Hawkins v. Transdev Services, Inc. ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KATERA HAWKINS, Case No. 23-cv-01259-AMO 8 Plaintiff, ORDER GRANTING MOTION TO 9 v. DISMISS AND DENYING MOTION TO REMAND 10 TRANSDEV SERVICES, INC., et al., Re: Dkt. Nos. 14, 20 Defendants. 11 12 13 Defendants’ motion to dismiss (ECF 20) and Plaintiff’s motion to remand (ECF 14) were 14 heard before this Court on September 20, 2023. Having read the parties’ papers and carefully 15 considered their arguments therein and those made at the hearing, as well as the relevant legal 16 authority, the Court hereby GRANTS Defendants’ motion to dismiss and DENIES Plaintiff’s 17 motion to remand, for the following reasons. 18 BACKGROUND 19 The Complaint makes the following allegations, which the Court accepts as true for 20 purposes of the motion to dismiss. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 21 1987). The Court similarly accepts the allegations as true for purposes of the motion to remand, a 22 facial challenge to subject matter jurisdiction. See Leite v. Crane Co., 749 F.3d 1117, 1122 (9th 23 Cir. 2014). 24 Plaintiff Katera Hawkins worked for Defendant Transdev Services, Inc., as a driver. Her 25 job duties included driving persons with disabilities to their appointments. Defendant Transdev 26 Services, Inc. (“Transdev”) is a corporation organized under the laws of Maryland with its 27 principal place of business in Illinois. The company provides transportation services in California. 1 discrimination she alleges. The individual Defendants include Laura Hendricks, Ted Koerth, 2 Mathieu Le Bourhis, and Mary McLain. McLain, the only individual Defendant left in the case at 3 this stage, is a California citizen who served as a General Manager for Transdev and directly 4 supervised Hawkins during her employment. 5 A. Factual History 6 On or around November 25, 2019, Defendant Transdev hired Hawkins as a driver. On 7 Hawkins’s second day of employment, she was sent to Defendant’s doctor for an evaluation, and 8 Transdev learned of her disability, diabetes, as a result of the evaluation. 9 In or around February or March of 2020, Hawkins received her commercial driver’s 10 license (“CDL”). Transdev typically gives an employee a route and a schedule after the employee 11 receives his or her CDL. However, on the date Hawkins was supposed to receive her schedule, 12 she had a family emergency and did not receive her schedule. Transdev instead sent Hawkins 13 inconsistent and frequently changing daily schedules while her coworkers received consistent 14 work schedules. Further, Hawkins’s assigned days off were Wednesday and Friday. In contrast, 15 all of her coworkers were assigned consecutive days off. The coworkers with consistent schedules 16 were younger than her. 17 In or around March or April of 2020, Hawkins began to regularly request a set schedule 18 from Defendants. Hawkins informed Defendants that, as an accommodation for her disability, she 19 needed a consistent schedule with consecutive days off to get adequate rest. 20 Following Hawkins’s request of a regular schedule, including her requests for reasonable 21 accommodation in the form of consecutive days off, in or around April or May of 2020, Hawkins 22 began to receive disciplinary write ups at the instruction of McLain. Such write ups were issued 23 for alleged mistakes made in Hawkins’s pre-trip paperwork, forms drivers filled out at the 24 beginning and end of their shifts. Hawkins had not been provided proper training in this regard, 25 however, and she informed a supervisor of the training deficiency. Further, many of Hawkins’s 26 fellow drivers also had difficulty with their pre-trip paperwork. Hawkins believes that she was 27 written up in retaliation for her requests for reasonable accommodation and complaints regarding 1 On or around July 10, 2020, after the outbreak of the COVID-19 pandemic, Hawkins was 2 placed on a 10-day medical leave by her doctor because her diabetes put her at high-risk for severe 3 COVID-19 outcomes. Hawkins was due to return to work on or around July 20, 2020, but on July 4 16, 2020, her doctor extended her leave to August 16, 2020. On August 17, 2020, Hawkins’s 5 doctor extended her leave to September 20, 2020. With the original leave and each extension, 6 Hawkins provided Transdev with notes from her doctor. 