Johnson et al v. United Continental Holdings, Inc. et al

MOTION to Dismiss Second Amended Complaint With Prejudice; Points and Authorities in Support Thereof

N.D. Cal.February 15, 2013

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 CASE NO. 3:12-CV-02730-MMC DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS DONNA M. MELBY (SB# 86417) donnamelby@paulhastings.com JENNIFER S. BALDOCCHI (SB# 168945) jenniferbaldocchi@paulhastings.com MELINDA A. GORDON (SB# 254203) melindagordon@paulhastings.com PAUL HASTINGS LLP 515 South Flower Street Twenty-Fifth Floor Los Angeles, CA 90071-2228 Telephone: 1(213) 683-6000 Facsimile: 1(213) 627-0705 GARY T. LAFAYETTE (SB# 088666) glafayette@lkclaw.com LAFAYETTE & KUMAGAI LLP 100 Spear Street, Suite 600 San Francisco, CA 94105 Telephone: 1(415) 357-4600 Facsimile: 1(415) 357-4605 Attorneys for Defendants UNITED AIRLINES, INC.; UNITED CONTINENTAL HOLDINGS, INC.; AND CONTINENTAL AIRLINES, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ELDRIDGE JOHNSON, MARIO ECUNG, LEON MILLER, XAVIER PALMER, KENNETH MONTGOMERY, ANNETTE GADSON, PAUL C. NOBLE, JOHNNIE E. JONES, Jr., FREDERICK ROBINSON, GLEN ROANE, DAVID RICKETTS, LESTER TOM, TERRY HAYNIE, SAL CROCKER, ANTHONY MANSWELL, KARL MINTER, ERWIN WASHINGTON, DARRYL WILSON, LEO SHERMAN, KEN HANEY, RICHARD JOHN, ODIE BRISCOE, and TERENCE HARTSFIELD, Plaintiffs, vs. UNITED CONTINENTAL HOLDINGS, INC.; UNITED AIR LINES, INC.; CONTINENTAL AIRLINES, INC.; and DOES 1-10, Defendants. CASE NO. 3:12-CV-02730-MMC DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS SECOND AMENDED COMPLAINT WITH PREJUDICE; POINTS AND AUTHORITIES IN SUPPORT THEREOF [DEFENDANTS’ MOTION TO STRIKE CONCURRENTLY FILED HEREWITH] Date: March 22, 2013 Time: 9:00 a.m. Courtroom: 7 Judge: Hon. Maxine M. Chesney Complaint filed: May 29, 2012 FAC filed: July 20, 2012 SAC filed: November 30, 2012 Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page1 of 32 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 TABLE OF CONTENTS Page CASE NO. 3:12-CV-02730-MMC -i- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS I. INTRODUCTION/SUMMARY OF ARGUMENTS ......................................................... 3 II. FACTUAL BACKGROUND ............................................................................................. 5 A. Defendants’ Background ......................................................................................... 5 B. Plaintiffs’ Background ............................................................................................ 5 1. Plaintiffs Have Varied Work Histories ....................................................... 5 2. Some Plaintiffs Filed Earlier Charges ......................................................... 6 C. The Second Amended Complaint ........................................................................... 6 1. Some Plaintiffs Identify Positions They Applied for; Others Do Not ........ 6 2. Most Plaintiffs Fail To Allege Any Applications For California Jobs. ............................................................................................................. 7 3. Plaintiffs Also Allege Defendants “Hand Picked” Candidates for Temporary Positions or Special Assignments............................................. 7 4. Plaintiffs Vaguely Allude to Discrimination In Compensation .................. 8 D. EEOC and DFEH Charges ...................................................................................... 8 III. PLAINTIFFS’ DISPARATE IMPACT CLAIMS FAIL AS A MATTER OF LAW ........ 9 A. Plaintiffs Lack Subject Matter Jurisdiction And Fail To State Disparate Impact Claims Because They Failed To Exhaust Their Administrative Remedies ................................................................................................................. 9 B. Plaintiffs’ Disparate Impact Discrimination Claims (Third, Fourth) Must Be Dismissed Because They Fail To Allege Sufficient Facts To State A Claim As Required By FRCP 8 ............................................................................ 12 IV. PLAINTIFF’S DISPARATE TREATMENT CLAIMS (THIRD, FOURTH, FIFTH) ALSO FAIL AS A MATTER OF LAW ............................................................. 15 A. Plaintiffs Lack Subject Matter Jurisdiction And Fail To State Disparate Treatment Claims Because They Failed To Exhaust Their Administrative Remedies As To Those Claims Not Mentioned In Their Charges Of Discrimination ....................................................................................................... 15 1. Plaintiffs Failed To Exhaust Administrative Remedies With Respect To Special Assignments And Compensation .............................. 16 2. Plaintiffs Failed To Exhaust Administrative Remedies For All Promotions Or Special Assignments That Allegedly Occurred After They Filed EEOC/DFEH Charges ............................................................ 17 3. Plaintiffs’ Claims Relating to Promotions Or Special Assignments That Allegedly Occurred Before The Limitations Period Covered By Their Respective EEOC/DFEH Charges Are Barred by the Statute of Limitations ................................................................................ 17 B. Plaintiffs’ Disparate Treatment Discrimination Claims Must Be Dismissed Because They Fail To Allege Sufficient Facts To State A Claim For Relief That Is Plausible On Its Face As Required By FRCP 8 ........................................ 18 Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page2 of 32 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 TABLE OF CONTENTS (continued) Page CASE NO. 3:12-CV-02730-MMC -ii- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS V. PLAINTIFFS’ RETALIATION CLAIMS (FIRST AND SECOND) FAIL AS A MATTER OF LAW .......................................................................................................... 20 A. Plaintiffs Lack Subject Matter Jurisdiction And Fail To State A Claim For Retaliation Claims Not Addressed In Their Administrative Charges, and Which Fall Outside the Limitations Period ........................................................... 20 B. Plaintiffs’ Retaliation Claims Must Be Dismissed Because They Fail To Allege Sufficient Facts To State A Claim For Relief That Is Plausible On Its Face As Required By FRCP 8 .......................................................................... 20 VI. PLAINTIFFS’ FEHA CLAIMS MUST BE DISMISSED BECAUSE FEHA HAS NO EXTRATERRITORIAL APPLICATION ................................................................. 23 VII. UNITED CONTINENTAL HOLDINGS, INC. MUST BE DISMISSED ....................... 24 A. Plaintiffs Failed To Exhaust Administrative Remedies With Respect To UCH ...................................................................................................................... 24 B. Plaintiffs’ UCH Claims Must Be Dismissed Pursuant To Rule 12(b)(6) ............. 24 VIII. CONCLUSION ................................................................................................................. 25 Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page3 of 32 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 TABLE OF AUTHORITIES Page(s) CASE NO. 3:12-CV-02730-MMC -iii- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS CASES Annett v. Univ. of Kan., 371 F.3d 1233 (10th Cir. 2004) ............................................................................................... 10 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................................... passim Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................................................... passim Bolden v. Walsh Constr. Co., 688 F.3d 893 (7th Cir. 2012) ............................................................................................. 13, 14 Brown v. Coach Stores, Inc., 163 F.3d 706 (2d Cir. 1998) .................................................................................................... 21 Campbell v. Arco Marine, Inc., 42 Cal. App. 4th 1850 (1996) ........................................................................................... 23, 24 Clopton v. Global Computer Assocs., 1995 WL 419831 (C.D. Cal. Mar. 27, 1995) .......................................................................... 23 Coe v. Yellow Freight Sys., Inc., 646 F.2d 444 (10th Cir. 1981) ................................................................................................. 14 De Los Santos v. Panda Express, Inc., 2010 U.S. Dist. LEXIS 127788 (N.D. Cal. Dec. 3, 2010) ................................................... 9-11 Donaldson v. Microsoft Corp., 205 F.R.D. 558 (W.D. Wash. 2001) ....................................................................................... 10 EEOC v. Farmer Bros. Co., 31 F.3d 891 (9th Cir. 1994) ..................................................................................................... 10 Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590 (1989) ................................................................................................... 25 Flait v. N. Am. Watch Corp., 3 Cal. App. 4th 467 (1992) ..................................................................................................... 21 Gay v. Waiters’ & Dairy Lunchmen’s Union, 694 F.2d 531 (9th Cir. 1982) ................................................................................................... 10 Gen. Dynamics Corp. v. Superior Court, 7 Cal. 4th 1164 (1994) ............................................................................................................ 21 Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page4 of 32 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 TABLE OF AUTHORITIES (continued) Page(s) CASE NO. 3:12-CV-02730-MMC -iv- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS Goethe v. State of Cal. Dep’t of Motor Vehicles, 2008 U.S. Dist. LEXIS 16164 (E.D. Cal. Feb. 20, 2008) ....................................................... 11 Gonsalves v. Infosys Techs., LTD, 2010 WL 1854146 (N.D. Cal. May 6, 2010) .................................................................... 23, 24 Gonzalez v. Ingersoll Milling Mach. Co., 133 F.3d 1025 (7th Cir. 1998) ........................................................................................... 20, 21 Grimes v. Texas Dep’t of Mental Health & Mental Retardation, 102 F.3d 137 (5th Cir. 1996) ................................................................................................... 