One Fair Wage, Inc. v. Darden Restaurants Inc.

• Court: District Court, N.D. California
• Decided: September 14, 2021
• Docket: 3:21-cv-02695
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ONE FAIR WAGE, INC., Case No. 21-cv-02695-EMC

8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART DEFENDANT’S MOTIONS TO DISMISS 10 DARDEN RESTAURANTS INC., Docket Nos. 15-17 11 Defendant.

12 13 14 I. INTRODUCTION 15 Plaintiff One Fair Wage (“OFW”), an advocacy organization focused on eliminating the 16 subminimum cash wage, has filed suit against Defendant Darden Restaurants, Inc. (“Darden”). 17 Notably, OFW did not file this action on behalf of any Darden employee, but rather, OFW is 18 seeking redress for the harm caused to OFW as an organization. OFW alleges, inter alia, that 19 Darden’s cash wage and tipping policies result in increased sexual harassment and disparate wages 20 for workers across racial groups and that these sex and race-based effects violate the prohibitions 21 on workplace discrimination in Title VII of the Civil Rights act of 1964 (“Title VII”), 42 U.S.C. § 22 2000e-2. Complaint (Docket No. 1). As a consequential effect of these policies, OFW alleges that 23 it has had to divest monetary and non-monetary resources to address those policies. 24 Currently pending before the Court are Darden’s three Motions to Dismiss, Darden’s 25 Request for Judicial Notice, and OFW’s Request for Leave to file a sur-reply brief. See Mot. to 26 Dismiss (“MTD”), Docket Nos. 15, 16, 17; Def. Req. for Judicial Notice (“Def. RJN”), Docket 27 No. 23; Pls. Mot., Docket No. 24. For the reasons discussed below, this Court GRANTS 1 motions to dismiss for lack of personal jurisdiction and improper venue (Docket No. 15) and lack 2 of subject matter jurisdiction (Docket No. 17).1 3 II. FACTUAL & PROCEDURAL BACKGROUND 4 On September 29, 2020, OFW, on its own behalf (and not on behalf of any Darden 5 employees), filed a charge of discrimination with the United States Equal Employment 6 Opportunity Commission (“EEOC”) alleging race and sex-based disparate impact as a result of 7 Defendant Darden’s employment policies. See Compl. ¶ 76. On March 4, 2021, the EEOC 8 dismissed that charge at OFW’s request and issued OFW a right to sue notice. See id. ¶ 77. OFW 9 filed the instant complaint on April 14, 2021. See id., Docket No. 1. Darden filed three motions 10 to dismiss and a request for judicial notice.2 11 OFW alleges it is a New York nonprofit organization with its principal place of business in 12 Oakland, California. See Compl. ¶ 7. OFW’s goal is to “lift millions of tipped and subminimum- 13 wage-earning” restaurant workers out of poverty “by requiring all employers to pay the full 14 minimum wage as a cash wage with fair, nondiscriminatory tips on top.” Id. At the motion 15 hearing, OFW’s counsel acknowledged that OFW is an advocacy organization that is engaged in 16 lobbying to pursue its mission and that its mission does not include providing representation or 17 systematic counseling to aggrieved restaurant employees. Additionally, OFW does not allege any 18 formal membership or membership structure in its complaint. Darden, the largest operator of full- 19 service restaurants in the world, is a Florida corporation with its principal place of business in 20 Orlando, Florida. See Compl. ¶ 9. 21 At issue are two of Darden’s corporate wage related policies (cash wage and tipping 22 described below) which allegedly caused and continue to cause increased sexual harassment and 23 race-based disparate impacts in Darden’s workplaces in violation of Title VII. See id. ¶¶ 15-16, 24 99. OFW alleges that as an organization it has been injured by these policies because it has been 25

26 1 Since the Court finds OFW lacks statutory standing under Title VII, it denies Darden’s motion for lack of subject matter jurisdiction as moot. 27 1 “forced to divert its resources to address Darden employees’ complaints that they have suffered 2 more and worse sexual harassment than their coworkers of the same sex who are not subject to the 3 policies, as well as complaints from Darden employees of color that they have received less in tips 4 than their white coworkers.” Id. ¶¶ 8, 68-70. 5 A. Cash Wage Policy 6 Darden enforces a cash wage for all “‘tipped employees,’” as defined by the Fair Labor 7 Standards Act of 1938, 29 U.S.C. § 203(t) (“FLSA”),3 that is equal to the lowest possible cash 8 wage in the state or municipality in which that employee works. Id. ¶ 17. As such, in the 43 9 states where state law permits this type of policy, Darden’s practice is to pay “tipped employees a 10 subminimum wage, which is the lowest legally-permissible cash wage permitted and less than the 11 minimum wage for non-tipped employees.” Id. In effect, employees subject to the policy are paid 12 less than the minimum wage because tips are used to cover the difference. Darden’s handbook 13 states that “tipped team members,” are to take the maximum permissible tip credit which is the 14 difference between the cash wage and the minimum wage in the respective state. Id. ¶ 18. The 15 result of this cash wage policy is that all of Darden’s “tipped employees at all restaurants 16 nationwide [are] paid the lowest, legally-permissible cash wage permitted.” Id. 17 In February and March 2021, OFW conducted a poll of hundreds of current and former 18 Darden employees and found that those who reported that they worked as servers for Darden, were 19 “paid at or below the lowest legally-permissible cash wage.” Id. ¶ 19. OFW asserts that this 20 empirical data shows “the existence of a corporate-level cash wage policy or practice requiring 21 local managers to pay tipped employees [] the lowest permissible wage . . . .” Id. OFW argues 22 that Darden’s cash wage policy is “a corporate-level instruction to local managers that they must 23 pay tipped employees a cash wage as low as applicable law allows.” Id. ¶ 20. 24 OFW acknowledges that in seven states, there is no distinction for large employers 25 3 Under the FLSA, an employer is required to pay a tipped employee an amount equal to “the cash 26 wage paid such employee which for purposes of such determination shall be not less than the cash wage required to be paid such an employee on August 20, 1996; and []an additional amount on 27 account of the tips received by such employee which amount is equal to the difference between the 1 between the minimum wage for tipped employees and non-tipped employees. See id. ¶ 22. 2 However, OFW asserts that Darden’s cash wage policy that results in paying its tipped employees 3 the lowest legally permissible wage “is applicable nationally to all tipped employees at Darden 4 restaurants across the United States.” Id. OFW alleges that Darden pays “roughly 20% of its 5 entire workforce a cash wage of $2.14 per hour” and that the “majority of Darden’s tipped 6 employees are paid a subminimum wage that is lower than $7.25 per hour.” Id. ¶¶ 24-25. 