Opinion
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT AND DENYING DEFENDANT'S MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT (Docket Nos. 5, 7)
EDWARD M. CHEN, Magistrate Judge.
Plaintiff Jay Jelincic has filed suit against Defendant Xerox Corporation for various causes of action related to his termination by Xerox. Now pending before the Court is Xerox's motion to dismiss the claims for (1) age harassment, (2) failure to prevent age harassment, (3) retaliation under the FMLA, (4) retaliation under the FEHA, and (5) intentional infliction of emotional distress ("IIED"). Xerox has also moved the Court to strike the words "harassing" and "[California Government Code §] 12940(j)" from paragraph 26 of Mr. Jelincic's complaint.
I. DISCUSSION
A. Legal Standard
For a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), a court must take all allegations of material fact in the complaint as true and construe them in the light most favorable to the nonmoving party. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337 (9th Cir. 1996). A complaint should not be dismissed for failure to state a claim unless plaintiff can prove no set of facts in support of his or her claim that would entitle him to relief. See id. at 337-38.
As for a motion to strike, under Federal Rule of Civil Procedure 12(f), a court may strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). A court "must view the pleading[] under attack in the light more favorable to the pleader." Lazar v. Trans Union LLC, 195 F.R.D. 665, 669 (C.D. Cal. 2000). A motion to strike is "generally not granted unless it is clear that matter to be stricken could have no possible bearing on the subject matter of litigation.'" Id. ; see also Colaprico v. Sun Microsystems, Inc., 758 F.Supp. 1335, 1339 (N.D. Cal. 1991) (same).
B. Age Harassment
Xerox argues that Mr. Jelincic's claim for age harassment should be dismissed pursuant to Rule 12(b)(6) because, based on the complaint as it currently stands, it is not clear what acts constitute the harassing conduct. Mr. Jelincic simply alleges in conclusory terms that he was harassed without providing any other information about the harassment. In his response, Mr. Jelincic contends that he does not need to provide any information about what acts constitute the harassment because the Federal Rules of Civil Procedure require only notice pleading and Xerox is on notice that Mr. Jelincic claims he was harassed because of his age and because of his complaint about the elimination of his position. In support of this argument, Mr. Jelincic primarily relies on Swierkiewicz v. Sorema, 534 U.S. 506 (2002), which held that a plaintiff is not required to allege a prima facie case of disparate treatment at the pleading stage. See id. at 508; see also Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) (concluding that it would be enough for a complaint alleging racial discrimination to withstand a 12(b)(6) motion by simply stating "I was turned down for a job because of my race").
In Swierkiewicz, the Supreme Court held that a claim for disparate treatment need not "contain specific facts establishing a prima facie case of discrimination"; rather, under Federal Rule of Civil Procedure 8, "an employment discrimination complaint... must contain only a short and plain statement of the claim showing that the pleader is entitled to relief.'" Swierkiewicz, 534 U.S. at 508. In the instant case, the claim being challenged is not one for disparate treatment but rather one for harassment. Even so, there is no reason why the analysis in Swierkiewicz should not also apply to a claim for harassment. In other words, given Swierkiewicz, the Court agrees with Mr. Jelincic that a plaintiff need not plead a prima facie case of harassment in order to survive a motion to dismiss.
That being said, this does not relieve a plaintiff of his responsibility to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. '" Swierkiewicz, 534 U.S. at 512 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957); emphasis added). In Swierkiewicz, the complaint for age and national origin discrimination survived defendant's motion to dismiss because it detailed the "events leading to [plaintiff's] termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination." Swierkiewicz, 534 U.S. at 514. Moreover, the Court quoted with approval Federal Rules of Civil Procedure Form 9 which sets forth an example negligence claim. Id. at 513, n.4. Importantly, the allegation contained in that form sets forth a date, place, and the general manner of alleged negligence.
Ninth Circuit case law supports the conclusion that a claim of harassment needs more than just a conclusory statement such as "I was harassed." Notably, in McHenry v. Renne, 85 F.3d 1172 (9th Cir. 1996) - a case cited by Mr. Jelincic - the Ninth Circuit stated that a complaint must "fully [set] forth who is being sued, for what relief, and on what theory, with enough details to guide discovery. " Id. at 1177 (emphasis added).