21 Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) ................................................................................................................ 18 Ibarbia v. Regents of Univ. of Cal., 191 Cal. App. 3d 1318 (1987) ........................................................................................... 14, 19 Jackson v. United Parcel Serv., Inc., 643 F.3d 1081 (8th Cir. 2011), cert. denied, 132 S. Ct. 1075 (2012) ................................................................................................ 15, 17, 18 King v. Town of Hanover, 116 F.3d 965 (1st Cir. 1997) ................................................................................................... 21 Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) ................................................................................................................ 15 Levy v. Regents of Univ. of Cal., 199 Cal. App. 3d 1334 (1988) ................................................................................................. 18 Little v. United Techs., 103 F.3d 956 (11th Cir. 1997) ................................................................................................. 21 Marks v. Am. Airlines, Inc., 313 Fed. Appx. 933 (9th Cir. 2009) ........................................................................................ 23 McAdoo v. Toll, 591 F. Supp. 1399 (D. Md. 1984) ............................................................................................. 5 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ................................................................................................................ 18 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) ................................................................................................................ 15 Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page5 of 32 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 TABLE OF AUTHORITIES (continued) Page(s) CASE NO. 3:12-CV-02730-MMC -v- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS Okoli v. Lockheed Tech. Operations Co., 36 Cal. App. 4th 1607 (1995) ................................................................................................. 10 Okwuosa v. EDD, 143 Fed. Appx. 20 (9th Cir. 2005) .......................................................................................... 21 Pacheco v. Mineta, 448 F.3d 783 (5th Cir. 2006) ................................................................................................... 11 Petrosino v. Bell Atl., 385 F.3d 210 (2d Cir. 2004) .................................................................................................... 21 Robinson v. Geithner, 359 Fed. Appx. 726 (9th Cir. 2009) ................................................................................. passim Ross v. O’Leary, 1996 U.S. Dist. LEXIS 17605 (N.D. Cal. Nov. 8, 1996) ........................................................ 10 Rush v. McDonald’s Corp., 966 F.2d 1104 (7th Cir. 1992) ................................................................................................. 10 Schiff v. City and Cnty. of S.F., 816 F. Supp. 2d 798 (N.D. Cal. 2011) .................................................................................... 18 Semsroth v. City of Wichita, 304 Fed. Appx. 707 (10th Cir. 2008) ...................................................................................... 11 Shannon v. Ford Motor Co, 72 F.3d 678 (8th Cir. 1996) ..................................................................................................... 18 Stout v. Potter, 276 F.3d 1118 (9th Cir. 2002) ................................................................................................. 10 Tagupa v. Bd. of Dirs., 633 F.2d 1309 (9th Cir. 1980) ................................................................................................. 19 Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) ................................................................................................................ 18 Velez v. Janssen Ortho LLC, 467 F.3d 802 (1st Cir. 2006) ................................................................................................... 21 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) ............................................................................................ 4, 12, 13, 14 Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page6 of 32 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 TABLE OF AUTHORITIES (continued) Page(s) CASE NO. 3:12-CV-02730-MMC -vi- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS STATUTES 42 U.S.C. § 1981 .................................................................................................................... passim 42 U.S.C. § 2000e-2 ............................................................................................................... passim 42 U.S.C. § 2000e-3(a) ................................................................................................................. 20 42 U.S.C. § 2000e-5(e) ................................................................................................................. 15 42 U.S.C. § 2000e-5(e)(1) ...................................................................................................... 15, 17 CAL. GOV’T CODE § 12920 .................................................................................................... passim CAL. GOV’T CODE § 12940(a) ....................................................................................................... 25 CAL. GOV’T CODE § 12940(h) ...................................................................................................... 20 CAL. GOV’T CODE § 12960(d) ................................................................................................ 15, 17 RULES FED. R. CIV. P. 8 .................................................................................................................... passim FED. R. CIV. P. 8(a)(2) .................................................................................................................. 12 FED. R. CIV. P. 12(b)(1) .............................................................................................................. 1, 5 FED. R. CIV. P. 12(b)(6) .............................................................................................. 1, 2, 5, 12, 24 Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page7 of 32 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 CASE NO. 3:12-CV-02730-MMC -1- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS NOTICE OF MOTION AND MOTION TO DISMISS TO PLAINTIFFS AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 22, 2013, at 9:00 a.m., or as soon thereafter as the matter may be heard in Courtroom 7 of this Court, located at 450 Golden Gate Avenue, 19th Floor, San Francisco, California, before the Honorable Maxine M. Chesney, Defendants United Air Lines, Inc. (“United”); United Continental Holdings, Inc. (“UCH”); and Continental Airlines, Inc. (“Continental”) (collectively “Defendants”) will and hereby do move this Court for an order dismissing certain claims in Plaintiffs’ Second Amended Complaint (“SAC”) without leave to amend. This Motion to Dismiss without leave to amend is brought pursuant to Federal Rules of Civil Procedure (“FRCP”) 8, 12(b)(1) and 12(b)(6) on the following grounds. 1. All Plaintiffs fail to state a claim and lack subject matter jurisdiction under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-2, et seq. (“Title VII”) and the California Fair Employment and Housing Act, Cal. Gov’t Code §§ 12920 (“FEHA”) for their disparate impact claims because they did not exhaust administrative remedies; Plaintiffs have failed in the following particulars: (a) they failed to specify the type of claim in administrative charges for which relief is now sought in the SAC, including without limitation a failure to allege that any facially-neutral policy or practice had a disparate impact on African-American employees; (b) in multiple instances Plaintiffs seek relief in the SAC for alleged misconduct after the time of the filing of any administrative charge; and (c) they repeatedly failed to timely file an administrative charge during the applicable limitations period as required in order to exhaust administrative remedies under Title VII and FEHA. 2. All Plaintiffs fail to state a claim for disparate impact discrimination under Title VII and FEHA, because the SAC lacks specific facts necessary to assert a facially plausible claim for disparate impact discrimination and does not meet the minimum pleading requirements of FRCP 8, Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (“Iqbal”) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Twombly”). 3. Plaintiffs fail to state a claim and lack subject matter jurisdiction for disparate treatment discrimination under Title VII and FEHA, insofar as they did not exhaust Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page8 of 32 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 CASE NO. 3:12-CV-02730-MMC -2- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS administrative remedies as to any alleged unlawful employment conduct; in multiple instances Plaintiffs have failed in the following particulars: (a) they have failed to specify the type of claim in administrative charges for which relief is now sought in the SAC; (b) they seek relief in the SAC for alleged misconduct after the time of the filing of any administrative charge; and (c) they failed to timely file an administrative charge during the applicable limitations period as required in order to exhaust administrative remedies under Title VII and FEHA. 4. All Plaintiffs fail to state a claim for disparate treatment discrimination under Title VII, FEHA, and section 1981 of the 1866 Civil Rights Act, 42 U.S.C. § 1981 (“section 1981”), because the SAC lacks specific facts necessary to assert a facially plausible claim for disparate treatment discrimination and does not meet the minimum pleading requirements of FRCP 8, Iqbal, and Twombly. 