 25 26 1 All facts recited herein are as alleged in the Second Amended Complaint. 27 2 The court will refer to Timec and Ferrovial as 28 “Timec/Ferrovial.” 1 testing. (Id.) 2 “Research has shown that hair drug tests 3 disproportionately result in false positives when processing the 4 type of hair common in Black people. This is due to the chemical 5 and physical characteristics of Black peoples’ hair, including 6 the texture and higher melanin content.” (Id. ¶ 14.) Scientific 7 studies show that black people’s hair has a higher melanin 8 content than people of other races, including people of other 9 races with dark-colored hair. (Id. ¶ 15.) Black people also use 10 hair care products not commonly used by non-black people. (Id. ¶ 11 16.) These characteristics cause black people’s hair to react to 12 drugs differently, including those introduced by external 13 contamination, leading to a higher risk of false positive drug 14 test results. (Id. ¶¶ 14-16.) Plaintiff Wilson’s DISA drug 15 testing records stated that because his hair is “[e]xtremely 16 curly,” the hair “cannot be properly aligned and/or cut” for 17 testing purposes, which “may affect” the accuracy of the results. 18 (Id. ¶ 31.) 19 Plaintiffs Marvonte Wilson and Domonique Daniels are 20 black men. (Id. ¶¶ 20, 35.) Mr. Wilson was employed by 21 Timec/Ferrovial from 2016 to 2019. (Id. ¶ 20.) Mr. Daniels was 22 employed by Timec/Ferrovial from 2001 to 2019. (Id. ¶ 35.) 23 Timec/Ferrovial placed plaintiffs at Valero’s work sites. (Id. 24 ¶¶ 21, 36.) Valero required multiple types of drug tests, 25 including hair tests, which were administered by DISA. (See id. 26 ¶¶ 22, 37.) 27 In January and February 2019, respectively, Mr. Daniels 28 and Mr. Wilson received positive hair test results for 1 methamphetamines and cocaine, respectively, despite never having 2 used those drugs. (Id. ¶¶ 25, 39.) Mr. Daniels also received 3 saliva and urine tests, which both came back negative for all 4 drugs. (Id. ¶ 25.) Mr. Wilson received a urine test, which came 5 back negative for all drugs. (Id. ¶ 39.) As a result of the 6 false positive hair tests, DISA classified plaintiffs as 7 “inactive” on the DCC platform. (Id. ¶¶ 30, 40.) When 8 plaintiffs notified DISA that the results were false positives, 9 DISA informed plaintiffs that they had two options: pay $175 for 10 a retest of the same hair sample by DISA, or complete a substance 11 abuse course administered by DISA at a cost ranging from $600 to 12 $850. (Id. ¶¶ 26, 39.) Plaintiffs informed Timec/Ferrovial that 13 the results were false positives, but Timec/Ferrovial told 14 plaintiffs that they had to resolve the issue with DISA. (Id. ¶¶ 15 26, 40.) 16 Mr. Wilson was terminated by Valero and informed that 17 he could not return to work for Timec/Ferrovial until he regained 18 active status. (See id. ¶ 26.) A retest of Mr. Wilson’s 19 original sample again came back with a false positive. (Id. ¶ 20 29.) Mr. Wilson refused to take the substance abuse course and 21 did not again work for Timec/Ferrovial or Valero. (Id. ¶ 30.) 22 Mr. Daniels inquired repeatedly with DISA about 23 receiving a retest, but by the time DISA responded, the deadline 24 for retesting had passed. (Id. ¶ 41.) During the time he was 25 designative “inactive,” Mr. Daniels was not allowed to work for 26 either Timec/Ferrovial or Valero. (Id.) Mr. Daniels ultimately 27 paid for and completed DISA’s substance abuse course to regain 28 his active status on DCC. (Id.) However, the jobs he 1 subsequently received were lower-ranking and paid less than his 2 previous employment. (Id. ¶ 42.) 