In contrast, in the instant case, Mr. Jelincic has not provided any information about the alleged age harassment except to say that it occurred. It is not known whether the claim of harassment is based solely on the acts of employment discrimination already alleged in the complaint (see below) or whether it encompasses verbal abuse or other acts more traditionally associated with harassment.
Mr. Jelincic argues that he has made sufficient allegations to support his claim for age harassment, citing paragraphs 13-19 and 26 of his complaint. However, paragraphs 13-19 discuss only the termination of his employment and make no specific reference to "harassment, " nor do any of the other facts alleged in the complaint suggest anything that would amount to harassment. Mr. Jelincic himself refers to the elimination of his position as "discriminatory." Under Janken v. G.M. Hughes Electronics, 46 Cal.App.4th 55 (1986), harassment under California law is separate and distinct from discrimination. See id. at 63-64. "Termination of employment" is specifically referenced as conduct falling under "discrimination" rather than "harassment" because it "arise[s] out of the performance of necessary personnel management duties." Id. at 63. Paragraph 17 is a conclusory statement that might support a claim for disparate treatment but, in the absence of anything further such as allegations of verbal epithets, derogatory posters, or the like, see id., it is difficult to see how the alleged acts in and of themselves constitute a claim for harassment.
Paragraph 17 states in part that "Xerox wrongfully terminated plaintiff's employment because plaintiff had complained about the discriminatory elimination of his position." Compl. ¶ 17.
To the extent other conduct constituting more traditional firms of harassment might be alleged, as Plaintiff's counsel intimated at the hearing, there must be some allegation that makes clear such conduct is being alleged. Affording the defendant fair notice of a harassment claim (as distinct from a straight discrimination claim) is important because there are different legal consequences between these two kinds of claims. There are material differences as to proof, discovery, liability, and affirmative defenses. For example, on the issue of liability, strict liability is imposed on an employer for "discrimination" by supervisors and agents in violation of California Government Code § 12940(a). See Carter v. California Dep't of Veterans Affairs, 121 Cal.App.4th 840, 853 n. 13 (2004). While strict liability may also be imposed on an employer for "harassment" by supervisors in violation of § 12940(j)(1), that "strict liability is not absolute liability in the sense that it precludes all defenses, " State Dep't of Health Servs. v. Superior Court, 31 Cal.4th 1026, 1042 (2003) (emphasis added); depending on the circumstances, an employer may have affirmative defenses to a claim of harassment that do not apply to a claim of discrimination. Furthermore, employer liability for harassment by employees other than supervisors or agents ( e.g., by co-workers) raises distinctly different legal and factual issues. See Cal. Gov't Code § 12940(j) (containing a subsection explaining the standard of proof for "harassment" by "an employee, other than agent or supervisor" in order for an employer to be held liable). Because different legal issues are implicated in a claim for harassment, compared to a claim for discrimination, it is important that - even for simple notice pleading - the defendant have a more concrete sense of what the Plaintiff contends constitutes the harassing conduct and not just the conclusory statement that "I was harassed."
Because Mr. Jelincic has made only a conclusory allegation of age harassment, he has not satisfied the notice pleading standard required by Rule 8. The Court therefore dismisses the claim for age harassment but without prejudice. Mr. Jelincic shall be given twenty (20) days from the date of this order to amend this claim.
The Court notes that, although Mr. Jelincic has not formally cited a violation of California Government Code § 12940(a) (covering "discrimination, " i.e., disparate treatment), and has only cited instead a violation of § 12940(j) (covering "harassment"), Xerox does not dispute that Mr. Jelincic has properly alleged a cause of action for disparate treatment under§ 12940(a).
C. Failure to Prevent Age Harassment
For the same reasons stated above for the claim of age harassment, the Court dismisses the claim for failure to prevent age harassment but gives Mr. Jelincic twenty (20) days to amend.
D. Retaliation under FMLA and FEHA
In his complaint, Mr. Jelincic alleges that he was wrongfully terminated because he "complained about the discriminatory elimination of his position" by Xerox. Compl. ¶ 17. Xerox asserts that the claims for retaliation, both under the FMLA and FEHA, should be dismissed because Mr. Jelincic has not alleged a "causal link" between his complaint about discrimination and his termination. Mot. at 4-5. As made clear from paragraph 17, however, Mr. Jelincic has clearly asserted a causal connection between the complaint and the termination.
