Richards v. City of Citrus Heights ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Sandra Richards, No. 2:20-cv-02159-KJM-JDP 12 Plaintiff, ORDER 13 v. City of Citrus Heights, et al., 1S Defendants. 16 17 Sandra Richards alleges the City of Citrus Heights forced her out of the City Police 18 | Department because of her age. The City moves to dismiss for failure to state a claim under Rule 19 | 12(b)(6) or, in the alternative, for a more definite statement of the claims against it, under Rule 20 | 12(e). The court heard these motions and conducted a status (pretrial scheduling) conference on 21 | February 5, 2021. Manolo Olaso and Johnny Griffin appeared for Richards, and Nathan Jackson 22 | appeared for the defendants. The motion to dismiss is granted with leave to amend in part. 23 | I. ALLEGATIONS 24 Until April 2020, Sandra Richards was the Support Services Manager at the Citrus 25 | Heights Police Department. First Am. Compl. (FAC) 9 16, 26, ECF No. 5. Over the nearly 26 | fourteen years she had that job, she received consistently exceptional performance reviews. /d. 27 | § 16. In 2014, she even earned the Chief’s Award for her good work. Jd. 28 | ///// 1 Richards turned fifty-five in early 2018. Id. ¶ 17. Not long after her birthday, the Police 2 Chief began asking about her retirement plans and spoke to her about training a successor. Id. 3 She had not discussed retiring, and did not want to retire at fifty-five. Id. The chief also 4 mentioned her eventual retirement to others in the Police Department and city management, 5 including the Assistant Chief of Police and City Manager. See id. ¶¶ 18, 21. Although Richards 6 did not intend to retire, she does not allege she told anyone she did not want to retire or that she 7 asked the chief or anyone else to stop making plans for her eventual retirement. 8 After several months, when it became clear to others Richards had no interest in retiring, 9 Richards alleges the Police Chief began a “campaign of harassment and hostility” in an attempt to 10 force her out. Id. ¶ 19. Aside from alleging the Chief invented “bogus workplace violations” and 11 undermined her authority, Richards does not explain what happened. Id. She does allege, 12 however, that she was eventually disciplined, suspended, placed on paid administrative leave, and 13 investigated for misconduct. See id. ¶ 22. As the investigation progressed, the Police Department 14 disclosed a few examples of her alleged misconduct to her. Id. She claims these charges were 15 unsupported by evidence, and she argues that even if she had done what the Police Department 16 claimed, those actions would not have qualified as misconduct. See id. She also told the 17 Department its investigation was retaliation, but that charge as pled is murky. Id. Richards 18 alleges only that she was “opposing age discrimination.” See id. ¶ 23. 19 At some point during the Police Department’s internal investigation, it required Richards 20 to submit to a psychological fitness evaluation. See id. ¶ 24. Although she alleges the evaluation 21 was a form of retaliation for opposing the internal investigation, she does not say whether the 22 evaluation occurred before or after she voiced her claim that the investigation was retaliatory. 23 See id. Richards also does not mention the results of the examination in her complaint, and she 24 does not say what the Police Department did with the results, if anything. 25 Richards further claims the Police Department disclosed unspecified “confidential details” 26 about its investigation and “mischaracterized” the nature of her alleged misconduct in violation of 27 department policy. See id. ¶ 25. But again, she does not explain further. See id. 28 ///// 1 The internal investigation ended in April 2020. Id. ¶ 26. The Police Department decided 2 to fire her for cause, citing “serious misconduct,” “harassment,” and “discrimination.” Id. She 3 claims these charges are not supported by the evidence. See id. The city upheld her termination 4 after an administrative hearing. Id. She was terminated the same month the investigation ended, 5 April 2020. Id. 6 Richards filed this lawsuit a few months later. See Compl., ECF No. 1. The case is now 7 proceeding on her first amended complaint, ECF No. 5. She asserts claims of age discrimination, 8 harassment, and retaliation under both the federal Age Discrimination in Employment Act of 9 1976 (the ADEA) and the California Fair Employment and Housing Act (the FEHA). See id. 10 ¶¶ 27–38. She also asserts a tort claim of wrongful termination in violation of public policy. See 11 id. ¶¶ 39–42. She brings all the claims save one against the City only; the exception is her state- 12 law harassment claim, which she asserts against the City Manager, Police Chief, and Assistant 13 Police Chief as well. See id. at 8–9. 