Mark J. Concialdi v. Jacobs Engineering Group Inc. et al

NOTICE OF MOTION AND MOTION for Judgment on the Pleadings

C.D. Cal.September 21, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT’S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES Vince M. Verde, CA Bar No. 202472 vince.verde@ogletree.com Thomas B. Song, CA Bar No. 271907 thomas.song@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Park Tower, Suite 1500 695 Town Center Drive Costa Mesa, CA 92626 Telephone: 714.800.7900 Facsimile: 714.754.1298 Attorneys for Defendant JACOBS ENGINEERING GROUP INC. (erroneously sued as Jacobs Engineering Group) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION MARK J. CONCIALDI Plaintiff, v. JACOBS ENGINEERING GROUP, EDD PAGANO, and DOES 1-100, inclusive, Defendants. Case No. 2:17-cv-01068 FMO (GJSx) DEFENDANT JACOBS ENGINEERING GROUP INC.’S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES [Filed concurrently with Request for Judicial Notice, Declaration of Thomas Song, and [Proposed] Order] Date: October 19, 2017 Time: 10:00 a.m. Ctrm: 6D Honorable Fernando M. Olguin Complaint Filed: December 9, 2016 Trial Date: March 20, 2018 Case 2:17-cv-01068-FMO-GJS Document 32 Filed 09/21/17 Page 1 of 10 Page ID #:258 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANT’S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES TO PLAINTIFF MARK J. CONCIALDI AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on October 19, 2017, at 10:00 a.m., or as soon thereafter as the matter may be heard before The Honorable Fernando M. Olguin in Courtroom 6D of the above-entitled Court, located at 350 W. 1 st Street, Los Angeles, California 90012, Defendant Jacobs Engineering Group Inc. (“Defendant”) will move the Court for judgment on the pleadings in favor of Defendant as to Plaintiff Mark Concialdi’s (“Plaintiff”) claims for (1) discrimination on the basis of disability, (2) harassment on the basis of disability, (3) retaliation for complaining of discrimination and/or harassment on basis of disability, (4) discrimination on the basis of age, (5) harassment on the basis of age, (6) retaliation for complaining of discrimination and/or harassment on basis of age, (7) failure to provide reasonable accommodation, and (8) failure to engage in the interactive process. This motion is made pursuant to Federal Rule of Civil Procedure 12(c), on the grounds that Plaintiff failed to exhaust administrative remedies as to his Fair Employment and Housing Act (“FEHA”) claims as alleged in the First through Eighth causes of action. This motion is based on this Notice, the Memorandum of Points and Authorities, Request for Judicial Notice, Declaration of Thomas B. Song, and all pleadings and records on file in this action and upon such oral and/or documentary evidence or argument that may be presented at hearing. This motion is made following the conference of counsel pursuant to Local Rule 7-3 which took place on September 8, 12, and 14, 2017. / / / / / / / / / / / / Case 2:17-cv-01068-FMO-GJS Document 32 Filed 09/21/17 Page 2 of 10 Page ID #:259 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANT’S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES DATED: Sept. 20, 2017 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: /s/ Thomas B. Song Vince M. Verde Thomas B. Song Attorneys for Defendant JACOBS ENGINEERING GROUP INC. Case 2:17-cv-01068-FMO-GJS Document 32 Filed 09/21/17 Page 3 of 10 Page ID #:260 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DEFENDANT’S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant Jacobs Engineering Group Inc. (“Defendant”) seeks judgment on the pleadings with respect to the following eight causes of action in Plaintiff’s complaint that are based on violations of the Fair Employment and Housing Act (“FEHA”): (1) discrimination on the basis of disability, (2) harassment on the basis of disability, (3) retaliation for complaining of discrimination and/or harassment on basis of disability, (4) discrimination on the basis of age, (5) harassment on the basis of age, (6) retaliation for complaining of discrimination and/or harassment on basis of age, (7) failure to provide reasonable accommodation, (8) failure to engage in the interactive process. (Compl., Dkt. No. 1-1, Ex. A.) Each of the above FEHA causes of action is jurisdictionally barred because Plaintiff Mark Concialdi (“Plaintiff”) failed to properly exhaust his administrative remedies. The FEHA requires that an employee file a complaint with the Department of Fair Employment and Housing (“DFEH”) that sets forth the particulars of any FEHA violations prior to filing a lawsuit. Although Plaintiff filed a complaint with the DFEH on July 12, 2016, the complaint did not set forth the requisite particulars to satisfy FEHA’s exhaustion requirement. In fact, Plaintiff’s charge lacks any factual allegations whatsoever, and instead merely lists various theories of liability under the FEHA. Furthermore, Plaintiff cannot cure the defect in his DFEH complaint, as Plaintiff’s time to file the complaint has expired. Because Plaintiff failed to exhaust his administrative remedies and any attempt to amend his DFEH complaint would be futile, Defendant’s Motion for Judgment on the Pleadings as to the First through Eighth causes of action should be granted without leave to amend. / / / / / / Case 2:17-cv-01068-FMO-GJS Document 32 Filed 09/21/17 Page 4 of 10 Page ID #:261 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DEFENDANT’S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES II. STATEMENT OF FACTS This is an employment action filed by Plaintiff against Defendant Jacobs Engineering Group Inc. (“Defendant”). 1 Plaintiff filed his civil complaint on December 9, 2016, and alleges that he timely exhausted his administrative remedies by filing a complaint with the DFEH (“DFEH complaint”) and receiving a right-to- sue letter. (Compl. ¶ 17, Dkt. No. 1-1, Ex. A.) Plaintiff filed his DFEH complaint on July 12, 2016. See Ex. A to Request for Judicial Notice (“RJN”) – DFEH complaint, p. 5, Bates No. MC00069. The entirety of Plaintiff’s complaint is as follows: 1. Respondent Jacobs is subject to suit under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). Complainant believes respondent is subject to the FEHA. 2. On or around April 12, 2016, complainant alleges that respondent took the following adverse actions against complainant: Discrimination, Harassment, Retaliation Asked impermissible non-job-related questions, Denied a good faith interactive process, Denied a work environment free of discrimination and/or retaliation, Denied reasonable accommodation, Terminated. Complainant believes respondent committed these actions because of their: Age - 40 and over, Disability, Engagement in Protected Activity. 3. Complainant Mark Concoaldi [sic] resides in the City of Santa Monica, State of California. If complaint includes co-respondents please see below. Under the section providing for “Additional Complaint Details,” Plaintiff only lists “None that were valid.” Ex. A to RJN – DFEH complaint, p. 7, Bates No. MC00071. 1 Plaintiff dismissed individual defendant Edd Pagano on July 28, 2017. (Dkt. No. 30 – Notice of Dismissal). Case 2:17-cv-01068-FMO-GJS Document 32 Filed 09/21/17 Page 5 of 10 Page ID #:262 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DEFENDANT’S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES III. ARGUMENT A. Legal Standard Defendant may move for judgment on the pleadings after the pleadings are closed but early enough not to delay trial. Fed. R. Civ. P. 12(c). “A Rule 12(c) motion for judgment on the pleadings permits challenges directed at the legal sufficiency of the complaint and applies substantially the same standard as is applicable to Rule 12(b)(6) motions.” Miles v. Napolitano (C.D. Cal., Mar. 15, 2012), 2012 WL 12878319, at *1. Judgment on the pleadings is proper when, after accepting all factual allegations in the complaint as true, the moving party is still entitled to judgment as a matter of law. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). B. Plaintiff Failed to Exhaust Administrative Remedies As To His First through Eighth Causes of Action. Prior to pursuing a claim under the FEHA, a plaintiff must file an administrative complaint with the DFEH within one year of the date of the alleged unlawful employment practice. Govt. Code, § 12960(d); Williams v. City of Belvedere, 72 Cal.App.4th 84, 92-93 (1999). The timely filing of an administrative complaint is a jurisdictional prerequisite to the bringing of a civil action for damages under FEHA. Johnson v. City of Loma Linda, 24 Cal.4th 61, 70 (2000). Where the claimed unlawful practice is an unlawful discharge, the one-year period is measured from the date of the discharge. Romano v. Rockwell Int'l, Inc., 14 Cal.4th 479, 493 (1996). A party making an administrative complaint must “set forth the particulars” of the alleged unlawful practices. Cal. Gov’t. Code § 12960(b); Martin v. Lockheed Missiles & Space Co., 29 Cal.App.4th 1718, 1724 (1994) (holding that before a plaintiff can sue on an allegedly unlawful act, the plaintiff “must specify that act in the administrative complaint”). In order to obtain an immediate right to sue letter, Case 2:17-cv-01068-FMO-GJS Document 32 Filed 09/21/17 Page 6 of 10 Page ID #:263 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 DEFENDANT’S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff’s DFEH complaint must include “a description of the alleged act or acts of discrimination, harassment or retaliation.” 2 Cal. Code Regs. § 10005(d) (emphasis added); Ex. A to RJN, Bates No. MC00067 (immediate right to sue letter). Plaintiff’s FEHA claims fail because he has not satisfied “the requirement that an administrative charge be filed identifying with specificity the discrimination alleged and the facts supporting it, including the nature of the disability claimed. The purpose of the charge is to supply fair notice of the facts, sufficient to permit investigation.” Hobson v. Raychem Corp., 73 Cal.App.4th 614, 631 (1999) (emphasis added), disapproved of on other grounds by Colmenares v. Braemar Country Club, Inc., 29 Cal.4 th 1019 (2003). When a plaintiff fails to provide sufficient facts in his administrative complaint, any subsequent lawsuit is statutorily barred. Hobson v. Raychem Corp., supra, 73 Cal.App.4th at 631 (“The law is quite clear that if an employee fails to file an administrative charge specifically identifying the alleged discrimination, and within one year of its occurrence, the subsequent lawsuit will be barred.”). The recent case of Alejandro Vizcaino v. Areas USA, Inc. (C.D. Cal., April 17, 2015), 2015 WL 13573816 (“Vizcaino”), is illustrative. In Vizcaino, the plaintiff made claims of gender discrimination, sexual harassment, and retaliation. See Ex. B to RJN, Alejandro Vizcaino v. Areas USA, Inc., 2015 WL 13573816 at *3. The Court concluded that the DFEH complaint was deficient because it “did not contain any facts whatsoever that could be construed as a claim based on gender discrimination.” Id. The Court also held that the complaint only contained “vague and conclusory allegations of sexual harassment,” and thus failed to exhaust his administrative remedies regarding any potential sexual harassment claim. Id. The Court additionally held that the DFEH complaint was insufficient as to plaintiff’s retaliation claim, even though Plaintiff provided some facts to support his allegation of retaliation. Specifically, the plaintiff alleged that “The Complainant was terminated when he complained about . . . his supervisor’s sexual advances.” Id. Case 2:17-cv-01068-FMO-GJS Document 32 Filed 09/21/17 Page 7 of 10 Page ID #:264 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DEFENDANT’S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES The Court found the entire DFEH complaint deficient due to lack of facts in support of his various FEHA claims, and therefore held that Plaintiff failed to exhaust his administrative remedies. The claims were dismissed without leave to amend. Id.; see also Okoli v. Lockheed Technical Operations Co. 36 Cal.App.4th 1607, 1613 (1995) (to exhaust administrative remedies, plaintiff “must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts”). Here, Plaintiff’s DFEH complaint is even more deficient than the complaint in Vizcaino, as it does not allege any facts at all. Instead, it identifies various possible theories of liability under the FEHA, alleging harassment, discrimination, retaliation, denied good faith interactive process/reasonable accommodation, with each of these alleged unlawful actions based on age, disability, and engagement in protected activity. See Ex. A to RJN. Despite this list of unlawful employment practices, Plaintiff fails to state a single fact constituting alleged discrimination, harassment, retaliation, or a failure to accommodate or engage in good faith interactive process. Id. Plaintiff’s DFEH complaint does not even describe the nature of his alleged disability, his age, the names of any alleged harassers, or any other details of the alleged unlawful actions. In other words, Plaintiff’s DFEH charge gives no factual basis as to why he believes he was subjected to retaliation, discrimination, or harassment, or denied a reasonable accommodation or good faith interactive process. Plaintiff’s broad allegations contain mere legal conclusions with no factual basis, and are insufficient as a matter of law to properly exhaust Plaintiff’s administrative remedies. The DFEH complaint does not provide any “facts supporting” Plaintiff’s claims, but rather alleges that Defendant violated some provision of the FEHA. Such a broad, conclusory DFEH charge does not satisfy the requirement of filing an administrative claim. Hobson v. Raychem Corp., supra, 73 Cal.App.4th at 630 (administrative charge must be filed identifying “with specificity the discrimination alleged and the facts supporting it, including the nature of the Case 2:17-cv-01068-FMO-GJS Document 32 Filed 09/21/17 Page 8 of 10 Page ID #:265 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 DEFENDANT’S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES disability claimed.”); Martin v. Lockheed Missiles & Space Co., supra, 29 Cal.App.4th at 1724. C. Leave to Amend Should Be Denied Because No Amendment Can Cure Plaintiff’s Failure to Exhaust Administrative Remedies. In this instant matter, there is no amendment that Plaintiff can make to cure the deficiency in his DFEH complaint. Specifically, Plaintiff was required to exhaust his administrative remedies within one (1) year of the alleged adverse action before bringing his civil suit. Cal. Govt. Code, § 12960(d). Where the claimed unlawful practice is termination of employment, the one-year period is measured from the date of the discharge. Romano v. Rockwell Int'l, Inc. 14 Cal.4th 479, 493 (1996). It is undisputed that Plaintiff was terminated well over a year ago, on or around April 12, 2016. Ex. A to RJN, p. 5, Bates No. MC00069 (listing termination date of April 12, 2016). Plaintiff therefore cannot meet the requirement of filing a sufficient DFEH complaint within one year of his termination. As a result, Plaintiff cannot cure the defects argued in this motion, and the Court should not grant Plaintiff leave to amend. IV. CONCLUSION For all the foregoing reasons Defendant respectfully requests that the Court grant Defendant’s Motion for Judgment on the Pleadings as it relates to Plaintiff’s first, second, third, fourth, fifth, sixth, seventh, and eighth causes of action. DATED: Sept. 20, 2017 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: /s/ Thomas B. Song Vince M. Verde Thomas B. Song Attorneys for Defendant JACOBS ENGINEERING GROUP INC. Case 2:17-cv-01068-FMO-GJS Document 32 Filed 09/21/17 Page 9 of 10 Page ID #:266 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE PROOF OF SERVICE I am and was at all times herein mentioned over the age of 18 years and not a party to the action in which this service is made. At all times herein mentioned I have been employed in the County of Orange in the office of a member of the bar of this court at whose direction the service was made. My business address is 695 Town Center Drive, Suite 1500, Costa Mesa, CA 92626. On September 21, 2017, I served the following document(s): DEFENDANT JACOBS ENGINEERING GROUP INC.’S NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS; MEMORANDUM OF POINTS AND AUTHORITIES by placing a true and correct copy thereof in a sealed envelope addressed as follows: Carney R. Shegerian, Esq. Mahru Madjidi, Esq. SHEGERIAN & ASSOCIATES 225 Santa Monica Blvd., Suite 700 Santa Monica, CA 90401 310-860-0770; Fax No: 310-860-0771 cshegerian@shegerianlaw.com mmadjidi@shegerianlaw.com Attorneys for Plaintiff: MARK J. CONCIALDI BY MAIL: I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the practice of Ogletree, Deakins, Nash, Smoak & Stewart P.C.’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. BY CM/ECF: With the Clerk of the United States District Court of California, using the CM/ECF System. The Court’s CM/ECF System will send an e-mail notification of the foregoing filing to the parties and counsel of record who are registered with the Court’s CM/ECF System. (Federal) I declare that I am employed in the office of a member of the State Bar of this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the above is true and correct. Executed on September 21, 2017, at Costa Mesa, CA. Dianna Kinnamon Type or Print Name Signature 31247135.1 Case 2:17-cv-01068-FMO-GJS Document 32 Filed 09/21/17 Page 10 of 10 Page ID #:267