The FMLA states that "[i]t shall be unlawful for any employer to discharge or any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter." 29 § U.S.C. 2615(a)(2). Similarly, the FEHA makes it unlawful "[f]or any employer... to discharge... or otherwise discriminate against any person because the person has opposed any practices for bidden under this part." Cal. Gov't Code § 12940(h).
Xerox contends still that, as a matter of law, Mr. Jelincic has not alleged facts supporting retaliation because he claims that Xerox made its decision to terminate him before he complained about the elimination of his position. In other words, according to Mr. Jelincic's own allegation, Xerox did not fire Mr. Jelincic because he complained about discrimination; rather, the termination of his employment was simply a "follow through" on the original decision to fire him.
However, the allegations are not necessarily inherently inconsistent and do not preclude a retaliation claim. Taking as true the allegations in Mr. Jelincic's complaint and construing the allegations in his favor, the Court finds that it is possible that Xerox's conduct was retaliatory. For example, it is conceivable that, when Xerox told Mr. Jelincic that he had a choice of either being fired or being forced to relocate, it did not conclusively plan to fire him; it may have been hoping that, when faced with this stated choice, Mr. Jelincic would choose relocation. It was only when Mr. Jelincic complained that he was being discriminated against that Xerox made the "final" decision to fire him. Moreover, the finder of fact could find against Mr. Jelincic on the first allegation, concluding that Xerox did not actually threaten to him if he did not relocate, but then find in his favor on the second allegation that Xerox did fire him when he complained. In this regard, the allegations would be construed as asserting claims in the alternative.
The Court therefore denies Xerox's motion to dismiss the claims for retaliation.
As noted by Xerox at the hearing on the motion to dismiss, the FMLA prohibits not only retaliation against an individual for opposing any practice made unlawful by the statute but also interference with an individual's exercise of any right under the statute. Compare 29 U.S.C. § 2615(a)(2) (discrimination or retaliation), with id. § 2615(a)(1) (interference). Xerox does not dispute that Mr. Jelincic has properly stated a claim for interference by alleging that he was terminated because he invoked his right to leave for up to twelve weeks under the FMLA. See § 2612(A)(1)(d).
E. IIED
The elements of a cause of action for IIED are as follows: "(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress." Cole v. Fair Oaks Fire Protection Dist., 43 Cal.3d 148, 155 n.7 (1987) (stating that a prima facie case for IIED requires the above elements). Xerox argues that Mr. Jelincic's IIED claim should be dismissed for two reasons: (1) because the cause of action is preempted by the California Workers' Compensation Act ("WCA") and (2) because Mr. Jelincic has failed to allege outrageous conduct.
1. California Workers' Compensation Act
Xerox argues that, while Mr. Jelincic's discrimination claims are not preempted by the WCA, his claim for IIED is preempted. This argument is without merit. In Accardi v. Superior Ct, 17 Cal.App.4th 341 (1993), a state court addressed this very issue of whether a claim for IIED - based on the same facts as those underlying a discrimination claim - is preempted. See id. at 345 ("We further hold that a claim of emotional distress arising out of sexual harassment is not preempted by workers' compensation law."). In Accardi, plaintiff was once a police officer with the City of Simi Valley. See id. She alleged causes of action for sexual harassment in violation of FEHA, constructive discharge, intentional interference with business relationship, and IIED. See id. Defendants demurred "upon the ground that the causes of action for sexual harassment and intentional infliction of emotional distress are preempted by the exclusive provisions of workers' compensation laws." Id.
The court held first that the discrimination claim was not preempted: "Discrimination in employment is not a normal incident of employment. A claim for damages under the Fair Employment and Housing Act (FEHA) is not preempted by the workers' compensation act." Id. at 347. It then addressed the IIED claim. The court began by conceding that "[e]motional distress caused by misconduct in employment relations involving, for example, promotions, demotions, criticism of work practices, negotiations as to grievances, is a normal part of the employment environment. A cause of action for such a claim is barred by the exclusive remedy provisions of the workers' compensation law." Id. at 352. However, the court then went on to say that
[t]he Legislature... did not intend that an employer be allowed to raise the exclusivity rule for the purpose of deflecting a claim of discriminatory practices.