7 On August 25, 2020, Transdev’s human resources representative sent Hawkins a text 8 message stating, “[Plaintiff] has not worked long enough to be eligible for protected leave and 9 [has] not been approved [for] leave.” Hawkins was told that she had a “final opportunity” to 10 contact McLain on September 1, 2020, for an “interactive interview to determine if [Plaintiff’s] 11 absence qualifies for any approval status or if [Plaintiff and Defendant] will need to separate based 12 upon the continued absence.” On September 1, 2020, Hawkins telephoned McLain as instructed. 13 During this conversation, McLain told Hawkins that if Hawkins did not return to work that day, 14 her position would not be held. Hawkins did not return to work that day based on her doctor’s 15 instructions. 16 Hawkins was terminated on September 1, 2020. At the time, she was forty-three (43) 17 years old. Hawkins alleges that Transdev terminated her employment based on her disability, her 18 requests for reasonable accommodation, and her good faith complaints, among other things. 19 B. Procedural History 20 Hawkins originated this lawsuit in California Superior Court for the County of San Mateo 21 on February 14, 2023. Hawkins claims that Transdev terminated her employment due to her age 22 and in retaliation for her requests for a consistent schedule, which she contends was necessary due 23 to her alleged disability (diabetes), and that Transdev failed to accommodate her requests for 24 medical leave. Compl. ¶¶ 27-34. 25 Defendants removed the case to this Court on March 17, 2023. ECF 1. Defendants 26 premised removal on federal question jurisdiction averring that Hawkins’s wage and hour claims 27 implicate collective bargaining agreements and federal statutes. Defendants also asserted that 1 Transdev filed its partial Motion to Dismiss on March 24, 2023. ECF 7. Transdev filed a partial 2 answer at the same time, responding to those causes of action for which Transdev did not seek 3 dismissal. ECF 6. Hawkins filed the Motion to Remand on April 7, 2023. ECF 14. 4 The parties then stipulated to dismiss several of Plaintiff’s causes of action, including the 5 First Cause of Action (failure to pay all wages), Second Cause of Action (waiting time penalties), 6 Third Cause of Action (failure to provide accurate itemized wage statements), Fourth Cause of 7 Action (failure to pay wages for rest break periods), and Fifth Cause of Action (failure to pay 8 wages for meal break periods). ECF 19. The parties additionally stipulated to dismiss Defendants 9 Laura Hendricks, Ted Koerth, and Mathieu Le Bourhis. Id. As made clear in the stipulation, 10 Plaintiff continues to oppose the Motion to Dismiss as to her Eighth and Fourteenth causes of 11 action (work environment harassment and unfair and unlawful business practices). Id. 12 DISCUSSION 13 Plaintiff moves for remand on the basis that federal jurisdiction does not exist following 14 the stipulated dismissal of federal causes of action as well as the inclusion of McLain, a non- 15 diverse Defendant, in the action. ECF 14. Separately, Defendants move to dismiss the sole 16 remaining cause of action advanced against McLain for failure to state a claim. ECF 20. 17 The Court would typically address jurisdictional issues presented in a motion to remand 18 before reaching the motion to dismiss. See generally Grancare, LLC v. Thrower by & through 19 Mills, 889 F.3d 543, 549 (9th Cir. 2018). However, the two motions at bar rest on a shared issue: 20 whether Hawkins states a claim against the sole remaining non-diverse Defendant, McLain. The 21 Court therefore analyzes the merits of the claims against McLain first, as their viability informs 22 the Motion to Remand. 23 A. Motion to Dismiss 24 Defendant originally moved for an order dismissing the First, Second, Third, Fourth, Fifth, 25 Eighth and Fourteenth Causes of Action. After the parties’ stipulated dismissal, Plaintiff’s only 26 remaining claims are the Eighth and Fourteenth Causes of Action. Defendants move to dismiss 27 1 the Eighth Cause of Action,1 but they do not request dismissal of the Fourteenth Cause of Action, 2 the unfair competition claim, to the extent that it is predicated on Plaintiff’s discrimination, 3 retaliation, or wrongful termination claims. See Defs.’ Reply Br. at 1 n.1 (ECF 21 at 2). 