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 FOR 15 JUDGMENT ON THE PLEADINGS, OR v. IN THE ALTERNATIVE, FOR 16 CERTIFICATION OF TIMEC SERVICES COMPANY, INC.; INTERLOCUTORY APPEAL 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 against Timec Services 25 Company, Inc. (“Timec”); Ferrovial Services Infrastructure, Inc. 26 (“Ferrovial”); Valero Refining Company-California (“Valero”); and 27 DISA Global Solutions (“DISA”). The court previously dismissed 28 the First Amended Complaint’s § 1981 and ADA claims. (See Docket 1 No. 40.) Because plaintiffs did not amend the complaint 2 following the court’s partial dismissal, the First Amended 3 Complaint remains the operative complaint. The remaining claims 4 allege employment discrimination based on race in violation of 5 Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 6 U.S.C. § 2000e, and the California Fair Employment and Housing 7 Act (“FEHA”), Cal. Gov. Code § 12940; and negligence under 8 California law. (See First Am. Compl. (“FAC”) (Docket No. 14).) 9 Defendant DISA now moves for partial judgment on the 10 pleadings, or in the alternative, for certification of an 11 interlocutory appeal of this court’s previous order denying 12 dismissal in part, pursuant to 28 U.S.C. § 1292. (Docket No. 13 49.) Defendants Timec, Valero, and Ferrovial join in the motion. 14 (Docket Nos. 57-59.)1 15 II. Legal Standard 16 The court considers defendants’ motion for judgment on 17 the pleadings as it would a motion to dismiss. See Sprint 18 Telephony PCS, L.P. v. County of San Diego, 311 F. Supp. 2d 898, 19 902 (S.D. Cal. 2004) (“A Rule 12(c) motion for judgment on the 20 pleadings and a Rule 12(b)(6) motion to dismiss are virtually 21 interchangeable.”). Because no evidence is currently before the 22 23 1 Plaintiffs argue that the joinders were untimely filed and should be rejected by the court. Even if the joinders were 24 not timely filed, there has been no prejudice to the plaintiffs because the motion -- and consequently plaintiffs’ opposition -- 25 focus exclusively on the broad allegations of the complaint without distinguishing between the defendants. The court will 26 therefore consider the motion as having been filed by all 27 defendants. See Hash v. Rallos, No. 2:20-cv-1272 TLN ACP, 2021 WL 4476829, at *1 (E.D. Cal. Sept. 30, 2021) (accepting untimely 28 filed motion due to “the lack of any apparent prejudice”). 1 court, the court declines to consider granting judgment at this 2 stage and will instead consider whether the challenged claim 3 merits dismissal. See Sprint, 311 F. Supp. 2d at 903.2 The 4 inquiry before the court is thus whether, accepting the 5 allegations in the complaint as true and drawing all reasonable 6 inferences in the plaintiff’s favor, the complaint has alleged 7 “sufficient facts . . . to support a cognizable legal theory,” 8 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001), and thereby 9 stated “a claim to relief that is plausible on its face,” Bell 10 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 11 2 Both parties filed requests for judicial notice of a 12 small amount of scientific evidence (defendants from a website and plaintiffs from scientific journals) pertaining to hair 13 melanin and drug testing. (Docket Nos. 50, 56.) A court may 14 take judicial notice of a fact that is “not subject to reasonable dispute,” either “because it is generally known within the 15 court’s territorial jurisdiction,” or because it “can be accurately and readily determined from sources whose accuracy 16 cannot reasonably be questioned.” Fed. R. Evid. 201(b). The disputed materials provided by the parties -- which the parties 17 ask the court to consider for the truth of the matters asserted - 18 - plainly fail to satisfy this standard. See Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 19 2010) (“Courts may take judicial notice of publications introduced to indicate what was in the public realm at the time, 20 not whether the contents of those articles were in fact true.”) (internal quotation marks omitted); Lee v. City of Los Angeles, 21 250 F.3d 668, 689 (9th Cir. 2001) (when review is limited to the 22 pleadings, “a court may take judicial notice of matters of public record” but not of facts that are “subject to reasonable 23 dispute”) (internal quotation marks omitted). 24 Further, it is improper to present this type of extrinsic evidence on a Rule 12(c) motion. If the court had 25 considered the evidence presented by the parties, it would have been obligated to treat the motion as one for summary judgment 26 under Rule 56. See Fed. R. Civ. P. 12(d). 