Opinion
CIV. NO. 2:16-951 WBS KJN
10-05-2016
JAMES ARKENS, Plaintiff, v. COUNTY OF SUTTER; RON SULLENGER, JIM WHITEAKER, DAN FLORES, and NATE BLACK as individual citizens and in their official capacities as Sutter County employees; and DOES 1 through 50, Defendants.
MEMORANDUM AND ORDER RE: MOTION TO DISMISS FIRST AMENDED COMPLAINT
Plaintiff James Arkens filed this case against--(1) the County of Sutter ("the County"); (2) Sutter County Supervisors Ron Sullenger, Jim Whiteaker, and Dan Flores; and (3) Sutter County Auditor Nate Black (collectively "defendants")--alleging wrongful discharge, defamation, age discrimination, and retaliation in violation of state and federal law. (First Am. Compl. ("FAC") at 13-17 (Docket No. 16).) Defendants now move to dismiss plaintiff's first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Defs.' Mot. to Dismiss ("Defs.' Mot.") (Docket No. 18).)
Plaintiff's first amended complaint spells Mr. Whiteaker's last name "Whitaker" on multiple occasions. (See, e.g., First Am. Compl. ¶¶ 13, 30 (Docket No. 16).) The correct spelling of Mr. Whiteaker's last name is "Whiteaker." See Jim Whiteaker Bio, https://www.co.sutter.ca.us/doc/government/bos/bios/bos_whiteaker (last visited Sept. 25, 2016). The court will use "Whiteaker" in this Order.
I. Factual and Procedural History
Plaintiff began to work for the County as its Chief Administrative Officer on February 4, 2013. (FAC ¶ 17.)
Plaintiff alleges that in March 2013, January 2014, and July 2014, he declined to provide certain health and retirement benefits to Supervisor Sullenger on behalf of the County because doing so was illegal. (Id. ¶¶ 23-27.) During the July 2014 exchange between plaintiff and Sullenger, Sullenger allegedly asked plaintiff to fire a female employee who had explained the health insurance enrollment process to Sullenger. (Id. ¶ 26.) Sullenger allegedly stated, "[F]ire her, she doesn't know what she's doing and she's one of the b-h's that filed charges against me for looking at her ass." (Id.) Plaintiff refused. (Id. ¶ 27.) Plaintiff alleges that after these events, his interactions with Sullenger were "reduced to almost zero and were extremely hostile." (Id. ¶ 24.)
During plaintiff's employment at the County, Supervisor Flores and other County staff allegedly made comments about plaintiff's age. (Id. ¶ 52.) Flores allegedly called plaintiff "old" and asked him "when [he] would retire." (Id. ¶¶ 52, 54.) Plaintiff is "over the age of sixty." (Id. ¶ 51.)
In April 2015, County Auditor Black met with plaintiff concerning the County's annual independent audit. (Id. ¶ 38.) Black told plaintiff that he had drafted a letter concerning plaintiff's involvement in the Chevron Energy Project ("the Project"). (Id. ¶ 37-38.) The County Board of Supervisors ("the Board") had approved the Project in February 2014 after a public hearing and approval from the Sutter County Counsel's Office. (Id. ¶¶ 33-34.) Black's letter accused plaintiff of embezzling $2.5 million from the Project. (Id. ¶ 39.) Black allegedly sent the letter to the County Counsel's Office, the Sutter County District Attorney, the independent auditor working on the County audit, and the media. (Id. ¶¶ 39-40, 43.)
Plaintiff alleges on information and belief that before Black sent out the letter, the County Counsel's Office had informed Black that "the allegations [against plaintiff] were not true and that he should drop his issues with [plaintiff]." (Id. ¶ 42.)
On September 29, 2015, the Board informed plaintiff that the County would not be renewing his employment contract and that if he did not resign, the County would place him on administrative leave. (Id. ¶ 20.) Plaintiff did not resign at that time and the Board placed him on administrative leave on October 15, 2015. (Id. ¶ 58.)
In December 2015, the District Attorney convened a grand jury to investigate the charges against plaintiff. (Id. ¶ 45.) The grand jury subpoenaed plaintiff to appear in January 2016. (Id. ¶ 46.)
Plaintiff filed a complaint against defendants on May 5, 2016, alleging wrongful discharge in violation of public policy, defamation, age discrimination, unlawful retaliation, and intentional and negligent infliction of emotional distress. (Compl. at 10-12 (Docket No. 1).) On July 25, 2016, this court dismissed plaintiff's wrongful discharge and emotional distress claims with prejudice, and his other claims without prejudice ("July 25 Order"). (July 25, 2016 Order ("July 25 Order") at 21 (Docket No. 15).)