4 1. Legal Standard 5 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal 6 sufficiency of the claims alleged in the complaint. Ileto v. Glock, 349 F.3d 1191, 1199-1200 (9th 7 Cir. 2003). A complaint may be dismissed if the plaintiff fails to state a cognizable legal theory or 8 has not alleged sufficient facts to support a cognizable legal theory. Somers v. Apple, Inc., 729 9 F.3d 953, 959 (9th Cir. 2013). While the court is to accept as true all the factual allegations in the 10 complaint, legally conclusory statements, not supported by actual factual allegations, need not be 11 accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The complaint must proffer sufficient 12 facts to state a claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 13 544, 555, 558-59 (2007) (citations and quotations omitted). A complaint is facially plausible 14 where plaintiff “pleads factual content that allows the court to draw the reasonable inference that 15 the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). 16 2. Eighth Cause of Action: Hostile Work Environment 17 Under California’s Fair Employment and Housing Act (“FEHA”), it is unlawful for an 18 employee to be harassed by either an employer or a fellow employee because of physical 19 disability, age, or gender. Cal. Gov’t Code § 12940(j). Harassment “refers to bias that is 20 expressed or communicated through interpersonal relations in the workplace.” Roby v. McKesson 21 Corp., 47 Cal. 4th 686, 707 (2009). Harassment “consists of conduct outside the scope of 22 necessary job performance, conduct presumably engaged in for personal gratification, because of 23 meanness or bigotry, or for other personal motives.” Janken v. GM Hughes Elecs., 46 Cal. App. 24 4th 55, 63 (1996). While “commonly necessary personnel management actions, such as hiring and 25 firing, job or project assignments, office or work station assignments, promotion or demotion, 26 performance evaluations . . . do not come within the meaning of harassment,” Reno v. Baird, 18 27 1 Cal. 4th 640, 646-47 (1998) (citations omitted), the California Supreme Court has made clear that 2 “some official employment actions” can support a harassment cause of action because they “can 3 also have a secondary effect of communicating a hostile message,” Roby, 47 Cal. 4th at 709. Said 4 another way, personnel-related actions do not inherently constitute unlawful harassment because 5 they are normal parts of the employment relationship that cannot be avoided, and a claim for 6 harassment only rests where such actions communicate a demeaning message and are sufficiently 7 “severe or pervasive as to alter the working conditions.” Id. at 708 (citations omitted). 8 Hawkins asserts a single cause of action against California-resident McLain: her Eighth 9 Cause of Action for “work environment harassment.” Compl. ¶¶ 144-58 (ECF 1 at 41). In 10 support of her claim, Hawkins asserts that McLain engaged in unlawful harassment by (1) failing 11 to provide Hawkins with a consistent schedule and consecutive days off (Compl. ¶ 28), (2) issuing 12 write-ups for paperwork errors (Compl. ¶ 30), (3) requiring Hawkins to return to work and 13 informing Hawkins that absences would be counted as “points” against her (Compl. ¶¶ 31-33), and 14 (4) terminating her employment (Compl. ¶ 34). See also Pl.’s Opp. Br. at 10-11 (ECF 15 at 10- 15 11). Defendant avers that all the alleged actions amount to non-actionable personnel management 16 conduct and thus cannot constitute a harassment cause of action. 17 Here, the employment-related allegations against McLain do not evince conduct so severe 18 or pervasive as to alter Hawkins’s working conditions. McLain’s personnel-related actions such 19 as disciplinary write-ups, do not, in themselves or combined with the irregular work schedules, 20 constitute harassing behavior. Reno, 18 Cal. 4th at 646-47. Hawkins’s allegations of harassment 21 especially fall short because the allegations do not describe any bias, animus, or offensive message 22 communicated to her. This deficiency distinguishes the facts here from Roby because the 23 personnel management actions implicated here did not contribute to a hostile message that the 24 employer expressed to Hawkins in other, more explicit ways. Cf. Roby, 47 Cal. 4th at 763. 