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8 United States District Court 9 Central District of California

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11 ELKE REICHEL, Case № 2:24-cv-06244-ODW (PDx)

12 Plaintiff,

ORDER GRANTING DEFENDANT’S

13 v.

MOTION TO DISMISS [28]

14 FUNDRAISE UP INC. et al.,

15 Defendants.

16 17 I. INTRODUCTION 18 Plaintiff Elke Reichel claims that her former employer, Defendant Fundraise Up 19 Inc. (“Fundraise”), unlawfully discriminated against her based on her gender and 20 failed to provide overtime wages and uninterrupted rest and meal breaks. (First Am. 21 Compl. (“FAC”) ¶¶ 45–100, ECF No. 13.) On April 18, 2025, Reichel filed the 22 operative Second Amended Complaint. (Second Am. Compl. (“SAC”), ECF No. 25.) 23 Fundraise moves to dismiss Reichel’s first through fourth causes of action pursuant to 24 Federal Rule of Civil Procedure (“Rule”) 12(b)(6). (Mot. Dismiss (“Motion” or 25 “Mot.”), ECF No. 28.) For the reasons below, the Court GRANTS the Motion.1 26 27

28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. BACKGROUND 2 All factual references derive from Reichel’s Complaint, as well-pleaded factual 3 allegations are accepted as true for purposes of this Motion. See Ashcroft v. Iqbal, 4 556 U.S. 662, 678 (2009). 5 On or about January 5, 2023, Reichel accepted an Enterprise Account Executive 6 (“EAE”) position with Fundraise, a technology company that connects non-profit 7 companies with donors. (SAC ¶¶ 9, 15.) As an EAE, Reichel was expected to find 8 large philanthropic enterprises and persuade them to move to Fundraise’s technology 9 and platform. (Id. ¶ 17.) When Reichel accepted the position, the only other person at 10 the same level as her was Michael Longenecker. (Id. ¶ 15.) 11 In addition to Reichel’s base salary, Fundraise agreed to pay her a commission 12 of ten percent of realized revenue for the accounts she signed. (Id. ¶ 16.) She would 13 receive the commission if she was “actively employed on the bonus payout date.” 14 (Decl. Ruth Zadikany ISO Mot. (“Zadikany Decl.”) Ex. B. (“Acknowledgement of 15 KPIs”), ECF No. 28-3.) Reichel “was projected to receive significant commissions” 16 which she did not receive. (SAC ¶ 41–43.) 17 Even though Reichel was based in California and Fundraise in New York, 18 nobody told Reichel that she was expected to work Eastern Standard Time business 19 hours and attend daily calls and meetings as early as 5:30 a.m. Pacific Standard Time. 20 (Id. ¶ 19.) Reichel spoke to Lauren Casimir, a Human Resources representative, about 21 her issues with needing to attend early morning meetings. (Id. ¶¶ 19–20.) Casimir 22 remarked that “it must be difficult for [Reichel] to work East Coast hours given [she] 23 had kids.” (Id. ¶ 20.) Reichel felt “at odds” with Casimir’s “unusual comment.” (Id.) 24 Fundraise’s Chief Executive Officer (“CEO”), Peter Byrnes,2 later told Reichel that 25 she did not need to attend all the morning meetings. (Id.) However, “[e]ager to make 26 27 2 The Court notes that the Second Amended Complaint inconsistently refers to Fundraise’s CEO as 28 “Peter Byrnes” and “Peter Burns.” (SAC ¶¶ 11, 25, 40, 44.) For consistency, the Court will refer to the CEO as “Peter Byrnes” or “Byrnes,” with no disrespect intended. 1 a good impression, and notwithstanding [Byrnes’s] instruction, [Reichel] endeavored 2 to attend most of the early morning meetings.” (Id.) 3 In April 2023, Casimir told Reichel that “an unknown third party” had related 4 to Casimir that Reichel “had commented about the difficulty of operating in East 5 Coast work hours.” (Id. ¶ 25.) Casimir also noted that Reichel was in a particularly 6 distinctive position from other staff members “due to her status as a mother.” (Id.) 7 Casimir then “demanded” that Reichel “never bring the matter up again with anyone” 8 at Fundraise, particularly with Byrnes. (Id.) Reichel was “befuddled” by this 9 “aggressive demand,” but she “agreed and did not mention it again.” (Id.) Reichel 10 “now understands” that Casimir’s comments were a “warning that if her obligations as 11 a mother interfered with her work obligations, [Fundraise], in particular [Byrnes], 12 would take action against her.” (Id.) 13 Around January 1, 2024, Fundraise promoted Longenecker to the newly created 14 Director of Enterprise Sales position. (Id. ¶¶ 15, 31.) Longenecker, who “had 15 significantly less experience” than Reichel and “a history of adversarial interactions” 16 with her, became her supervisor. (Id. ¶¶ 31–32.) Despite Reichel’s qualifications 17 exceeding those of Longenecker, she was not considered for the new position. (Id. 18 ¶ 32.) Reichel contents that the “decision to promote a less experienced