5. Those Plaintiffs alleging retaliation fail to state a claim and lack subject matter jurisdiction under Title VII and FEHA to the extent they did not exhaust their administrative remedies as to any alleged unlawful employment conduct. In multiple instances Plaintiffs have failed in the following particulars: (a) they have failed to specify the type of claim in administrative charges for which relief is now sought in the SAC; (b) they seek relief in the SAC for alleged misconduct after the time of the filing of any administrative charge; and (c) they failed to timely file an administrative charge during the applicable limitations period as required in order to exhaust administrative remedies under Title VII and FEHA. 6. Those Plaintiffs alleging retaliation fail to state a claim for relief under Title VII and FEHA, because the SAC lacks specific facts necessary to assert a facially plausible retaliation claim and does not meet the minimum pleading requirements of FRCP 8, Iqbal, and Twombly. 7. All Plaintiffs based at airports outside California fail to state a claim for retaliation and/or discrimination under FEHA because FEHA does not have extraterritorial reach. 8. Defendant UCH must be dismissed for lack of subject matter jurisdiction and failure to state a claim because Plaintiffs failed to exhaust administrative remedies as to this particular defendant. Defendant UCH also must be dismissed pursuant to FRCP 8 and 12(b)(6) because it is a holding company that does not employ any of the Plaintiffs. Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page9 of 32 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 CASE NO. 3:12-CV-02730-MMC -3- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS This motion is based upon this Notice and Memorandum of Points and Authorities in support thereof; the accompanying Declaration of Jennifer S. Baldocchi (“Baldocchi Declaration”) and Request for Judicial Notice (“RJN”); the Court’s record in this action; all matters of which the Court may take judicial notice; and such documentary and oral evidence as may be presented at or before the hearing on this motion. DATED: February 15, 2013 DONNA M. MELBY By: /s/ Donna M. Melby DONNA M. MELBY Attorneys for Defendants UNITED AIRLINES, INC.; UNITED CONTINENTAL HOLDINGS, INC.; AND CONTINENTAL AIRLINES, INC. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION/SUMMARY OF ARGUMENTS Despite another opportunity to attempt to cure the serious defects in their First Amended Complaint, the Plaintiffs in this discrimination, retaliation and harassment case have, once again, failed to present viable claims. Instead, Plaintiffs have elected to again file one complaint on behalf of twenty three (23) different individuals, asserting a hodge-podge of claims and theories regarding promotions and special assignments, most of which are not legally cognizable or are otherwise improper because they are outside the statute of limitations and/or they have not properly exhausted their remedies as required to bring the action.1 The Second Amended Complaint (“SAC”) asserts muddled, ambiguous, and wholly unsupported claims for relief that fall woefully short of the foundation required by FRCP 8, Iqbal, and Twombly. Plaintiffs’ anticipated requests for yet another opportunity to amend or to conduct discovery should not be heeded. The law does not permit discovery as a fishing expedition to search for potential facts that might stick. Plaintiffs have had more than enough time and opportunity to adequately plead their claims. As such, dismissal with prejudice is appropriate as to the following: 1 Defendants expressly reserve, consistent with prior order of the Court, the right to move to dismiss or transfer for improper venue and to move to sever Plaintiffs claims. Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page10 of 32 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 CASE NO. 3:12-CV-02730-MMC -4- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS  Disparate Impact Claims: Plaintiffs’ disparate impact claims (Claims 3 and 4) should be dismissed because Plaintiffs failed to exhaust their administrative remedies. None of the Plaintiffs allege in their administrative charges that a facially-neutral policy or practice had a disparate impact on African-American employees. Additionally, the disparate impact claims should be dismissed because they fall far short of the mandates of FRCP 8, Iqbal, and Twombly. The SAC alleges that discrimination was perpetrated by unidentified managers through their exercise of discretion in making subjective employment decisions that supposedly adversely impacted the Plaintiffs. As Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (“Wal-Mart”) holds, this sort of alleged distributed decision-making, without more, does not amount to a specific employment practice, which is a required element. Likewise, many Plaintiffs have not alleged specific positions that they purportedly did not receive in connection with any disparate impact claim(s).  Disparate Treatment Claims: Plaintiffs’ disparate treatment claims (Claims 3, 4 and 5) should be dismissed to the extent that they have failed to exhaust their administrative remedies, either because, in multiple instances Plaintiffs have failed in the following particulars: (1) they have failed to specify the type of claim in administrative charges for which relief is now sought in the SAC; (2) they seek relief in the SAC for alleged misconduct after the time of the filing of any administrative charge; and (3) they failed to timely file an administrative charge during the applicable limitations period as required in order to exhaust administrative remedies under Title VII and FEHA. Like Plaintiffs’ disparate impact claims, their disparate treatment discrimination claims also fail to meet the minimum pleading requirements under FRCP 8, Iqbal, and Twombly and should be dismissed. The disparate treatment allegations are so general that it is impossible to even distinguish particular events supporting the claims, such as who the decision-maker was, what positions were allegedly not received as the basis of their disparate treatment complaints, when the discrimination occurred or even how their general legal conclusions of discrimination relate in any way to any of the 23 Plaintiffs.  Retaliation Claims: The retaliation claims alleged in Claims 1 and 2 by eleven Plaintiffs fail because they did not exhaust administrative remedies, as set forth above. Further, the Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page11 of 32 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 CASE NO. 3:12-CV-02730-MMC -5- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS retaliation claims are totally lacking in specific facts necessary to assert a facially plausible cause of action and fail to satisfy FRCP 8, Iqbal, and Twombly.  FEHA Claims: The FEHA claims (Claims 2, 4, and 7) of those Plaintiffs who are based at airports outside California should be dismissed since FEHA does not have extraterritorial reach.  Claims Against United Continental Holdings Inc.: All claims against Defendant United Continental Holdings, Inc. must be dismissed because Plaintiffs failed to exhaust administrative remedies and Plaintiffs do not allege being employed by this corporate entity (nor were they). II. FACTUAL BACKGROUND2 A. Defendants’ Background. As a result of a 2010 merger, Defendant United Continental Holdings, Inc. (“UCH”) was created as the holding company of two wholly-owned subsidiary airlines, United Air Lines Inc. (“United”) and Continental Airlines, Inc. (“Continental”). While all flights now operate under the “United” name, as of this date, United and Continental remain separate subsidiary companies. SAC ¶¶ 29-32. B. Plaintiffs’ Background. 1. Plaintiffs Have Varied Work Histories. Plaintiffs consist of 21 pilots and two airport supervisors. SAC ¶¶ 6-28. Plaintiffs Briscoe and Sherman are employed by Continental. SAC ¶¶ 324, 331. The other Plaintiffs are employed by United. SAC ¶¶ 76-336.3 No Plaintiff alleges specific facts in the SAC that he or she is employed by United Continental Holdings (and, as a matter of fact, UCH does not employ any Plaintiffs). The 23 Plaintiffs allege varied work experiences, with tenures ranging from 14 to over 30 years. SAC ¶¶ 6-28, 76-336. 2 Defendants’ FRCP 12(b)(6) motion relies only on the facts alleged in the SAC and in the RJN. Defendants’ FRCP 12(b)(1) motion also relies on evidence extrinsic to the SAC, which a court may consider to determine subject matter jurisdiction. Robinson v. Geithner, 359 Fed. Appx. 726, 728 (9th Cir. 2009) (considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for failure to exhaust administrative remedies; “When considering a factual challenge to subject matter jurisdiction, a court may rely on evidence extrinsic to the pleadings and is not required to presume the truthfulness of the complaint's allegations.”). 3 SAC ¶¶ 76, 91, 103, 116, 135, 157, 172, 184, 198, 214, 229, 240, 247, 254, 262, 268, 275, 291, 301, 308, 316, Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page12 of 32 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 CASE NO. 3:12-CV-02730-MMC -6- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS Each Plaintiff is based at a specific airport location which is referenced by an airport code. For instance, a pilot based in San Francisco will have a code of SFO. SAC ¶¶ 72, 73. Five Plaintiffs allege that they are based in California (Ecung, Miller, Palmer, Hartsfield, Johnson). SAC ¶¶ 6, 17, 18, 19, 26. The rest of the Plaintiffs are based outside of California. SAC ¶¶ 7-16, 20-25, 27-28. In all, the Plaintiffs are based at eight airports in seven different states.4 2. Some Plaintiffs Filed Earlier Charges. Eleven Plaintiffs previously brought EEOC claims against United (the “11 Plaintiffs”). SAC ¶¶ 59, 340. These eleven include Crocker, Gadson, John, Johnson, Jones, Minter, Montgomery, Noble, Roane, Tom, and Wilson. SAC section E at 15; SAC ¶ 340. The 11 Plaintiffs allege they engaged in protected activity through filing the prior EEOC claims. SAC ¶¶ 340-341. C. The Second Amended Complaint. The SAC filed by these 23 Plaintiffs alleges seven claims for relief against Defendants: (1) retaliation in violation of Title VII (brought by the 11 Plaintiffs); (2) retaliation in violation of FEHA (brought by the 11 Plaintiffs); (3) race discrimination in violation of Title VII (brought by all Plaintiffs); (4) race discrimination in violation of FEHA (brought by all Plaintiffs;); (5) race discrimination in violation of section 1981 (brought by all Plaintiffs;)5; (6) harassment in violation of Title VII (brought by Haynie); (7) harassment in violation of FEHA (brought by Haynie). Plaintiffs confusingly try to plead both a disparate impact and disparate treatment claim in Claims 3 and 4.6 1. Some Plaintiffs Identify Positions They Applied for; Others Do Not. The SAC is structured in a way that presents information about each Plaintiff, including his or her background and the positions sought by some (but not all) of the Plaintiffs. SAC ¶¶ 6- 28, 76-336. Plaintiffs allege the following number of applications in their individual allegations: 4 DEN, Colorado (Robinson); EWR, New Jersey (Gadson); IAD, Virginia (Haynie, Jones, Manswell, Minter, Montgomery, Ricketts, Roane, Wilson); IAH, Texas (Briscoe, Crocker, Haney, Sherman, Washington); JFK, New York (John, Noble); ORD, Illinois (Tom); LAX, California (Ecung, Miller, Palmer); SFO, California (Hartsfield, Johnson). SAC ¶¶ 6-28. 