Plaintiff filed an amended complaint on August 12, 2016, asserting claims for: (1) "constructive discharge" against all defendants; (2) defamation against the County and Black; (3) discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §621, against the County, Sullenger, Whiteaker, and Flores; and (4) "federal and state retaliation," Cal. Gov. Code § 12900 et. seq. and Cal. Lab. Code § 1102.5, against all defendants. (FAC at 13-17.) Presently before the court is defendants' motion to dismiss plaintiff's first amended complaint. (Defs.' Mot.)
Plaintiff sues the individual defendants in both their individual and official capacities. (See FAC ¶¶ 10-15.) As in the July 25 Order, the court will treat plaintiff's claims against the individual defendants as against them in their individual capacities, as his official capacity claims are duplicative of his claims against the County. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 89 (1989) ("An official-capacity suit . . . generally represent[s] only another way of pleading an action against an entity of which an officer is an agent." (internal quotation marks and citations omitted)).
Whiteaker's role in this case is not as clear as the other defendants'. Plaintiff's dispute with Whiteaker appears to be that he partook in the County's decision to not renew his contract and fabricated employment-related charges against him to justify the County's decision. (See FAC ¶¶ 30, 49-50.)
II. Legal Standard
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court must accept the allegations in the pleadings as true and draw all reasonable inferences in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). To survive a motion to dismiss, a plaintiff must plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions . . . ." Twombly, 550 U.S. at 555 (citation omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," and "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The "plausibility" standard, "asks for more than a sheer possibility that a defendant has acted unlawfully," and where a plaintiff pleads facts that are "merely consistent with a defendant's liability," the facts "stop[] short of the line between possibility and plausibility." Id. (quoting Twombly, 550 U.S. at 557). "[D]etermining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense." Id. at 663-64 (citing Twombly, 550 U.S. at 556).
III. Analysis
A. Plaintiff's "Constructive Discharge" Claim is Not a Plausible Claim for Relief
Plaintiff titles his first cause of action "constructive discharge." (FAC at 13.) He states in his Opposition that the title "constructive discharge" is a misprint, and that he meant for the title to read "wrongful discharge." (Pl.'s Opp'n at 3 (Docket No. 19).)
In either case, plaintiff has failed to state a plausible claim for relief. "Standing alone, constructive discharge is neither a tort nor a breach of contract, but a doctrine that transforms what is ostensibly a resignation into a firing." Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1251 (1994). "Even after establishing constructive discharge, an employee must independently prove a breach of contract or tort in connection with employment termination in order to obtain damages for wrongful discharge." Id. Plaintiff is not entitled to relief merely for "constructive discharge."
With respect to "wrongful discharge, " the court assumes that plaintiff is referring to the tort of wrongful discharge in violation of public policy under California law--that is, a Tameny claim. See Tameny v. Atl. Richfield Co., 27 Cal. 3d 167, 170 (1980). The court dismissed plaintiff's Tameny claim with prejudice as to all defendants in the July 25 Order. (July 25 Order at 7.) Accordingly, for the same reasons, the court will dismiss plaintiff's first cause of action.
To the extent plaintiff meant for "wrongful discharge" to refer to a different claim, that claim fails under Federal Rule of Civil Procedure 8 for vagueness. See Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001) (a complaint must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests").
B. Plaintiff Fails to State a Plausible Claim for Defamation
Plaintiff brings a defamation claim against the County and Black. (FAC at 14.) Under N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964), "a public official [cannot] recover[] damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 279-80. The court dismissed plaintiff's original defamation claim in the July 25 Order because plaintiff failed to plausibly allege, inter alia, 'actual malice' on Black's part. (See July 25 Order at 11.)
Plaintiff's amended complaint does nothing to remedy that defect. The only new fact that plaintiff alleges relevant to his defamation claim is that the County Board and Counsel's Office approved the Project after a public hearing. As the court explained in the July 25 Order, even if the County informed Black that his accusations were false, that alone does not indicate that Black, the County Auditor, "was reckless in not simply accepting [the County's] statement at face value." (Id.) Nothing in plaintiff's amended complaint undermines that rationale.
Moreover, plaintiff's amended complaint does nothing to address the court's inference that Black's accusations were not unreasonable, much less reckless, in light of the District Attorney's decision to convene a grand jury to investigate the accusations. (See id. (citing Guillory v. Superior Ct., 31 Cal. 4th 168, 174 (2003), which noted that under "the California Rules of Professional Conduct, [prosecutors are prohibited from] xinstitut[ing] or caus[ing] to be instituted criminal charges when [they] know[] or should know that the charges are not supported by probable cause.'").) If anything, the amended complaint further confirms the reasonableness of Black's accusations by indicating that the County Auditor who preceded Black also viewed plaintiff's involvement in the Project with suspicion. (FAC ¶ 35 (alleging that former County Auditor refused plaintiff's request to "place the project on the County books.").)