27 Accordingly, the court DENIES both parties’ requests 28 for judicial notice. 1 III. Discussion3 2 Defendants seek judgment on plaintiffs’ remaining 3 employment discrimination claims, which are the first claim for 4 disparate impact under Title VII; the second claim for disparate 5 impact under FEHA; the third claim for disparate treatment under 6 Title VII; and the fourth claim for disparate treatment under 7 FEHA. (See FAC at 16-21.) 8 Title VII provides that an employer may not 9 “discriminate against any individual with respect to his 10 compensation, terms, conditions, or privileges of employment, 11 because of such individual’s race . . . or national origin.” 42 12 U.S.C. § 2000e–2(a)(1). “Title VII prohibits both intentional 13 discrimination (known as ‘disparate treatment’) as well as, in 14 some cases, practices that are not intended to discriminate but 15 in fact have a disproportionately adverse effect on minorities 16 (known as ‘disparate impact’).” Ricci v. DeStefano, 557 U.S. 17 557, 577 (2009). 18 FEHA makes it an “unlawful employment practice” to 19 “discriminate against [an individual] in compensation or in 20 terms, conditions, or privileges of employment” based on, inter 21 alia, race, color, or national origin. See Cal. Gov’t Code § 22 12940(a). Because “FEHA uses largely the same language and 23 promotes the same objective as Title VII . . . the Title VII 24 framework is applied to claims brought under FEHA.” Pinder v. 25 Emp. Dev. Dep’t, 227 F. Supp. 3d 1123, 1136 (E.D. Cal. 2017) 26 27 3 The court does not recite the allegations of the First Amended Complaint as it has done so in its prior order. (See 28 Docket No. 40 at 2-4.) 1 (Nunley, J.) (citing, inter alia, Metoyer v. Chassman, 504 F.3d 2 919, 941 (9th Cir. 2007); Guz v. Bechtel Nat. Inc., 24 Cal. 4th 3 317, 354 (2000)). See also Kohler v. Inter-Tel Techs., 244 F.3d 4 1167, 1172 (9th Cir. 2001) (“The California courts consistently 5 look to Title VII for guidance in interpreting FEHA.”) 6 A. Disparate Impact Under Title VII and FEHA 7 Plaintiffs’ first and second claims allege disparate 8 impact under Title VII and FEHA. To state a disparate impact 9 claim, plaintiffs must plausibly allege that an employment 10 disparity exists with respect to the protected group. Liu v. 11 Uber Techs. Inc., 551 F. Supp. 3d 988, 990 (N.D. Cal. 2021) 12 (citing Freyd v. Univ. of Or., 990 F.3d 1211, 1224 (9th Cir. 13 2021)). See also Guz, 24 Cal. 4th at 354 (a disparate impact 14 claim alleges that an employment practice “in fact had a 15 disproportionate adverse effect on members of the protected 16 class”). 17 The complaint alleges that because black employees 18 often have “melanin-rich” hair, they were subject to adverse 19 employment actions based on inaccurate drug test results. In 20 their opposition, plaintiffs for the first time present multiple 21 allegations concerning the difference in the melanin content of 22 dark hair in people of different races, the disparity in drug 23 test outcomes between black and white employees, the difference 24 in how drugs interact with the hair of black and white 25 individuals, and the increased risk of false positive test 26 results due to hair products used by black individuals. (See 27 Opp’n at 10-13.) None of these allegations appear in the 28 operative complaint. Rather, the complaint merely states that 1 drug tests are less effective on melanin-rich hair, which is 2 “common in Black people.” (FAC ¶ 14.) The complaint does not 3 even allege that melanin-rich hair is more common in black people 4 than people of other races, only that it is common. Plaintiffs 5 do not allege that there is anything unique about the melanin 6 content of black people’s hair that might give rise to an 7 employment disparity. Because the complaint provides no means 8 for the court to understand how defendants’ conduct might 9 disproportionately affect black employees, plaintiffs have failed 10 to “state a claim to relief that is plausible on its face.” See 11 Twombly, 550 U.S. at 570.4 12 Plaintiffs argue that the complaint’s discussion of the 13 two named plaintiffs, along with a mention of “at least two 14 additional instances in which Black employees received false 15 positive hair tests,” is sufficient to indicate that black 16 employees were subject to a disparate impact. The court 17 disagrees. Given that the operative complaint fails to establish 18 a connection between race and the challenged employment practice, 19 the court cannot reasonably draw an inference concerning a 20 disparity suffered