7 OFW broadly alleges that Darden’s cash wage policy directly results in increased sexual 8 harassment because the policy “causes sex to play more of a role in the jobs of all employees 9 subject to the policy . . . .” Id. ¶ 33. Citing their polling results, OFW notes complaints made by 10 some of Darden’s cash wage employees of sexual harassment from customers and other Darden 11 employees. Id. ¶ 34. OFW also cites to a Darden cash wage employee’s EEOC complaint of 12 sexual harassment by a customer and coworkers to support its claim that Darden’s cash wage 13 policy increases sexual harassment. See id. ¶ 36. OFW asserts that because Darden’s cash wage 14 employees suffer more frequent and severe sexual harassment from customers in comparison to 15 Darden’s other employees (i.e., minimum wage employees), the cash wage employees suffer more 16 financial retaliation from managers and customers because they complain of and rebuff more 17 sexual harassment. See id. ¶ 43. As such, OFW argues that Darden’s cash wage policy 18 “perpetuates a cycle of systemic sexual harassment.” Id. ¶ 44. OFW’s complaint cites no study or 19 systemic evidence supporting the nexus between Darden’s cash wage policy and increased sexual 20 harassment. 21 B. Tipping Policy 22 OFW contends that Darden encourages and “tacitly requir[es]” its customers to tip its 23 tipped employees “without mediating that process in any way.” Id. ¶ 28. OFW states that pooling 24 tips and adding a standard service charge to all bills and letting customers tip on top of the charge 25 are examples of mediating customer tipping. Id. ¶ 62. OFW argues the effect of Darden’s 26 unmediated tipping policy is that “Darden’s customers directly determine a large portion of the 27 wages paid to Darden’s tipped employees.” Id. In support of this claim, OFW notes the “tip line” 1 encouraging customers to tip. Id. Additionally, OFW asserts that Darden actively facilitates this 2 tipping policy by maintaining a Tip Reporting Alternative Commitment with the Internal Revenue 3 Service (“IRS”) that requires employees to track and report their tips to both Darden and the IRS. 4 See id. ¶ 29. 5 OFW broadly contends that Darden’s unmediated corporate tipping policy results in 6 employees of color receiving less in tips than white employees (presumably because Darden’s 7 customers afford less favorable treatment to employees of color than to white employees). See id. 8 ¶ 45. As such, “Darden causes employees of color to be paid substantially less than white 9 employees because of their race.” Id. Because Darden does not mediate the tipping process, 10 customers who might regularly consider race when determining compensation, “directly determine 11 a substantial part of these tipped employees’ total wages.” Id. ¶ 46. In support, OFW cites its own 12 poll results that revealed that white servers on average received higher tips per hour than servers of 13 color. See id. ¶ 47. Additionally, Darden’s unmediated tipping policy gives managers discretion 14 to assign tipped employees of color to less desirable and less lucrative shifts and restaurant 15 sections, “resulting in them receiving less tips based on their race.” Id. ¶ 48. In support of this 16 claim, OFW cites charges filed with the EEOC from Darden employees of color that claim 17 because of this policy they received less in tips based on their race. See id. ¶ 49. OFW claims that 18 this race-based tipping gap that Darden’s tipping policy perpetuates exacerbates Darden’s cash 19 wage policy, resulting in many of Darden’s employees being paid a subminimum wage. See id. ¶ 20 56. Further, the unmediated tipping policy “perpetuates a cycle of systemic race discrimination 21 against people of color . . . .” Id. ¶ 57. 22 Based on, inter alia, the above allegations regarding Darden’s cash wage and tipping 23 policies, OFW has asserted the following causes of action: 24 (1) Sex-based disparate impact in violation of Title VII, 42 U.S.C. § 2000e-2(a) with 25 respect to Darden’s cash wage policy employees. 26 (2) Race-based disparate impact in violation of Title VII, 42 U.S.C. § 2000e-2(a) with 27 respect to Darden’s tipping policy. 1 nationwide injunction prohibiting Darden from maintaining the policies and any other unlawful 2 employment practices, equitable monetary relief redressing the resources that OFW has been 3 forced to divert and the harm that OFW has suffered as a result of the policies, reasonable 4 attorneys’ fees and costs, as well as any other relief this Court deems proper. Compl., Prayer for 5 Relief ¶ 100. 6 III. LEGAL STANDARDS 7 A. Rule (12)(b)(2) 8 A defendant may move for dismissal on the grounds that the court lacks personal 9 jurisdiction over the action. Fed. R. Civ. P. 12(b)(1).

10 Where a defendant moves to dismiss a complaint for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating 11 that jurisdiction is appropriate. Where [a] motion is based on written materials rather than an evidentiary hearing, “the plaintiff 12 need only make a prima facie showing of jurisdictional facts.” In such cases, “we only inquire into whether [the plaintiff’s] pleadings 13 and affidavits make a prima facie showing of personal jurisdiction.” Although the plaintiff cannot “simply rest on the bare allegations of 14 its complaint,” uncontroverted allegations in the complaint must be taken as true. Conflicts between parties over statements contained 15 in affidavits must be resolved in the plaintiff’s favor. 16 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). 17 Because there is no applicable federal statute governing personal jurisdiction, the Court 18 applies the law of California – i.e., the state in which the Court sits. “California’s long-arm 19 jurisdictional statute is ‘coextensive with federal due process requirements.’ To exercise 20 jurisdiction over a non-resident defendant, the defendant must have ‘minimum contacts’ with the 21 forum state such that the exercise of jurisdiction ‘does not offend traditional notions of fair play 22 and substantial justice.’” Id. at 800-01. 23 B. Rule 12(b)(3) 24 A defendant may move to dismiss a complaint for improper venue. Fed. R. Civ. P. 25 12(b)(3). Upon a defendant’s challenge for improper venue, the plaintiff bears the burden of 26 showing that venue is proper. See Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 27 496 (9th Cir. 1979). If the court determines that venue is improper, the court must dismiss the 1 could have been brought. 28 U.S.C. § 1406(a); see also King v. Russell, 963 F.2d 1301, 1304 (9th 2 Cir. 1992). 3 C. Rule 12(b)(1) 4 A defendant may move for dismissal on the grounds that the court lacks subject matter 5 jurisdiction over the action. Fed. R. Civ. P. 12(b)(1). Federal district courts are courts of limited 6 jurisdiction, and “[n]o principle is more fundamental to the judiciary’s proper role in our system of 7 government than the constitutional limitation of federal-court jurisdiction to actual cases or 8 controversies.