Because plaintiff has failed to remedy the defects noted by the court in the July 25 Order, the court will dismiss plaintiff's amended defamation claim.
Plaintiff does allege a new incident between Black and plaintiff that suggests ill will on Black's part. (See FAC ¶¶ 36-37 (alleging that one month before Black published the accusations, plaintiff refused to support a proposal by Black to convert the County Auditor position into an unelected position).) That allegation may defeat defendants' common interest privilege defense, which requires an absence of statutory malice, defined as "ill will" or "lack[ of] reasonable grounds for belief in the truth of the publication," Sanborn v. Chronicle Pub. Co., 18 Cal. 3d 406, 413 (1976) (internal citation omitted). Even if the allegation defeats defendants' common interest defense, however, it cannot save plaintiff's defamation claim because plaintiff has failed to allege 'actual malice' under N.Y. Times.
C. Plaintiff Fails to State a Plausible Claim for Age Discrimination Under the ADEA
The ADEA makes it unlawful to "to discharge any individual or otherwise discriminate against any individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1). To state a prima facie case of age discrimination under the ADEA, plaintiff must plead "that he was (1) at least forty years old, (2) performing his job satisfactorily, (3) discharged, and (4) either replaced by substantially younger employees with equal or inferior qualifications or discharged under circumstances otherwise giving rise to an inference of age discrimination." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (internal quotation marks and citation omitted). In lieu of alleging that the County discharged him, plaintiff may allege that it constructively discharged him. See Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000).
Like his amended defamation claim, plaintiff's amended ADEA claim fails to sufficiently address the deficiencies noted in the July 25 Order. Plaintiff argues that the County discharged or constructively discharged him when it told him that "if he did not immediately accept the County's Offer to resign, he would be placed on Administrative leave." (FAC ¶ 20.) That statement is not a discharge. With respect to whether it was a constructive discharge, the court noted in the July 25 Order that plaintiff would need to address the following questions in order to state a claim of constructive discharge: (1) how long the leave was for, (2) whether the leave was paid, (3) whether plaintiff could return from the leave, and (4) whether plaintiff resigned. (July 25 Order at 14.) Plaintiff's amended complaint answers none of these questions.
Plaintiff also claimed at oral argument that the Board discharged him when it provided him late notice of nonrenewal of his employment contract and did not retain him after the contract expired. Plaintiff's contract with the County states that his employment was to run from February 4, 2013 to February 3, 2016, at which time the contract would "automatically renew for an additional term of three years unless the Board, by 120-days advanced written notice, notifies Employee of its intent to terminate the agreement." (Compl. Ex. A, Employment Agreement at 1 (Docket No. 1-2).)
Like his original complaint, plaintiff's amended complaint does not allege that the Board failed to provide him written notice prior to the specified deadline. Contrarily, the amended complaint alleges that the Board notified plaintiff--the court assumes orally--on September 29, 2015 that the Board would not be renewing plaintiff's employment contract. (FAC ¶ 20-22.) The amended complaint states that September 29, 2015 "was several days past" the notice of nonrenewal deadline. (Id. ¶ 21.) That date is in fact 127 days before the end of plaintiff's contract, and therefore seven days ahead of the deadline. Accordingly, plaintiff has not stated a claim that the Board discharged him by letting him go after his contract had automatically renewed.
The amended complaint states, multiple times, that the County first gave plaintiff notice of nonrenewal on September 29, 2015. (FAC ¶¶ 20-22.) It also states, multiple times, that the Board first gave him notice on October 15, 2015. (Id. ¶¶ 4, 60, 82.) It is difficult to tell which of the two dates plaintiff first received notice on. Accordingly, plaintiff's claim of discharge based on nonrenewal fails for the separate reason that it does not give defendants "fair notice of what the . . . claim is and the grounds upon which it rests." See Lee, 250 F.3d at 679.
Because plaintiff's amended complaint fails to remedy the defects noted in the July 25 Order with respect to discharge and constructive discharge, the court need not address whether the complaint sufficiently alleges the other elements of a prima facie ADEA claim. Accordingly, the court will dismiss plaintiff's ADEA claim.
D. Plaintiff Fails to State a Plausible Claim for Unlawful Retaliation
Plaintiff alleges that defendants retaliated against him in violation of "federal and state" law when they placed him on administrative leave and refused to renew his contract. (Id. at 17.) Defendants took adverse action against him, according to plaintiff, in part because he refused to comply with Sullenger's illegal demands for health benefits and to terminate a female employee based on her gender. (Id.)
