Atakilti v. Bayer U.S. LLC

• Court: District Court, N.D. California
• Decided: August 20, 2021
• Docket: 3:21-cv-04057
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 HIWOT ATAKILTI, Case No. 21-cv-04057-CRB

Plaintiff, 8 ORDER GRANTING MOTION FOR v. 9 REMAND

10 BAYER U.S. LLC, et al., Re: Dkt. No. 5 Defendants. 11

12 13 Plaintiff Hiwot Atakilti is a California resident. She filed suit against Defendants 14 Bayer U.S. LLC, Steve Flint, and Yaengsaeng Xayavong in Alameda County Superior 15 Court, alleging various employment discrimination and harassment claims under state law. 16 Defendants removed the case to federal court on the basis of diversity jurisdiction. While 17 Flint and Xayavong are both California residents, Defendants’ removal motion argues that 18 they were fraudulently joined to defeat diversity jurisdiction. Plaintiff has now filed a 19 motion to remand to state court, arguing that Flint and Xayavong were properly joined, 20 thus defeating diversity jurisdiction. See Remand Motion (“Motion”) (dkt. 5). For reasons 21 explained below, the Court GRANTS the Motion. 22 I. BACKGROUND 23 A. Parties 24 Bayer U.S. LLC is a Delaware corporation with its principal place of business in 25 Pittsburg, Pennsylvania. See Complaint ¶ 2 (dkt. 1, Ex. A).1 Steven Flint and Yaengsaeng 26

27 1 The complaint is included as Exhibit A to the Notice of Removal. See Notice of Removal (dkt. 1 Xayavong were Bayer employees during the relevant time period. Id. ¶¶ 2, 3–4. Both 2 Flint and Xayavong reside in California. Id. Plaintiff is a former Bayer employee who 3 resides in Alameda County, California. Id. ¶ 1. 4 B. Dispute Between The Parties 5 Plaintiff is “a black female employee from Ethiopia” who began working at Bayer 6 in 1999. Complaint ¶ 10. 7 In 2014, Plaintiff began reporting to Jeff Vo. Id. ¶ 13. She “was the only female” 8 and “only non-Asian employee” on the team, and Vo allegedly assigned “higher priority 9 projects” to her Asian co-workers. Id. ¶ 14. Plaintiff received projects that had the “same 10 or substantially similar complexity” as her counterparts, but they were “lower priority and 11 without strategic importance/value.” Id. Despite completing similarly complex work, 12 Plaintiff’s pay “was kept as a M06 grade two level[s] down from her Asian peers.” Id. 13 Around 2015, Bayer hired a “female Asian employee.” Id. ¶ 15. The employee 14 was paid more than Plaintiff, even though Plaintiff had four more years of experience. Id. 15 Meanwhile, Plaintiff continued to be assigned to “low priority projects without visibility to 16 key stakeholders,” which began to prevent her advancement within the company. Id. ¶ 17. 17 While Plaintiff continued to work on “low priority projects,” her non-African American 18 co-workers with “less experience” and “less seniority” received “promotions, raises, and 19 assignments to higher profile projects.” Id. 20 The issues with Vo continued over the next two years. See generally id. ¶¶ 18–32. 21 Plaintiff raised “concerns about discrimination” with Human Resources team, but she felt 22 that Human Resources did not fully investigate them. Id. ¶¶ 20–23. For instance, she met 23 with “Human Resources Director Steven Flint,” but rather than listen to Plaintiff, Flint 24 “interrogated” her “until she was in tears and then returned back to work.” Id. ¶ 24. After 25 the meetings with Human Resources proved unfruitful, Plaintiff filed a complaint with the 26 Equal Employment Opportunity Commission (“EEOC”). Id. ¶ 25. 