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (quoting Raines v. 9 Byrd, 521 U.S. 811, 818 (1997)). It is the plaintiff’s burden to establish subject matter 10 jurisdiction. See Ass’n of Am. Med. Colls. v. U.S., 217 F.3d 770, 778-79 (9th Cir. 2000); 11 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 376-78 (1994). “A Rule 12(b)(1) 12 jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 13 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). A facial attack 14 “asserts that the allegations contained in a complaint are insufficient on their face to invoke federal 15 jurisdiction.” Id. A factual attack “disputes the truth of the allegations that, by themselves, would 16 otherwise invoke federal jurisdiction.” Id. 17 A “district court resolves a facial attack as it would a motion to dismiss under Rule 18 12(b)(6): Accepting the plaintiff’s allegations as true and drawing all reasonable inferences in the 19 plaintiff’s favor, the court determines whether the allegations are sufficient as a legal matter to 20 invoke the court’s jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citing 21 Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013)). In a factual attack, however, the court may 22 review evidence outside the pleadings to resolve factual disputes concerning the existence of 23 jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). “Once the moving 24 party has converted the motion to dismiss into a factual motion by presenting affidavits or other 25 evidence properly brought before the court, the party opposing the motion must furnish affidavits 26 or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” 27 Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) (citing St. Clair v. 1 D. Rule 12(b)(6) 2 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain 3 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 4 complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil 5 Procedure 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss 6 after the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic 7 Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must 8 . . . suggest that the claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 9 F.3d 1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true 10 and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. 11 Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a 12 complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient 13 allegations of underlying facts to give fair notice and to enable the opposing party to defend itself 14 effectively.” Levitt, 765 F.3d at 1135 (internal quotation marks omitted). “A claim has facial 15 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 16 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The 17 plausibility standard is not akin to a probability requirement, but it asks for more than a sheer 18 possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted). 19 IV. MOTIONS TO DISMISS 20 A. Personal Jurisdiction 21 “There are two categories of personal jurisdiction: (1) general jurisdiction and (2) specific 22 jurisdiction.” Freestream Aircraft (Berm.) Ltd. v. Aero Law Grp., 905 F.3d 597, 602 (9th Cir. 23 2018). Darden moves for dismissal based on lack of both general and specific personal 24 jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). See MTD, Docket No. 15. 25 1. General Jurisdiction 26 Where there is general jurisdiction over a defendant, the plaintiff can bring any claim 27 against the defendant in the forum state. Thus, in order for general jurisdiction to obtain, the 1 defendant essentially at home in the forum State. See Daimler AG v. Bauman, 571 U.S. 117, 122, 2 128, (2014); see also Schwarzenegger, 374 F.3d at 807 (asking whether the defendant has 3 continuous and systematic contacts that approximate physical presence in the forum state). “With 4 respect to a corporation, the place of incorporation and principal place of business are ‘paradig[m] 5 . . . bases for general jurisdiction.’” Daimler, 571 U.S. at 137. Although the Supreme Court has 6 not held that “a corporation may be subject to general jurisdiction only in a forum where it is 7 incorporated or has its principal place of business,” the Court has also rejected the proposition that 8 there is general jurisdiction over a corporation “in every State in which a corporation ‘engages in a 9 substantial, continuous, and systematic course of business.’ That formulation . . . is unacceptably 10 grasping.” Id. (emphasis in original); see also id. at 139, (stating that the inquiry is “not whether a 11 foreign corporation’s in-forum contacts can be said to be in some sense ‘continuous and 12 systematic’” but rather “whether that corporation’s ‘affiliations with the State are so “continuous 13 and systematic” as to render [it] essentially at home in the forum State’”). 14 In the instant case, OFW does not contend that this Court has general jurisdiction over 15 Darden, but alleges that this Court has specific jurisdiction. Opp’n at 3:1. Because OFW does not 16 claim that this Court has general jurisdiction over Darden, the Court need only consider whether 17 there is specific jurisdiction. 18 2. Specific Jurisdiction 19 At this juncture in the proceedings, OFW need only make a prima facie showing of 20 specific jurisdiction. See Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 21 1977) (noting that, where no evidentiary hearing is held and a court simply receives written 22 materials from the parties, “a plaintiff must make only a prima facie showing of jurisdictional facts 23 through the submitted materials in order to avoid a defendant’s motion to dismiss”). The Ninth 24 Circuit has a three-prong test for analyzing a claim of specific jurisdiction.

25 (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or 26 resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the 27 forum, thereby invoking the benefits and protections of its laws; defendant’s forum-related activities; and 1 (3) the exercise of jurisdiction must comport with fair play and 2 substantial justice, i.e. it must be reasonable. 3 Schwarzenegger, 374 F.3d at 802 (citing Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)). The 4 plaintiff has the burden of proving the first two prongs above. Id. If successful, then the burden 5 “shifts to the defendant to ‘present a compelling case’ that the exercise of jurisdiction would not 6 be reasonable.” Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476–78 (1985)). 7 a. Purposeful Availment or Direction 8 Under the first prong of the specific jurisdiction test, the plaintiff must establish that the 9 defendant either purposefully availed itself of the privilege of conducting activities in California, 10 or purposefully directed its activities toward California. See Schwarzenegger, 374 F.3d at 802. 11 The Ninth Circuit has noted that purposeful availment and purposeful direction are two distinct 12 concepts. “A purposeful availment analysis is most often used in suits sounding in contract. A 13 purposeful direction analysis, on the other hand, is most often used in suits sounding in tort.” Id. 14 (internal citations omitted). 15 Purposeful availment involves a determination as to whether “defendant’s conduct and 16 connection with the forum State are such that it should reasonably anticipate being haled into court 17 there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). The defendant 18 may not be haled into the jurisdiction through fortuitous contacts or by the unilateral activity of 19 another party. Id. “A showing that a defendant purposefully availed himself of the privilege of 20 doing business in a forum state typically consists of evidence of the defendant’s actions in the 21 forum, such as executing or performing a contract there.” Schwarzenegger, 374 F.3d at 802. 22 Purposeful direction is evaluated under the three-part “effects” test. See id. at 803. The “effects” 23 test requires that the defendant allegedly have (1) committed an intentional act, (2) expressly 24 aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the 25 forum state. Id. “A showing that a defendant purposefully directed his conduct toward a forum 26 state, by contrast, usually consists of evidence of the defendant’s actions outside the forum state 27 that are directed at the forum, such as the distribution in the forum state of goods originating 1 OFW claims that Darden has “purposefully availed itself of California by operating dozens 2 of restaurants here and exploiting the state’s labor market by employing thousands of employees 3 in California.” Opp’n at 5:12-14. Darden has purposefully availed itself of California given the 4 extensiveness of its alleged operations in the state, all of which presumably required submission to 5 state and regulatory authorities. See Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995) (citing 6 Hirsch v. Blue Cross, Blue Shield of Kansas City, 800 F.2d 1474, 1478 (9th Cir. 1986)) (“[T]he 7 ‘purposeful availment’ requirement is satisfied if the defendant has taken deliberate action within 8 the forum State or if he has created continuing obligations to forum residents.”). 