Thus, a claim for emotional and psychological damage, arising out of employment, is not barred where the distress is engendered by an employer's illegal discriminatory practices. A responsible attorney handling an employment discrimination case must plead a variety of statutory, tort and contract causes of action in order to fully protect the interests of his or her client. Although the common law theories do not per se relate to discrimination, they are nonetheless a standard part of a plaintiff's arsenal in a discrimination case.
Id. (internal quotation marks omitted). The court concluded by stating:
[Plaintiff's] cause of action for emotional distress relates to the same set of facts as alleged in the claim of discrimination. Her discrimination claims are based upon allegations of actions outside the normal part of her employment environment. Therefore, her claim for discrimination is not barred by the exclusivity provisions of workers' compensation law.
Id. at 353.
Other courts have reached the same conclusion as the court in Accardi. See, e.g., Bragg v. E. Bay Reg'l Park Dist., No. C-02-3585 PJH, 2003 U.S. Dist. LEXIS 23423, at *22 (N.D. Cal. Dec. 19, 2003) (acknowledging that, "where a plaintiff has a viable claim of discriminatory treatment, " IIED is "conduct that is not part of the normal employer-employee relationship" such that the WCA exclusivity rule would not apply; "but where the statutory cause of action [for discrimination] has been dismissed, any remaining cause of action for emotional distress is barred by workers' compensation exclusivity"); Chavira v. Payless Shoe Source, 140 F.R.D. 441, 446 (E.D. Cal. 1991) ("Here plaintiff's intentional infliction of emotional distress claim arises out he alleged incidents of sex and ethnicity discrimination, thus is not preempted by the workers' compensation exclusivity doctrine."); Murray v. Oceanside Unified School Dist., 79 Cal.App.4th 1338, 1363 (2000) ("[W]here a plaintiff can allege that she suffered emotional distress because of a pattern of continuing violations that were discriminatory, her cause of action for infliction of emotional distress will not be barred by the exclusivity provisions of workers' compensation laws."); cf. Leibert v. Transworld Systems, Inc., 32 Cal.App.4th 1693, 1706-07 (1995) ("Appellant's emotional distress claim is premised upon the same alleged actions of his employer that support his [wrongful termination in violation of public policy] claim. As explained above, these alleged actions constitute discrimination in violation of a fundamental public policy of this state. Such misconduct lies outside of the exclusive remedy provisions of the Labor Code.").
Given Accardi and the above cases, the Court concludes that the WCA does not preempt Mr. Jelincic's claim for IIED.
2. Outrageous Conduct
As noted above, one of the elements of a claim for IIED is outrageous conduct. Xerox contends that Mr. Jelincic's claim for IIED should be dismissed because he has failed to allege any facts showing such conduct. Relying on Janken v. G.M. Hughes Electronics, supra, 46 Cal.App.4th 55, Xerox argues that, as a matter of law, there cannot be outrageous conduct when an employer simply engages in personnel management activity (such as a termination), even if the employer has an improper motivation. See id. at 80 ("A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged.").
Janken is inapposite. In Janken, the issue was when an individual supervisor - and not the employer - should be liable for discrimination and IIED. As alleged by plaintiffs, the individual supervisors "downgraded or altered plaintiffs' performance appraisals; demoted, terminated or laid off plaintiffs; failed to promote or failed to transfer plaintiffs; [and] failed to provide plaintiffs with salaries commensurate with their qualifications." Id. at 79. The court held that plaintiffs' claim of discrimination against the individual supervisors failed because the supervisors' actions "were within the realm of properly delegated personnel management authority." Id. at 79. Similarly, the court concluded that the individual supervisors could not be held liable for IIED because "[m]anaging personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society." Id. at 80.
The court, however, expressly noted that plaintiffs' employer could still be held liable for discrimination even if the individual supervisors could not. See id. at 80 ("Since we have concluded that only employers - and not individual supervisory employees - are at risk of liability for discrimination, and since only discrimination is alleged here, the trial court was correct in dismissing the individual supervisory employees."). While the court did not comment on whether the employer, as opposed to the individual supervisors, could be held liable for IIED related to the discrimination, it did not foreclose that possibility. See id. ("If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.").