14 The defendants have moved to dismiss and for a more definite statement. See Mot., ECF 15 No. 6. These motions are fully briefed and the court heard them by videoconference on 16 February 5, 2021. See Opp’n, ECF No. 10; Reply, ECF No. 11; Minutes, ECF No. 12. 17 II. LEGAL STANDARD 18 A party may move to dismiss for “failure to state a claim upon which relief can be 19 granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted only if the complaint lacks a 20 “cognizable legal theory” or if its factual allegations do not support a cognizable legal theory. 21 Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). The court 22 assumes these factual allegations are true and draws reasonable inferences from them. Ashcroft v. 23 Iqbal, 556 U.S. 662, 678 (2009). If the complaint’s allegations do not “plausibly give rise to an 24 entitlement to relief,” the motion must be granted. Id. at 679. 25 A complaint need contain only a “short and plain statement of the claim showing that the 26 pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed factual allegations,” Bell Atl. 27 Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule demands more than unadorned 28 accusations; “sufficient factual matter” must make the claim at least plausible. Iqbal, 556 U.S. at 1 678. In the same vein, conclusory or formulaic recitations elements do not alone suffice. Id. 2 (quoting Twombly, 550 U.S. at 555). This evaluation of plausibility is a context-specific task 3 drawing on “judicial experience and common sense.” Id. at 679. 4 III. DISCUSSION 5 A. Administrative Exhaustion 6 The City argues this court lacks jurisdiction to hear this case at all. It contends that 7 because Richards did not attach to her complaint copies of her correspondence with state and 8 federal administrative agencies, she has not proven that she exhausted her administrative 9 remedies. See Mot. at 12. The court assumes without deciding that this argument is properly 10 characterized as a jurisdictional challenge and thus addresses it at the outset. 11 The City does not argue the complaint’s jurisdictional allegations are false; its challenge is 12 thus a facial attack, as it conceded at hearing. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th 13 Cir. 2004). In a facial jurisdictional attack, the court assumes the complaint’s jurisdictional 14 allegations are true. See id. Here, those allegations explain when and how Richards exhausted 15 her administrative remedies. See FAC ¶¶ 3–9. The court thus denies the City’s motion with 16 respect to its jurisdictional arguments. 17 B. Discrimination and Harassment 18 “The ADEA prohibits an employer from, among other things, ‘discharging’ an employee 19 who is over forty years of age ‘because of’ the employee’s age.” Sheppard v. David Evans & 20 Assocs., 694 F.3d 1045, 1049 (9th Cir. 2012) (quoting 29 U.S.C. §§ 623(a)(1), 631(a)). The 21 FEHA also “prohibits employers from discharging or dismissing employees over the age of forty 22 based on their age.” Merrick v. Hilton Worldwide, Inc., 867 F.3d 1139, 1145 (9th Cir. 2017). 23 Both California and federal law use the same “three-stage burden-shifting test established by the 24 United States Supreme Court for trying claims of discrimination, including age discrimination.” 25 Guz v. Bechtel National, Inc., 24 Cal. 4th 317, 354 (2000) (citing McDonnell Douglas Corp. v. 26 Green, 411 U.S. 792 (1973)). “[T]he plaintiff first bears the burden of establishing a prima facie 27 case, which raises a presumption of discrimination.” Merrick, 867 F.3d at 1145. The burden then 28 shifts to the employer to rebut this presumption by producing admissible evidence sufficient to 1 show that “its action was taken for a legitimate, nondiscriminatory reason.” Id. at 1145–46 2 (quoting Guz, 24 Cal. 4th at 355). “If the employer sustains its burden, the presumption 3 established in the first step disappears, and the plaintiff must raise a triable issue suggesting that 4 the employer’s proffered reason is mere pretext for unlawful discrimination, or offer other 5 evidence of discriminatory motive.” Id. at 1146. 6 This burden-shifting test is “not a pleading requirement.” Swierkiewicz v. Sorema N.A., 7 534 U.S. 506, 511 (2002).1 It is an evidentiary standard “for trying claims of discrimination.” 8 Guz, 24 Cal. 4th at 354. For that reason, “it is not appropriate to require a plaintiff to plead facts 9 establishing a prima facie case” of discrimination under McDonnell Douglas to survive a motion 10 to dismiss under Rule 12(b)(6). Swierkiewicz, 534 U.S. at 511. 11 That said, a plaintiff’s evidentiary burdens at trial are relevant when a defendant moves to 12 dismiss for failure to state a claim. District courts within this circuit have often looked to the 13 McDonnell Douglas elements of a prima facie case when resolving motions to dismiss. See, e.g., 14 Jinadasa v. Brigham Young Univ.