9 b. Claim Arises or Relates to Forum Related Activities 10 The second prong in the Ninth Circuit’s specific jurisdiction test demands that the claim 11 arise out of the defendant’s forum-related activities. See World-Wide Volkswagen, 444 U.S. at 12 297. In Walden, the Supreme Court emphasized that “it is the defendant, not the plaintiff or third 13 parties, who must create contacts with the forum State.” Walden v. Fiore, 571 U.S. 271, 291 14 (2014) (emphasis added). And the effect of the defendant’s conduct must be “tethered to” the 15 state, not to the plaintiff. Id. at 290. In determining whether a plaintiff’s claims arise out of the 16 defendant’s forum related activity, “the Ninth Circuit follows the ‘but for’ test.” Menken v. Emm, 17 503 F.3d 1050, 1058 (9th Cir. 2007) (internal quotation marks and citation omitted). Under this 18 test, OFW must show that it would not have suffered an injury “but for” Darden’s California- 19 related conduct. See id. 20 In Ford Motor Co., an action for vehicle design defect, the Supreme Court held that the 21 due process test for determining specific personal jurisdiction did not depend on a strict causation- 22 only approach that would ask where the vehicles were originally sold, or where they were 23 designed and manufactured. Id. at 1026. Rather, determining whether the claims “‘arise out of or 24 relate to the defendant’s contacts with the forum,’” is also an approach for determining specific 25 jurisdiction. Id. at 1025, citing Bristol-Myers Squibb Co., 137 S. Ct. 1773, 1776 (2017). The 26 Supreme Court held that claims “relate to” a defendant’s in-forum contacts if the defendant 27 “serves a market for a product in the forum State and the product malfunctions there.” Id. at 1026- 1 OFW argues that its Title VII claims relate to Darden’s California related activities 2 because both disparate impact claims stem from Darden’s corporate cash wage and tipping 3 policies that are maintained in the dozens of California restaurants operated by Darden and impact 4 thousands of Darden’s California employees. Opp’n at 5:26-27-6:1. Darden argues that the 5 alleged wrongful conduct with respect to the cash wage policy, “is not an activity that Darden 6 undertook in California.” MTD at 5.4 Darden emphasizes that the California Labor Code “does 7 not permit employers to utilize the FLSA’s tip credit law because Labor Code section 351 states 8 that ‘[n]o employer . . . shall collect . . . any gratuity . . . that is paid, given to, or left for an 9 employee by a patron, or deduct any amount form wages due an employee on account of a gratuity 10 . . . .’” Id. OFW concedes that in California, the lowest possible wage a tipped employee can 11 receive is the minimum wage (not a subminimum cash wage), but argues that Darden’s cash wage 12 policy still requires those managers to pay those types of employees the lowest possible cash 13 wage. See Opp’n at 6:8-11. 14 At the very least, the asserted racially discriminatory tipping policy does apply in 15 California. OFW has met its burden on this prong.5 See Fireman’s Fund Ins. Co. v. National 16 4 Darden supplied, with its Reply brief, supplemental facts relevant to OFW’s principal place of 17 business to support its argument that OFW’s claims do not arise out of any of Darden’s California activities because OFW is not at home in California. See Reply at 6-9, Docket No. 22. In its 18 Request for Judicial Notice, Darden attached screengrabs from: (1) OFW’s website showing that OFW’s contact address is in Cambridge, Massachusetts, and (2) that OFW is not identified as a 19 California corporation on the California Secretary of State’s website. See Def. RJN, Docket No. 23, Exhs. A-B. Darden requests judicial notice of these documents. The Court can properly take 20 judicial notice of these documents because they can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned and their authenticity is not disputed. 21 See Fed. R. Evid. 201; Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010) (“It is appropriate to take judicial notice of this information, as it was made publicly available by 22 government entities . . . , and neither party disputes the authenticity of the web sites or the accuracy of the information displayed therein.”). Accordingly, this Court GRANTS Darden’s 23 Request for Judicial Notice. However, it does not take notice of the truth of matters stated in those documents. In re High–Tech Employee Antitrust Litig., 856 F.Supp.2d 1103, 1108 24 (N.D.Cal.2012) (“A court may also take judicial notice of the existence of matters of public record, such as a prior order or decision, but not the truth of the facts cited therein.”). 25

5 In footnote 4 of its Reply, Darden notes that, “the fact OFW is not registered to do business in 26 California provides this Court with an independent reason to dismiss the matter.” Reply at 9, n. 4. This is because a corporation that fails to register in California is not permitted to maintain a 27 lawsuit relating to business activities in California until it complies. See id. (citing Cal. Corp. 1 Bank of Cooperatives, 103 F.3d 888, 894 (9th Cir. 1996) (stating that, “[u]nder our Circuit’s ‘but 2 for’ test, a lawsuit arises out of a defendant’s contacts with the forum state if a direct nexus exists 3 between those contacts and the cause of action”). 4 c. Fair Play/Reasonable 5 Because OFW has satisfied its burden as to the first two prongs, the burden shifts to 6 Darden to satisfy the third prong in the Ninth Circuit’s test for specific jurisdiction. See 7 Schwarzenegger, 374 F.3d at 802. Darden argues that it would be unreasonable for this Court to 8 exercise jurisdiction and claims that OFW fails to show why it would be reasonable. See Reply 9 7:3-5, 10:8-9. 10 Once it has been decided that a defendant purposefully established minimum contacts with 11 a forum, “he must present a compelling case that the presence of some other considerations would 12 render jurisdiction unreasonable” in order to defeat personal jurisdiction. Burger King Corp., 471 13 U.S. at 477. In determining whether the exercise of jurisdiction comports with “fair play and 14 substantial justice,” and is therefore “reasonable,” courts in the Ninth Circuit consider seven 15 factors: (1) the extent of the defendants’ purposeful injection into the forum state’s affairs; (2) the 16 burden on the defendant of defending in the forum; (3) the extent of conflict with the sovereignty 17 of the defendant’s state; (4) the forum state’s interest in adjudicating the dispute; (5) the most 18 efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff’s 19 interest in convenient and effective relief; and (7) the existence of an alternative forum. See, e.g., 20 Caruth v. Int’l Psychoanalytical Ass’n, 59 F.3d 126, 128-129 (9th Cir. 1995). 21 22