The Court concludes that, contrary to what Xerox argues, a claim for IIED is possible even if the alleged wrongdoing by the employer consists only of personnel management activity such as a termination. In reaching this conclusion, the Court finds Phillips v. Gemini Moving Specialists, 63 Cal.App.4th 563 (1998), persuasive. Janken did not address the issue of employer liability for a claim for IIED. As the cases discussed above indicate, other courts have: A claim for IIED may lie when the plaintiff states a claim for intentional unlawful employment discrimination. In Phillips, the court held that a claim for IIED is properly pleaded in conjunction with a cause of action for wrongful discharge in violation of public policy. See id. at 577 ("[A] plaintiff can recover for infliction of emotional distress if he or she has a tort cause of action for wrongful termination in violation of public policy or wrongful termination in violation of an express statute because then, emotional distress damages are simply a component of compensatory damages.") (emphasis in original).
In the instant case, Mr. Jelincic has asserted a claim for wrongful termination in violation of public policy (as reflected in the FMLA and FEHA) as well as claims for discrimination and retaliation. See, e.g., Mora v. Chem-Tronics, Inc., 16 F.Supp.2d 1192, 1232 (S.D. Cal. 1998) (stating that "as a matter of law plaintiff can bring a [FMLA] claim for wrongful discharge in violation of public policy"); Stevenson v. Superior Court, 16 Cal.4th 880, 897 (1997) (stating that "FEH[A]... support[s] a common law tort claim for wrongful discharge in violation of public policy"). Therefore, his claim for IIED is not barred at this pleading stage.
Xerox also argues that Yurick v. Superior Court, 209 Cal.App.3d 1116 (1989) sets a standard for outrageous conduct that should be followed here. In Yurick, the plaintiff alleged verbal abuse which the court concluded was not outrageous conduct. See id. at 1119 and 1130. However, it appears that Plaintiff's claim is based, at least in part, upon acts of discrimination and retaliation in violation of public policy, and not just verbal abuse.
That being said, the Court agrees with Xerox that the complaint does not delineate the outrageous conduct by Xerox or its employees giving rise to the IIED claim. Because Xerox is entitled to fair notice of the general conduct which Mr. Jelincic asserts as his IIED claim, Mr. Jelincic is ordered to provide a more definite statement in support of this claim. As stated by one treatise, if "a pleading is so vague or ambiguous' that a party cannot reasonably frame a response, the party is entitled to a more definite statement under [Federal] Rule [of Civil Procedure] 12(e)." 2-12 Moore's Fed. Prac. - Civ. § 12.36[2]; see also id. § 12.36[1] (noting that courts have occasionally ordered more definite statements sua sponte); 5C Wright & Miller, Fed. Prac. & Proc. Civ. 3d § 1378 ("[W]hen a party moves to dismiss for failure to state a claim under Rule 12(b)(6) but the district judge feels that a motion under Rule 12(e) would be more appropriate, some courts automatically treat the motion as one for a more definite statement."); Forti v. Suarez Mason, 675 F.Supp. 1531, 1541 (N.D. Cal. 1987) (stating that plaintiffs' conclusory allegations of official torture in support of international tort claim "probably suffice, for the purposes of liberal federal pleading rules, to put defendant on notice" but that "it is preferable that plaintiffs state the specific acts on which they base the allegation[s]"; thus, ordering plaintiffs to amend their claim and provide a more definite statement under Rule 12(e)). The more definite statement shall be filed within twenty (20) days from the date of this order.
F. Motion to Strike
Xerox has moved the Court to strike the words "harassing" and "[California Government Code §] 12940(j)" from paragraph 26 of the complaint. Because the Court has dismissed (with leave to amend) the claims for age harassment and failure to prevent age harassment, the Court denies the motion to strike without prejudice as moot.
II. CONCLUSION
For the foregoing reasons, the Court hereby GRANTS Xerox's motion to dismiss with respect to the claims for age harassment and failure to prevent age harassment; however, Mr. Jelincic has leave to amend these claims within twenty (20) days from the date of this order. The Court DENIES the motion to dismiss with respect to the claims for retaliation under the FMLA and FEHA. Finally, for the claim of IIED, the Court DENIES the motion to dismiss but orders a more definite statement to be provided within twenty (20) days from the date of this order. The motion to strike is DENIED without prejudice as moot.
This order disposes of Docket Nos. 5 and 7.
IT IS SO ORDERED.