-Hawaii, No. 14-00441, 2015 WL 3407832, at *3 (D. Haw. 15 May 27, 2015) (noting “the elements of a prima facie case . . . are a useful tool in assessing 16 whether [the plaintiff] meets the requirement in Rule 8(a)” and collecting cases). The Ninth 17 Circuit has also held that a complaint’s factual allegations must permit a “plausible” inference 18 that the plaintiff could establish a prima facie case of discrimination at trial. Sheppard, 694 F.3d 19 at 1049–50. The court thus considers these elements. For an age discrimination claim, there are 20 four: plaintiffs must show (1) they were at least forty years old, (2) were performing their job 21 satisfactorily, (3) were discharged, and (4) were either “replaced by substantially younger 22 employees with equal or inferior qualifications” or were “discharged under circumstances 23 otherwise ‘giving rise to an inference of discrimination.’” Merrick, 867 F.3d at 1146 (quoting 24 Schechner v. KPIX–TV, 686 F.3d 1018, 1023 (9th Cir. 2012)). 1 Some courts have determined that some holdings in Swierkiewicz have been overruled. See, e.g., Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). But in Twombly, the Court explained the consistency of its decision with its holding in Swierkiewicz. See 550 U.S. at 569–70. This court has declined to hold that the Supreme Court overruled Swierkiewicz silently by implication, at least with respect to the holdings at issue here. See Cervantes v. Stockton Unified Sch. Dist., No. 15-00060, 2015 WL 3507416, at *4 & n.3 (E.D. Cal. June 3, 2015). 1 Here, Richards’s allegations do not permit the necessary plausible inference. Although 2 she alleges she was older than forty, was doing exceptional work, and was discharged, her 3 allegations do not permit the court to infer that the Police Department’s decision to fire her was 4 based on her age. She does not rely on many of the common methods for proving discriminatory 5 intent. For example, she does not allege younger workers with equal or inferior qualifications 6 kept their jobs or were hired to replace her. See, e.g., Merrick, 867 F.3d at 1146; Sheppard, 7 694 F.3d at 1050. Nor does she allege other employees over forty were pushed out of the Police 8 Department or faced similar age-based discrimination. See, e.g., Cervantes, 2015 WL 3507416, 9 at *4. She makes no “statistical” allegations. See Merrick, 867 F.3d at 1146. As summarized 10 above, she alleges only that a supervisor “began talking to [her] about retiring and training her 11 successors” and mentioned succession plans to others in City Management. See FAC ¶ 17. 12 Richards cannot rely on “stray remark[s]” such as these; much less innocuous comments have 13 fallen short of establishing an employer’s liability. See, e.g., Nidds v. Schindler Elevator Corp., 14 113 F.3d 912, 918–19 (9th Cir. 1996) (holding supervisor’s claim he wanted to “get rid of the old 15 timers” did not suffice); Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (holding in 16 employer’s favor despite its employee’s comments that company did not “like grey hair” or “want 17 unpromotable fifty-year olds around”); Holtzclaw v. Certainteed Corp., 795 F. Supp. 2d 996, 18 1014 (E.D. Cal. 2011) (holding comments suggesting plaintiff “think about retiring” and was “old 19 enough to retire” did not show discriminatory motive). Persistent unwanted questions about 20 retirement may very well make for discriminatory circumstances, but it is not possible to draw 21 that inference here. Richards does not allege she asked her supervisor to stop or told anyone she 22 had no interest in retirement. 23 Rather than permitting an inference of discrimination, the complaint’s allegations suggest 24 a non-discriminatory reason for Richards’s termination. According to Richards’s complaint, she 25 was disciplined, suspended, investigated, evaluated for psychological fitness, and found to be 26 guilty of “serious misconduct, harassment, and discrimination” before the Police Department 27 decided to terminate her, and she was permitted to contest the Department’s findings in an 28 administrative hearing. See FAC ¶¶ 19, 22, 25, 26 (quotation marks omitted). Although she 1 alleges the discipline, investigation, and evaluations were all bogus and the charges all 2 unfounded, she offers nothing beyond that assertion to support her claim. See id. ¶¶ 19, 22, 25. 