23 this evidence. See Pl. Mot., Docket No. 24. On August 16, 2021, Darden filed an Opposition to OFW’s Application for Leave to file a sur-reply brief. See Def. Opp’n, Docket No. 25.). This 24 Court DENIES OFW’s Request for Leave to file a sur-reply since the evidence Darden submitted with its Reply brief is not new evidence. See Compl. ¶ 7 (OFW is a New York nonprofit 25 organization with its principal place of business in Oakland, California); Opp’n at 9 (OFW’s principal place of business is in California). Rather, it is evidence to support Darden’s contention 26 that OFW is not a California corporation and rebut OFW’s claim that California is OFW’s principal place of business. See Applied Materials, Inc. v. Demaray LLC, 2020 WL 8515132, at 27 *1 (N.D. Cal. Dec. 16, 2020) (“evidence submitted with a reply brief is not new evidence when it 1 i. Purposeful Injection 2 It has already been determined that Darden directed its activities at the forum to a degree 3 sufficient to satisfy the purposeful availment requirement. While “[t]here may be circumstances 4 under which the level of purposeful injection into the forum supports a finding of purposeful 5 availment yet still weighs against the reasonableness of jurisdiction, but this is not such a case.” 6 Dole Food Co. v. Watts, 303 F.3d 1104, 1114–15 (9th Cir. 2002) (finding purposeful injection 7 where the defendants knew their scheme would injure Dole U.S., which they knew had its 8 principal place of business in California and engaged in repeated communications with Dole 9 managers in California in furtherance of their alleged scheme). This factor weighs in favor of 10 OFW. 11 ii. Burden on Defendant 12 The second factor courts consider is the burden on the defendant in defending in the forum. 13 Darden argues that it would be burdensome for its corporate witnesses to fly across the country to 14 provide live testimony at trial. Reply at 10:19-20. Darden also notes that OFW’s Complaint only 15 identifies out of state Darden employees who were purportedly disparately impacted by Darden’s 16 policies and that OFW conceded that Darden’s California workers were not subject to the cash 17 wage policy implicated in its sex-based disparate impact claim. Id. at 10:26-28. As such, Darden 18 claims that its cash wage employees would have to travel hundreds of miles to testify in person in 19 this forum. Id. at 11:1-7. 20 Although traveling to California to litigate the matter will create some burden due to travel 21 and other expenses, “with the advances in transportation and telecommunications and the 22 increasing interstate practice of law, any burden is substantially less than in days past.” Menken, 23 503 F.3d at 1060 (quoting CE Distrib., LLC v. New Sensor Corp., 380 F.3d 1107, 1112 (9th Cir. 24 2004)); see also Alexis v. Rogers, No. 15CV691-CAB-BLM, 2016 WL 11707630, at *11 (S.D. 25 Cal. Feb. 26, 2016) (litigating in California would not be unduly burdensome where the defendant 26 that is the principal officer of the other defendants appears to be a businessman who is accustomed 27 to travel and a United States citizen that resides in Singapore). This factor weighs slightly in 1 iii. Conflict with the Sovereignty of Defendant’s state 2 As to the third factor, Darden does not argue that a conflict of sovereignty exists between 3 California and some other state. Therefore, this factor favors OFW. See Menken, 503 F.3d at 4 1060 (finding third factor weighed in favor of the plaintiff because the parties agreed that a 5 conflict of sovereignty did not exist). 6 iv. California’s Best Interest 7 The fourth factor is concerned with California’s interest in adjudicating the matter. 8 Notably, California does not have an interest with respect to the impact of Darden’s policies on 9 Darden employees outside of California. However, the Ninth Circuit has consistently explained 10 that a forum state “has a strong interest in protecting its residents from torts that cause injury 11 within the state, and providing a forum for relief.” Menken, 503 F.3d at 1060 (quotations and 12 citations omitted); see also CE Distrib., LLC, 380 F.3d at 1112; Panavision Int’l, L.P., 141 F.3d at 13 1323; Gordy v. Daily News, L.P., 95 F.3d 829, 836 (9th Cir. 1996); Brainerd v. Governors of 14 Univ. of Alta., 873 F.2d 1257, 1260 (9th Cir. 1989). OFW alleges that it is a nonprofit with its 15 principal place of business in California that advocates for subminimum wage restaurant workers, 16 many of which are Californians. Therefore, this factor tilts slightly in favor of OFW. See Alexis, 17 2016 WL 11707630, at *12 (finding that “California has a strong interest in protecting people who 18 perform work in California” and “a strong interest in the alleged sexual harassment, assault and 19 wrongful termination of one of its residents”). 20 v. Efficient Resolution 21 Under the fifth factor, courts evaluate the efficiency of resolution in the forum. Nothing 22 indicates resolution in this or any other forum would be more efficient than another. At issue are 23 federal Title VII claims and Darden’s employees are affected on a national basis. Neither party 24 has presented any reason why it would be more efficient to resolve this case in one district court 25 more than any other district court other than the convenience of the witnesses and location of 26 documents which slightly favors the Middle District of Florida. Other than that, this factor does 27 not strongly favor either party. 1 vi. Convenience to Plaintiff 2 The sixth factor weighs the importance of the plaintiff receiving a convenient and effective 3 resolution. It will be easier for OFW, a nonprofit organization with a principal place of business 4 in Oakland, California, to litigate this dispute in the forum state in which it is at home. 5 Conversely, a greater burden would be placed on OFW if it was forced to litigate the claims in 6 Florida. This factor, although given little weight, tilts slightly in OFW’s favor. See Menken, 503 7 F.3d at 1061 (stating that, in the Ninth Circuit, “the plaintiff’s convenience is not of paramount 8 importance.”) (quoting Dole Food Co., Inc., 303 F.3d at 1116). 9 vii. Alternative Forum 10 The Court also considers whether there is an adequate alternative forum and whether 11 public interest factors favor dismissal. See Lueck v. Sundstrand Corp., 236 F.3d 1137, 1142–43 12 (9th Cir. 2001). The plaintiff’s choice of forum will not be disturbed unless the “private interest” 13 and “public interest” factors strongly favor trial in the alternative forum. See Gates Learjet, 743 14 F.2d 1325, 1334 (9th Cir. 1984). Cf. Cheng v. Boeing Co., 708 F.2d 1406, 1410 (9th Cir. 1983). 15 Here, Darden argues that there is a better alternative forum, such as the Middle District of Florida, 16 where Darden is subject to general jurisdiction would be proper. Reply at 11:9-10. However, 17 Darden fails to show that the balance of private interest and public interest factors favors 18 dismissal. Therefore, this factor weighs in favor of OFW. See Ravelo Monegro v. Rosa, 211 F.3d 19 509, 514 (9th Cir. 2000) (Forum non conveniens is “an exceptional tool to be employed 20 sparingly”). 21 viii. Balancing the Factors 22 In balancing the seven factors, this Court concludes that Darden fails to present a 23 compelling case that the Court’s exercise of jurisdiction would be unreasonable. 24 3. Conclusion 25 OFW has made a prima facie showing that Darden is subject to this Court’s specific 26 personal jurisdiction under California’s long-arm statute. Accordingly, this Court DENIES 27 Darden’s Motion to Dismiss based on lack of personal jurisdiction. 