by black employees solely from such limited 21 allegations. See Kurdi v. Cal. Dep’t of Transp., No. 1:22-cv- 22 00729 JLT EPG, 2023 WL 267538, at *16 (E.D. Cal. Jan. 18, 2023) 23 4 Defendants argue that the court’s reasoning in its 24 prior order dismissing plaintiffs’ § 1981 claim applies here as well. However, a claim under § 1981 requires that a plaintiff 25 allege sufficient facts to support a finding of both intentional discrimination and but-for causation. See Comcast Corp. v. Nat’l 26 Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020); Gen. 27 Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 376 (1982). These requirements are not applicable to disparate 28 impact claims. 1 (“Because the complaint is devoid of any factual support that 2 [defendant’s] policies or practices had [a disparate] effect on a 3 protected class, . . . [plaintiff] fails to state a claim for 4 disparate impact under Title VII.”); Liu, 551 F. Supp. 3d at 991 5 (the court “cannot draw an inference of disparity” solely from 6 allegation that named plaintiff suffered an adverse employment 7 action). 8 Accordingly, the court will dismiss the first claim for 9 disparate impact under Title VII and the second claim for 10 disparate impact under FEHA. 11 B. Disparate Treatment Under Title VII and FEHA 12 Plaintiffs’ third and fourth claims allege disparate 13 treatment under Title VII and FEHA. Disparate treatment occurs 14 “where an employer has treated a particular person less favorably 15 than others because of a protected trait.” Ricci, 557 U.S. at 16 577 (internal quotation marks and alterations omitted). “A 17 disparate-treatment plaintiff must establish that the defendant 18 had a discriminatory intent or motive for taking a job-related 19 action.” Id. (internal quotation marks omitted). “A 20 discriminatory motive may be established by the employer’s 21 informal decisionmaking or ‘a formal, facially discriminatory 22 policy,’ but ‘liability depends on whether the protected trait . 23 . . actually motivated the employer’s decision.’” Wood v. City 24 of San Diego, 678 F.3d 1075, 1081 (9th Cir. 2012) (citing Hazen 25 Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). See also Guz, 26 24 Cal. 4th at 354 n.20 (disparate treatment under FEHA is 27 “intentional discrimination against one or more persons on 28 prohibited grounds”) (emphasis in original). Thus, a plaintiff 1 bringing a disparate treatment claim “must allege facts that 2 plausibly indicate defendant was ‘motivated by a discriminatory 3 animus.’” Anderson v. Yolo County, No. 2:16-cv-2466 WBS DB, 2017 4 WL 590246, at *3 (E.D. Cal. Feb. 14, 2017) (quoting Gay v. 5 Waiters’ & Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531, 6 538 (9th Cir. 1982)). 7 Plaintiffs allege that they informed defendants of 8 their false positive test results. (FAC ¶¶ 30, 38, 51.) They 9 also allege that they made charges of discrimination that put 10 defendants on notice of the adverse effect of defendants’ 11 policies on black employees. (Id. ¶¶ 30, 51.) However, “‘[i]t 12 is insufficient for a plaintiff alleging discrimination under the 13 disparate treatment theory to show the employer was merely aware 14 of the adverse consequences the policy would have on a protected 15 group.’” Wood, 678 F.3d at 1081 (quoting Am. Fed’n of State, 16 Cnty., & Mun. Emps. v. Washington, 770 F.2d 1401, 1405 (9th Cir. 17 1985)). Further, “[w]here, as here, a plaintiff is challenging a 18 facially neutral policy,” the complaint must contain “a specific 19 allegation of discriminatory intent.” Wood, 678 F.3d at 1081. 20 Plaintiffs challenge defendants’ facially neutral drug-testing 21 policies yet have made no allegation that defendants had 22 discriminatory intent. 23 Accordingly, the court will dismiss the third claim for 24 disparate treatment under Title VII and the fourth claim for 25 disparate treatment under FEHA. 26 IT IS THEREFORE ORDERED that defendant’s motion for 27 judgment on the pleadings (Docket No. 49), construed as a motion 28 to dismiss, be, and the same hereby is, GRANTED, and plaintiffs’ eI EE III REI OE EO OE 1 first, second, third, and fourth claims under Title VII and FEHA 2 are hereby DISMISSED.° Plaintiffs have twenty days from the date 3 of this Order to file an amended complaint, if they can do so 4 consistent with this Order. . 5 | Dated: September 6, 2023 illo A. dé WILLIAM B. SHUBB 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Because the court grants defendants’ motion, it need not address defendants’ alternative motion for certification of 28 | interlocutory appeal.