3 To be sure, it is conceivable she was being targeted and could prove the discipline, investigation, 4 suspension, and findings of misconduct were all pretext and smear, but in response to a motion 5 under Rule 12(b)(6), she must push her claims “across the line from conceivable to plausible” by 6 making factual allegations. Twombly, 550 U.S. at 570. She has not done so at this time. 7 In short, the complaint suggests an “obvious alternative explanation” for Richards’s 8 termination, id. at 567: The Police Department was concerned about the potential retirement of a 9 high-performing, experienced employee and wanted to ensure continuity, but then misconduct 10 allegations led to an internal investigation, and the allegations were substantiated. “As between 11 that ‘obvious alternative explanation’ . . . and the purposeful, invidious discrimination [Richards] 12 asks [the court] to infer, discrimination is not a plausible conclusion.” Iqbal, 556 U.S. at 682 13 (quoting Twombly, 550 U.S. at 567). The court thus grants the motion to dismiss the federal and 14 state discrimination claims. 15 The court dismisses Richards’s harassment claims for similar reasons. Both California 16 and federal law prohibit harassment based on a person’s age. See Lawler v. Montblanc N. Am., 17 LLC, 704 F.3d 1235, 1244 (9th Cir. 2013); Sischo-Nownejad v. Merced Cmty. Coll. Dist., 18 934 F.2d 1104, 1109 (9th Cir. 1991), superseded on other grounds as recognized by Dominguez– 19 Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1041 (9th Cir. 2005). But here, as explained above, 20 the complaint does not permit the necessary inference that the Police Department was motivated 21 by Richards’s age. This reasoning applies equally to Richards’s derivative harassment claim 22 under California Government Code section 12940(k), which requires employers to prevent 23 harassment. No claim for failure to prevent discrimination or retaliation can continue if no 24 discrimination or retaliation occurred. See, e.g., Dickson v. Burke Williams, Inc., 234 Cal. App. 25 4th 1307, 1318 (2015). 26 The shortcomings identified above could readily be cured by the addition of concrete 27 factual allegations. Richards’s counsel’s arguments at hearing also suggest that if her complaint 28 were amended, she could paint a plausible picture of age discrimination. The court grants her 1 leave to amend her age discrimination and harassment claims. See Cafasso, U.S. ex rel. v. Gen. 2 Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (district courts should grant leave to 3 amend when “a viable case may be pled”). 4 C. Retaliation 5 Both federal and California law prohibit employers from retaliating against employees 6 who oppose age discrimination. See 29 U.S.C. § 623(d); Cal. Gov’t Code § 12940(h). The 7 elements of a retaliation claim under both statutes are effectively the same: plaintiffs must prove 8 they engaged in a protected activity, they suffered an adverse employment action, and a “causal 9 link” connects the protected activity and adverse employment action. Poland v. Chertoff, 10 494 F.3d 1174, 1179–80 (9th Cir. 2007); Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 11 (2005). 12 Here, the complaint does not clearly identify which “adverse employment actions” were 13 retaliatory. In her briefing, Richards identifies four candidates. See Opp’n at 7. 14 First, she argues her paid leave of absence was an adverse employment action and was 15 retaliatory. See id.; FAC ¶ 20, 22. She does not allege, however, that her pay was reduced, that 16 she lost benefits, or that the conditions of her employment changed for the worse during her paid 17 leave. Courts within this circuit and courts in several other circuits have held that “being placed 18 on paid administrative leave is not an adverse employment action” in similar circumstances. 19 Gannon v. Potter, No. 05-2299, 2006 WL 3422215, at *5 (N.D. Cal. Nov. 28, 2006) (collecting 20 authority), aff’d, 298 F. App’x 623 (9th Cir. 2008). Only if some specific change makes the leave 21 “reasonably likely” to deter an employee does a paid leave of absence make for an adverse 22 employment action. See Dahlia v. Rodriguez, 735 F.3d 1060, 1078–79 (9th Cir. 2013) (holding 23 paid leave of absence was adverse employment action because it prevented plaintiff from taking 24 exam, required him to forfeit pay, and prevented him from gaining experience). Richards’s 25 retaliation claim cannot rest on her current allegations about her leave of absence. 26 Second, Richards alleges the Police Department’s internal investigation was itself 27 retaliatory. See Opp’n at 7. Her factual allegations are too sparse to permit a plausible inference 28 of success on that basis, at least at this point. Again, she does not allege that the terms or 1 conditions of her employment changed during the investigation. Nor does she claim to have said 2 the Chief’s questions were discriminatory before the investigation began. An employer cannot 3 retaliate against unknown opposition. See, e.g., Yanowitz, 36 Cal. 4th at 1046 (agreeing employee 4 cannot prove retaliation without “evidence the employer knew that the employee’s opposition 5 was based upon a reasonable belief that the employer was engaging in discrimination”). And as 6 explained in the previous section, Richards relies on conclusory assertions rather than factual 7 allegations to claim the charges against her were bogus and unsupported by evidence, so the 8 necessary “causal link” is absent. 