27 The issues worsened after Plaintiff filed her complaint. Id. ¶¶ 26–32. Vo did not 1 workload, and “stated due dates were not flexible when they were.” Id. ¶¶ 34–37. After 2 filing another EEOC complaint, Plaintiff had a “one-on-one meeting” with Vo during 3 which he asked her “for feedback about him.” Id. ¶ 39. Plaintiff gave Vo feedback about 4 how he could “provide her with the same opportunities as her co-workers,” but Vo “got 5 agitated” and yelled at Plaintiff, “I want you out of my office.” Id. Shortly after this 6 meeting, Plaintiff asked Xayavong if “she would take over one-on-one meetings with her 7 in place of Mr. Vo.” Xayavong agreed to do so, becoming Plaintiff’s immediate 8 supervisor. Id. 9 In “early to mid-2018,” Bayer “reorganized” and Plaintiff and her co-workers were 10 moved to a new department. Id. ¶ 43. Plaintiff’s team “was reduced from seven 11 candidates to five” as part of the reorganization. Id. The five retained employees were 12 “re-graded into higher positions,” except for Plaintiff, even though she “was performing 13 the same or similar work.” Id. 14 In October 2018, Plaintiff met with “Ms. Stonebarger2 and Ms. Xayavong” to 15 discuss the discrepancy in her salary. Id. ¶ 44. She pointed out that “her new assignment 16 was the same as her co-workers,” but they were “working as a higher grade.” Id. She 17 asked why “she too had not received a pay increase,” and requested a copy of her job 18 description so that she could “evaluate whether or not there was a difference in the work 19 she was completing with the work employees were doing at the VS 1.1 pay grade.” Id. 20 Plaintiff still had not received answers to her questions as of January 2019. Id. ¶ 45. 21 She then went to “the Director of Quality Systems and Compliance Lisette Gilchrist” to 22 discuss her concerns. Id. Later that month, Xayavong sent an email that “accidentally 23 carbon copied” Plaintiff and stated that Plaintiff “will be moved to VS 1.1. level as she is 24 qualified for the next level.” Id. ¶ 47. Plaintiff received a corresponding salary increase 25 later that month. Id. 26 Xayavong sent Plaintiff an email that congratulated her on the promotion, but that 27 1 also “included negative feedback.” Id. ¶ 48. The “negative feedback” was that Plaintiff 2 should continue to improve her communication and interactions with team members. Id. 3 It was the first time Plaintiff “received feedback about her communication” in her twenty 4 years at Bayer. Id. 5 Plaintiff alleges that Xayavong “continued to harass” her throughout 2019. Id. ¶ 49. 6 For example, Xayavong “refused to approve [Plaintiff’s] vacation request.” Id. In 7 addition, Bayer maintains a practice of “celebrating and paying for work anniversaries,” 8 and Plaintiff requested a “pizza party” to celebrate her “twenty-year work anniversary.” 9 Id. But Xayavong “did nothing to plan [Plaintiff’s] twenty-year work anniversary” party, 10 “all the while taking time to plan other events such as a trip to Six Flags for Bayer 11 employees and their families.” Id. ¶ 51. Plaintiff had her anniversary party several months 12 later than planned, and Xayavong “failed to inform” Plaintiff’s guests, so Plaintiff had to 13 do it herself. Id. 14 From 2019 to 2020, Xayavong was openly and publicly critical of Plaintiff. Id. She 15 would “downplay” Plaintiff’s work contributions and imply that she “was not capable of 16 performing her work” in front of her co-workers. Id. ¶ 53. Xayavong blamed Plaintiff for 17 the “performance issues” of her co-workers, even “when she was not present and on 18 vacation.” Id. During meetings, Xayavong would tell others that Plaintiff “did not know 19 what she was doing.” Id. ¶ 56. 20 In January 2020, Xayavong announced that she was “leaving the group because she 21 had accepted another position.” Id. ¶ 56. Before leaving, she told the new managers that 22 Plaintiff “was slow and incapable of doing her work.” Id. Plaintiff reported this “false 23 information” to Flint, but rather than addressing it, Flint advised that Plaintiff “go on 24 leave.” Id. ¶ 57. Plaintiff declined to do so. Id. Plaintiff was subsequently placed on paid 25 administrative leave and has apparently not returned to work at Bayer since. Id. ¶¶ 58–60. 