25 Hawkins fails to identify any separate hostile message, and she fails to allege any hostile conduct 26 or comments that are not personnel related. Hawkins’s conclusory characterization of Defendants’ 27 conduct as “hostile” does not alter the reality that she does not plead anything beyond personnel 1 communicated hostility, Hawkins fails to allege that any purported harassment was based on 2 Hawkins’s age or disability. Hawkins’s complaint includes allegations of routine personnel- 3 related conduct, not actionable harassment, and she accordingly fails to state a claim for 4 harassment based on hostile work environment. 5 B. Motion to Remand 6 Hawkins moves to remand the case to state court on the basis that federal jurisdiction does 7 not exist. She contends that the Court lacks diversity jurisdiction because both Hawkins and 8 McLain are California citizens. Defendants argue that the joinder of McLain should be 9 disregarded as fraudulent. 10 1. Legal Standard 11 Diversity jurisdiction “requires complete diversity of citizenship; each of the plaintiffs 12 must be a citizen of a different state than each of the defendants.” Morris v. Princess Cruises, 13 Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). “[O]ne exception to the requirement of complete 14 diversity is where a non-diverse defendant has been ‘fraudulently joined.’” Id. 15 A defendant may establish fraudulent joinder by demonstrating that the plaintiff cannot 16 state a claim against the resident defendant in state court. Grancare, 889 F.3d at 548 (quoting 17 Hunter, 582 F.3d at 1044). That assessment requires the court to analyze whether the operative 18 complaint states a claim against the resident defendant. Mercado v. Allstate Ins. Co., 340 F.3d 19 824, 826 (9th Cir. 2003). If the complaint fails to state a claim against the resident defendant, and 20 that failure is “obvious according to the settled rules of the state, the joinder of the resident 21 defendant is fraudulent.” Id. at 826 (quoting McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 22 (9th Cir. 1987)). A defendant is not fraudulently joined, however, merely because the operative 23 complaint fails as against them. See Padilla v. AT&T Corp., 697 F. Supp. 2d 1156, 1159 (C.D. 24 Cal. 2009). To establish fraudulent joinder, the defendant must show that a state court would not 25 grant leave to amend to correct the pleading deficiencies. Id. at 1159. “[I]f there is a possibility 26 that a state court would find that the complaint states a cause of action against any of the resident 27 defendants, the federal court must find that the joinder was proper and remand the case to the state 1 2. Fraudulent Joinder of Sham Defendant 2 Hawkins is a citizen of California, McLain is a citizen of California, and Transdev is a 3 corporate citizen of both Maryland and Illinois. Because Hawkins and McLain are citizens of 4 || California, Hawkins seeks to remand this action to state court on the basis that the parties are not 5 diverse under Title 28 U.S.C. § 1332. Defendants contend that removal should stand — federal 6 || jurisdiction exists because the citizenship of McLain, a sham defendant, should be disregarded in 7 || the assessment of diversity jurisdiction. 8 The Court concluded above that Hawkins has failed to state a claim for harassment against 9 McLain. The analysis thus shifts to whether Hawkins can possibly state a cause of action against 10 McLain. See Grancare, 889 F.3d at 548. At the hearing, the Court pressed counsel for Plaintiff 11 on this issue, and Counsel represented that all the facts regarding McLain’s conduct are already 12 alleged in the Complaint. Because Plaintiff has no additional facts to allege and the Court found 5 13 the allegations in the Complaint insufficient to state a claim against McLain, the Court must 14 || conclude that amendment would prove futile, and that Plaintiff cannot possibly state a cause of 3 15 action against the remaining resident Defendant. The Court accordingly finds that McLain was a 16 || fraudulently joined as a sham defendant and that her residency does not invalidate the Court’s 3 17 diversity jurisdiction. The Motion to Remand must be denied. CONCLUSION 19 For the foregoing reasons, Defendants’ Motion to Dismiss the Eighth Cause of Action is 20 || hereby GRANTED, and Plaintiff’s Motion to Remand the case to state court is hereby DENIED. 21 The Eighth Cause of Action for workplace harassment is DISMISSED WITH PREJUDICE. 22 IT IS SO ORDERED. 23 Dated: December 7, 2023 24 Mod Wf 06 ARACELI MARTINEZ-OLGUIN United States District Judge 27 28