5 The timeframe on Claims 3-5 is limited to post February 2011 for the 11 Plaintiffs. 6 These claims are discussed separately below. Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page13 of 32 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 CASE NO. 3:12-CV-02730-MMC -7- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS No. Positions applied for Plaintiff Names 0 Ecung, Haney, Haynie, Miller, Palmer, Ricketts, Robinson, Sherman, Washington. SAC ¶¶ 240-246, 247-253, 254-261, 262-267, 268-274, 275-290, 301-307, 308-315, 331-336. 1 Briscoe, Gadson, Hartsfield, Manswell, Noble. SAC ¶¶ 167, 233, 298, 320, 327. 2 Tom. SAC ¶¶ 193-194. 4 Montgomery. SAC ¶¶ 222-225. 5 Johnson. SAC ¶ 84. 5 Minter. SAC ¶¶ 207-210. 13 Wilson. SAC ¶¶ 127, 129, 130. 17 Crocker, Jones. SAC ¶¶ 97, 111. 20 Roane. SAC ¶¶ 180. 22 John. SAC ¶¶ 143-152. Beyond listing the positions they applied for, each Plaintiff provides little or no information surrounding the applications, and all fail to allege specific facts showing retaliation or intentional discrimination with respect to any alleged non-promotion. See, e.g., SAC ¶¶ 87, 99, 112, 131, 153. 2. Most Plaintiffs Fail To Allege Any Applications For California Jobs.7 Twenty plaintiffs allege no job applications for positions in California (Briscoe, Ecung, Gadson, Haney, Hartsfield, Haynie, John, Johnson, Manswell, Miller, Minter, Montgomery, Noble, Palmer, Ricketts, Roane, Robinson, Sherman, Tom, Washington). SAC ¶¶ 6, 10-28, 84, 143-152, 167, 180, 193-194, 207-210, 222-225, 233, 240-246, 247-253, 254-261, 262-267, 268- 274, 275-290, 298, 301-307, 308-315, 320, 327, 331-336. Only three allege that they actually applied for positions in California (Crocker, Jones, Wilson). SAC ¶¶ 7-9, 98, 111, 127. 3. Plaintiffs Also Allege Defendants “Hand Picked” Candidates for Temporary Positions or Special Assignments. Plaintiffs also summarily, deficiently and erroneously claim that each “challenges all of the management positions that were ‘hand-picked’ by Defendants as articulated in paragraphs 71- 73.” See, e.g., SAC ¶ 88, 100, 113, 237. The positions in paragraphs 72-73 are California-based jobs that fall into two categories: temporary special assignments and promotions to permanent 7 This section addresses only jobs Plaintiffs actually submitted an application for in California. Plaintiffs identify several jobs in paragraphs 72-73 that are based in California that they did not actually apply for. Those are discussed in the next section. Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page14 of 32 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 CASE NO. 3:12-CV-02730-MMC -8- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS jobs. SAC ¶¶ 72, 73. The five permanent positions alleged in paragraphs 72-73 are: (1) the SFO Chief Pilot position (¶ 72); (2) the 2008 LAX Acting Chief Pilot position (¶ 73); (3) The 2009 LAX Flight Manager position (¶ 73); (4) the February 8, 2012 LAX B737 Line Check Airman position (¶ 73); and (5) the December 5, 2011 LAX B737 Line Check Airman position (¶ 73). The remaining positions in paragraphs 72-73 are “special assignments.” SAC ¶¶ 72-73. According to the SAC, most of the special assignments were filled recently, in September- November 2012. SAC ¶¶ 72-73. There are no facts in the SAC, however, that any Plaintiff applied for, was eligible for, qualified for, or expressed any interest whatsoever in these positions. There are no facts showing that any Plaintiff was in the pool of applicants considered for the positions in paragraphs 72 and 73, or that the Plaintiff did not receive a position due to discrimination or retaliation (or any other unlawful conduct). Finally, in paragraph 74, Plaintiffs allege that they “are challenging all management positions based nationwide that were filled via Defendants’ practice of hand-picking individuals.” SAC ¶ 74. This paragraph lists 23 additional alleged management positions, for which they claim to have been more qualified than the individuals selected.8 As with Paragraphs 72 and 73, there are no facts connecting the jobs to any alleged discrimination, retaliation or harassment, or to any Plaintiff, except Montgomery. Id. 4. Plaintiffs Vaguely Allude to Discrimination In Compensation. Plaintiffs’ compensation claims consist mainly of the term’s inclusion in boilerplate recitations that Defendants discriminate as to, or take actions with a discriminatory impact upon, “assignments, promotions and compensation.” See, e.g., ¶ 368. At no point do they even allege compensation was reduced as a result, much less how the reduction occurred or by how much. D. EEOC and DFEH Charges. Plaintiffs each allege that they filed complaints of discrimination with the California Department of Fair Employment and Housing (“DFEH”) and EEOC against United. In light of page limit constraints, the 23 Plaintiffs’ charges cannot be quoted and analyzed separately in this 8 In some cases, Plaintiffs list only the selected individual’s name, and not the position at issue; Defendants assume for purposes of this Motion only that these jobs are management positions. Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page15 of 32 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 CASE NO. 3:12-CV-02730-MMC -9- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS brief. Instead, they are submitted as exhibits to the Baldocchi Declaration and RJN. Baldocchi Dec. Exs. A-W; RJN Exs A-W. A sample DFEH charge, filed by Gadson, alleges, From 2009 to the present, I have been passed over for promotions. Less qualified non African American candidates have been selected for the higher management positions. United Airlines retaliated against me because I am part of the United Coalition, a group that filed discrimination charges in 2010. Baldocchi Dec. Ex. D; RJN Ex. D. A sample EEOC charge also filed by Gadson, states, Since 2009, I have been passed over for promotions. Higher management positions have been filled by less qualified non African-American candidates . . . I believe that I was discriminated against because of my race (African American), in violation of [] Title VII of the Civil Rights Act of 1964, as amended. I also believe that Respondent has retaliated against me because I am part of the United Coalition that filed discrimination charges against Respondent in 2010. Baldocchi Dec. Ex. D; RJN Ex. D. Plaintiffs’ charges are all filed between February 2012 and July 2012. Please see the attached Baldocchi declaration for dates that the Plaintiffs’ EEOC and DFEH charges were filed.9 III. PLAINTIFFS’ DISPARATE IMPACT CLAIMS FAIL AS A MATTER OF LAW Plaintiffs attempt to plead disparate impact in Claims 3 and 4.10 However, these claims fall short for two reasons: a) they lack subject matter jurisdiction and fail to state a claim in that Plaintiffs failed to exhaust their remedies, and b) they fail to state a claim under the Twombly/Iqbal standards. A. Plaintiffs Lack Subject Matter Jurisdiction And Fail To State Disparate Impact Claims Because They Failed To Exhaust Their Administrative Remedies. To establish subject matter jurisdiction and state a claim under Title VII or FEHA, each Plaintiff must exhaust administrative remedies as to the specific adverse employment action he or she challenges. De Los Santos v. Panda Express, Inc., 2010 U.S. Dist. LEXIS 127788, at *11 9 These charge dates are based on the date “received” by the agency to the extent Defendants have obtained this information, for example, through service copies or freedom of information act (“FOIA”) requests. Baldocchi Dec. ¶ 3-5, n. 1; 31-32. However, some charges do not show the “received” date. Id. To the extent this information is missing, Defendants use the sent date. Defendants reserve all rights to assert all defenses and arguments if and when additional information is discovered, including without limitation, the dates and charge allegations and the SOL limitations periods resulting therefrom. 10 Plaintiffs also attempt to plead disparate treatment claims in these Claims, inappropriately intermingling these two distinct claims in hopes that one will stick. The disparate treatment claim will be addressed in detail below. Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page16 of 32 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 CASE NO. 3:12-CV-02730-MMC -10- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS (N.D. Cal. Dec. 3, 2010) (“To establish subject matter jurisdiction over a Title VII claim, a plaintiff alleging federal employment discrimination claims must first exhaust his administrative remedies.”) (citing EEOC v. Farmer Bros. Co., 31 F.3d 891, 898 (9th Cir. 1994)); Okoli v. Lockheed Tech. Operations Co., 36 Cal. App. 4th 1607, 1613 (1995) (to bring FEHA claims in court, plaintiff must exhaust administrative remedies) (quotation marks, citations omitted). Disparate impact claims are separate and distinct from disparate treatment claims. In a disparate treatment case, a plaintiff must prove that the employer intentionally discriminated against her because of her race. Gay v. Waiters’ & Dairy Lunchmen’s Union, 694 F.2d 531, 537 (9th Cir. 1982). In contrast, to state a disparate impact claim, a plaintiff need not establish intentional discrimination. Rather, a plaintiff must show that the operation of a specific, facially- neutral employment policy or practice results in a significant statistical disparity among members of different racial groups. Stout v. Potter, 276 F.3d 1118, 1121-22 (9th Cir. 2002). Given these differences, a plaintiff cannot exhaust claims of disparate impact merely by asserting disparate treatment, or vice versa. Rather, “each discrete [discriminatory] action constitutes its own ‘unlawful employment practice for which administrative remedies must be exhausted.’” Annett v. Univ. of Kan., 371 F.3d 1233, 1238 (10th Cir. 2004) (citation omitted). Courts have declined to find disparate impact exhaustion where an administrative charge alleges only general facts of discrimination rather than the specific elements of a disparate impact claim. See, e.g., Rush v. McDonald’s Corp., 966 F.2d 1104, 1112 (7th Cir. 1992) (“We hold that it will not suffice to file general charges with the EEOC, as was done here, and then to expect that this allegation will permit all claims of race-based discrimination in a subsequent lawsuit.”); Ross v. O’Leary, 1996 U.S. Dist. LEXIS 17605, at *19-20 (N.D. Cal. Nov. 8, 1996) (statement that defendant engaged in “racially and/or ethnically motivated employment discrimination” was insufficient to exhaust disparate impact claim); Donaldson v. Microsoft Corp., 205 F.R.D. 558, 569-70 (W.D. Wash. 2001) (charge alleging that plaintiff’s negative evaluation was based on her race and sex exhausted a claim for disparate treatment but not disparate impact). Here, Plaintiffs’ charges allege no elements of a disparate impact claim. For example, Gadson’s EEOC charge states: Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page17 of 32 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 CASE NO. 3:12-CV-02730-MMC -11- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS Since 2009, I have been passed over for promotions. Higher management positions have been filled by less qualified non African-American candidates. Respondent has not given any reason for their actions. I believe that I was discriminated against because of my race (African American), in violation of the Title VII of the Civil Rights Act of 1964, as amended. Baldocchi Dec. Ex. D; RJN Ex. D. Plaintiffs’ charges do not reference a facially neutral policy or practice with significant discriminatory effect. Baldocchi Dec. Ex. A-W; RJN Ex. A-W. Because such a policy or practice is the crux of a disparate impact claim, Plaintiffs did not exhaust their administrative remedies. Id; Baldocchi Dec. Ex. X. Plaintiffs cannot now seek to litigate such claims before the Court. See, e.g., Semsroth v. City of Wichita, 304 Fed. Appx. 707, 720 (10th Cir. 2008) (failure to exhaust disparate impact claim where plaintiffs’ EEOC charges did not identify specific employment practices that resulted in disparate impact, or include factual allegations that would give rise to a reasonable expectation of an administrative investigation for disparate impact); Pacheco v. Mineta, 448 F.3d 783, 791-92 (5th Cir. 2006) (disparate impact claim not exhausted where plaintiff’s charge alleged he was passed over for promotion in favor of a “good old boy” and “fail[ed] to identify any neutral employment policy that would form the basis of a disparate-impact claim”); De Los Santos, 2010 U.S. Dist. LEXIS 127788, at *14-15 (plaintiffs failed to exhaust their disparate impact claims where they did not identify a neutral employment practice with a disproportionate effect on employees); Goethe v. State of Cal. Dep’t of Motor Vehicles, 2008 U.S. Dist. LEXIS 16164, at *19 (E.D. Cal. Feb. 20, 2008) (plaintiff failed to exhaust administrative remedies as to his disparate impact claim where he alleged that he was denied promotional opportunities and discriminated against because of his race, but did not allude to any specific policy or procedure that adversely affect African-Americans as a group). This Court should dismiss the disparate impact claims for all 23 Plaintiffs without leave to amend. See Robinson, 359 Fed. Appx. at 728-730 (if plaintiff failed to exhaust administrative remedies, claims are dismissed with prejudice).11 11 Even if Plaintiffs had exhausted administrative remedies as to their disparate impact claims - which they have not - their disparate impact claims still would be barred with respect to: special assignments and compensation discrimination, which was not alleged in any charges; claims related to promotions and/or special assignments that allegedly occurred after any administrative charges were filed; and claims relating to promotions and/or special assignments that allegedly occurred before the limitations period, as more specifically discussed infra in section III.A. Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page18 of 32 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 CASE NO. 3:12-CV-02730-MMC -12- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS B. Plaintiffs’ Disparate Impact Discrimination Claims (Third, Fourth) Must Be Dismissed Because They Fail To Allege Sufficient Facts To State A Claim As Required By FRCP 8. Even if any of the Plaintiffs have sufficiently exhausted their disparate impact claims, which they have not, they fail to allege a disparate impact claim with facial plausibility sufficient to satisfy FRCP 8 and 12(b)(6).12 A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. The tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of the elements, supported by mere conclusory statements. Id. (citing Twombly, 550 U.S. at 555-56). FRCP 8(a)(2) requires that the complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). Rule 8, however, does not empower Plaintiff to plead the bare elements of a cause of action, affix the label “general allegation,” and expect the complaint to survive. Id., at 681. (“[B]are assertions . . . amount[ing] to nothing more than a ‘formulaic recitation of the elements’ of a constitutional discrimination claim,” for the purposes of ruling on a motion to dismiss, are not entitled to an assumption of truth.) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While detailed factual allegations are not required, Rule 8 does call for sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Iqbal, 556 U.S. at 678 (Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”) (citing Twombly, 550 U.S. at 555). Plaintiffs’ disparate impact claims (Third and Fourth Claims for relief) fail in the face of these pleading standards. Plaintiffs’ disparate impact claims contradict the United States Supreme Court holding in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). Plaintiffs’ claim that “Defendants have maintained a system for making decisions about promotions, assignments, and compensation which is excessively subjective and which has had a disparate impact on Plaintiffs.” SAC ¶ 380. The Wal-Mart decision, however, makes clear that mere 12 For the FRCP 12(b)(6) motion, Defendants rely only on facts alleged in the SAC and the RJN. Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page19 of 32 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 CASE NO. 3:12-CV-02730-MMC -13- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS delegation of decision-making is not a uniform employment practice sufficient to give rise to disparate impact liability. 131 S. Ct. at 2553. A disparate impact plaintiff must begin by identifying a specific employment practice that is challenged. Like Wal-Mart, Plaintiff here has identified no “specific employment practice” other than the bare existence of delegated discretion. 131 S. Ct. at 2555-56. On its face, of course, that is just the opposite of a uniform employment practice. “[I]t is a policy against having uniform employment practices.” 131 S. Ct. at 2554 (emphasis in original). Like Wal-Mart, the large number of bases, positions, and experiences alleged by the 23 Plaintiffs in this case undermine the relevance of company-wide discretion. There are no facts in the SAC to show that one person’s experience in interviewing for a job has any relation to the experience of another. See Bolden v. Walsh Constr. Co., 688 F.3d 893, 896-97 (7th Cir. 2012) (“To evaluate plaintiffs’ grievances . . . , a court would need site-specific, perhaps worker-specific, details . . . .”). Under Plaintiffs’ theory, multiple managers at varied locations exercise highly independent discretion in making promotion decisions or allegedly “hand-picking” candidates. By definition, the conditions at different locations and experiences under different managers are not uniform; they vary. As a result, Plaintiffs have alleged no specific employment practice and cannot base their own individual claims of discrimination on the general practice of subjective decisions at multiple locations across the Company. When managers exercise independent discretion, the circumstances surrounding each job application will differ. See Bolden, 688 F.3d at 896 (“But when multiple managers exercise independent discretion, conditions at different stores (or sites) do not present a common question.”). Whether the issue is class certification or a single Plaintiff’s attempt to claim general, company-wide discretion as an employment practice for his or her own disparate impact claim, the theory is equally flawed. The excessive subjectivity alleged in the SAC has the same shortcomings as the same practice identified Wal-Mart: it begs the question. See Wal-Mart, 131 S. Ct. at 2551-53. The Seventh Circuit presented the following example of the problem with this approach: Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page20 of 32 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 CASE NO. 3:12-CV-02730-MMC -14- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS If [defendant] had 25 superintendents, 5 of whom discriminated in awarding overtime, aggregate data would show that black workers did worse than white workers - but that result would not imply that all 25 superintendents behaved similarly, so it would not demonstrate commonality. Bolden, 688 F.3d at 896. A similar concept is present in the instant situation. Each Plaintiff here has alleged no evidence that promotion decisions involving different employees at United or Continental had any relevance whatsoever to any alleged individual experience(s). Subjective decision-making cannot provide the foundation to prove Plaintiffs’ disparate impact claim because “demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s.” Wal-Mart, 131 S. Ct. at 2554. In sum, Plaintiffs’ attempt to assert