26 C. Procedural History 27 Based on the foregoing allegations, Plaintiff filed a complaint against Bayer, 1 Notice of Removal at 1–2. The complaint brings claims for (1) racial discrimination, (2) 2 gender discrimination, (3) marital status discrimination, (4) racial harassment, (5) failure to 3 prevent and investigate discrimination, (6) retaliation, (7) Equal Pay Act violation, and (8) 4 constructive discharge and wrongful termination against Defendants. Complaint ¶¶ 62– 5 145. Defendants removed the case to federal court on May 27, 2021. Notice of Removal 6 at 1. The stated basis for removal is diversity jurisdiction under 28 U.S.C. § 1332 and 28 7 U.S.C. § 1441(b). Id. 8 II. LEGAL STANDARD 9 There is a “strong presumption” against removal jurisdiction and courts “strictly 10 construe the removal statute against removal jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 11 564, 566 (9th Cir. 1992) (per curiam). A defendant bears the burden of establishing 12 removal jurisdiction, and “[f]ederal jurisdiction must be rejected if there is any doubt as to 13 the right of removal in the first instance.” Id. 14 Because the complaint in this case raises no federal questions, removal jurisdiction 15 only exists if the parties are diverse. “The district courts shall have original jurisdiction of 16 all civil actions where the matter in controversy exceeds the sum or value of $75,000, 17 exclusive of interest and costs, and is between—citizens of different states.” 28 U.S.C. § 18 1332(a)(1). 19 Diversity jurisdiction requires complete diversity of the parties. Caterpillar Inc. v. 20 Lewis, 519 U.S. 61, 68 (1996). However, “[a] defendant may remove a case with a non- 21 diverse defendant on the basis of diversity jurisdiction and seek to persuade the district 22 court that the defendant was fraudulently joined.” Diaz v. Allstate Ins. Group, 185 F.R.D. 23 581, 586 (C.D. Cal. 1998) (citing McCabe v. General Foods Corp., 811 F.2d 1336, 1339 24 (9th Cir. 1987)). To establish that a non-diverse defendant was fraudulently joined, the 25 removing party must show “there is no possibility that plaintiff will be able to establish a 26 cause of action in State court against the alleged sham defendant.” Tipton v. Airport 27 Terminal Servs., Inc., No. 2:18-CV-09503-AB-JEM, 2019 WL 185687, at *3 (C.D. Cal. 1 California law against the non-diverse defendants the court must remand.” Macey v. 2 Allstate Prop. & Cas. Ins. Co., 220 F. Supp. 2d 1116, 1117 (N.D. Cal. 2002). 3 III. DISCUSSION 4 Plaintiff moves to remand the case to state court, arguing that the parties are non- 5 diverse, thus defeating diversity jurisdiction. See Motion at 8–11. Defendants, in 6 response, argue that the two non-diverse Defendants—Flint and Xayavong—were 7 fraudulently joined and, as a result, neither should be considered for purposes of 8 determining diversity jurisdiction. Opposition to Remand (“Opp.”) (dkt. 7) at 5–7. 9 For reasons explained below, Plaintiff may be able to state a claim for racial 10 harassment under California’s Fair Employment and Housing Act (“FEHA”) at least 11 against Xayavong. Thus, Defendants fail to show that Xayavong was fraudulently joined, 12 and remand is warranted.3 13 A. Applicable Legal Framework 14 Plaintiff alleges that Xayavong harassed Plaintiff based on race in violation of 15 FEHA. Id. ¶¶ 98–111. Defendants argue that Plaintiff cannot state racial harassment 16 claims under FEHA against Xayavong because all of the alleged harassment involved 17 official employment actions. Opp. at 5–7. Defendants argue that under FEHA, claims 18 based on official employment actions are discrimination claims that can only be brought 19 against employers, not individual employees like Xayavong. Id. 20 FEHA prohibits both discrimination and harassment based on race. However, 21 FEHA makes an important distinction between the two causes of action. See Roby v. 22 McKesson Corp., 47 Cal. 4th 686, 705 (2009). Under FEHA, it is unlawful for “an 23 employer” to discriminate, while it is unlawful for “an employer” or “any other person” to 24 harass.4 Cal. Gov. Code §§ 12941, 12940; Roby, 47 Cal. 4th at 705 (“the terms 25