1 B. Venue 2 OFW claims that venue is proper in this Court under Title VII, 42 USC § 2000e–5(f)(3) 3 because “Darden’s unlawful employment practices were committed in California, implemented in 4 California, and had their effects felt in California, and because the employment records relevant to 5 those unlawful employment practices are maintained in California.” Compl. ¶ 12. 6 In the instant case, OFW’s two claims arise out Title VII, 42 USC § 2000e–5(f)(3). 7 Pursuant to 42 USC § 2000e–5(f)(3), venue is only appropriate in the judicial district where the 8 action was filed if one of the following is met: 9 (1) in any judicial district in the State in which the unlawful employment practice is 10 alleged to have been committed, 11 (2) in the judicial district in which the employment records relevant to such practice are 12 maintained and administered, or 13 (3) the judicial district in which the aggrieved person would have worked but for the 14 alleged unlawful employment practice, but if the respondent is not found within any 15 such district, then such an action may be brought within the judicial district in which 16 the respondent had his principal office. 17 OFW argues that it has satisfied the first prong of Title VII’s venue provision since its 18 race-based disparate impact claim is alleged to have been committed in California as Darden’s 19 tipping policy is implemented in its California restaurants. Opp’n at 10:21-24. Further, OFW 20 asserts that venue is proper as to its cash wage policy claim since venue is proper as to its tipping 21 policy claim and contends that this Court should exercise pendent venue over the cash policy 22 claim. Id. at 11:2-9. OFW specifically asks the Court to exercise pendent venue since the policies 23 are closely related. Id. at 10. OFW alleges that Darden’s cash wage policy “necessarily triggers 24 the need for servers and bartenders to be tipped . . . [and] tipping at Darden is regulated by the 25 [t]ipping [p]olicy.” Id. at 8. As such, OFW asserts that in most parts of the country, where there 26 is a subminimum cash wage, the policies “are not capable of separation . . . .” Compl. ¶ 80. 27 “While the Ninth Circuit does not appear to have addressed the issue, courts in this District 1 Cal. 2013). Specifically, “under the pendent venue doctrine, when one or more claims are closely 2 related (e.g., arise out of a common nucleus of operative facts), venue is proper as to all claims so 3 long as venue is established for just one claim. This is because, where there is a close relationship, 4 then judicial economy, convenience, and fairness all weigh in favor of adjudication in one 5 proceeding.” Serv. Women’s Action Network v. Mattis, 320 F. Supp. 3d 1082, 1089 (N.D. Cal. 6 2018). 7 Since OFW alleges that Darden’s tipping policy is implemented in California, under 8 section 2000e–5(f)(3), the Northern District of California is an appropriate venue for this claim. 9 See Passantino v. Johnson & Johnson Consumer Products Inc., 212 F.3d 493, 506 (9th Cir.2000) 10 (Under Title VII “venue is proper in both the forum where the employment decision is made and 11 the forum in which that decision is implemented or its effects are felt.”). Notably, OFW conceded 12 that in California, the lowest possible wage a tipped employee can receive is the minimum wage 13 (not a subminimum cash wage). See Opp’n at 6:8-11. As such, venue under Title VII’s specific 14 venue provision does not appear proper as to OFW’s cash wage policy claim. See Johnson v. 15 Payless Drug Stores Nw., Inc., 950 F.2d 586, 588 (9th Cir. 1991) (under section 2000e–5(f)(3), 16 venue was not appropriate in the Northern District of California since the alleged employment 17 discrimination occurred in Nevada and the defendant maintained and administered its employment 18 records for its Nevada employees in Nevada). 19 In the instant matter, it appears that OFW has adequately established that there is a close 20 relationship between Darden’s tipping policy and cash wage policy and there is likely some 21 overlap in terms of issues and proof. In its reply, Darden does not dispute OFW’s assertion that 22 the claims are closely related but argues that both claims must satisfy Title VII’s specific venue 23 provision for the Court to exercise pendent venue. Reply at 11-13. This is incorrect. See Serv. 24 Women’s Action Network, 320 F. Supp. 3d at 1089-90. Accordingly, because the Court has venue 25 over OFW’s Title VII race-based disparate impact claim with respect to Darden’s tipping policy, 26 the Court DENIES Darden’s motion to dismiss based on improper venue. 27 C. Subject Matter Jurisdiction 1 III to pursue this case. Relying on East Bay Sanctuary Covenant v. Biden, 993 F. 3d 640 (9th Cir. 2 2021), OFW claims it has organization standing to sue under Article III because its mission has 3 been frustrated by Darden’s cash wage and tipping policies. 4 To establish Article III standing, a plaintiff must demonstrate: (1) injury-in-fact in the form 5 of “concrete and particularized” and “actual or imminent” harm to a legally protected interest; (2) 6 a causal connection between the injury and the conduct complained of; and (3) a likelihood that a 7 favorable decision would redress the injury-in-fact. Barnum Timber Co. v. U.S. E.P.A., 633 F.3d 8 894, 897 (9th Cir. 2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992); 9 Allen v. Wright, 468 U.S. 737, 751 (1984)). An organization may establish standing through either 10 associational standing or organizational standing. 11 1. Associational Standing 12 For an organization to assert associational standing, it must show “(a) its members would 13 otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane 14 to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires 15 the participation of individual members in the lawsuit.” Associated Gen. Contractors of Am., San 16 Diego Chapter, Inc. v. California Dep’t of Transp., 713 F.3d 1187, 1194 (9th Cir. 2013) (citing 17 Associated Gen. Contractors of Am. v. Metro. Water Dist. of S. Cal., 159 F.3d 1178, 1181 (9th 18 Cir. 1998). To show that a member would have standing to sue in his or her own right, the 19 organization “must show that a member suffers an injury-in-fact that is traceable to the defendant 20 and likely to be redressed by a favorable decision.” Associated Gen. Contractors of Am., San 21 Diego Chapter, Inc., 713 F.3d at 1194. In the instant case, OFW does not assert that it has 22 associational standing. 23 2. Organization Standing 24 “Organizations are entitled to sue on their own behalf for injuries they have sustained.” 25 Havens, 455 U.S. at 379 n.19. “[A]n organization may satisfy the Article III requirement of injury 26 in fact if it can demonstrate: (1) frustration of its organizational mission [by the defendant’s 27 actions]; and (2) diversion of its resources to combat [that frustration].” Smith v. Pac. Props. and 1 incurring litigation costs or simply choosing to spend money fixing a problem that otherwise 2 would not affect the organization at all.” La Asociacion de Trabajadores de Lake Forest v. Lake 3 Forest, 624 F.3d 1083, 1088 (9th Cir. 2010). An organization “must instead show that it would 4 have suffered some other injury if it had not diverted resources to counteracting the problem.” Id. 5 It “may sue only if it was forced to choose between suffering an injury and diverting resources to 6 counteract the injury.” Id. at 1088 n.4. 