1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CLARICE SANDERS-HOLLIS, No. 2:19-cv-00092-KJM-DB 12 Plaintiff, 13 v. ORDER 14 STATE OF CALIFORNIA, HEALTH AND HUMAN SERVICES AGENCY, et 15 al., 16 Defendants. 17

18 19 Defendant California Department of Social Services’ (DSS) motion to dismiss 20 plaintiff’s complaint is before the court. For the reasons set out below, the court GRANTS 21 defendant’s motion. 22 I. BACKGROUND 23 On August 20, 2018, plaintiff Clarice Sanders-Hollis filed a complaint against 24 defendant DSS alleging seven separate California Fair Employment and Housing Act (FEHA) 25 violations, violation of Title VII of the federal Civil Rights Act, and violation of the federal Age 26 Discrimination in Employment Act (ADEA). Compl., ECF No. 1 at 10–17. On January 14, 2019, 27 defendant timely removed the action to this court on the basis of federal question jurisdiction. 28 Notice of Removal, ECF No. 1 at 2 (citing 28 U.S.C. § 1331). On January 22, 2019, defendant 1 moved to dismiss plaintiff’s complaint for failure to state a claim on which relief may be granted. 2 Mot., ECF No. 3 at 1–2 (citing Fed. R. Civ. P. 12(b)(6)). Plaintiff opposed, ECF No. 6, and 3 defendant responded, ECF No. 7. The court submitted the motion without a hearing, ECF No. 12, 4 and resolves it here. 5 II. LEGAL STANDARD 6 A party may move to dismiss for “failure to state a claim upon which relief can be 7 granted.” Fed. R. Civ. P. 12(b)(6). The court may grant the motion only if the complaint lacks a 8 “cognizable legal theory” or if its factual allegations do not support a cognizable legal theory. 9 Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (citation omitted). 10 A complaint must contain a “short and plain statement of the claim showing that the pleader is 11 entitled to relief,” Fed. R. Civ. P. 8(a)(2), though it need not include “detailed factual allegations,” 12 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). But “sufficient factual matter” must make 13 the claim at least plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Conclusory or formulaic 14 recitations of elements do not alone suffice. Id. (citing Twombly, 550 U.S. at 555). In a Rule 15 12(b)(6) analysis, the court must accept well-pled factual allegations as true and construe the 16 complaint in plaintiff’s favor. Id.; Erickson v. Pardus, 551 U.S. 89, 93–94 (2007). 17 If a plaintiff requests leave to amend a claim subject to dismissal, the federal rules 18 mandate that leave “be freely given when justice so requires.” Fed. R. Civ. P. 15(a). Before 19 granting leave, a court considers any potential bad faith, delay, or futility regarding the proposed 20 amendment, and the potential prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 21 (1962); see also Smith v. Pac. Prop. Dev. Co., 358 F.3d 1097, 1101 (9th Cir. 2004). 22 III. DISCUSSION 23 Plaintiff does not meet her burden of pleading sufficient facts to state a plausible 24 claim for relief to support any of her nine claims. See Iqbal, 556 U.S. at 678. In fact, plaintiff’s 25 complaint does not include any allegations of fact whatsoever; rather, the complaint merely 26 contains conclusory statements followed by a recitation of the elements of each cause of action. 27 Plaintiff must plead more than conclusory statements to state a claim. Id. 28 ///// 1 A. FEHA Claims (Claims 1–7) 2 Plaintiff pleads seven claims under FEHA, Cal. Gov’t Code section 12940, 3 discrimination, failure to prevent discrimination, harassment, failure to prevent harassment, 4 retaliation, failure to provide reasonable accommodation, and failure to engage in good faith in the 5 interactive process. See Compl. at 12–16 (reordered here for clarity of discussion). 