26 3 Because the Court determines that Defendants have failed to establish that there is no possibility of stating a racial harassment claim against Xayavong and that determination alone makes remand 27 appropriate, it does not consider whether there is no possibility of stating a claim against Flint. 1 ‘discriminate’ and ‘harass’ appear in separate provisions and define separate wrongs”). In 2 other words, only an employer can be liable for discrimination, while both an employer 3 and an individual employee can be liable for harassment. Reno v. Baird, 18 Cal. 4th 640, 4 647 (1998). 5 The California Supreme Court has outlined the type of fact patterns that tend to give 6 rise to discrimination and harassment claims. See generally Roby, 47 Cal. 4th 686; Baird, 7 18 Cal. 4th 640. Discrimination claims are generally based on “the exercise of official 8 actions,” such as performance reviews, salary adjustments, and hiring and termination 9 decisions. Roby, 47 Cal. 4th at 692. In comparison, “harassment claims are based on a 10 type of conduct that is avoidable and unnecessary to job performance,” like derogatory 11 remarks, inappropriate physical contact, and exclusion from workplace social events. 12 Baird, 18 Cal. 4th at 646. In short, “discrimination refers to bias in the exercise of official 13 actions on behalf of the employer, and harassment refers to bias that is expressed or 14 communicated through interpersonal relations in the workplace.” Roby, 47 Cal. 4th at 15 707. 16 Despite the different contours, discrimination and harassment claims can share the 17 same underlying allegations. The California Supreme Court has held that discriminatory 18 conduct can support a harassment claim when coupled with “hostile social interactions in 19 the workplace.” Id. In such cases, official employment actions can have “a secondary 20 effect of communicating a hostile message.” Id. 21 B. Application 22 Defendants argue that Plaintiff cannot state a racial harassment claim against 23 Xayavong because the “alleged mis-conduct is comprised of facially neutral personnel 24 actions” that cannot form the basis of “individual liability on the part of California people 25 managers under FEHA.” Opp. at 5. Plaintiff contends that she states harassment claims 26

27 55, 65 (1996). 1 against Xayavong because Xayavong’s alleged actions “were outside the scope necessary 2 to perform [her] supervisorial [role].” Motion at 8–11. 3 FEHA prohibits a broad range of harassment, including (a) verbal harassment (e.g. 4 epithets, derogatory comments, or slurs), (b) physical harassment (e.g. assault or other 5 physical interference with work), and (c) visual harassment (e.g. derogatory cartoons or 6 posters). Cal. Code Regs. tit. 2, § 11019; see also Ramirez v. Little Caesars Enterprises, 7 Inc, No. 2:18-CV-07993-AB-JPR, 2018 WL 5816107, at *5 (C.D. Cal. Nov. 2, 2018). To 8 give rise to a harassment claim, the conduct at issue must be “sufficiently severe or 9 pervasive to alter the conditions of [the victim’s] employment and create an abusive work 10 environment.” Fisher. v. San Pedro Peninsula Hosp., 214 Cal. App. 590, 609 (Cal. Ct. 11 App. 1989) (citations omitted). 12 Here, Plaintiff may be able to state a racial harassment claim against Xayavong. 