7 Here, OFW does not specifically allege that Darden’s policies have frustrated its stated 8 mission of “requiring all employers to pay the full minimum wage as a cash wage with fair, non- 9 discriminatory tips on top” in its complaint, but argues that the policies have adversely affected the 10 organization by causing monetary and non-monetary harm by diverting resources. Compl. ¶¶ 7, 11 66-72. In its opposition, OFW alleges that it has suffered an injury that is concrete and strikes at 12 the core of its purpose. See Opp’n at 24:1-6. OFW specifically claims that its mission has been 13 frustrated by Darden’s cash wage and tipping policies because the policies force Darden 14 employees to spend their non-work hours recovering from sexual harassment and working to make 15 additional money and do not allow non-work time for them to assist OFW by testifying against 16 Darden’s policies. See id. at 22:3-13. 17 As for diversion of non-monetary resources, OFW claims that it “has been forced to 18 address complaints from Darden employees subject to the cash wage policy that they have 19 suffered more and worse sexual harassment because of their sex than Darden employees not 20 subject to that policy, as well as complaints from Darden tipped employees of color that they have 21 received less in tips than Darden tipped white employees because of their race (the vast majority 22 of whom suffer substantially because Darden already pays them a subminimum wage).” Compl. ¶ 23 67. OFW notes that Saru Jayaraman, OFW’s President, spends a significant amount of her time 24 dealing with such complaints from Darden employees. Id. ¶ 68. Additionally, Julia Sebastian, 25 OFW’s Research Director, spends roughly one-fourth of her time at work dealing with such 26 complaints from Darden employees and otherwise responding to the effects of the policies on 27 those employees. Id. In dealing with complaints from Darden employees, OFW workers refer 1 As for diversion of monetary resources, OFW alleges that because of Darden’s cash wage 2 and tipping policies, it “spends tens of thousands of dollars annually, if not more, in salary and 3 consultant payments, employees’ benefits, office supplies, digital engagement fees,” etc., that 4 could have been spent addressing other matters. Compl. ¶ 69. Further, OFW claims that it “lost 5 more money as a result of Darden’s policies because [OFW] has paid more cash assistance from 6 its Emergency Coronavirus Relief Fund to Darden employees subject to Darden’s policies than 7 [OFW] would have paid otherwise.” Id. ¶¶ 8, 71-73. OFW explained that it has paid cash relief 8 from the fund of $500 per employee to more than 350 Darden employees nationwide (including 9 more than 30 Darden employees in California), for a total of over $175,000 in cash assistance paid 10 to Darden employees affected by the coronavirus pandemic (over $15,000 of which was paid to 11 Darden employees in California). [OFW] paid essentially all of that cash relief to Darden’s tipped 12 employees who are (or were, prior to being laid off or furloughed) paid a subminimum wage.” Id. 13 at 72. 14 OFW argues that its “standing is equivalent to the standing that non-profits invoke all the 15 time in this Court, the Ninth Circuit, and around the country” and argues that Ninth Circuit’s 16 reasoning in East Bay Sanctuary Covenant applies “[i]dentical[ly] here.” Opp’n at 21. In East 17 Bay Sanctuary Covenant v. Biden, the Ninth Circuit found that the plaintiffs, legal services 18 organizations with the mission of assisting migrants seeking asylum, had organizational standing 19 because they demonstrated that the government’s new asylum restriction rule frustrated their 20 purpose by causing them to divert significant resources away from their mission. See id. at 663- 21 665. Notably, the asylum restriction rule at issue stripped asylum eligibility from every migrant 22 that crossed into the United States between designated ports of entry, thereby discouraging large 23 numbers of migrants from seeking asylum. See id. at 658. As such, the Ninth Circuit explained 24 that the rule perceptibly impaired the organizations’ ability to perform their mission of assisting 25 migrants seeking asylum because the organizations would have lost those clients seeking asylum 26 in the United States had they not diverted resources to counteracting the effect of the rule. See id. 27 at 664. 1 4770741, and Victim Rights Law Center v. Cardona, No. CV 20-11104-WGY, 2021 WL 3185743 2 (D. Mass. July 28, 2021), the U.S. Department of Education’s (the “Department”) actions 3 frustrated the missions of organizations that provided legal representation and counseling to sexual 4 harassment survivors. The plaintiffs in SurvJustice were challenging the Department’s new 5 guidance “related to the procedures by which educational institutions investigate, adjudicate, and 6 resolve allegations of student-on-student sexual misconduct.” 2018 WL 4770741, at *3. The 7 plaintiffs there had missions that included increasing the prospect of justice for sexual violence 8 survivors “through legal assistance;” “to litigate[] cases involving issues of gender discrimination 9 in employment and education at all stages. . . [and to] counsel[] and represent[] women who have 10 been victims of sexual harassment and/or sexual assault;” and “to provide legal representation to 11 victims of rape and sexual assault.” 2018 WL 4770741, at *4 (emphases added). Because the 12 guidance at issue “discourage[d] survivors of sexual harassment and sexual violence from filing 13 complaints,” Magistrate Judge Corley concluded it frustrated these organizations’ missions, which 14 involved prosecuting those very same complaints. Id. at *6–*7. Similarly, Judge Young of the 15 District of Massachusetts held that Victim Rights Law Center “demonstrate[d] a direct impairment 16 from [similar regulations that reduce protections for students enrolled in public schools from 17 sexual harassment and sexual violence]” because it “advocate[d] on behalf of victims of sexual 18 assault during the Title IX process,” and “experienced a reduction in requests for its services.” 19 Victims Rts. Law Ctr., 2021 WL 3185743, at *10. 20 The instant case is similar to Know Your IX v. DeVos, where Judge Bennett of the District 21 of Maryland recently concluded two organizations—Know Your IX and Gender Equity—failed to 22 establish that the Department’s recently enacted regulations that reduce protections for public 23 school students from sexual harassment and violence frustrated their missions for purposes of 24 organizational standing. No. CV RDB-20-01224, 2020 WL 6150935, at *5 (D. Md. Oct. 20, 25 2020). Like OFW is arguing here, the plaintiffs in Know Your IX alleged that because of the 26 Department’s regulations, they will need to dedicate additional staff time and resources to 27 advocate at the local and state levels for measures that are proven to prevent the occurrence of 1 carried out through policy advocacy,” and Know Your IX’s “goal [was] to empower high school 2 and college students to end sexual and dating violence in their schools through legal rights 3 education; training, organizing, and supporting student-survivor activists; and advocating for 4 campus, state, and federal policy change.” Id. at *6–*7. Like OFW here, neither organization 5 represented or offered legal services. Id. at *6. Although the Know Your IX plaintiffs argued they 6 had to spend more time and resources to accomplish their mission, the court concluded that 7 “resource reallocations motivated by the dictates of preference, however sincere, are not 8 cognizable organizational injuries because no action by the defendant has directly impaired the 9 organization’s ability to operate and function.” Id. at *7 (emphasis added) (quoting CASA de 10 Maryland, Inc. v. Trump, 971 F.3d 220, 239 (4th Cir. 2020)). 