3 II. Legal Standard 4 Federal Rule of Civil Procedure 12(b)(6) allows for 5 dismissal when a complaint fails to state a claim upon which 6 relief can be granted. See Fed. R. Civ. P. 12(b)(6). “A Rule 7 12(b)(6) motion tests the legal sufficiency of a claim.” Navarro 8 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The inquiry before 9 the court is whether, accepting the allegations in the complaint 10 as true and drawing all reasonable inferences in the plaintiff’s 11 favor, the complaint has alleged “sufficient facts . . . to 12 support a cognizable legal theory,” id., and thereby stated “a 13 claim to relief that is plausible on its face,” Bell Atl. Corp. 14 v. Twombly, 550 U.S. 544, 570 (2007). 15 III. Discussion 16 Title VII provides that an employer may not 17 “discriminate against any individual with respect to his 18 compensation, terms, conditions, or privileges of employment, 19 because of such individual’s race . . . or national origin.” 42 20 U.S.C. § 2000e–2(a)(1). “Title VII prohibits both intentional 21 discrimination (known as ‘disparate treatment’) as well as, in 22 some cases, practices that are not intended to discriminate but 23 in fact have a disproportionately adverse effect on minorities 24 (known as ‘disparate impact’).” Ricci v. DeStefano, 557 U.S. 25 557, 577 (2009). 26 FEHA makes it an “unlawful employment practice” to 27 “discriminate against [an individual] in compensation or in 28 terms, conditions, or privileges of employment” based on, inter 1 alia, race, color, or national origin. See Cal. Gov’t Code § 2 12940(a). Because “FEHA uses largely the same language and 3 promotes the same objective as Title VII . . . the Title VII 4 framework is applied to claims brought under FEHA.” Pinder v. 5 Emp. Dev. Dep’t, 227 F. Supp. 3d 1123, 1136 (E.D. Cal. 2017) 6 (Nunley, J.) (citing, inter alia, Metoyer v. Chassman, 504 F.3d 7 919, 941 (9th Cir. 2007); Guz v. Bechtel Nat. Inc., 24 Cal. 4th 8 317, 354 (2000)). See also Kohler v. Inter-Tel Techs., 244 F.3d 9 1167, 1172 (9th Cir. 2001) (“The California courts consistently 10 look to Title VII for guidance in interpreting FEHA.”) 11 A. Disparate Impact Under Title VII and FEHA 12 Plaintiffs’ first and second claims allege disparate 13 impact under Title VII and FEHA. To state a disparate impact 14 claim, plaintiffs must plausibly allege that an employment 15 disparity exists with respect to the protected group. Liu v. 16 Uber Techs. Inc., 551 F. Supp. 3d 988, 990 (N.D. Cal. 2021) 17 (citing Freyd v. Univ. of Or., 990 F.3d 1211, 1224 (9th Cir. 18 2021)). See also Guz, 24 Cal. 4th at 354 (a disparate impact 19 claim alleges that an employment practice “in fact had a 20 disproportionate adverse effect on members of the protected 21 class”). 22 Plaintiffs allege that defendants required negative 23 hair drug tests as a condition of continued employment. (See SAC 24 ¶¶ 19, 26, 30, 37, 39.) Plaintiffs further allege that hair drug 25 tests, as compared with other types of available drug tests, are 26 less accurate on black people’s hair due to its unique melanin 27 content, texture, and commonly used hair products. (See id. ¶¶ 28 14-16.) By alleging that hair drug testing is less effective on 1 black people compared to individuals of other races, plaintiffs 2 have sufficiently alleged that defendants’ hair drug testing 3 requirement disparately impacts defendants’ black employees. See 4 Liu, 2022 WL 4494149, at *2 (where it is “plain” that an 5 employment policy would “disparately affect” a protected class, 6 the plaintiff need not allege “statistical or other evidence 7 about the results of that practice in the workplace”). 8 Accordingly, the court will not dismiss plaintiffs’ first and 9 second claims for disparate impact. 