9 Third, Richards argues the Police Department retaliated against her by forcing her to 10 submit to an evaluation of her psychological fitness. See Opp’n at 7; FAC ¶¶ 24–26. She does 11 not allege, however, that the terms or conditions of her employment changed because of that 12 evaluation. She does not allege the results of the examination were negative or that the Police 13 Department relied on the examination results when it decided to fire her. Nor does she cite legal 14 authority holding that a psychological fitness evaluation is an adverse employment action in and 15 of itself. Courts have instead held that evaluations—even negative evaluations—are not “adverse 16 employment actions” per se. See, e.g., Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1113 (9th Cir. 17 2000) (summarizing case law in which courts have decided evaluations were not “adverse 18 employment actions” absent some future adverse consequence separate from evaluation itself); 19 Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir. 1994) (holding negative 20 evaluations were not “adverse employment actions” because there was “no indication in the 21 record that they were used as the basis for any [later] adverse actions”). Richards’s retaliation 22 claims cannot succeed based on her current allegations about the psychological fitness exam. 23 Fourth, Richards alleges she was terminated. FAC ¶ 26. Termination is an adverse 24 action, but Richards’s termination followed her alleged opposition to age discrimination by more 25 than nine months. See id. ¶¶ 22, 26. That is meaningfully longer than the two- or three-month 26 window that has permitted an inference of retaliatory motive in other cases. See, e.g., Villiarimo 27 v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002). 28 ///// 1 As is true for Richards’s discrimination claims, these faults in her retaliation claims could 2 readily be cured by the addition of factual allegations to her complaint. The court thus dismisses 3 her retaliation claims with leave to amend as well. 4 D. Termination in Violation of Public Policy 5 Richards alleges her termination violated fundamental public policies and asserts a claim 6 under Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167 (1980). A plaintiff may not assert a 7 Tameny claim against a public entity. See Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 8 900 (2008). Richards concedes that is so. Opp’n at 9. She requests leave to amend, however, to 9 assert a Tameny claim based on violations of the United States Constitution. See id. That claim 10 would not be viable, as she conceded at hearing, in light of the state Court of Appeal’s holding in 11 McAllister v. Los Angeles Unified School District, 216 Cal. App. 4th 1198, 1219 (2013). The 12 court therefore dismisses her Tameny claim without leave to amend. See Cafasso, 637 F.3d at 13 1059 (affirming dismissal without leave to amend because amendment futile). 14 IV. CONCLUSION 15 The court grants the motion to dismiss with leave to amend in part, as explained above. 16 The court denies as moot the motion for a more definite statement. 17 The court thus orders as follows: 18 1. Any further amended complaint must be filed within fourteen days. The court 19 declines the City’s request for an order requiring Richards to attach copies of her 20 administrative correspondence to any further amended complaint. 21 2. Initial disclosures as required by Federal Rule of Civil Procedure 26(a) must be 22 completed within sixty days. 23 3. Fact discovery must be completed by December 9, 2022. 24 4. Expert disclosures must be completed by January 20, 2023. 25 5. Rebuttal expert witnesses must be exchanged by February 17, 2023. 26 6. All expert discovery must be completed by March 17, 2023. 27 ///// 28 ///// 1 7. All dispositive motions, except for motions for continuances, temporary 2 restraining orders or other emergency applications, must be heard by May 12, 3 2023. 4 8. After considering the discussion at hearing, this matter is referred to the court’s 5 Voluntary Dispute Resolution Panel (VDRP) Coordinator, Sujean Park, for 6 referral to VDRP in sixty days for the convening of a VDRP session to take place 7 in thirty to sixty days thereafter, at which a principal with full settlement authority 8 for each party shall appear. 9 This case schedule will become final without further order of the court unless objections 10 | are filed within fourteen calendar days of this order. The schedule, once final, will not be 11 | modified except by leave of court upon a showing of good cause. 12 This order resolves ECF No. 6. 13 IT IS SO ORDERED. 14 | DATED: March 22, 2022. | / □ 15 CHIEF ED STATES DISTRICT JUDGE 1]