13 The key allegations that support this claim are the “negative comments” that Xayavong 14 made publicly about Plaintiff from 2019 to 2020. See Complaint ¶¶ 53–56. Although the 15 complaint does not include any specific examples, it makes clear that the comments tended 16 to publicly demean and belittle Plaintiff. See, e.g., id. ¶ 53 (Xayavong “would downplay 17 [Plaintiff’s] work contributions” and imply she “was not capable of performing her 18 work”); id. (Xayavong “blamed” Plaintiff for “[her co-workers’] poor work 19 performance”); ¶ 56 (Xayavong commented at meetings that Plaintiff “did not know what 20 she was doing”). 21 The public nature of these comments, in particular, tends to support a harassment 22 claim. Providing an employee with feedback that their work product needs improvement 23 may very well part of a “supervisor’s managerial role,” but repeatedly and gratuitously 24 singling her out and criticizing her in front of her colleagues may convey a hostility that 25 gives rise to a claim for harassment. See Roby, 47 Cal. 4th at 708–09 (comments 26 amounted to “hostile social interactions” where they were “unrelated to [defendant’s] 27 managerial role, engaged in for her own purposes”); see also Janken v. GM Hughes Elecs., 1 duties which are not of a type necessary to business and personnel management”). 2 Xayavong’s other alleged conduct could provide further support for a harassment 3 claim. While the conduct may be fairly characterized as “official employment actions,” it 4 could also be interpreted as sending a message of hostility. For example, Xayavong 5 allegedly denied Plaintiff’s vacation request without any basis and “did nothing to plan” 6 Plaintiff’s anniversary party while planning social events for other Bayer employees. Id. 7 ¶¶ 49, 51–52. In connection with Xayavong’s repeated public criticisms of Plaintiff, these 8 actions could be taken to convey hostility toward Plaintiff. See Roby, 47 Cal. 4th at 709 9 (“acts of discrimination can provide evidentiary support for a harassment claim”). 10 The complaint could further support an inference that the alleged misconduct may 11 have been based on Plaintiff’s race. Plaintiff was the only African American on her team, 12 and she was singled for differential treatment over several years. She allegedly received 13 lower pay, fewer opportunities, more critical reviews, and less favorable treatment than her 14 non-African American colleagues. See, e.g., id. ¶ 26 (Plaintiff “did not receive the same 15 pay grade as her Asian co-workers”); ¶ 39 (Plaintiff did not receive “the same 16 opportunities as her co-workers”). The multi-year pattern of disparate treatment could 17 suggest the alleged harassment was based on race. 18 Defendants’ argument that the “alleged mis-conduct is comprised of facially neutral 19 personnel actions” is not persuasive. Opp. at 5–6. Defendants do not address Xayavong’s 20 year-plus practice of publicly demeaning Plaintiff in front of her peers. Defendants instead 21 focus solely on “personnel actions,” such as “disagreements with performance reviews, 22 denied vacation requests, handling of her internal complaints, salary and the like.” See id. 23 at 5–7. But Xayavong’s public and repeated ridicule of Plaintiff—especially in connection 24 with certain personnel actions—may support a harassment claim under FEHA. 25 IV. CONCLUSION 26 To be certain, the Court does not hold that the complaint states a claim for racial 27 harassment under FEHA against Xayavong. It only holds that the complaint could state 1 || Williams Lea Inc., No. CO7-03525 CRB, 2007 WL 2428052, at *3 (N.D. Cal. Aug. 22, 2 || 2007) (ordering remand because “this is not a case where a plaintiff cannot under any 3 || circumstances make a claim against the non-diverse defendant”). Thus, the Court grants 4 || the Motion to remand this action to the Superior Court for the State of California, County 5 || of Alameda. 6 7 IT IS SO ORDERED. 8 || Dated: August 20, 2021 9 0 co K CHARLES R. BREYER 11 United States District Judge qa 12

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