subjective decision-making to support disparate impact claims is not viable, as a matter of law. Just as a single national policy was the missing ingredient in Wal-Mart, a single policy spanning all locations and positions raised by the SAC does not exist here. As Wal-Mart held, subjective decisionmaking, without more, is not sufficient. This is the precise policy that Wal-Mart says cannot be addressed on a company-wide basis, no matter how cleverly lawyers may try to repackage local variability as uniformity. Plaintiffs’ disparate impact claims must be dismissed. See Ibarbia v. Regents of Univ. of Cal., 191 Cal. App. 3d 1318, 1330 (1987) (affirming summary judgment on disparate impact claim; plaintiff “offers no evidence of any particular practice or policy . . . which has had a disparate impact on Filipino-Americans”). In addition, those Plaintiffs who fail to identify a single position they did not receive during the relevant time period cannot satisfy the pleading standard for a disparate impact claim. A plaintiff must show that he or she suffered an adverse employment decision. Coe v. Yellow Freight Sys., Inc., 646 F.2d 444, 451 (10th Cir. 1981) (“It is not sufficient for an individual plaintiff to show that the employer followed a discriminatory policy without also showing that plaintiff himself was injured.”). Therefore the disparate impact claims of Ecung, Gadson, Haney, Haynie, Miller, Palmer, Ricketts, Robinson, Sherman, and Washington must be dismissed.13 13 SAC ¶¶ 240-246, 247-253, 254-261, 262-267, 268-274, 275-290, 301-307, 308-315, 331-336. Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page21 of 32 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 CASE NO. 3:12-CV-02730-MMC -15- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS IV. PLAINTIFF’S DISPARATE TREATMENT CLAIMS (THIRD, FOURTH, FIFTH) ALSO FAIL AS A MATTER OF LAW A. Plaintiffs Lack Subject Matter Jurisdiction And Fail To State Disparate Treatment Claims Because They Failed To Exhaust Their Administrative Remedies As To Those Claims Not Mentioned In Their Charges Of Discrimination. Like their disparate impact claims, Plaintiffs have failed to properly exhaust their remedies. A plaintiff may recover for a failure to promote under Title VII only if he or she files an EEOC charge within 180 days of the decision, or within 300 days of the decision where the employee initially files a grievance with “an entity with the authority to grant or seek relief with respect to the alleged unlawful practice.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002); 42 U.S.C. § 2000e-5(e)(1). Under FEHA, a Plaintiff has one year from the date of the decision to file an administrative charge. Cal. Gov’t Code § 12960(d). The alleged failure to promote is by its very nature a discrete act. Morgan, 536 U.S. at 114. Both the employer and the allegedly aggrieved party may therefore rely on the clear and predictable exhaustion of administrative remedies for discrete positions allegedly denied during the statute of limitations period. As Justice Ginsburg explained, A worker knows immediately if she is denied a promotion or transfer, if she is fired or refused employment. And promotions, transfers, hirings, and firings are generally public events, known to co-workers. When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 649 (2007) (Ginsburg, J. dissenting), superseded in part by Lilly Ledbetter Fair Pay Act of 2009 (Pub. L. No. 111-2), amending 42 U.S.C. § 2000e-5(e). Under Morgan, every failure to promote is a separate act that potentially gives rise to a freestanding Title VII or FEHA claim with its own filing administrative charge requirements and deadline. 536 U.S. at 109; See also Jackson v. United Parcel Serv., Inc., 643 F.3d 1081, 1087 (8th Cir. 2011) (plaintiff failed to exhaust administrative remedies for promotion claim not mentioned in EEOC complaint; “The continuing violation doctrine is not applicable to failure-to- promote claims, which arise from discrete employment actions.”); cert. denied, 132 S. Ct. 1075 (2012); Robinson, 359 Fed. Appx. at 726, 728 (dismissing claims for failure to promote; no Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page22 of 32 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 CASE NO. 3:12-CV-02730-MMC -16- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS exhaustion of administrative remedies). This Court has jurisdiction over only those non- promotions that are described in the administrative charges. Robinson, 359 Fed. Appx. at 728- 30.14 1. Plaintiffs Failed To Exhaust Administrative Remedies With Respect To Special Assignments And Compensation. None of the Plaintiffs exhausted administrative remedies with respect to the alleged discriminatory failure to place them into special assignments or compensation practices. See Baldocchi Dec. Exs. A-W, X; RJN Exs A-W. None of the charges mention discriminatory compensation practices. Id. None of the charges mention special assignments.15 Instead, the administrative charges allege discrimination and/or retaliation with respect to promotions to management positions, which are very different from special assignments. The SAC describes the difference between a promotion to management and the receipt of a special assignment. The SAC alleges that “special assignments” are “temporary positions, [which] . . . provide employees with more opportunities for advancement.” SAC ¶ 65 (emphasis added).16 The SAC thus treats promotion to management as separate and distinct from special assignments. See e.g. SAC ¶¶ 65- 66, 344 (“Defendants have withheld all promotions and special assignments from Plaintiffs.”) (emphasis added); ¶¶ 369, 370 (alleging three different discriminatory acts: “(a) special assignments; (b) promotion to management; and (c) compensation”). Plaintiffs’ charges allege discriminatory, disparate treatment with respect to promotions to management, but do not mention any discriminatory compensation practices or failure to place them in special assignments. For example, Briscoe’s EEOC charge alleges “From 2009 until the 14 Defendants reserve their rights to later challenge further deficiencies revealed by investigation and discovery. Robinson v. Geithner, 359 Fed. Appx. 726, 729 n.1 (9th Cir. Cal. 2009) (“Discovery may reveal that the discriminatory conduct alleged in paragraphs 25, 38, 39, and 69 of the second amended complaint is different than the discriminatory conduct alleged in the respective administrative complaints, and the district court may find after a more developed record that it does not have jurisdiction over the allegations in one or more of those paragraphs.”). 15 In Plaintiff Roane’s EEOC intake questionnaire, filed February 7, 2013, he submitted a list of applied-for positions dating back to 2007. One of the listed positions is Interview Captain - Temporary Special Assignment (WHQ), for which he submitted an application in July 2007 - well before the start of Plaintiff Roane’s claims period commencing February 2011. Baldocchi Dec. Ex. R; RJN Ex. R; SAC ¶¶ 338, 348, 357, 386, 408. 16 Defendants do not adopt completely Plaintiffs’ characterization of these positions or admit that they are all true. Defendants cite the allegations solely for this Motion, to establish Plaintiffs’ correct acknowledgement that special assignments are distinct from management positions. Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page23 of 32 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 CASE NO. 3:12-CV-02730-MMC -17- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS present, I have been passed over for promotion. Respondent has also failed to post Management positions.” Baldocchi Dec. Ex. A; RJN Ex. A. Ecung’s EEOC charge “Since 2009, I have been passed over for promotions. Management positions have been filled by less qualified non- African American candidates.” Id. at Ex. C; RJN Ex. C. Thus, this Court lacks jurisdiction to adjudicate any alleged failure to place the Plaintiffs in special assignments or unlawful compensation practices. 2. Plaintiffs Failed To Exhaust Administrative Remedies For All Promotions Or Special Assignments That Allegedly Occurred After They Filed EEOC/DFEH Charges. Plaintiffs also failed to exhaust administrative remedies as to all promotions or placement into special assignments that occurred after they filed their administrative charges. Jackson, 643 F.3d at 1087 (“The continuing violation doctrine is not applicable to failure-to-promote claims, which arise from discrete employment actions.”). Plaintiffs are barred by their filing dates from seeking relief for all alleged non-promotion to management positions or non-placement into special assignments which post-date their charges. Defendants request that the Court dismiss all claims based on acts that occurred after each Plaintiff’s charges were filed. 3. Plaintiffs’ Claims Relating to Promotions Or Special Assignments That Allegedly Occurred Before The Limitations Period Covered By Their Respective EEOC/DFEH Charges Are Barred by the Statute of Limitations. Likewise, Plaintiffs are barred from challenging promotions or special assignments that occurred before the limitations period covered by their EEOC/DFEH charges. As discussed above, Plaintiffs had 180 days to bring EEOC charges for Title VII violations (or 300 days, if they brought a DFEH charge first) and one year to bring DFEH charges for their FEHA claims. 42 U.S.C. § 2000e-5(e)(1); Cal. Gov’t Code § 12960(d). Any claims based on incidents prior to these limitation periods are not exhausted. Thus, Defendants request that the Court dismiss with prejudice all claims based on promotions or special assignments that occurred prior to the limitations period applicable to each Plaintiff’s respective charges. Baldocchi Dec. Exs. A-W; RJN Exs A-W. Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page24 of 32 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 CASE NO. 3:12-CV-02730-MMC -18- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS B. Plaintiffs’ Disparate Treatment Discrimination Claims Must Be Dismissed Because They Fail To Allege Sufficient Facts To State A Claim For Relief That Is Plausible On Its Face As Required By FRCP 8. Plaintiffs’ disparate treatment discrimination claims under Title VII, FEHA, and Section 1981, advanced in the Third, Fourth and Fifth Claims for relief respectively, also fail to meet the pleading requirements of Rule 8. In a disparate treatment case, it must be shown that intentional discrimination was the “determinative factor” in an adverse employment action suffered by each Plaintiff. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (“[a] disparate treatment claim cannot succeed unless the employee’s protected trait . . . had a determinative influence on the outcome.”). To establish a prima facie case of race discrimination in a failure-to-promote claim, a plaintiff must show that “(1) she is a member of a protected group; (2) she was qualified and applied for a promotion to an available position; (3) she was rejected; and (4) similarly situated employees, not part of the protected group, were promoted instead.” Jackson, 643 F.3d at 1086 (quoting Shannon v. Ford Motor Co, 72 F.3d 678, 682 (8th Cir. 1996)); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981). FEHA and section 1981 discriminatory promotion claims follow this standard. See Levy v. Regents of Univ. of Cal., 199 Cal. App. 3d 1334, 1343 (1988) (citing Title VII standard for discriminatory failure to promote claim as authority to “guide [the court] in [its] analysis of appellant’s claims under . . . the FEHA”); Schiff v. City and Cnty. of S.F., 816 F. Supp. 2d 798, 814 (N.D. Cal. 2011) (addressing failure to promote claim; “When analyzing claims of disparate treatment in employment under § 1981 . . . , a district court is guided by Title VII analysis.”). The Plaintiffs’ discrimination claims are based on nothing more than general allegations, totally lacking in any Plaintiff-specific facts showing intentional discriminatory treatment which had a determinative influence on each Plaintiff’s non-promotion to a particular position. In the portion of the SAC presenting each Plaintiff’s individual allegations, there are no specific facts showing he or she suffered intentional discrimination. SAC ¶¶ 76-336. Instead, the Plaintiffs merely conclude they were subjected to racial discrimination. For example, Plaintiff Johnson lists five alleged management positions he applied for in SAC ¶ 84, but states nothing more than, “Plaintiff Johnson is informed and believes that he was passed over the five positions Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page25 of 32 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 CASE NO. 3:12-CV-02730-MMC -19- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS he applied for in 2011 as a result of race discrimination and retaliation.” The other Plaintiffs plead in the same way. E.g., SAC ¶¶ 87, 99, 112, 131, 153. Plaintiffs’ discrimination allegations are fatally vague. Moreover, 10 Plaintiffs - Ecung, Gadson, Haney, Haynie, Miller, Palmer, Ricketts, Robinson, Sherman, and Washington - do not even allege a single position they applied for but did not receive as a result of discrimination. Their claims must be dismissed for failure to plead that they were qualified for and applied for a particular promotion to an available position. In the Third Claim for Relief, each Plaintiff’s name appears at the beginning of this claim, in the paragraphs defining the time period and those discussing venue. SAC ¶¶ 357-367. Other than that, the allegations in the Third Claim for relief are general - not Plaintiff-specific. It is impossible to tell which of the 23 Plaintiffs experienced any alleged disparate treatment, when, and what happened. Instead, the SAC alleges “Defendants also engage in intentional discrimination against African-American Captains and African-American Operations Supervisors relative to their non-African-American peers with respect to (a) special assignments; (b) promotion to management; and (c) compensation through its system of subjective and arbitrary decision-making, as demonstrated by anecdotal and statistical evidence.” See, e.g., SAC ¶ 370. The Fourth and Fifth Claims for Relief likewise provide no specific facts related to each Plaintiff. SAC ¶¶ 385-412. E.g., SAC ¶ 405 (“Defendants have engaged in a pattern and practice of intentional discrimination against Plaintiffs and the classes in promotions, assignments, and compensation.”). The SAC presents insufficient plaintiff-specific facts for disparate treatment. As noted above, the list of positions in paragraphs 72, 73 and 74 cannot suffice. Plaintiffs (except Montgomery) allege no facts that they have any connection whatsoever to the “challenged” positions or that their non-selection was discriminatory. The SAC contains no facts showing that they were qualified for the positions, that they were interested, considered, or rejected, that other employees, not part of the Plaintiffs’ protected group, were promoted instead, or that discrimination had a determinative influence on Plaintiffs’ failure to receive a promotion. See Ibarbia, 191 Cal. App. 3d at 1327 (granting summary judgment in favor of employer because plaintiff failed to complete application process); Tagupa v. Bd. of Dirs., 633 F.2d 1309, 1312 (9th Cir. 1980) (necessary element in the case is that “the plaintiff have applied for the job”). Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page26 of 32 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 CASE NO. 3:12-CV-02730-MMC -20- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS As the Supreme Court clearly stated, Rule 8 does not empower Plaintiff to plead the bare elements of a cause of action, affix the label “general allegation,” and expect the complaint to survive a motion to dismiss. Iqbal, 556 U.S. at 681 (“[B]are assertions . . . amount[ing] to nothing more than a ‘formulaic recitation of the elements’ of a constitutional discrimination claim,” for the purposes of ruling on a motion to dismiss, are not entitled to an assumption of truth.) (quoting Twombly, 550 U.S. at 555). Plaintiffs’ disparate treatment discrimination claims offer nothing more than bare assertions. This is not sufficient under Title VII, FEHA, or Section 1981, and they must be dismissed. V. PLAINTIFFS’ RETALIATION CLAIMS (FIRST AND SECOND) FAIL AS A MATTER OF LAW A. Plaintiffs Lack Subject Matter Jurisdiction And Fail To State A Claim For Retaliation Claims Not Addressed In Their Administrative Charges, and Which Fall Outside the Limitations Period. Just as Plaintiffs failed to exhaust administrative remedies with respect to their discrimination claims, so too did they fail to exhaust their retaliation claims, for the same reasons. See Baldocchi Dec. Exs. B, D, H-J, M-O, R, U, W, X; RJN Exs. B, D, H-J, M-O, R, U, W. None of the charges allege retaliatory compensation practices or even mention special assignments. Id. Plaintiffs failed to exhaust administrative remedies and/or are barred by the statute of limitations for any alleged conduct that occurred before the relevant Title VII and FEHA limitations periods began, and after the relevant charges were filed. Id. The Court lacks jurisdiction over the non- exhausted and time-barred claims. B. Plaintiffs’ Retaliation Claims Must Be Dismissed Because They Fail To Allege Sufficient Facts To State A Claim For Relief That Is Plausible On Its Face As Required By FRCP 8. Plaintiffs’ First and Second Claims for relief seek recovery for alleged retaliation for engaging in protected activity under Title VII (42 U.S.C. § 2000e-3(a)) and FEHA (Cal. Gov. Code § 12940(h)). To establish a prima facie case of unlawful retaliation, each Plaintiff must prove that: (1) he or she engaged in some protected activity; (2) the employer subjected him or her to some adverse employment action; and (3) there is a causal connection between the protected activity and the adverse employment action. E.g., Gonzalez v. Ingersoll Milling Mach. Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page27 of 32 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 CASE NO. 3:12-CV-02730-MMC -21- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS Co., 133 F.3d 1025, 1035 (7th Cir. 1998); King v. Town of Hanover, 116 F.3d 965, 968 (1st Cir. 1997); Little v. United Techs., 103 F.3d 956, 959 (11th Cir. 1997); Grimes v. Texas Dep’t of Mental Health & Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996). The FEHA standard is substantially similar. See, e.g., Flait v. N. Am. Watch Corp., 3 Cal. App. 4th 467, 476 (1992); see also Gen. Dynamics Corp. v. Superior Court, 7 Cal. 4th 1164, 1191 (1994) (“The plaintiff . . . bears the burden of establishing . . . that the employer’s conduct was motivated by impermissible considerations under a ‘but for’ standard of causation.”). Furthermore, in a retaliatory failure-to-promote case, each Plaintiff must show, among other things, that he or she applied for and was qualified for an available position. Okwuosa v. EDD, 143 Fed. Appx. 20, 22 (9th Cir. 2005). The absence of a claim tethered to a particular position improperly encourages “the fact finder . . . to speculate as to the qualifications of the competing candidates, the damages to be derived from the salary of unknown jobs, the availability of alternative positions,” and “the plaintiff’s willingness to serve in them.” Petrosino v. Bell Atl., 385 F.3d 210, 227 (2d Cir. 2004) (specific position is required to ensure that “at the very least, the plaintiff employee alleges a particular adverse employment action, an instance of alleged discrimination, by the employer”) (quoting Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998); internal quotation marks omitted); Velez v. Janssen Ortho LLC, 467 F.3d 802, 809 (1st Cir. 2006) (a rejected job applicant failed to establish a prima facie case of retaliatory failure to hire; plaintiff did not show that she applied for a specific position; a letter expressing general interest is not enough). All of the 11 Plaintiffs suing for retaliation fail to plead facts sufficient to state a claim for relief. They each allege the same basic legal conclusions. First, they allege they were members of the “United Coalition,” a group who purportedly engaged in protected activity in 2010 by challenging United’s promotions practices in filing EEOC charges. See, e.g., SAC ¶¶ 59-60, 340- 41. Next, the Plaintiffs claiming retaliation (except Jones) each allege hearing or learning some form of the following statement: “a Senior Vice President of Flight Operations stated that ‘No one from the original United Coalition who filed EEOC complaints in 2010 will get promoted at UAL.’” E.g., SAC ¶ 110. They conclude that they were passed over as a result of retaliation. Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page28 of 32 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 CASE NO. 3:12-CV-02730-MMC -22- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS Id.; SAC ¶ 112. This is not enough to satisfy Rule 8, Iqbal and Twombly. Such a threadbare “challenge” lacks facial plausibility. See Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). The SAC contains no facts showing any causal connection between the alleged protected activities and the alleged rejection of the Plaintiffs’ applications for promotion. There are no facts showing any retaliatory animus harbored by any individuals purportedly involved in each discreet failure to promote. The SAC does not identify the person who supposedly made the statement about the United Coalition, the person or persons who purportedly heard this statement, or under what circumstances this was allegedly said. No facts show this person or statement had any connection to any position sought by the Plaintiffs, or that the statement affected any alleged promotion decisions. Likewise, the positions alleged in paragraphs 72, 73 and 74 of the SAC are insufficient to satisfy the fundamental pleading standards of Rule 8, as explained in Iqbal and Twombly. Plaintiffs (with the exception of Montgomery, who is mentioned with respect to two positions in paragraph 74) allege no facts that they have any connection whatsoever to the “challenged” positions or that their non-selection was retaliatory. Plaintiffs do not allege that they were interested, eligible, considered or rejected from these positions.17 Indeed, it is unclear whether Plaintiffs even are claiming their non-selection for these purportedly handpicked jobs was retaliatory. Paragraphs 72-74 contain nothing more than a list of jobs without any mention of, or connection to, the Plaintiffs’ retaliation claims. Gadson’s retaliation claims fail for the additional reason that her only identified non- promotion predates the relevant time period identified in the SAC (SAC ¶¶ 338, 348), and it predates her alleged protected activity in June 2010. SAC ¶¶ 59-60. Like Iqbal and Twombly, the First and Second Claims for relief present nothing more than unadorned, defendants-harmed-me accusations. See Iqbal, 556 U.S. at 678 (Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me” accusation) (citing Twombly, 550 17 Montgomery alleges in paragraph 74 that he applied for area manager and shift manager, but provides no facts showing retaliation or discrimination with respect to these two positions. Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page29 of 32 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 CASE NO. 3:12-CV-02730-MMC -23- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS U.S. at 555). They must be dismissed. VI. PLAINTIFFS’ FEHA CLAIMS MUST BE DISMISSED BECAUSE FEHA HAS NO EXTRATERRITORIAL APPLICATION The FEHA claims of all Plaintiffs, except the five based at airports in California (Ecung, Miller, Palmer, Hartsfield, Johnson), must be dismissed for failure to allege a sufficient nexus with California. FEHA has no extraterritorial application. In order to state a claim under FEHA, Plaintiffs must allege either employment at a California airport or specific unlawful conduct in California. The non-California Plaintiffs do not sufficiently allege either.18 In Campbell v. Arco Marine, Inc., 42 Cal. App. 4th 1850, 1858 (1996), the court held that an individual who resided in Washington could not take advantage of the sexual harassment provisions of the FEHA for events that occurred outside of California. The court found that “[t]he relationship with California is slight,” id. at 1858, noting, inter alia, that the plaintiff’s job duties were performed outside of California, and the alleged harassment took place outside of California. The court concluded that the FEHA did not apply. Id. at 1859. See also id. at 1852 (“We hold that the [FEHA] was not intended to apply to nonresidents where, as here, the tortious conduct took place out of this state’s territorial boundaries.”).19 Second, Plaintiffs’ conclusory allegations that they “challenge” the California positions described in paragraphs 72 and 73 lacks “sufficient factual matter” to state a FEHA claim “that is plausible on its face.” Iqbal, 556 U.S. at 678; see, e.g., SAC ¶ 237. See also Gonsalves v. Infosys Techs., LTD, 2010 WL 1854146, at *6 (N.D. Cal. May 6, 2010) (“Plaintiff, as a non-resident, may not pursue claims under FEHA without averring a factual nexus between [the employer’s] 18 Defendants do not concede that California residence or mere application for a job in California suffices to bring a FEHA claim, and reserves all defenses with respect to any such claim. See Clopton v. Global Computer Assocs., 1995 WL 419831, at *3 (C.D. Cal. Mar. 27, 1995) (granting summary judgment to defendant on, among other things, FEHA claims of California resident working in Texas: “Although this Court is mindful of the California Supreme Court’s statement that FEHA should be construed liberally, nothing in the Robinson decision [regarding FEHA’s 5- employee minimum] or the statue’s legislative history indicates that FEHA is intended to provide a remedy to a California resident, working out of state, who is both hired and terminated by an out of state corporation.”). 19 See also Marks v. Am. Airlines, Inc., 313 Fed. Appx. 933, 934 (9th Cir. 2009) (citing Campbell and granting summary judgment on the FEHA claim of an airline employee who avoided California income tax liability by claiming Florida residence, finding that he was judicially estopped from asserting California residence for purposes of the FEHA claim, which was based primarily on events in Texas). Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page30 of 32 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 CASE NO. 3:12-CV-02730-MMC -24- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS California-based activities and the alleged discriminatory conduct.”). It also is insufficient for Plaintiffs to allege facts such as the following: “[t]hroughout her career, [she] has worked in the Northwest Region.” See, e.g., SAC ¶ 232. In Gonsalves, 2010 WL 1854146, at *1-2, this Court granted the motion to dismiss of an India employer with California offices, with respect to the FEHA claims of an employee who lived in Ohio and Florida, finding that “he was required to plead at a minimum that he was either employed in California or that the discriminatory conduct occurred in California” and “did not do so.” Id. at *5. The Court rejected the employee’s inadequate efforts to establish employment in California: Plaintiff has cited no legal precedent to justify extending FEHA’s jurisdictional reach to individuals who make business trips to and manage clients in California. To interpret FEHA as covering all employees who perform some job duties or manage some clients in California, even when no connection exists between the California activities and the discrimination at issue, would clearly implicate the federal constitutional concerns that animated Campbell’s limitations on FEHA’s extraterritorial reach. Id.. Finally, it is insufficient for Plaintiffs to contend that they traveled to California. As Campbell makes clear, it is the alleged unlawful conduct that must occur in California. See Campbell, 42 Cal. App. 4th at 1858. VII. UNITED CONTINENTAL HOLDINGS, INC. MUST BE DISMISSED A. Plaintiffs Failed To Exhaust Administrative Remedies With Respect To UCH. Plaintiffs have failed to exhaust their administrative remedies with respect to UCH. Plaintiffs’ administrative charges did not name UCH as the entity who allegedly discriminated against them. Baldocchi Dec. Exs. A-W; RJN Exs. A-W. Because Plaintiffs did not exhaust administrative remedies against UCH, this defendant must be dismissed, with prejudice. Robinson, 359 Fed. Appx. at 730.20 B. Plaintiffs’ UCH Claims Must Be Dismissed Pursuant To Rule 12(b)(6). Plaintiffs’ employment claims may only be asserted against their employer. Otherwise, they must be dismissed. See Iqbal, 556 U.S. at 678 (claim has facial plausibility when plaintiff pleads facts allowing reasonable inference defendant is liable). Plaintiffs cannot assert their Title 20 Defendants also reserve their rights to the extent Plaintiffs did not exhaust administrative remedies against Continental. Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page31 of 32 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 CASE NO. 3:12-CV-02730-MMC -25- DEFTS’ NOTICE OF MOTION/MOTION TO DISMISS SAC WITH PREJUDICE; PS AND AS VII, Section 1981, or FEHA employment claims against UCH, a corporate entity that does not employ them in any capacity, and never has. See 42 U.S.C. § 2000e-2 (“It is an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . . .”) (emphasis added); McAdoo v. Toll, 591 F. Supp. 1399, 1405 (D. Md. 1984) (holding three individual defendants, “were not the employers of those responsible for the denial of the plaintiff's application,” and that “[a]ccordingly, their motion to dismiss all claims against them under § 1981 will be granted.”); Cal. Gov’t Code § 12940(a) (“It shall be an unlawful employment practice . . .[f]or an employer . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”) (emphasis added); Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 615-16 (1989) (employee could not pursue FEHA complaint non-employer). Boilerplate allegations regarding UCH do not establish either direct employment or even indirect control, and do not salvage their claims against it. The SAC contends, among other things, that UCH, United, and Continental “share common management,” “share common control of labor relations,” and “exercise substantial control over the time, manner, and place of performance of [Plaintiff’s] work.” SAC ¶¶ 33, 35, 37. The contentions are nothing more than legal conclusions disguised as facts, insufficient to state a claim. Iqbal, 556 U.S. at 681. VIII. CONCLUSION For all of the foregoing reasons, Defendants respectfully urge that the Court grant this motion to dismiss, with prejudice. DATED: February 15, 2013 PAUL HASTINGS LLP By: /s/ DONNA M. MELBY DONNA M. MELBY Attorneys for Defendants UNITED AIRLINES, INC.; UNITED CONTINENTAL HOLDINGS, INC.; AND CONTINENTAL AIRLINES, INC. Case3:12-cv-02730-MMC Document45 Filed02/15/13 Page32 of 32