male 19 colleague . . . highlight[ed] a troubling pattern within the company of favoring male 20 leadership roles over the advancement of high-performing female employees.” (Id.) 21 After his promotion, Longenecker required EAEs to keep detailed notes and 22 move old notes to a note-taking software program. (Id. ¶ 33.) Reichel considered this 23 an “odd” and “illogical” request that “doubled” her workload and was “unnecessarily 24 redundant.” (Id.) Nevertheless, she “started implementing this new process” for new 25 notes and updated past notes when her schedule allowed. (Id.) 26 During a call with Longenecker, he complained that Reichel was unavailable 27 during the time she had to pick up her children from school. (Id. ¶ 34.) When Reichel 28 raised her concerns with Longenecker “about weekend travel and its impact on her 1 caregiving responsibilities,” he remarked that his wife homeschooled their children. 2 (Id. ¶ 36.) Reichel understood Longenecker’s comment to imply that “a woman’s 3 primary role should be in the home and that wives should prioritize childcare over 4 their careers.” (Id.) His comment “reinforced the structural bias at [Fundraise] by 5 perpetuating traditional gender roles and devaluing the contributions of working 6 women.” (Id.) Reichel also contends that male employees in similar sales positions 7 who took off due to childcare duties “were not subject to the same remarks or biases.” 8 (Id. ¶ 37 (claiming that Brendan Hood, a male employee at Fundraise, also took time 9 off from work due to childcare but never received such remarks from Longenecker).) 10 On February 9, 2024, Fundraise terminated Reichel. (Id. ¶ 41.) Longenecker 11 said she was terminated for poor sales numbers and failure to maintain proper notes. 12 (Id.) These reasons “shocked” Reichel, who had never received any complaints about 13 her sales numbers and was on track to meet her sales quota. (Id.) At the time of her 14 termination, Reichel anticipated to double her quota, kept compliant notes, received 15 positive performance reviews, and had not been placed on a performance 16 improvement plan or otherwise disciplined. (Id. ¶¶ 41, 44.) Reichel alleges that the 17 termination was abrupt and pretextual, motivated by both gender discrimination and 18 an intent to avoid paying her earned commissions. (Id. ¶¶ 41, 44, 62.) 19 Based on these allegations, Reichel initiated this action against Fundraise. (See 20 FAC.) Fundraise moved to dismiss the case pursuant to Rule 12(b)(6), (Mot. Dismiss, 21 ECF No. 14), and the Court dismissed Reichel’s willful misclassification claim 22 (Count III) with prejudice, and her wrongful termination (Count I) and gender 23 discrimination (Count II) claims with leave to amend, (Order MTD, ECF No. 23). 24 On April 18, 2025, Reichel filed the operative Second Amended Complaint, 25 reasserting the same causes of action under California law: (1) wrongful termination 26 in violation of public policy; (2) gender discrimination in violation of the Fair 27 Employment and Housing Act (“FEHA”), Cal. Gov’t Code § 12940; (3) willful 28 misclassification in violation of California Labor Code section 515; (4) unpaid wages 1 and commissions; (5) failure to pay overtime in violation of Labor Code section 515; 2 (6) failure to provide uninterrupted rest breaks in violation of Labor Code section 515; 3 (7) failure to provide meal breaks in violation of Labor Code section 515; (8) failure 4 to pay all wages due upon termination in violation of Labor Code section 203; and 5 (9) failure to provide accurate itemized wage statements in violation of Labor Code 6 section 226. (SAC ¶¶ 46–101.) 7 Fundraise now moves to dismiss the first through fourth causes of action 8 pursuant to Rule 12(b)(6). (Mot.) The Motion is fully briefed. (Opp’n, ECF No. 29; 9 Reply, ECF No. 30.) 10 III. LEGAL STANDARD 11 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 12 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 13 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 14 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading 15 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. 16 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 17 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 18 550 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual 19 matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 20 556 U.S. at 678 (internal quotation marks omitted). 21 The determination of whether a complaint satisfies the plausibility standard is a 22 “context-specific task that requires the reviewing court to draw on its judicial 23 experience and common sense.” Id. at 679. A court is generally limited to the 24 pleadings and must construe all “factual allegations set forth in the complaint . . . as 25 true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles, 26 250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly accept 27 conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. 