As an initial matter, plaintiff still has not cited a federal law that defendants allegedly violated by retaliating against him. Accordingly, for the reasons previously discussed, the court must dismiss plaintiff's federal retaliation claim. See Salazar v. County of Orange, 564 F. App'x 322, 322 (9th Cir. 2014) ("A complaint should fully set[] forth who is being sued, for what relief, and on what theory . . . ." (internal quotation marks and citation omitted)).
With respect to his state retaliation claim, plaintiff has failed to address the court's July 25 holding that there is an absence of "any factual allegations" indicating that the Board considered the Sullenger incidents in taking adverse action against him. (See July 25 Order at 17.)
In the amended complaint, plaintiff alleges that defendants violated California Government Code section 12900 et. seq. and California Labor Code section 1102.5 when they placed him on administrative leave. (FAC at 17.) California Government Code section 12940(h) prohibits employers from retaliating against employees who "oppose[] any practices forbidden under [the California Fair Employment and Housing Act]." Cal. Gov. Code § 12940(h). The California Fair Employment and Housing Act ("FEHA") prohibits employers from discharging employees based on their "sex" or "gender." Id. § 12940(a). California Labor Code section 1102.5 prohibits employers from retaliating against employees who "refus[e] to participate in an activity that would result in a violation of state or federal statute." Cal. Lab. Code § 1102.5.
Both statutes require proving "a causal link" between engagement in the protected activity and the adverse action. See Washington v. California City Correction Ctr., 871 F. Supp. 2d 1010, 1027 (E.D. Cal. 2012) (holding that there must be "a causal link between the retaliatory animus and the adverse action" under California Government Code section 12940(h)); Edgerly v. City of Oakland, 211 Cal. App. 4th 1191, 1199 (2012), as modified (Dec. 13, 2012) ("To establish a prima facie case [under California Labor Code section 1102.5(c)], a plaintiff must show that he or she was subjected to adverse employment action after engaging in protected activity and that there was a causal connection between the two.").
The court dismissed plaintiff's retaliation claims in the July 25 Order in part because "[p]laintiff [did] not include any factual allegations giving rise to the plausible inference that the Board considered [the Sullenger] incidents" in taking adverse action against him. (July 25 Order at 17.) Relevant to the court's ruling there was the fact that the Sullenger incidents took place in March 2013 and July 2014, while the decision to place plaintiff on leave and not renew his contract took place in September or October 2015--at least fourteen months after the incidents. (Id.)
The court's other stated reason for dismissing plaintiff's retaliation claims was that plaintiff did not cite any specific statutes that defendants allegedly violated. (July 25 Order at 17.)
Plaintiff has not alleged any new facts supporting a plausible inference that the County took adverse action against him due to the Sullenger incidents. Plaintiff states in his Opposition that his issues with Sullenger were "ongoing" and that the "instances cited in the complaint are . . . not intended [to be] exhaustive of the protected activity in which Plaintiff participated and alleges were considered when the defendants retaliated against him." (Pl.'s Opp'n at 13-14.) Contrary to this explanation, however, Federal Rule of Civil Procedure 8 requires plaintiff to state his factual allegations in the complaint, not have defendants and the court guess at them. See Iqbal, 556 U.S. at 678 ("[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief . . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." (emphases added)).
Because plaintiff's amended complaint fails to address the court's concern with respect to causation, the court will dismiss plaintiff's state retaliation claim.
D. Dismissal With Prejudice
Defendants request that the court dismiss each of plaintiff's claims with prejudice and without leave to amend. (Defs.' Mot., Mem. at 23 (Docket No. 18-1).) "[A] district court need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile." AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006); see also Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999) (holding the same).
The court has already dismissed plaintiff's Tameny claim with prejudice. (July 25 Order at 21.) With respect to plaintiff's other claims, plaintiff has failed to allege facts that so much as address, much less remedy, the concerns expressly noted in the court's July 25 Order despite having ample opportunity to do so. In the instance of plaintiff's federal retaliation claim, the neglected remedy was as simple as citing a federal statute. To give plaintiff leave to amend his complaint a second time after his first amended complaint failed to even address the issues raised by the court would constitute undue delay and prejudice to defendants. Moreover, plaintiff indicated at oral argument that the reason he did not plead curative facts was because none exist. Accordingly, the court will dismiss plaintiff's entire complaint with prejudice. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) ("Futility of amendment can, by itself, justify the denial of a motion for leave to amend.").
IT IS THEREFORE ORDERED that defendants' motion to dismiss plaintiff's first amended complaint be, and the same hereby is, GRANTED. Plaintiff's entire complaint is DISMISSED WITH PREJUDICE. Dated: October 5, 2016
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE