Aston Whitehead v. Pacifica Senior Living Mgmt

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 2, 2022
• Docket: 21-15035
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 2 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ASTON WHITEHEAD, individually and on No. 21-15035 behalf of the general public as an aggrieved employee under the Private Attorneys D.C. No. 4:18-cv-01767-JSW General Act,

Plaintiff-Appellant, MEMORANDUM*

v.

PACIFICA SENIOR LIVING MANAGEMENT LLC; PACIFICA OAKLAND LLC,

Defendants-Appellees,

and

STRATEGIC OUTSOURCING,

Defendant.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Argued and Submitted October 22, 2021 San Francisco, California

Before: MURGUIA, Chief Judge, and BERZON and BEA, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. On appeal are Plaintiff Aston Whitehead’s state and federal claims against

Pacifica Senior Living Management LLC and Pacifica Oakland LLC (“Pacifica”)

for discrimination, retaliation, and wage and hour violations, arising under Title VII,

the Americans with Disabilities Act (“ADA”), California’s Fair Employment and

Housing Act (“FEHA”), California’s Labor Code, California’s Business and

Professions Code, the Private Attorneys General Act (“PAGA”), and public policy.

This court has jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part and

reverse in part.

This Court reviews “de novo the district court’s grant of a motion to dismiss

under Rule 12(b)(6).” Ebner v. Fresh, Inc., 838 F.3d 958, 962 (9th Cir. 2016)

(citation omitted). All factual allegations in the complaint are accepted as true and

are construed in the light most favorable to the nonmoving party. See id. (citation

omitted). However, this presumption does not extend to “allegations that are merely

conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re

Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell v.

Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). Although a complaint

need not contain a fulsome factual summary, it must contain a sufficient factual basis

to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007).

2 1. The district court properly dismissed Whitehead’s retaliation claims. A

plaintiff asserting a retaliation claim under Title VII must show that “(1) she

engaged in activity protected under Title VII, (2) the employer subjected her to an

adverse employment decision, and (3) there was a causal link between the protected

activity and the employer’s action.” Passantino v. Johnson & Johnson Consumer

Prods., Inc., 212 F.3d 493, 506 (9th Cir. 2000) (citation omitted). A plaintiff must

make the same showing under FEHA but must also demonstrate that “the protected

activity was a motivating reason for the adverse action,” and “the employer’s

conduct caused harm to the plaintiff.” Lewis v. City of Benicia, 169 Cal. Rptr. 3d

794, 808 (Ct. App. 2014). Protected activities include opposing acts made unlawful

by Title VII or FEHA. 42 U.S.C. § 2000e-3(a); Cal. Gov’t Code § 12940(h). The

employee must “reasonably and in good faith believe[]” the employer’s conduct to

be discriminatory or unlawful under Title VII or FEHA. See Dinslage v. City &

County of San Francisco, 209 Cal. Rptr. 3d 809, 819 (Ct. App. 2016) (citation

omitted); Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006).

Whitehead did not sufficiently allege that she engaged in protected activity.

See Passantino, 212 F.3d at 506. Whitehead’s reaction to a co-worker’s isolated

comment does not amount to protected activity. See E.E.O.C. v. Go Daddy

Software, Inc., 581 F.3d 951, 963 (9th Cir. 2009) (“‘[O]ffhand comments, and

isolated incidents (unless extremely serious)’ do not amount to discrimination. . . . .

3 [A] complaint about [an isolated] incident does not constitute protected activity

unless a reasonable person would believe that the isolated incident violated Title

VII.” (quoting Clark County School District v. Breeden, 532 U.S. 268, 271 (2001)).

Indeed, Whitehead pleaded that the disagreement at issue stemmed from her

questioning a co-worker about a group activity for residents of the senior care

facility, which is not protected activity.

Additionally, Whitehead did not complain to her employer about any alleged

sex discrimination until after Pacifica had already informed her that, in its view, she

had resigned by refusing to return to work. As any protected activity has no causal

link to Whitehead’s alleged forced resignation, Whitehead’s retaliation claims fail

for that reason as well. See Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000).

2. The district court also properly dismissed Whitehead’s claims of

discrimination under Title VII, the ADA, and FEHA and related claims. Whitehead

alleged that she was terminated and subject to discrimination because of her sex,

pregnancy, and pregnancy-related disability. A person suffers discrimination under

these statutes “when he or she is singled out and treated less favorably than others

similarly situated on account of” sex, pregnancy, or disability. See Cornwall v.

Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006); see Mamou v.

Trendwest Resorts, Inc., 8 Cal. Rptr. 3d 406, 428 (Ct. App. 2008); 41 U.S.C.

§ 12112(a). Even if Whitehead did not resign but rather was terminated, she has not

4 pleaded facts to support the inference that her termination was because of her sex,

pregnancy, or disability as opposed to her unwillingness to return to work because

of a dispute with a colleague. Further, a few weeks after Whitehead requested an

accommodation for her pregnancy-related disability, her employer provided her with

a light duty assignment, and when a co-worker complained to Whitehead’s

supervisor about her light duty assignment, her supervisor explained that the

accommodation was required by Whitehead’s doctor note.

Because she has not pleaded a plausible claim of discrimination, Whitehead’s

sex, pregnancy, and disability discrimination claims fail, and so do her derivative

claims for failure to prevent discrimination under California Government Code

section 12940(k) and wrongful discharge in violation of public policy. Dep’t of Fair

Emp. & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 748–49 (9th Cir. 2011); see also

Trujillo v. North County Transit Dist., 73 Cal. Rptr. 2d 596, 601–02 (Ct. App. 1998)

(noting that because a necessary element of a claim of failure to prevent

discrimination from occurring is discrimination, plaintiff’s failure to succeed in his

discrimination claims dooms his failure to prevent discrimination claim as well).

Whitehead also did not plead a plausible failure-to-accommodate claim.

FEHA makes it unlawful “[f]or an employer to refuse to provide reasonable

accommodation for an employee for a condition related to pregnancy, childbirth, or

a related medical condition, if the employee so requests, with the advice of the

5 employee’s healthcare provider.” Cal. Gov’t Code § 12945(a)(3)(A). An

employer’s refusal to engage in good faith in an interactive process with the

employee to provide the requested accommodation may violate FEHA. See Wilson

v. County of Orange, 87 Cal. Rptr. 3d 439, 445 (Ct. App. 2009). Here, Pacifica did

not refuse to provide Whitehead with a reasonable accommodation, and

Whitehead’s complaint does not allege that Pacifica failed “to engage in a timely,

good faith, interactive process . . . to determine [an] effective reasonable

accommodation[].” Cal. Gov’t Code § 12940(n). To the contrary, Whitehead

acknowledged that a supervisor informed her that she would be contacted when she

received modified duty, and that she was given modified duty weeks later. The

district court therefore did not err in dismissing Whitehead’s failure-to-

accommodate claim.

3. The district court erred, however, by dismissing Whitehead’s PAGA

claims for violations of the California Labor Code.

First, Whitehead sufficiently alleged that Pacifica failed to timely pay her and

other aggrieved employees wages under PAGA. Under the California Labor Code,

“an employer is required to pay the amount of wages due, including vacation pay,

immediately upon the discharge of an employee or within 72 [hours] after an

employee’s resignation.” Singh v. Southland Stone, U.S.A., Inc., 112 Cal. Rptr. 3d

455, 477 (Ct. App. 2010) (citing Cal. Lab. Code §§ 201, 202). Whitehead alleged

6 that Pacifica told her that she had “resigned” on February 15, 2017, but she did not

receive her final wages or wage statement until February 22, 2017. She further

alleged that Pacifica has failed to provide any of its employees who resigned or were

terminated since January 15, 2017 with their final wages either upon termination or

within 72 hours of resignation. These allegations sufficiently identify the other

employees allegedly aggrieved by violations of California Labor Code sections 201

and 202. The district court erred in ruling otherwise.1

Second, the district court erred in dismissing Whitehead’s PAGA claim

brought under California Labor Code § 227.3. Section 227.3 entitles employees to

the payment as wages of all vested vacation pay upon termination if the contract for

employment or employer policy provides for paid vacation. Cal. Lab. Code § 227.3.

Whitehead alleged that her “wage statement read that Plaintiff had a balance of 6.30

hours of accrued vacation,” indicating both her contractual entitlement to vacation

pay and that those vacation wages were not paid upon termination. This allegation

sufficiently states a factual matter—the existence of unpaid “accrued vacation”—

that would give rise to a plausible claim under California Labor Code § 227.3 and

therefore states a plausible claim for relief under Twombly. See 550 U.S. at 570.

1 Although a PAGA claim is a representative action, Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348, 382 (2014), it is not required to satisfy the federal class action requirements of commonality and typicality, Arias v. Superior Ct., 46 Cal. 4th 969, 975 (2009).

7 Whitehead’s complaint also adequately identified the other aggrieved employees

subjected to violations of the obligation to pay accrued vacation wages, alleging that

Pacifica “failed to pay accrued vacation wages to any of their employees in

California who resigned or were terminated since January 15, 2017.”

Third, Whitehead’s PAGA claim for violations of California Labor Code

§ 432 survives for substantially the same reasons. Whitehead sufficiently pleaded

that Pacifica failed to provide copies of employment records to her and other

California employees who, since January 15, 2017, have requested copies of their

employment records, including “employment applications, verifications of

citizenship, tax withholding documents, and acknowledgment of receipt of various

employment documents.” In particular, Whitehead alleged that her counsel sent a

letter on or about May 25, 2017 requesting copies of any instrument signed by

Whitehead relating to her employment but that Pacifica did not provide a copy of

those records. These allegations are sufficient to state a PAGA claim for violation

of California Labor Code § 432.2

2 Pacifica argued that Whitehead waived any arguments regarding her section 432 claim by failing to make those arguments in the district court. But Whitehead did argue that she stated a claim for a violation of section 432 in her opposition to the motion to dismiss. Pacifica also argues, for the first time on appeal, that section 432 does not provide a private cause of action. Because Pacifica did not raise this argument in the district court, it is waived. Yamada v. Nobel Biocare Holding AG, 825 F.3d 536, 543 (9th Cir. 2016).

8 Last, the district court erred in dismissing Whitehead’s claim for PAGA

penalties for violations of California Labor Code § 226(a). Whitehead alleged that

Pacifica failed to list the correct name and address of her legal employer on her wage

statements and the wage statements of all other Pacifica California employees who

have received wage statements since February 16, 2017. These allegations gave

Pacifica “fair notice of what the plaintiff’s claim is and the grounds upon which it

rests.” Updike v. Multnomah County, 870 F.3d 939, 952–53 (9th Cir. 2017) (quoting

Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006)). Insofar

as Whitehead sought civil penalties under PAGA, it was not necessary for her to

allege a knowing and intentional violation of section 226(a) or a statutory injury as

defined by section 226(e)(2)(B) because a “representative PAGA claim for civil

penalties for a violation of section 226(a) does not require proof of injury or a

knowing and intentional violation.” Raines v. Coastal Pac. Food Distribs., Inc., 234

Cal. Rptr. 3d 1, 4 (Ct. App. 2018) (emphasis added); see also Lopez v. Friant &

Assocs., LLC, 224 Cal. Rptr. 3d 1, 11 (Ct. App. 2017). Insofar as Whitehead also

sought statutory penalties directly under section 226(e), the district court properly

dismissed such claims, as Whitehead failed to allege any facts tending to show that

Pacifica knowingly and intentionally violated section 226(a).

4. We also reverse the district court’s dismissal of Whitehead’s claim under

California Business & Professions Code § 17200. Section 17200 prohibits unfair

9 competition, including “any unlawful . . . business act or practice.” Cal. Bus. & Prof.

Code § 17200. By prohibiting unlawful business practices, section 17200

“‘borrows’ violations of other laws” and treats them “as unlawful practices

independently actionable.” Doe v. CVS Pharmacy, Inc., 982 F.3d 1204, 1214 (9th

Cir. 2020) (quoting Farmers Ins. Exch. v. Superior Court, 2 Cal.4th 377, 383

(1992)). The district court dismissed Whitehead’s section 17200 claim on the

ground that the claim was “derivative of her claims for relief from discrimination,”

which the court dismissed. But Whitehead predicated her section 17200 claim not

only on her discrimination claims but also on her allegations that Pacifica violated

the Labor Code, e.g., by failing to pay its employees their accrued vacation time as

required by California Labor Code section 227.3. And as required by Business &

Professions Code section 17204, Whitehead also alleged that she suffered an

economic injury as a result of these violations. See Cal. Bus. & Prof. Code 17204.

Because we hold that Whitehead has properly alleged violations of the California

Labor Code, her claim under section 17200 also may proceed.

The district court’s dismissal of Whitehead’s causes of action for

discrimination, retaliation, failure to accommodate, and wrongful discharge in

violation of public policy, and her claim for relief under California Labor Code

section 226(e), is AFFIRMED (causes of action one through eleven and, in part,

twelve). The district court’s dismissal of Whitehead’s causes of action arising under

10 PAGA and her claim under California Business and Professions Code section 17200

is REVERSED (causes of action twelve to fifteen, and eighteen).