28 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 1 Where a district court grants a motion to dismiss, it should generally provide 2 leave to amend, unless it is clear the complaint could not be saved by any amendment. 3 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 4 1025, 1031 (9th Cir. 2008). Thus, leave to amend “is properly denied . . . if 5 amendment would be futile.” Carrico v. City & County of San Francisco, 656 F.3d 6 1002, 1008 (9th Cir. 2011). 7 IV. DISCUSSION 8 Fundraise moves to dismiss Reichel’s claims for gender discrimination under 9 FEHA, wrongful termination, willful misclassification, and unpaid commissions 10 pursuant to Rule 12(b)(6). (Mot. 10–18.) 11 A. Wrongful Termination and Gender Discrimination (Counts I and II) 12 Reichel alleges that Fundraise violated the FEHA by discriminating against her 13 based on her gender. (SAC ¶¶ 57–66.) She also alleges that Fundraise wrongfully 14 terminated her “because [she] was a woman and a working mother,” in violation of 15 public policy. (Id. ¶¶ 46–56.) The wrongful termination claim is premised on her 16 FEHA gender discrimination claim. (See id.) Fundraise moves to dismiss both 17 claims. (Mot. 10–17.) The Court previously dismissed Reichel’s FEHA and wrongful 18 termination claims on the grounds that (1) Reichel did not “plausibly allege that 19 similarly situated males were treated more favorably than her”; (2) her comparisons to 20 other male employees failed to show discriminatory conduct; and (3) Longenecker’s 21 promotion and comments were not sufficient to “support an inference of 22 discrimination.” (Order MTD 6–8.). 23 FEHA prohibits terminating an employee based on, among other things, 24 “gender, gender identity, [or] gender expression.” Cal. Gov’t Code § 12940(a). To 25 survive a motion to dismiss under the FEHA, a plaintiff must allege that “(1) she 26 belonged to a protected class; (2) she was performing competently in her position; 27 (3) she was subject to an adverse employment action; and (4) some other 28 circumstances that suggest discriminatory motive.” Cattoche v. United Airlines, Inc., 1 No. 22-16400, 2023 WL 6803540, at *2 (9th Cir. Oct. 16, 2023) (citing Guz v. Bechtel 2 Nat’l Inc., 24 Cal. 4th 317, 355 (2000)). The dismissal of a plaintiff’s FEHA claim “is 3 fatal” to the plaintiff’s claim for wrongful termination in violation of public policy 4 when the public policy upon which the plaintiff relies is FEHA. Nielsen v. Trofholz 5 Techs., Inc., 470 F. App’x 647, 649 (9th Cir. 2012). 6 Reichel claims she was fired “because she was a woman and a working 7 mother.” (SAC ¶ 44.) The parties do not seriously dispute that she plausibly pleads 8 the first three elements of a FEHA claim. (See Mot. 11–16; Opp’n 6–17; Reply 4–8.) 9 The Court already ruled that the first three elements of Reichel’s FEHA discrimination 10 claim are met. (Order MTD 6.) As such, the Court will not repeat its analysis of 11 those elements here. 12 The only element in dispute is thus the fourth element—discriminatory motive. 13 Cattoche, 2023 WL 6803540, at *2. A plaintiff may plead a discriminatory motive 14 under FEHA by showing that similarly situated employees outside of her protected 15 class “were treated more favorably, or other circumstances surrounding the adverse 16 employment action give rise to an inference of discrimination.” Peterson v. Hewlett- 17 Packard Co., 358 F.3d 599, 603 (9th Cir. 2004). Reichel seems to advance three 18 reasons why she sufficiently pleads discriminatory motive: (1) Fundraise failed to 19 consider Reichel for promotion, advancing a male employee instead; (2) similarly 20 situated males at Fundraise were treated more favorably than Reichel; and (3) Reichel 21 was treated differently based on her status as a woman and working mother. 22 Reichel alleges that Fundraise did not “seriously consider[]” her for promotion 23 to the newly created Director of Enterprise Sales position, despite her “extensive 24 experience,” “flawless record,” and “superior performance and qualifications.” (SAC 25 ¶ 32.) Instead, Fundraise promoted Longenecker, a male colleague who had 26 “significantly less experience” than her, which Reichel contends demonstrates 27 discriminatory motive. (Id. ¶¶ 31–32; Opp’n 13–14.) 