6 1. Discrimination Claim 7 To establish a prima facie showing of discrimination under FEHA, a plaintiff must 8 provide evidence that she “(1) [] was a member of a protected class, (2) [] was qualified for the 9 position [she] sought or was performing competently in the position [she] held, (3) [] suffered an 10 adverse employment action, such as termination, demotion, or denial of an available job, and 11 (4) some other circumstance suggests discriminatory motive.” Nielsen v. Trofholz Technologies, 12 Inc., 750 F. Supp. 2d 1157, 1165 (E.D. Cal. 2010) (quoting Guz v. Bechtel Nat. Inc., 24 Cal. 4th 13 317, 355 (2000)). Plaintiff has not pleaded facts to show any of these elements; therefore, plaintiff 14 fails to adequately plead a claim for discrimination under FEHA. 15 2. Harassment Claim 16 To state a FEHA harassment claim, an employee must allege facts showing 17 workplace harassment was “severe enough or sufficiently pervasive to alter the conditions of 18 employment and create a work environment that qualifies as hostile or abusive to employees,” 19 Hughes v. Pair, 46 Cal. 4th 1035, 1043 (2009) (quoting Miller v. Dep’t of Corrs., 36 Cal. 4th 446, 20 462 (2005)); see also Andrade v. Staples, Inc., No. CV 14–7786 PA (Ex), 2014 WL 5106905, *3 21 (C.D. Cal. Oct. 9, 2014) (“Harassment, under FEHA, ‘can take the form of discriminatory 22 intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the 23 victim's employment and create an abusive working environment.’” (quoting Rehmani v. Superior 24 Court, 204 Cal. App. 4th 945, 951 (2012)). Plaintiff’s complaint contains no specific factual 25 allegations constituting harassment by defendant. Accordingly, defendant’s motion to dismiss this 26 claim must be granted. 27 ///// 28 ///// 1 3. Failure to Prevent Discrimination Claim and Failure to Prevent Harassment Claim 2 3 “Under FEHA, it is an unlawful employment practice for an employer to fail ‘to take 4 all reasonable steps necessary’ to prevent discrimination, harassment, and retaliation from 5 occurring.” Brewer v. Leprino Foods Co., Inc., No. CV-1:16-1091-SMM, 2019 WL 1206702, *5 6 (E.D. Cal. Mar. 14, 2019) (citing Cal. Gov’t Code § 12940(k)); Taylor v. City of Los Angeles Dep’t 7 of Water & Power, 144 Cal. App. 4th 1216, 1239–40 (2006)). “To prevail on a claim under 8 [California Government Code] § 12940(k), the plaintiff has the burden to prove: ‘(1) plaintiff was 9 subjected to discrimination, harassment, or retaliation; (2) defendant failed to take reasonable steps 10 to prevent discrimination, harassment, or retaliation; and (3) this failure caused plaintiff to suffer 11 injury, damage, loss or harm.’” Brewer, 2019 WL 1206702, at *5 (quoting Lelaind v. City & Cty. 12 of San Francisco, 576 F. Supp. 2d 1079, 1103 (N.D. Cal. 2008)). Regarding the first element, a 13 claimant must plead and ultimately prove actual discrimination, harassment or retaliation. See 14 Dickson v. Burke Williams, Inc., 234 Cal. App. 4th 1307, 1314 (2015). Thus, a FEHA claim under 15 California Government Code section 12940(k) fails in the absence of a viable underlying claim for 16 discrimination, harassment or retaliation. See Cal. Code Regs. tit. 2, § 11023(a)(2) (“In order for a 17 private claimant to establish an actionable claim under Government Code section 12940(k), the 18 private claimant must also plead and prevail on the underlying claim of discrimination, harassment, 19 or retaliation.”); Dickson, 234 Cal. App. 4th at 1314. Because plaintiff’s complaint does not contain 20 factual allegations tied to any of the elements of a discrimination, harassment or retaliation claim, 21 plaintiff’s claims for failure to prevent discrimination and failure to prevent harassment also are 22 insufficiently pleaded and must be dismissed. 23 4. Retaliation Claim 24 “To establish a prima facie case of FEHA retaliation, a plaintiff must allege and 25 ultimately show: (i) that she engaged in a protected activity; (ii) the employer subjected her to an 26 adverse employment action; and (iii) a causal link existed between her protected activity and the 27 employer’s action.” Ayala v. Frito Lay, Inc., 263 F. Supp. 3d 891, 911 (E.D. Cal. 2017) (citing 28 1 Dawson v. Entek Int’l, 630 F.3d 928, 936 (9th Cir. 2011); Poland v. Chertoff, 494 F.3d 1174, 1180 2 (9th Cir. 2007); Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005)); see also Guz, 24 3 Cal. 4th at 354 (“Because of the similarity between state and federal employment discrimination 4 laws, California courts look to pertinent federal precedent when applying our own statutes.”). 5 Plaintiff does not plead facts to support any of these elements, and therefore does not state a claim 6 for retaliation under FEHA. 7 5. Reasonable Accommodation Claim 8 FEHA makes it an unlawful employment practice “[f]or an employer . . . to fail to 9 make reasonable accommodation for the known physical or mental disability of an applicant or 10 employee.” Cal. Gov’t Code § 12940(m). “In order to state a claim for failure to provide reasonable 11 accommodation, [a p]laintiff must allege that [she] suffers from a physical or mental disability, that 12 [she] is a qualified individual, and that Defendant failed to reasonably accommodate Plaintiff's 13 disability.” Alejandro v. ST Micro Elecs., Inc, 129 F. Supp. 3d 898, 910 (N.D. Cal. 2015) (citing 14 Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 256 (2000)). Plaintiff has not pleaded any of 15 these elements here, and therefore has not adequately plead a claim for failure to provide reasonable 16 accommodation under FEHA. 17 6. Failure to Engage in Good Faith in an Interactive Process 18 “Under FEHA, an employer's failure ‘to engage in a timely, good faith, interactive 19 process with the employee . . . to determine effective reasonable accommodations’ is a violation of 20 the statute separate from any failure to make reasonable accommodations for a qualified employee's 21 disability.” Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 799–800 (N.D. Cal. 2015) (quoting 22 Cal. Gov’t Code § 12940(n)); Wilson v. Cnty. of Orange, 169 Cal. App. 4th 1185, 1193 (2009). 23 “FEHA imposes on employers a mandatory obligation to engage in the interactive process once an 24 employee requests an accommodation for his or her disability, or when the employer itself 25 recognizes the need for one.” Achal, 114 F. Supp. 3d at 800 (citing Brown v. Lucky Stores, Inc., 26 246 F.3d 1182, 1188 (9th Cir. 2001)). “Once initiated, the employer has a continuous obligation 27 to engage in the interactive process in good faith.” Id. (citing Swanson v. Morongo Unified Sch. 28 Dist., 232 Cal. App. 4th 954, 971 (2014), as modified on denial of reh’g (Dec. 23, 2014)). The 1 interactive process “requires communication and good-faith exploration of possible 2 accommodations between employers and individual employees with the goal of identifying an 3 accommodation that allows the employee to perform the job effectively.” Yeager v. Corr. Corp. of 4 Am., 944 F. Supp. 2d 913, 919 (E.D. Cal. 2013). 5 “To prevail on a section 12940(n) claim, an employee must identify a reasonable 6 accommodation that would have been available at the time the interactive process should have 7 occurred.” Achal, 114 F. Supp. 3d at 800 (citing Nealy v. City of Santa Monica, 234 Cal. App. 4th 8 359, 379 (2015)). Plaintiff has not adequately alleged facts suggesting she required an 9 accommodation in the first place, nor that defendant was aware plaintiff needed an accommodation. 10 Thus, plaintiff’s claim for failure to engage in an interactive process must also be dismissed for 11 failure to state a claim. 12 B. Federal Claims (Claims 8–9) 13 Plaintiff pleads two federal claims: discrimination in violation of Title VII of the 14 Civil Rights Act and discrimination in violation of the Age Discrimination in Employment Act 15 (ADEA). See Compl. at 16–17. 16 1. Title VII of the Civil Rights Act Claim 17 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended, 18 “prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. 19 Title VII prohibits both intentional discrimination (known as ‘disparate treatment’) as well as, in 20 some cases, practices that are not intended to discriminate but in fact have a disproportionately 21 adverse effect on minorities (known as ‘disparate impact’).” Ricci v. DeStefano, 557 U.S. 557, 577 22 (2009). 23 i. Disparate Treatment 24 “Under McDonnell Douglas, a plaintiff alleging disparate treatment under Title VII 25 must first establish a prima facie case of discrimination.” Chuang v. Univ. of California Davis, Bd. 26 of Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000) (citing McDonnell Douglas Corp. v. Green, 411 27 U.S. 792 (1973)). “Specifically, the plaintiff must show that (1) [s]he belongs to a protected class; 28 (2) [s]he was qualified for the position; (3) [s]he was subject to an adverse employment action; and 1 (4) similarly situated individuals outside [her] protected class were treated more favorably.” Id. 2 (citing McDonnell Douglas, 411 U.S. at 802). 3 ii. Disparate Impact 4 “A claim of disparate impact challenges ‘employment practices that are facially 5 neutral in their treatment of different groups but that in fact fall more harshly on one group than 6 another and cannot be justified by business necessity.’” Stout v. Potter, 276 F.3d 1118, 1121 (9th 7 Cir. 2002) (quoting Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977); 8 42 U.S.C. § 2000e-2(k)(1)(A)(i)). “A plaintiff establishes a prima facie case of disparate impact 9 by showing a significant disparate impact on a protected class caused by a specific, identified, 10 employment practice or selection criterion.” Id. at 1121–22 (citing Wards Cove Packing Co., Inc. 11 v. Atonio, 490 U.S. 642, 656–57 (1989); Rose v. Wells Fargo & Co., 902 F.2d 1417, 1424 (9th Cir. 12 1990). “It is not sufficient to present evidence raising an inference of discrimination on a disparate 13 impact claim. The plaintiff ‘must actually prove the discriminatory impact at issue.’” Id. (citing 14 Rose, 902 F.2d at 1421). 15 Because plaintiff has not sufficiently pleaded the elements of a disparate treatment 16 or disparate impact claim, her discrimination claim under Title VII must be dismissed. 17 2. ADEA Claim 18 The ADEA makes it unlawful for an employer “to fail or refuse to hire or to 19 discharge any individual [over 40 years of age] or otherwise discriminate against any [such] 20 individual with respect to [] compensation, terms, conditions, or privileges of employment, because 21 of such individual’s age.” 29 U.S.C. §§ 623(a)(1), 631(a). “The criteria applied to a Title VII 22 discrimination claim also apply to claims arising under the ADEA.” Palmer v. United States, 794 23 F.2d 534, 537 (9th Cir. 1986). However, “[t]he discrimination prohibited by the ADEA is 24 discrimination ‘because of [an] individual’s age,’ 29 U.S.C. § 623(a)(1), [and] the prohibition is 25 ‘limited to individuals who are at least 40 years of age,’ § 631(a).” O’Connor v. Consol. Coin 26 Caterers Corp., 517 U.S. 308, 312 (1996). A plaintiff alleging discrimination under the ADEA 27 may also proceed under two theories of liability: disparate treatment or disparate impact. Palmer, 28 794 F.2d at 536. For the same reasons discussed above, plaintiff has not adequately pleaded the 1 elements of an ADEA claim; therefore, plaintiff’s claim must be dismissed for failure to state a 2 claim. 3 IV. CONCLUSION 4 The motion to dismiss is GRANTED, with leave to amend. Within 21 days, plaintiff 5 may file an amended complaint addressing the shortfalls reviewed above, if she is able to while 6 complying fully with Federal Rule of Civil Procedure 11. 7 This order resolves ECF No. 3. 8 IT IS SO ORDERED. 9 DATED: September 20, 2019. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28