Adrian Martin v. HD Supply et al

NOTICE OF MOTION AND MOTION to Dismiss Case / Defendants' Motion to Dismiss Plaintiff's First Amended Complaint

C.D. Cal.February 3, 2017

B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 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 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:16-cv-09100-SJO-MRWx Sabrina L. Shadi, Bar No. 205405 Julie Kwun, Bar No. 243838 BAKER & HOSTETLER LLP 11601 Wilshire Boulevard, Suite 1400 Los Angeles, CA 90025-0509 Telephone: 310.820.8800 Facsimile: 310.820.8859 Emails: sshadi@bakerlaw.com jkwun@bakerlaw.com Attorneys for Defendants HD SUPPLY, INC.; HD SUPPLY FACILITIES MAINTENANCE, LP; and HD SUPPLY MANAGEMENT, INC. IN THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ADRIAN MARTIN, an individual, Plaintiff, v. HD SUPPLY a Florida corporation doing business in California; HD SUPPLY FACILITIES MAINTENANCE, LP, a Florida company doing business in California; HD SUPPLY MANAGEMENT CO, INC., a Florida corporation doing business in California; RANDY J. KENT an individual, ART HERNANDEZ, an individual and DOES 1 through 10, Inclusive, Defendant. Case No. 2:16-cv-09100-SJO-MRWx Honorable S. James Otero, Crtm. 10C DEFENDANTS HD SUPPLY, INC., HD SUPPLY FACILITIES MAINTENANCE, LP AND HD SUPPLY MANAGEMENT, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: March 6, 2017 Time: 10:00 a.m. Crtm: 10C [Concurrently filed with Declaration of Julie Kwun; Request for Judicial Notice; and (Proposed) Order] Action Filed: November 3, 2016 Action Removed: December 8, 2016 FAC Filed: January 20, 2017 Case 2:16-cv-09100-SJO-MRW Document 14 Filed 02/03/17 Page 1 of 9 Page ID #:219 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 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 i DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:16-cv-09100-SJO-MRWx TO PLAINTIFF AND PLAINTIFF’S ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN that on March 6, 2017 at 10:00 a.m., or as soon thereafter as counsel may be heard by the above-entitled Court, located at 350 W. First Street, Los Angeles, California 90012, HD Supply, Inc. (erroneously sued as HD Supply), HD Supply Facilities Maintenance, LP, and HD Supply Management, Inc. (erroneously sued as HD Supply Management Co, Inc.) will, and hereby do, move the Court, under Federal Rule of Civil Procedure 12(b)(6), for an order to dismiss the First through Fifth Causes of Action in the First Amended Complaint filed by Adrian Martin (“Plaintiff”). This motion is made on the grounds that the First through Fifth Causes of Action fail because Plaintiff fails to establish exhaustion of administrative remedies as required under California’s Fair Employment and Housing Act. This motion is made following the conference of counsel pursuant to L.R. 7- 3 which took place by telephone on January 25, 2016, by email on January 26, 2017, and by telephone on January 31, 2017. This motion is based on this notice, the accompanying memorandum of points and authorities, Declaration of Julie Kwun, Request for Judicial Notice, as well as all pleadings, papers and records on file in this action, and such other oral argument and documentary evidence as may be presented at or before the time of the hearing of this motion. Dated: February 3, 2017 BAKER & HOSTETLER LLP By: /s/ Julie Kwun SABRINA L. SHADI JULIE KWUN Attorneys for Defendants HD SUPPLY, INC.; HD SUPPLY FACILITIES MAINTENANCE, LP; and HD SUPPLY MANAGEMENT, INC. Case 2:16-cv-09100-SJO-MRW Document 14 Filed 02/03/17 Page 2 of 9 Page ID #:220 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 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 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:16-cv-09100-SJO-MRWx MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION After the parties met and conferred regarding the deficiencies of the Complaint, Adrian Martin (“Plaintiff”) filed his First Amended Complaint (the “FAC”) against HD Supply, Inc. (erroneously sued as HD Supply), HD Supply Facilities Maintenance, LP, and HD Supply Management, Inc. (erroneously sued as HD Supply Management Co, Inc.) (collectively, the “HD Supply Defendants”). However, the FAC still fails to cure the deficiencies of the Complaint’s failure to establish exhaustion of administrative remedies. Exhaustion of administrative remedies is a prerequisite to Plaintiff’s pursuit of his First through Fifth Causes of Action under California’s Fair Employment and Housing Act (“FEHA”). On its face, the Complaint failed because Plaintiff alleged to have filed his complaint with the Department of Fair Employment and Housing (“DFEH”) outside of the limitations period on November 3, 2015. To remedy this, the FAC alleges that the administrative complaint was filed a few months earlier on August 17, 2015. Contrary to Plaintiff’s contention, however, Plaintiff’s DFEH file demonstrates that no verified complaint has been filed by Plaintiff at any time. As discussed below, Plaintiff fails to establish that he filed a complaint with the DFEH that: 1) was timely, 2) is verified, 3) sets forth the particulars of his claims, and 4) states the names and addresses of each of the three named defendants. Because Plaintiff cannot establish exhaustion of administrative remedies, the First through Fifth Causes of Action in the FAC should be dismissed with prejudice. II. STATEMENT OF FACTS A. Procedural History. On November 3, 2016, Plaintiff filed a Complaint (the “Complaint”) against the HD Supply Defendants, Randy J. Kent, and Art Hernandez in the Superior Court of the State of California, in and for the County of Los Angeles. On December 8, 2016, the HD Supply Defendants removed the case to this Court. On Case 2:16-cv-09100-SJO-MRW Document 14 Filed 02/03/17 Page 3 of 9 Page ID #:221 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 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 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:16-cv-09100-SJO-MRWx January 13, 2017, the HD Supply Defendants filed a Rule 12(b)(6) Motion to Dismiss the Complaint. On January 20, 2017, Plaintiff filed the FAC. 1 B. Plaintiff’s Allegations. Plaintiff alleges that he was employed with the HD Supply Defendants 2 from July 2011 to September 25, 2014. (FAC ¶¶ 13, 24, 25.) In his First through Fifth Causes of Action, Plaintiff alleges violations of FEHA, codified at California Government Code §§12900 et seq. Specifically, Plaintiff asserts claims for discrimination, retaliation, failure to participate in the interactive process, failure to provide reasonable accommodations, and failure to prevent harassment, discrimination and/or retaliation. 3 The FAC alleges as follows: On or about April 2, 2013, Plaintiff sustained an injury to his back and knees. (FAC ¶ 14.) The HD Supply Defendants granted Plaintiff’s request for “time off to care for his disability as a reasonable accommodation.” (FAC ¶ 17.) On or about January 1, 2014, Plaintiff returned to work with work restrictions. (FAC ¶ 20.) On or about May 21, 2014, Plaintiff took “approved FMLA/CFRA leave.” (FAC ¶ 21.) Thereafter, Plaintiff remained on leave through the time his employment terminated on September 25, 2014. (FAC ¶¶ 21-25.) /// /// /// 1 The FAC withdraws the cause of action for harassment and individual defendants Randy Kent and Art Hernandez. 2 Without conceding that the HD Supply Defendants were Plaintiff’s employer, the “HD Supply Defendants” are referred to as the employer for purposes of this Motion based on the allegations in Plaintiff’s Complaint that they employed Plaintiff. (FAC ¶¶ 6-10.) 3 Plaintiff also alleges in his Sixth Cause of Action that his termination was in violation of California’s public policy. (FAC ¶¶ 103-111.) Without admitting any liability, the HD Supply Defendants have not sought the dismissal of the Sixth Cause of Action in this Motion. Case 2:16-cv-09100-SJO-MRW Document 14 Filed 02/03/17 Page 4 of 9 Page ID #:222 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 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 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:16-cv-09100-SJO-MRWx III. ANALYSIS A. Legal Standard For Motion To Dismiss. A complaint fails to state a cause of action if there are insufficient facts alleged under a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t., 901 F. 2d 696, 699 (9th Cir. 1990). Conclusory allegations or legal conclusions unsupported by specific, supporting facts will not suffice to prevent a motion to dismiss. Ashcraft v. Iqbal, 556 U.S. 662, 678-79 (2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcraft, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that defendant is liable for the misconduct alleged.” Id. (citing Twombley, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Any legal conclusions presented in the complaint as factual allegations are disregarded in this determination. Id. at 678-79. With regard to Plaintiff’s purported First through Fifth causes of action, as discussed below, Plaintiff cannot meet his burden, and accordingly those claims should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure. B. Plaintiff Fails to Establish Exhaustion of Administrative Remedies for All FEHA Claims. Plaintiff’s First through Fifth Causes of Action fail because the FAC does not establish sufficient exhaustion of administrative remedies. The timely filing of a complaint with the DFEH is a prerequisite to an action under California’s FEHA. See Thompson v. City of Monrovia, 186 Cal. App. 4th 860, 879 (2010). Failure to do so is “a jurisdictional, not a procedural, defect.” Okoli v. Lockheed Tech. Ops. Co., 36 Cal. App. 4th 1607, 1611 (1995). Case 2:16-cv-09100-SJO-MRW Document 14 Filed 02/03/17 Page 5 of 9 Page ID #:223 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 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 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:16-cv-09100-SJO-MRWx Exhaustion under FEHA requires the filing of a written charge with the DFEH within one year of the alleged unlawful practice. Cal. Govt. C. § 12960(d). A written charge must: 1) be verified, 2) state the particulars of the alleged discriminatory practice, and 3) state the names and addresses of those alleged to have committed it. Cal. Govt. C. § 12960(b). Unverified information relayed to the DFEH, whether in writing or orally, before filing an administrative complaint does not exhaust one’s administrative remedies. See Govt. Code § 12960; Cole v. Antelope Valley Union High School Dist. (1996) 47 Cal.App.4th 1505, 1515 (holding that unverified written or oral materials to the DFEH is no substitute for a formal charge). Because the scope of the written administrative charge defines the permissible scope of the subsequent civil action, facts contained in materials other than the verified complaint cannot be the basis for liability. Rodriguez v. Airborne Express, 265 F.3d 890, 894-898 (9th Cir. 2001); Yurick v. Superior Court, 209 Cal.App.3d 1116, 1121-23 (1989). Here, Plaintiff alleges that the “HD Defendants” informed him about the termination of his employment by telephone on September 16, 2014 and by letter on or about September 25, 2014. (FAC ¶¶ 24-25.) Plaintiff does not allege any FEHA violations after September 25, 2014. Thus, construing Plaintiff’s allegations in the light most favorable to him, it can be reasonably inferred from the FAC that the last incident of alleged violations of the FEHA took place no later than Plaintiff’s last day of employment on September 25, 2014. In the Complaint, Plaintiff initially asserted that he filed a complaint with the DFEH on November 3, 2015, which is more than one year after the last alleged instance of any FEHA violation could have occurred. (Dkt. # 1; Compl. ¶ 14.) Thus, Plaintiff failed to identify with specificity any conduct violating the FEHA within the limitations period. See Thompson, 186 Cal. App. 4th at 879 (noting that plaintiff filed his complaint with the DFEH on September 21, 2007, “so conduct before September 21, 2006 cannot serve as a basis for liability. . .”). Without Case 2:16-cv-09100-SJO-MRW Document 14 Filed 02/03/17 Page 6 of 9 Page ID #:224 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 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 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:16-cv-09100-SJO-MRWx explanation, the FAC attempts to resolve this fatal defect by alleging that Plaintiff filed a complaint with the DFEH on August 17, 2015. (FAC ¶ 12.) For the reasons discussed below, Plaintiff’s self-serving allegation should be disregarded. Contrary to his contention, Plaintiff’s DFEH file contains no complaint. See Request for Judicial Notice (“RJN”), Exhibit (“Exh.”) A; Declaration of Julie Kwun ¶ 2; Intri-Plex Techs., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (facts subject to judicial notice may be considered on a motion to dismiss). Because Plaintiff’s allegations that a complaint was filed with the DFEH on August 17, 2015 or November 3, 2015 contradict the contents of his DFEH file, they should be disregarded for purposes of this motion. See Mullis v. U.S. Bankruptcy Court for the District of Nevada, 828 F.2d 1385, 1388, 1394 (9th Cir. 1987)(holding that, on a motion to dismiss, the court need not accept as true allegations that contradict facts which may be judicially noticed by the court). Had a complaint been filed with the DFEH, Plaintiff would have included the charge as an exhibit to his Complaint or the FAC, which he has not. For this reason alone, Plaintiff cannot satisfy his burden to establish exhaustion of his administrative remedies. See Jumaane v. City of Los Angeles, 241 Cal. App. 4th 1390, 1402 (2015) (it is a plaintiff’s burden to plead and prove the timely filing of a sufficient DFEH complaint). Even interpreting the DFEH file in the light most favorable to Plaintiff, there is no indication that Plaintiff filed a verified and formal complaint. A DFEH document dated August 17, 2015 4 acknowledges the agency’s receipt of an inquiry from Plaintiff and provides that a DFEH representative will contact Plaintiff within the next 30 business days. See RJN, Exh. A, page10. But there is no further sign of a formal charge being filed. To the contrary, the DFEH explains, in a letter dated 4 August 17, 2015 is the purported date in the FAC that Plaintiff “exhausted his administrative remedies by filing complaints with the [DFEH].” (FAC ¶ 12) Case 2:16-cv-09100-SJO-MRW Document 14 Filed 02/03/17 Page 7 of 9 Page ID #:225 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 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 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:16-cv-09100-SJO-MRWx March 24, 2016, that the reason for Plaintiff’s case closure is due to his failure to complete the pre-complaint process. See RJN, Exh. A, page 2. A pre-complaint inquiry, however, is insufficient to exhaust administrative remedies. In Rodriguez v. Airborne Express, 265 F.3d 890, 894-898 (9th Cir. 2001), the plaintiff sought to sue his former employer for disability discrimination. As the DFEH complaint asserted race discrimination, the Court concluded that the plaintiff failed to exhaust his administrative remedies to pursue disability discrimination. Id. at 897-898. During the pre-complaint procedure, according to the plaintiff, the basis for his disability claim was discussed with the DFEH investigator. Id. Rejecting plaintiff’s contentions, the Court held that oral statements to the investigator or unverified written materials to the DFEH do not satisfy the requirement of a formal written complaint. Id. (citing Cole v. Antelope Valley, supra, 47 Cal.App.4th at 1515); see also RJN, Exh. B (DFEH “Pre- Complaint Inquiry” form states, “The Pre-Complaint Inquiry is not a filed complaint.”) Likewise, nothing in Plaintiff’s DFEH file satisfies the requirement of a formal administrative charge and the FAC cannot survive dismissal based on any purported pre-complaint inquiry. Further, any contention that a right to sue letter satisfies the exhaustion requirement is equally unavailing. Exhaustion of administrative remedies is two- pronged: a) a timely and sufficient verified complaint, and b) a right to sue notice. See Cal. Gov. Code §§ 12960, 12965(b); Romano v. Rockwell Int’l, Inc., 14 Cal. 4th 479, 492 (1996). Simply, the latter does not satisfy the requirement of a verified and formal complaint. Moreover, the Right to Sue letter attached as Exhibit A to the FAC only shows the name “HD Supply.” Because the Right to Sue does not identify each of the HD Supply Defendants, Plaintiff has failed to demonstrate adequate exhaustion against all three named defendants. See Cal. Gov. C. § 12960(b) (a DFEH complaint “shall state the name and address of the person, employer…alleged to have committed the unlawful practice); Cole, supra, 47 Cal. Case 2:16-cv-09100-SJO-MRW Document 14 Filed 02/03/17 Page 8 of 9 Page ID #:226 B A K E R & H O S T E T L E R L L P A T T O R N E Y S A T L A W L O S A N G E L E S 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 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:16-cv-09100-SJO-MRWx App. 4th at 1515 (concluding that Section 12960 “clearly mandates” that an administrative complaint set forth the names of the defendant alleged to have committed a FEHA violation). Accordingly, Plaintiff’s FEHA claims are barred, and the First through Fifth Causes of Action against the HD Supply Defendants should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. IV. CONCLUSION For the reasons set forth above, the HD Supply Defendants respectfully request that this Court dismiss Plaintiff’s First, Second, Third, Fourth, and Fifth Causes of Action in the FAC with prejudice. Respectfully submitted, Dated: February 3, 2017 BAKER & HOSTETLER LLP By: /s/ Julie Kwun SABRINA L. SHADI JULIE KWUN Attorneys for Defendants HD SUPPLY, INC.; HD SUPPLY FACILITIES MAINTENANCE, LP; and HD SUPPLY MANAGEMENT, INC. Case 2:16-cv-09100-SJO-MRW Document 14 Filed 02/03/17 Page 9 of 9 Page ID #:227 1 2 3 4 5 6 7 8 9 10 11 0.. __, 12 __,;:: "' <( ~~ ~ r- r- __, "' <( "' 13 t;; ~ ~ ~ ~