28 1 But Reichel, again, fails to raise any facts to suggest similarities within the 2 application process or that she even applied for the promotion. See Freeman v. Cnty. 3 of Sacramento Dep’t of Hum. Assistance, No. 2:19-cv-02418-KJM-CKD PS, 4 2020 WL 2539268, at *3 (E.D. Cal. May 19, 2020) (granting motion to dismiss where 5 “plaintiff does not allege that these other individuals applied for the same positions as 6 him”). A plaintiff states a claim for relief only “if the trier of fact could reasonably 7 infer that promotions were not awarded on a competitive basis.” Lyons v. England, 8 307 F.3d 1092, 1114 (9th Cir. 2002). Such an inference is not possible here because 9 Reichel does not allege that Fundraise posted an opening or accepted applications. 10 While Longenecker’s promotion and Reichel’s termination took place close in time, 11 Reichel does not allege how these decisions were related to one another, such as to 12 support a theory of discriminatory termination. 13 Reichel also alleges that there was “a troubling pattern within the company of 14 favoring male leadership roles over the advancement of high-performing female 15 employees.” (Id. ¶ 32.) She claims that “she was unexpectedly required to attend 16 several conferences and meetings,” while “[m]ale colleagues in similar positions were 17 not subjected to the same demands.” (Id. ¶ 35.) For example, she alleges that male 18 associates such as “Larry,” “Chaz,” and Hood, were not required to attend additional 19 conferences and meetings. (Id.) She also claims that Hood openly took time off from 20 work due to childcare duties but received no reprimand, while she was criticized for 21 similar needs. (Id. ¶ 37; Opp’n 7–8.) However, it is unclear how Reichel, an EAE, 22 and male colleagues working in the “Partnership department,” are similarly situated. 23 (See id. ¶¶ 15, 35.) As such, Reichel offers little information regarding “the alleged 24 comparators or other relevant facts, making it difficult to draw any inferences as to 25 whether those employees were indeed similarly situated or treated more favorably.” 26 Cattoche, 2023 WL 6803540, at *2. 27 Even considering the allegations that the identified male employees were 28 similarly situated, they do not support an inference of discriminatory motive. (SAC 1 ¶¶ 57–66.) Reichel does not connect the need to attend additional meetings to her 2 termination or establish that she was required to attend these meetings because of her 3 gender. To the contrary, when Byrnes instructed Reichel that she “was not required to 4 attend all of the morning meetings,” she “endeavored to attend most of the early 5 morning meetings” because she was “[e]ager to make a good impression.” (Id. ¶ 20.) 6 To support a plausible claim that male employees were treated more favorably, 7 Reichel next relies on Casimir’s statements. She alleges that Casimir warned her 8 about Byrnes’ opinion regarding “female employees and their ability to prioritize 9 work,” demanded that Reichel never mention her childcare obligations again, and 10 commented on Reichel’s “distinction” from other staff members due to her “status as 11 a mother.” (Id. ¶¶ 25, 44.) Reichel also relies on Longenecker’s remark that his wife 12 homeschooled their children. (Id. ¶ 36.) But Reichel fails to show how these 13 comments supported the decision to terminate her. Absent additional facts, the Court 14 is unable to infer that these comments plausibly allege circumstances giving rise to an 15 inference of discriminatory motive. 16 Taken together, Reichel’s allegations do not adequately support a claim for 17 discrimination under FEHA and wrongful termination in violation of public policy. 18 As such, the Court finds that Reichel has not cured the deficiencies the Court 19 previously identified. (Order MTD 5–10.) While Reichel identifies some other male 20 colleagues at Fundraise, she does not allege that these male associates were similarly 21 situated or that they were treated more favorably. As such, Reichel does not plead 22 more than mere “labels and conclusions.” Twombly, 550 U.S. at 555. 23 In her opposition, Reichel requests leave to amend if the Court finds that her 24 claims are not sufficiently pleaded. (Opp’n 23.) Repeated failure to adequately 25 amend signals to the Court that any further amendments would be futile. William O. 26 Gilley Enters., Inc. v. Atl. Richfield Co., 588 F.3d 659, 669 n.8 (9th Cir. 2009) 27 (finding plaintiff’s repeated failure to present new facts to state a claim suggested that 28 it would be futile to offer him another chance to do so). A district court’s discretion to 1 deny leave to amend is “particularly broad” where the plaintiff has previously 2 amended the complaint. Sisseton–Wahpeton Sioux Tribe v. United States, 90 F.3d 3 351, 355 (9th Cir.1996) (quoting Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 4 1160 (9th Cir.1989)). On September 6, 2024, Reichel voluntarily amended her 5 Complaint. (See generally FAC.) The Court subsequently granted her leave to amend 6 to cure pleading deficiencies. (Order MTD 5–10.) As Reichel already had two 7 opportunities to adequately amend but failed to do so, the Court finds that further 8 amendment would be futile. Accordingly, the Court GRANTS Fundraise’s Motion 9 and DISMISSES Reichel’s first and second causes of action WITH PREJUDICE 10 and WITHOUT LEAVE TO AMEND. 