FILED Clerk District Court JUN 20 2023 for the Northern. □□□□□□□ Islands 3 By (Deputy □□□□□ 4 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN MARIANA ISLANDS 6 OZCAN GENC, HASAN GOKCE, and ) Case No. 1:22-cv-00002 SULEYMAN KOS, on behalf of themselves ) 7 . ) and all others similarly situated, ) 8 Plaintiff ) DECISION AND ORDER DENYING aintilis, ) MOTION TO DISMISS 9 ) SECOND AMENDED COMPLAINT v. IMPERIAL PACIFIC INTERNATIONAL ) (CNMI), LLC and IMPERIAL PACIFIC ) 12 | INTERNATIONAL HOLDINGS LTD., ; 13 Defendants. ; ) 14 ) IS Previously, the Court granted Defendant Imperial Pacific International (CNMI), LLC’s 16 (“IPI”) motions to dismiss the original complaint and the first amended complaint (“FAC”), but 17 granted Plaintiffs leave to amend both times. (Mem. Decision Granting Mot. Dismiss FAC 1, 18 19 ECF No. 34.) Plaintiffs Ozcan Geng, Hasan Gokce, and Stileyman Kés (collectively “Plaintiffs”) 29 || subsequently filed their second amended complaint (““SAC,” ECF No. 35). Before the Court is 21 || IPI’s motion to dismiss the SAC with prejudice. (Mot., ECF No. 38.) Plaintiffs filed an opposition 22 |! (Opp’n, ECF No. 39), to which IPI filed a reply (Reply, ECF No. 40). The matter came on for a hearing, at which time the Court took the matter under submission. (Min., ECF No. 43.) The Court 24 now issues this decision and order DENYING the motion to dismiss the SAC and memorializes 25 its reasoning as follows.
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1 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 2 The following facts are taken from the SAC, and the attached exhibits, which include 3 various declarations from former IPI employees and Plaintiffs’ Equal Employment Opportunity 4 Commission (“EEOC”) charges and right to sue letters. (ECF Nos. 35, 35-1– 35-13). 5 “Plaintiffs are [three] individuals with Turkish national origin and who were, at all 6 relevant times, employees of IPI admitted to the United States under the H-2B temporary foreign 7 8 worker program as construction workers to build the Imperial Palace casino/hotel resort in 9 Garapan[.]” (SAC ¶ 4.) Genç started working for IPI in January 2020 as a foreman and leader of 10 the welding and drywall team—with an employment certificate title of “Construction Carpenter.” 11 (Id. ¶ 5.) Gökçe started working for IPI in January 2020 as a plumber, plumbing foreman, and 12 master of pipe installation—with an employment certificate title of “Plumber.” (Id. ¶ 6.) Köş 13 started working for IPI in January 2020 as an electrician—with an employment certificate title of 14 15 “Electrician”—and was later promoted to foreman in June 2020. (Id. ¶ 7.) 16 Towards the end of June 2020, “when H-2B workers were negotiating with IPI to extend 17 [their] contracts for another six months, one Taiwanese worker showed [Plaintiffs] his paycheck,” 18 which is when Plaintiffs “learned that the Taiwanese were being paid $23 an hour, nearly three 19 times what IPI was paying [Plaintiffs], for the same work.” (ECF Nos. 35-8, 35-10, 35-12.) 20 Plaintiffs further learned that “the Italians were being paid $30 an hour, also for the same work 21 that [Plaintiffs] were doing.” (ECF Nos. 35-8, 35-10, 35-12.) 22 23 IPI then started to miss paydays around the same time in June 2020, and Plaintiffs filed a 24 lawsuit with this Court in November 2020 pursuant to the Fair Labor Standards Act (FLSA). 25 (ECF Nos. 35-8, 35-10, 35-12.) Plaintiffs were subsequently terminated on December 16, 2020. 26 (ECF Nos. 35-8, 35-10, 35-12; see SAC ¶¶ 5-7.) Around the same time in December 2020, 27 1 Plaintiffs each individually filed a charge of discrimination with the EEOC, alleging 2 discrimination on the basis of both national origin and retaliation.1 (ECF Nos. 35-8, 35-10, 35- 3 12.) 4 After receiving their respective right to sue letters from the EEOC, (ECF Nos. 35-9, 35- 5 11, 35-13), Plaintiffs filed this class action lawsuit on January 20, 2022 against IPI and IPI’s 6 parent company Imperial Pacific International Holdings Ltd. (Compl., ECF No. 1.) Having 7 8 received leave to amend their FAC after the Court granted IPI’s motion to dismiss, (see Mins., 9 ECF No. 17), Plaintiffs timely filed their SAC, alleging employment discrimination under Title 10 VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et. seq., and asserting the Court’s original 11 jurisdiction under Title VII. (SAC ¶¶ 1-2.) 12 Plaintiffs claim that “IPI engaged in a company-wide practice of employment 13 discrimination, both intentional and systemic, on the basis of national origin, against Plaintiffs 14 15 and a class of similarly situated Turkish employees/former employees as alleged in this 16 Complaint.” (Id. ¶ 1.) Even though the Turkish, Italian, and Taiwanese teams were each assigned 17 floors that “were based on the same plan and the same productions,” Plaintiffs assert that “those 18 Taiwanese and Italian workers were paid by IPI at a wage rate significantly higher—as much as 19 three times higher—than Plaintiffs and members of the class.” (Id. ¶¶ 19, 51-52 (quoting Barut 20 Decl. 1, ECF No. 35-6).) A former Turkish employee observed that while “Taiwanese and Italian 21 workers doing the same job as he worked fewer hours (no overtime) each week[, they] were paid 22 23 substantially more.” (SAC ¶ 49.) 24 25 26 27 1 Their retaliation claim formed part of the lawsuit in Genc v. Imperial Pac. Int’l (CNMI) LLC, No. 1:20-cv-00031, albeit under the FLSA. 1 Additionally, Plaintiffs contend that “[w]ithin each ethnic national team, all the 2 construction workers were paid at the same rate, all foremen were paid at the same rate, and all 3 supervisors were paid at the same rate.” (Id. ¶ 25.) “IPI employed those Taiwanese and Italian 4 workers to perform the same types of work that Plaintiffs and members of the class performed” 5 and those “Taiwanese and Italian workers had the same or similar level of skills, qualifications, 6 and experience as Plaintiffs and members of the class.” (SAC ¶¶ 17-18.) 7 8 Fiden T. Hamo, a U.S. citizen that worked in general construction at IPI’s construction 9 site, observed the Turkish, Italian, and Taiwanese construction workers. (Hamo Decl. ¶¶ 2-6, ECF 10 No. 35-3.) He states that “[t]here was no difference that [he] could see in the work that Turkish 11 construction workers doing welding, masonry, carpentry, and electrical work were doing, as 12 opposed to work that welders, mason, carpenters, and electricians from other nations were doing.” 13 (Id. ¶ 11.) Glenn Bell, project manager for a team of Italian construction workers, attests that 14 15 while “[t]he nature and quality of work that the Turks did was comparable to the nature and 16 quality of the work the Italians did . . . the Turks were paid approximately one-third the hourly 17 rate as the Italians.” (Bell Decl. ¶¶ 3, 9, 13, ECF No. 35-1.) Additionally, Bell states that “the 18 Turks and Taiwanese were performing the same type of construction work, and the skill level, 19 workmanship, and the nature and scope of the work cannot account for any disparity in pay rates 20 between the Turks and the Taiwanese.” (Id. ¶ 16.) Genç attests that “the work that Taiwanese 21 welders and Italian welders, dry wall specialists, and carpenters [i.e. the Taiwanese and Italian 22 23 construction workers] did . . . required no greater skill or training than the work that similar 24 Turkish workers were doing. It was the same work that the Turks were doing. There was no 25 difference.” (Genç Decl. ¶ 10, ECF 35-7.) Senol Barut, who was a Turkish supervisor, states that 26 all of his fellow supervisors, except one, were paid much more than he. (Barut Decl. 1, ECF No. 27 1 35-6.) Genç attests that “IPI asked us to support the Italians in drywall system installation, ceiling 2 carpentry, and welding on the 14th floor[.]” (Genç Decl. ¶ 5.) He further provides that “[t]he 3 Italians also were sent to other floors for aluminum curtain wall installation, and we assisted them 4 in that work.” (Id. ¶ 6.) 5 Further, Plaintiffs provide wage rates for the H-2B program from the Department of Labor 6 (DOL). They list the wage range the DOL authorized for various construction worker positions 7 8 such as plumbers and welders. (SAC ¶ 22.) Plaintiffs assert that because IPI paid Turkish 9 employees minimum wage, they were paid below the range that the DOL had approved IPI to pay 10 its H-2B employees. (Id. ¶¶ 20-23.) 11 Plaintiffs bring their Title VII claim on behalf on themselves and as a class action pursuant 12 to Federal Rule of Civil Procedure 23(b)(3), seeking to represent an estimated class of 107 13 “persons of Turkish national origin who were employed by IPI under the H-2B visa program 14 15 during 2020 and 2021.” (SAC ¶¶ 66-72.) 16 In addition to suing IPI, Plaintiffs also sue Imperial Pacific International Holdings Ltd. 17 under an alter ego theory. (SAC ¶¶ 3, 14). As relief, Plaintiffs seek: for the case to be expedited 18 pursuant to 42 U.S.C. § 2000e-5(f)(5); class certification; compensatory and punitive damages; 19 costs, expenses, and attorneys’ fees pursuant to 42 U.S.C. 2000e-5(k); and any other such relief 20 that is just. (Id. at 15.) 21 II. LEGAL STANDARD 22 23 To survive a motion to dismiss for failure to state a claim upon which relief can be granted 24 under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a pleading “must contain sufficient 25 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 26 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 27 1 (2007)). The factual allegations need not be detailed, but a plaintiff must provide “more than an 2 unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. “For 3 purposes of ruling on a Rule 12(b)(6) motion, the Court ‘accept[s] factual allegations in the 4 complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving 5 party.’” P&G v. QuantifiCare Inc., 288 F. Supp. 3d 1002, 1010 (N.D. Cal. 2017) (quoting 6 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008)). Further “[a]t 7 8 the motion to dismiss phase, the trial court must . . . draw all reasonable inferences in favor of the 9 plaintiff.” Tracht Gut, LLC v. L.A. Cty. Treasurer & Tax Collector, 836 F.3d 1146, 1150 (9th Cir. 10 2016) (citation omitted). In determining whether a motion to dismiss should be granted, there is a 11 two-step process: first, “identify[] pleadings that, because they are no more than conclusions, are 12 not entitled to the assumption of truth,” and second, “[w]hen there are well-pleaded factual 13 allegations, a court should assume their veracity and then determine whether they plausibly give 14 15 rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. 16 Generally, when ruling on a 12(b)(6) motion, a court may consider only the pleadings and 17 limited materials, such as “documents attached to the complaint, documents incorporated by 18 reference in the complaint, or matters of judicial notice[.]” United States v. Ritchie, 342 F.3d 903, 19 908 (9th Cir. 2003). If a court considers other evidence, “it must normally convert the 12(b)(6) 20 motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an 21 opportunity to respond.” Id. at 907. 22 23 III. DISCUSSION 24 The Court finds that Plaintiffs plausibly allege a prima facie case of Title VII 25 discrimination. The differences that IPI cites are immaterial. Additionally, the SAC alleges 26 plausible facts to show that each named Plaintiff was discriminated against. The Court further 27 1 finds the DOL statistics anecdotally supportive of the claim of Title VII discrimination. The facts 2 alleging systemic discrimination also support the claim of discrimination. In reaching these 3 findings, the Court first turns to the primary issue of Title VII employment discrimination. 4 A. Plaintiffs plausibly allege a claim for Title VII employment discrimination 5 because they demonstrate other circumstances giving rise to an inference of 6 discrimination. 7 The Court is mindful that a plaintiff does not need to plead a prima facie case in order to 8 survive a motion to dismiss. McGary v. City of Portland, 386 F.3d 1259, 1262 (9th Cir. 2004) 9 (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11 (2002)). The analysis at the motion 10 to dismiss phase for an employment discrimination case is focused on whether there are “enough 11 facts to state a claim to relief that is plausible on its face[.]” United States v. Valdez-Novoa, 780 12 F.3d 906, 916 n.1 (9th Cir. 2015) (quoting Twombly, 550 U.S. at 569-70) (noting the Supreme 13 14 Court’s holding that the plausibility standard is not contrary to its prior holding that an employment 15 discrimination complaint does not need to contain facts establishing a prima facie case of 16 discrimination). Nevertheless, district courts in the Ninth Circuit look to the elements of a prima 17 facie case in analyzing the sufficiency of an employment discrimination complaint. See Sablan v. 18 A.B. Won Pat Int’l Airport Auth., No. 10-00013, 2010 U.S. Dist. LEXIS 130692, at *13, 2010 WL 19 5148202, at *5 (D. Guam Dec. 9, 2010) (citations omitted) (“[C]ourts are now looking to those 20 elements to analyze a motion to dismiss—so as to decide, in the light of ‘judicial experience and 21 22 common sense,’ whether the challenged complaint ‘contain[s] sufficient factual matter, accepted 23 as true, to “state a claim to relief that is plausible on its face.”’”); Carter v. Brennan, No. 2:18-cv- 24 00823 MCE AC (PS), 2018 U.S. Dist. LEXIS 172048, at *6, 2018 WL 4810808, at *2 (E.D. Cal. 25 Oct. 4, 2018) (citations omitted) (“[T]he court must look to these elements [of a prima facie case 26 of discrimination] to decide whether plaintiff’s complaint as pleaded contains sufficient factual 27 1 matter, accepted as true, to state a plausible claim for relief.”), report and recommendation 2 adopted, No. 2:18-CV-00823 MCE AC(PS), 2019 U.S. Dist. LEXIS 11066, 2019 WL 296948 3 (E.D. Cal. Jan. 23, 2019). 4 To state an individualized claim for race-based disparate treatment under Title VII, a 5 plaintiff must allege sufficient facts to show that: “(1) [plaintiff] is a member of a protected class; 6 (2) [plaintiff] was qualified for [the] position; (3) [plaintiff] experienced an adverse employment 7 8 action; and (4) similarly situated individuals outside [plaintiff’s] protected class were treated more 9 favorably, or other circumstances surrounding the adverse employment action give rise to an 10 inference of discrimination.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004) 11 (citations omitted); see Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1012 (9th Cir. 2018) 12 (noting same). To satisfy this fourth prong on “similarly situated,” the plaintiff “must demonstrate 13 that he [or she] was similar to [the] proposed comparator ‘in all material respects.’” Sheets v. City 14 15 of Winslow, 859 F. App’x 161, 162 (9th Cir. 2021) (quoting Moran v. Selig, 447 F.3d 748, 755 16 (9th Cir. 2006)). “[I]ndividuals are similarly situated when they have similar jobs and display 17 similar conduct.” Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003). 18 At the motion hearing, IPI confirmed that it does not contest the first three elements of the 19 prima facie case of discrimination. (See also Mot. 12 n.2.) As with the prior motions, this motion 20 to dismiss turns on the fourth element in determining whether the SAC alleges a plausible claim 21 of discrimination. 22 23 Plaintiffs cite to Houle v. Walmart Inc., 447 F. Supp. 3d 261, 280 (M.D. Pa. 2020), for the 24 contention that for a pay discrimination claim, complaints are “not required to identify any 25 comparators who have received more favorable treatment than plaintiff.” (Opp’n 4.) Despite this 26 non-binding out-of-circuit district court case, courts from other circuits, including the Ninth, have 27 1 required complaints to identify similarly situated comparators for pay discrimination claims. See 2 Redwind v. W. Union, LLC, No. 3:18-CV-02094-SB, 2019 WL 3069864, at *4 (D. Or. June 21, 3 2019) (recommending dismissal of pay discrimination claim because the plaintiff did not allege 4 comparators were similarly situated), report and recommendation adopted, No. 3:18-CV-2094- 5 SB, 2019 WL 3069841 (D. Or. July 12, 2019); Harrington v. Lesley Univ., 554 F. Supp. 3d 211, 6 224 (D. Mass. 2021) (quoting Smith v. Stratus Comput., Inc., 40 F.3d 11, 17 (1st Cir. 1994)) 7 8 (dismissing complaint because the plaintiff failed to allege facts to demonstrate male colleagues 9 were similarly situated). Nevertheless, as outlined by the Ninth Circuit, to prove a prime facie case 10 of discrimination, plaintiffs must establish either that “similarly situated individuals outside 11 [plaintiff’s] protected class were treated more favorably, or other circumstances surrounding the 12 adverse employment action give rise to an inference of discrimination.” Peterson, 358 F.3d at 603 13 (emphasis added) (citations omitted). 14 15 Construing the pleadings in the light most favorable to and drawing all reasonable 16 inferences in favor of Plaintiffs, the Court finds that the SAC plausibly states a claim that IPI 17 discriminated against Plaintiffs and the proposed class members in paying them lower wages 18 compared to their Italian and Taiwanese counterparts. Previously, this Court found that the FAC 19 “d[id] not contain sufficient facts to plausibly allege that the Italian and Taiwanese are appropriate 20 comparators.” (Mem. Decision Granting Mot. Dismiss FAC 11 (citations omitted).) While the 21 FAC stated that Plaintiffs were construction carpenters, plumbers, and electricians, it lacked any 22 23 facts regarding other construction carpenters, plumbers, and electricians. (Id. at 10.) Now, 24 Plaintiffs clarify that “[t]he material, relevant unit of comparison is the group, not the individual, 25 because within each group – construction workers, foremen, supervisors – the pay was the same 26 for all individuals of the same nationality.” (Opp’n 5.) Contrary to IPI’s claim that the SAC lacks 27 1 facts stating that “‘groups’ of construction workers, foremen and supervisors of the same national 2 origin had the same wage rate” (Reply 5), the SAC asserts that “[w]ithin each ethnic national team, 3 all the construction workers were paid at the same rate, all foremen were paid at the same rate, and 4 all supervisors were paid at the same rate” (SAC ¶ 25.) As such, the Court uses the groupings of 5 construction worker, foreman, and supervisor to determine whether the SAC plausibly alleges Title 6 VII discrimination. See generally Vasquez, 349 F.3d at 641 (“Employees in supervisory positions 7 8 are generally deemed not to be similarly situated to lower level employees.”). At the hearing on 9 the motion to dismiss the SAC, Defendant clarified that it does not contest the propriety of using 10 the group classifications, but asserts the SAC should nevertheless be dismissed for failure to allege 11 sufficient comparators. (See also Reply 5-6.) The Court therefore turns to whether Plaintiffs have 12 stated sufficiently plausible facts in their SAC to state a claim for Title VII discrimination based 13 on the fourth prong and Plaintiffs’ hierarchal comparators, starting with the construction workers. 14 15 1. Construction Workers 16 Plaintiffs claim Title VII discrimination for the Turkish construction workers because there 17 were pay disparities compared to other construction workers of different nationalities, despite the 18 work being comparable or the same. Their SAC is supported by several declarations, including 19 one from Hamo, a U.S. citizen that worked in general construction at IPI’s construction site. Hamo 20 states that “[t]here was no difference that [he] could see in the work that Turkish construction 21 workers doing welding, masonry, carpentry, and electrical work were doing, as opposed to work 22 that welders, mason, carpenters, and electricians from other nations were doing.” (Hamo Decl. ¶ 23 24 11.) These statements sufficiently support the proposition that Taiwanese and Italian construction 25 workers were similarly situated to the Turkish construction workers – they had similar jobs of 26 construction workers and similar conduct in that they were “doing welding, masonry, carpentry, 27 and electrical work.” This conclusion is further buttressed by other declarations. Bell, project 1 manager for a team of Italian construction workers, attests that while “[t]he nature and quality of 2 work that the Turks did was comparable to the nature and quality of the work the Italians did . . . 3 the Turks were paid approximately one-third the hourly rate as Italians.” (Bell Decl. ¶¶ 3, 9, 13.) 4 Moreover, Bell states that “the Turks and Taiwanese were performing the same type of 5 construction work, and the skill level, workmanship, and the nature and scope of the work cannot 6 account for any disparity in pay rates between the Turks and the Taiwanese.” (Id. ¶ 16.) Although 7 8 Bell does not specify what group he was describing when comparing the Turks, Taiwanese, and 9 Italians, it is a reasonable inference to conclude that he is referencing the construction workers that 10 he supervised. See Tracht Gut, LLC, 836 F.3d at 1150 (citation omitted) (“At the motion to dismiss 11 phase, the trial court must . . . draw all reasonable inferences in favor of the plaintiff.”) Further, 12 Genç concludes that “the work that Taiwanese welders and Italian welders, dry wall specialists, 13 and carpenters [i.e. the Taiwanese and Italian construction workers] did . . . required no greater 14 15 skill or training than the work that similar Turkish workers were doing. It was the same work that 16 the Turks were doing. There was no difference.” (Genç Decl. ¶ 10, ECF 35-7.) Based on the 17 foregoing, the Court concludes that the Turkish construction workers were similarly situated to the 18 Italian and Taiwanese construction workers, which satisfies the fourth element of the prima facie 19 case. As such, the SAC states a plausible claim that IPI discriminated against the Turkish 20 construction workers. 21 2. Supervisors and Foremen 22 23 Construing the SAC in the light most favorable to and drawing all reasonable inferences in 24 favor of Plaintiffs, it is reasonable to conclude that IPI discriminated against the Turkish 25 supervisors. As to supervisors, Turkish supervisor Barut states that all of his fellow supervisors, 26 except one, were paid much more than he. (Barut Decl. 1.) While Barut details his own job duties, 27 1 (id.), he does not state whether Turkish and Taiwanese supervisors performed duties similar to his. 2 However, based on the actual work performed, the Court finds there are sufficient similarities. 3 Specifically, the SAC asserts that the Turkish, Italian, and Taiwanese teams were each assigned 4 floors that “were based on the same plan and the same productions.” (SAC ¶¶ 51-52 (quoting Barut 5 Decl. 1).) This statement supports the similarly situated allegation by providing the missing link 6 that the Taiwanese and Italian supervisors were doing the same work as the Turkish supervisors 7 8 such that they were similarly situated yet being paid differently. Alternatively, these facts as 9 alleged at least give rise to an inference of discrimination, which thus satisfies the fourth element 10 of the prima facie case. Therefore, the SAC plausibly alleges that IPI discriminated against the 11 Turkish supervisors. 12 In light of the discussion above, the Court concludes that the SAC plausibly alleges that 13 IPI discriminated against the Turkish foremen, including the three named Plaintiffs. Genç attests 14 15 that “IPI asked us to support the Italians in drywall system installation, ceiling carpentry, and 16 welding on the 14th floor[.]” (Genç Decl. ¶ 5.) He further provides that “[t]he Italians also were 17 sent to other floors for aluminum curtain wall installation, and we assisted them in that work.” (Id. 18 ¶ 6.) It is reasonable to infer that Genç’s use of the term “we” includes Turkish construction 19 workers that he oversaw as well as Turkish foremen. The SAC also reasserts that “IPI employed 20 those Taiwanese and Italian workers to perform the same types of work that Plaintiffs and members 21 of the class performed” and those “Taiwanese and Italian workers had the same or similar level of 22 23 skills, qualifications, and experience as Plaintiffs and members of the class.” (SAC ¶¶ 17-18.) 24 Although Plaintiffs use the vague term “workers,” it can apply to the context of the foremen. These 25 drawn inferences along with the prior findings that IPI discriminated against the Turkish 26 27 1 construction workers and supervisors supports finding that the SAC raises an inference that IPI 2 discriminated against the Turkish foremen. 3 B. Each of the three named Plaintiffs have plausibly alleged individual claims of 4 Title VII discrimination. 5 The Court must still analyze the individual claims of discrimination plead by each named 6 Plaintiff who are each foreman even though the SAC plausibly states a claim of discrimination 7 against all Turkish foremen in this case. See Renati v. Wal-Mart Stores, Inc., No. 19-cv-02525- 8 CRB, 2019 U.S. Dist. LEXIS 185486, 2019 WL 5536206, at *6 (N.D. Cal. Oct. 25, 2019) (citing 9 Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010)) (“Individual plaintiffs must 10 11 show that they themselves were discriminated against.”). “It is true that evidence of a pattern or 12 practice of discrimination may, in a class action, be sufficient to prove a Title VII claim, ‘even 13 absent proof of losses to specific individuals.’” Id. (quoting Chin v. Port Auth. of N.Y. & N.J., 685 14 F.3d 135, 147 (2d Cir. 2012)). However, “every circuit to consider the question has held that 15 individual Title VII plaintiffs cannot prevail based only on pattern or practice evidence” because 16 “extending the pattern-or-practice method of proof to individual cases would impermissibly 17 ‘relieve the plaintiff of the need to establish each element of his or her claim.’” Id. (quoting Chin, 18 19 685 F.3d at 149-50.) 20 Here, construing the pleadings in the light most favorable to Plaintiffs, the SAC sufficiently 21 states a claim of discrimination against all three Plaintiffs as foremen. Plaintiffs assert that the 22 Italian foremen earned $50 an hour,2 (Bell Decl. ¶ 11), yet they only earned $10.50 an hour as 23
24 2 Conversely, in their EEOC charge forms, Plaintiffs state that “the Italians were being paid $30 an hour, also for the 25 same work that we were doing.” (ECF Nos. 35-8, 35-10, 35-12.) While the Court is “not . . . required to accept as true allegations that contradict exhibits attached to the Complaint[,]” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 26 (9th Cir. 2010) (citation omitted), the Court is mindful that the statements in the EEOC charge forms were made before Bell’s statements were made. Further, Plaintiffs’ and Bell’s statements still support the allegation that IPI 27 discriminated against the Turkish by paying their Italian counterparts more – Plaintiffs just provided a more conservative estimate. 1 foremen (ECF Nos. 35-8, 35-10, 35-12.) Additionally, they state that “the Taiwanese were being 2 paid $23 an hour, nearly three times what IPI was paying us, for the same work.” (Id.) It is a 3 reasonable inference to conclude that Plaintiffs were comparing themselves, as Turkish foremen, 4 to the Taiwanese foremen. Also, as described above, the SAC describes the similar conduct among 5 the Turkish, Italian, and Taiwanese foremen. Therefore, the Court concludes that the SAC 6 plausibly states that individual Plaintiffs Genç, Gökçe, and Köş were each discriminated against. 7 8 C. Any differences IPI alleges are immaterial. 9 IPI argues that there are significant differences between the Turkish, Italian, and Taiwanese 10 workers such that they cannot be similarly situated, such as the exclusivity of electrician and 11 plumber positions to only the Turkish; the Turkish workers’ ability to earn overtime pay; and the 12 Turkish workers’ representation through a third-party recruitment agency. (Mot. Dismiss 14-15.) 13 At this early stage of litigation, the Court finds the SAC alleges sufficient facts to plausibly assert 14 15 that IPI discriminated against the Turkish construction workers, foremen, and supervisors. 16 Moreover, the distinctions that IPI highlights do not appear to be material. 17 In affirming a grant of summary judgment in favor of defendant Major League Baseball 18 (MLB), the Ninth Circuit found that the plaintiffs, Caucasian or Latino retired professional 19 baseball players, “failed to demonstrate that they are similarly situated in all material respects to 20 the former Negro League players they assert are receiving more favorable treatment” of receiving 21 benefits under the Negro League Plans. Moran, 447 F.3d at 751, 755-56. The Ninth Circuit 22 23 identified a material aspect when it noted that “in order to qualify for the benefits under the Negro 24 League Plans, the players to whom the appellants seek to equate themselves must have played in 25 the Negro Leagues-a qualification that the appellants indisputably lack.” Id. at 756. 26 27 1 Here, it is unclear how any of the distinctions IPI highlights between the Turkish workers 2 and the Italian and Taiwanese workers are material. (Mot. Dismiss 14-15). The comparators here 3 are among three groups: construction workers, supervisors, and foremen. The disparate treatment 4 under Title VII is the inequitable base rate IPI applied among the national groups, not the 5 opportunity for all the workers to earn the same amount of money per pay period. Plaintiffs clarify 6 that even though “Taiwanese and Italian workers doing the same job as he worked fewer hours (no 7 8 overtime) each week but were paid substantially more.” (SAC ¶ 49.) So even assuming that IPI 9 paid the Turkish a lower wage because they were allowed to work overtime, this should not result 10 in the Turkish being treated disparately because they still earned substantially less. 11 At the motion hearing, IPI emphasized that the difference in skills and qualifications among 12 the groups as outlined in the SAC demonstrates that the Turkish are not similarly situated to the 13 Taiwanese and Italian. (See also Reply 7.) For example, IPI notes that the Plaintiffs allege only 14 15 the Turks had electricians and plumbers. (Mot. 14 (citing SAC ¶ 34).) Plaintiffs counter that 16 because IPI did not differentiate pay based on specialty, these differences are immaterial. At this 17 stage, the Court finds that the differences in skills and qualifications are not material because 18 Plaintiffs allege discrimination based upon each class of workers, regardless of specialization. 19 Plaintiffs assert that “[w]ithin each ethnic national team, all the construction workers were paid at 20 the same rate, all foremen were paid at the same rate, and all supervisors were paid at the same 21 rate.” (SAC ¶ 25.) In support of this, Plaintiffs allege that the Italian construction workers were all 22 23 paid $25.00 per hour and the Italian foremen were paid $50.00 an hour – “There was no distinction 24 in pay based on specialties – carpenters, welders, plumbers, etc.” (Id. ¶ 28.) 25 Moreover, these holes that IPI is attempting to poke in Plaintiffs’ prima facie case appear 26 to be legitimate, nondiscriminatory reasons for the alleged discrimination. See Fernandez v. Wynn 27 1 Oil Co., 653 F.2d 1273, 1275 (9th Cir. 1981) (acknowledging superior qualifications as a 2 legitimate and nondiscriminatory reason for adverse employment action). It is inappropriate for a 3 court to consider “legitimate, nondiscriminatory reasons proffered by a defendant at the pleading 4 stage” because “[d]oing so would improperly invoke the McDonnell Douglas burden-shifting 5 framework, which ‘is a summary judgment “evidentiary standard, not a pleading requirement.”’” 6 Seyed Mohsen Sharifi Takieh v. Banner Health, 515 F. Supp. 3d 1026, 1044-45 (D. Ariz. 2021) 7 8 (quoting Astre v. McQuaid, 804 F. App’x 665, 667 n.3 (9th Cir. 2020)). 9 Ultimately, the SAC plausibly alleges that IPI discriminated against the Turkish 10 construction workers, foremen, and supervisors. 11 D. The statistics by the Department of Labor establish circumstantial and 12 anecdotal evidence that Plaintiffs suffered Title VII discrimination. 13 Plaintiffs’ SAC also plead new facts regarding DOL statistics. (SAC ¶¶ 20-24, 35.) 14 Specifically, Plaintiffs list the wage range the DOL authorized for various construction worker 15 positions such as plumbers and welders. (Id. ¶ 22.) Plaintiffs assert that because IPI paid Turkish 16 employees minimum wage, they were paid below the range that the DOL had approved IPI to pay 17 its H-2B employees. (SAC ¶¶ 20-23.) Next, Plaintiffs claim that “[t]he statistics on IPI H-2B 18 19 approvals by USDOL (SAC ¶¶ 20–23) show that the basic wage rate for any of the approved 20 categories never was larger than a factor of 2 (e.g., construction carpenter: $15.48–$28.95) and 21 typically was closer to a factor of 1.5 (e.g., mason: $14.92–$22.00).” (Opp’n 7.) At the hearing, 22 Plaintiffs’ counsel asserted that the DOL range of appropriate wages for workers accounts for 23 differences in skills and qualifications. For example, a highly skilled and qualified mason should 24 earn no more than 1.5 times more than a novice mason. So even assuming that IPI paid Italian 25 26 construction workers more than the Turkish construction workers because the former were more 27 qualified, the Italians should not be earning three times more. Rather, Plaintiffs assert that the pay 1 difference was not due to a difference in qualifications, but because of discrimination. The Court 2 finds that this additional information supports the finding of plausibility of discrimination as it is 3 strong circumstantial and anecdotal evidence of how IPI paid the Turkish H-2B workers 4 substantially less than H-2B workers recruited from Italy and Taiwan. 5 E. Facts alleging systemic discrimination establish circumstantial and anecdotal 6 evidence that Plaintiffs suffered Title VII discrimination. 7 “In a discriminatory treatment class action, plaintiffs have the burden of proving by a 8 preponderance of the evidence that sex discrimination was defendant’s ‘standard operating 9 procedure’ maintained through systematic intentional discrimination.” Penk v. Or. State Bd. of 10 11 Higher Educ., 816 F.2d 458, 463 (9th Cir. 1987) (citations omitted). “To establish the requisite 12 discriminatory intent plaintiffs may offer statistical, nonstatistical, and anecdotal evidence.” Id. 13 Here, Plaintiffs assert that “IPI engaged in a company-wide practice of employment 14 discrimination, both intentional and systemic, on the basis of national origin, against Plaintiffs and 15 a class of similarly situated Turkish employees/former employees[.]” (SAC ¶ 1.) Specifically, 16 Plaintiffs allege that IPI paid the “Taiwanese and Italian workers . . . at a wage rate significantly 17 higher—as much as three times higher—than Plaintiffs and members of the class.” 3 (Id. ¶ 19.) 18 19 This assertion is further supported by the plausible claims of discrimination against the Turkish 20 construction workers, foremen, and supervisors as discussed above. As such, the SAC plausibly 21 asserts that it was IPI’s standard operating procedure maintained through systematic intentional 22 discrimination to pay Plaintiffs and the proposed class members less than their Italian and 23 Taiwanese counterparts. 24 25
26 3 For the first time, in their opposition, Plaintiffs state that they used “the term ‘workers’ to mean construction 27 workers.” (Opp’n 1 n.1.) However, there was not a similar explanation in the SAC, such that the Court does not conclude the term “workers” as used in the SAC to mean construction workers. 1 CONCLUSION 2 Based on the foregoing, the Court DENIES IPI’s motion to dismiss (ECF No. 38) the SAC with prejudice because Plaintiffs’ SAC alleges sufficient facts to plausibly show that IPI discriminated against them and the proposed class of 107 Turkish H-2B workers.
SO ORDERED this 20th day of June, 2023.
7 vw 8 _ Motor □ RAMONA V. MANGLOWA 9 Chief Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18