10 The court notes that its prior conclusion that hair 11 color alone was insufficient to support a claim of race 12 discrimination (see Docket No. 40 at 15-16) was based on the 13 allegations of the First Amended Complaint, which the court 14 understood to equate “melanin-rich” with all darker-colored hair. 15 The court’s conclusion here differs because the Second Amended 16 Complaint provides further allegations concerning how black 17 people’s melanin-rich hair differs in multiple ways. Further, 18 the Second Amended Complaint also relies upon the unique texture 19 of black people’s hair, which the court previously indicated can 20 serve as a proxy for race. (See id. at 16 n.5.) 21 B. Disparate Treatment Under Title VII and FEHA 22 Plaintiffs’ third and fourth claims allege disparate 23 treatment under Title VII and FEHA. Disparate treatment occurs 24 “where an employer has treated a particular person less favorably 25 than others because of a protected trait.” Ricci, 557 U.S. at 26 577 (internal quotation marks and alterations omitted). “A 27 disparate-treatment plaintiff must establish that the defendant 28 had a discriminatory intent or motive for taking a job-related 1 action.” Id. (internal quotation marks omitted). “A 2 discriminatory motive may be established by the employer’s 3 informal decisionmaking or ‘a formal, facially discriminatory 4 policy,’ but ‘liability depends on whether the protected trait . 5 . . actually motivated the employer’s decision.’” Wood v. City 6 of San Diego, 678 F.3d 1075, 1081 (9th Cir. 2012) (citing Hazen 7 Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). See also Guz, 8 24 Cal. 4th at 354 n.20 (disparate treatment under FEHA is 9 “intentional discrimination against one or more persons on 10 prohibited grounds”) (emphasis in original). As such, a 11 plaintiff bringing a disparate treatment claim “must allege facts 12 that plausibly indicate defendant was ‘motivated by a 13 discriminatory animus.’” Anderson v. Yolo County, No. 2:16-cv- 14 2466 WBS DB, 2017 WL 590246, at *3 (E.D. Cal. Feb. 14, 2017) 15 (quoting Gay v. Waiters’ & Dairy Lunchmen’s Union, Local No. 30, 16 694 F.2d 531, 538 (9th Cir. 1982)). See also Guz, 24 Cal. 4th at 17 323 (disparate treatment plaintiff must allege some “circumstance 18 suggest[ing] discriminatory motive”). Dismissal of a disparate 19 treatment claim is appropriate where discriminatory intent is 20 premised on an allegation that “‘the employer was merely aware of 21 the adverse consequences the policy would have on a protected 22 group.’” See Wood, 678 F.3d at 1081 (quoting Am. Fed’n of State, 23 Cnty., & Mun. Emps. v. Washington, 770 F.2d 1401, 1405 (9th Cir. 24 1985)). 25 Plaintiffs argue that they have stated a claim for 26 disparate treatment because the drug-testing policies at issue 27 are facially discriminatory. In support of this argument, 28 plaintiffs point to the allegation that plaintiff Wilson’s DISA ene een meen ene nnn nn nn nn nnn nn no nnn ne I ON NO EO 1 drug testing records stated that because his hair is “[e]xtremely 2 curly,” the hair “cannot be properly aligned and/or cut” for 3 testing purposes, which “may affect” the accuracy of the results. 4 (See SAC 7 31.) However, a statement in one employee’s drug 5 testing records does not suggest that there was a facially 6 discriminatory policy applicable to all employees. Further, 7 plaintiffs have not made any non-conclusory allegations that 8 suggest discriminatory intent on the part of defendants. 9 | Accordingly, the court will dismiss plaintiffs’ third and fourth 10 claims for disparate treatment. Because these claims were 11 dismissed on the prior motion for the same reason and the Second 12 | Amended Complaint does not contain any additional allegations 13 indicating intent, no further leave to amend will be granted. 14 IT IS THEREFORE ORDERED that defendants’ motion to 15 dismiss the Second Amended Complaint (Docket No. 82) be, and the 16 same hereby is, GRANTED as to plaintiffs’ third and fourth claims 17 for disparate treatment, and DENIED in all other respects. 18 | Dated: December 14,2023 tleom ah. A. be—~ 19 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28