11 B. Willful Misclassification (Count III) 12 Fundraise moves to dismiss Reichel’s willful misclassification claim on the 13 basis that it is not a standalone cause of action. (Mot. 18.) In her opposition, Reichel 14 withdrew this claim. (Opp’n 22.) Furthermore, the Court dismissed without leave to 15 amend Reichel’s willful misclassification claim. (Order MTD 11–12, 17). As such, 16 the Court need not address the claim again here. 17 C. Unpaid Commissions (Count IV) 18 Fundraise moves to dismiss Reichel’s claim for unpaid commissions. 19 (Mot. 17–18.) Reichel alleges that Fundraise agreed to pay her commissions based on 20 the accounts she signed but failed to do so. (SAC ¶¶ 72–76.) The Acknowledgement 21 of KPIs indicates that, to receive commissions, Reichel “must be actively employed 22 on the bonus payout date,” and that “variable compensation” would be provided in the 23 form of “10% realized revenue commission for one year after Closed/Won.” (Id.) 24 Reichel alleges that prior to her termination, she “was projected to receive significant 25 commissions.” (SAC ¶¶ 42, 74.) However, because commissions were paid monthly 26 over twelve months, Reichel “was not poised to receive her commissions right away.” 27 (Id. ¶ 42.) Reichel alleges that Fundraise fired her, in part, to avoid paying her 28 commissions. (Id. ¶¶ 42–44, 53, 74.) 1 The Court previously dismissed this claim with leave to amend. (Order 2 MTD 11.) The Court held that Reichel “does not actually allege that Fundraise ever 3 owed her unpaid commissions,” “that she realized any revenue for Fundraise,” or “that 4 she was actively employed on the bonus payout date.” (Id.) Even though the Court 5 granted Reichel leave to amend, she added nothing to substantiate her claim for 6 unpaid commissions. (Compare FAC ¶¶ 71–75, with SAC ¶¶ 72–76.) 7 Reichel adds only that, prior to her termination, she closed deals with clients 8 such as “Volunteers of America, Daystar Canada, and Benny Hinn,” and that she 9 received no commissions for these closed deals. (SAC ¶ 43.) While this fact may 10 support a claim for potential entitlement to commissions, that is not the same as 11 alleging facts sufficient to support a claim that Reichel was actually owed any 12 commissions at the time of her termination. (Mot. 18.) Reichel appears to claim that 13 she was entitled to vested commissions on the deals she closed before her termination. 14 (See SAC ¶ 74.) But she fails to allege that she realized any revenue for Fundraise 15 such that her rights to commissions vested, or that she was “actively employed on the 16 bonus payout date.” (See generally SAC; see also Acknowledgement of KPIs 1.) 17 Despite this Court’s clear direction, Reichel fails again to provide sufficient 18 factual detail to support her claim for unpaid commissions. (See Order MTD 10–11.) 19 Therefore, she fails to cure the previously specified deficiencies and again relies on 20 conclusory allegations that are insufficient to support her claim. See Salameh v. 21 Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir 2013) (finding that leave to amend is 22 properly denied when a plaintiff fails to properly plead a claim, is given specific 23 instructions on how to amend, and had ample opportunity to amend the complaint). 24 Accordingly, as Reichel has had ample opportunity to adequately amend the 25 pleadings but failed to cure the specified deficiencies as to this claim, the Court 26 DISMISSES Reichel’s cause of action for unpaid commissions WITH PREJUDICE 27 and WITHOUT LEAVE TO AMEND. 28 1 Vv. CONCLUSION 2 For the reasons discussed above, the Court GRANTS Fundraise’s Motion to 3 || Dismiss. (ECF No. 28.) In particular, the Court DISMISSES WITH PREJUDICE and WITHOUT LEAVE TO AMEND Reichel’s wrongful termination (Count I), 5 || gender discrimination (Count I), and failure to pay commissions (Count IV) causes of 6 || action. 7 Fundraise shall answer Reichel’s Second Amended Complaint as to the 8 || remaining causes of action within twenty-one days of the date of this order. 9 10 IT IS SO ORDERED. 1] 12 September 16, 2025 %. 13 Se, Meet 15 OTIS D. HT, II

UNITED STATES DISTRICT JUDGE

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