11 Here, questions are raised as to whether OFW has organizational standing. Devoting 12 additional resources to its lobbying efforts as a result on Darden practicing the kind of policies 13 challenged herein lies squarely within OFW’s mission and does not appear to constitute the kind 14 of diversion of resources found sufficient in other claims. As to the use of resources for providing 15 advice and referrals to individual employees, it does not appear that OFW’s mission includes 16 providing representation and counseling to individual employees; thus, it could be contended that 17 providing advice and referrals to Darden employees was a voluntary activity not required pursuant 18 to its mission. Cf. Fair Employment Council v. BMC Mktg. Corp., 28 F.3d 1268, 1276–77 (D.C. 19 Cir. 1994) (rejecting the idea that a plaintiff organization has standing to sue based solely on its 20 own decision regarding resources allocation, and requiring that the plaintiff be forced to divert 21 resources in order to avoid an injury caused by defendant's conduct). And Know Your IX suggests 22 there has not been a sufficient showing of direct impairment of OFW’s ability to operate and 23 function to confer standing. To be sure, case law is admittedly nebulous as to what qualifies as a 24 requisite diversion of resource for organizational standing under Article III. Because the Court 25 finds OFW lacks statutory standing under Title VII, it need not resolve the Article III question. 26 D. Failure to State a Claim 27 Title VII grants standing to a person bringing an action for an alleged “unlawful 1 otherwise to discriminate against any individual with respect to his compensation, terms, 2 conditions, or privileges of employment because of such individual’s race, color, religion, sex, or 3 national origin.” 42 U.S.C. § 2000e–2(a)(1). To have standing to bring such an action the 4 plaintiff must be “a person claiming to be aggrieved . . . ” under 42 U.S.C. § 2000e-5. Waters v. 5 Heublein, Inc., 547 F.2d 466, 469 (9th Cir. 1976). To qualify as a person aggrieved, the claimant 6 must assert a claim that “falls within the zone of interests sought to be protected by the statutory 7 provision whose violation forms the legal basis for his complaint.” See Thompson v. N. Am. 8 Stainless, LP, 131 S.Ct. 863, 870 (2011). No claimant can satisfy Title VII’s zone-of-interests test 9 when his or her “interests are so marginally related to or inconsistent with the purposes implicit in 10 the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke 11 v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987). 12 OFW argues that it has statutory standing to sue because its sex and race-based disparate 13 impact claims fall within Title VII’s zone of interests. Opp’n at 12. Darden argues that this Court 14 should dismiss because OFW does not have statutory standing to bring the Title VII claims it 15 alleges and its theory of liability is implausible. See Docket No. 17, MTD at 1:13-15. 16 1. Statutory Standing Under Title VII 17 Darden argues that OFW lacks statutory standing because it is not an employee of Darden. 18 It relies on Patee v. Pac. Nw. Bell Tel. Co., 803 F.2d 476 (9th Cir. 1986) and Simmons v. UBS Fin. 19 Servs., Inc., 972 F.3d 664, 665 (5th Cir. 2020), cert. denied, 141 S. Ct. 1382 (2021) as supporting 20 its position that only affected employees may sue under Title VII. 21 In Patee, a group of male employees alleged that they were discriminated against because, 22 as part of a group of predominately female workers, they were subject to sex-based wage 23 discrimination directed towards females. Patee, 803 F.2d at 477. The Ninth Circuit held that the 24 men could not assert the right of their female co-workers to be free from discrimination based on 25 their sex and as such, they did not have standing under Title VII to present a claim of 26 discriminatory practices against women in the workplace. Id. at 478-479. The Ninth Circuit 27 emphasized that the male employees were not attempting to assert that they had been 1 grievances. Id. at 478. The Ninth Circuit relied on Spaulding v. University of Washington, 740 2 F.2d 686 (9th Cir. 1984), finding it “logically indistinguishable from the issue presented” to reach 3 its conclusion. Patee, 803 F.2d at 478. In Spaulding, a male nursing faculty member attempted to 4 assert a claim that he was receiving salary infected by sex-based discrimination directed at female 5 nursing faculty members. Spaulding, 740 F.2d at 709. Similarly, the male nursing faculty 6 member made no claim that he received a lower wage because of his sex. Id. The Spaulding 7 Court held that even if the female faculty members have cognizable employment discrimination 8 claims, Title VII does not permit male employees to bootstrap their job grievances into an 9 employment discrimination claim under Title VII as they are not claiming discrimination based on 10 their own sex. See id. 11 In Simmons, the plaintiff was an employee of a third-party life insurance company and 12 brought a Title VII claim against a financial services company. The plaintiff claimed that he 13 suffered damages due to the financial service company’s alleged pregnancy discrimination that 14 was filed by the plaintiff’s daughter, who was an employee of the financial services company. 15 Simmons, 972 F.3d at 665. Notably, the plaintiff sold life-insurance products to clients of the 16 financial services company and prior to his daughter claiming pregnancy discrimination, he 17 frequently worked out of their offices. Id. Specifically, the plaintiff claimed that his third-party 18 relationship with the financial services company deteriorated as a result of his daughter’s 19 pregnancy discrimination claim against her employer. Id. The plaintiff was a non-employee 20 arguing that he has standing under Title VII as the intentional target of the retaliation against his 21 daughter based on her filing a pregnancy discrimination claim against her employer, the 22 defendant. The Fifth Circuit held that the plaintiff did not have standing under Title VII because 23 Title VII “protects employees from the unlawful acts of their employers. It does not—even 24 arguably—protect nonemployees from mistreatment by someone else’s employer.” Id. at 671; see 25 id. at 668 (“[t]he zone of interests that Title VII protects is limited to those in employment 26 relationships with the defendant”). The court assumed, without deciding, in Simmons that the 27 plaintiff’s daughter (as distinct from the non-employee father) who complained of pregnancy 1 business relationship with her father under Title VII. See Simmons, 972 F.3d at 666. 2 OFW claims that Patee “is no longer good law” because it “was decided decades before 3 Thompson” established the zone of interests test for Title VII claims. Opp’n at 16. Although the 4 Ninth Circuit has not addressed the question of non-employee standing under Title VII, Patee 5 suggests that standing under Title VII is not as sweeping as OFW suggests. OFW’s contention 6 that Patee is no longer good law because it was decided well before Thompson is misplaced. 7 Patee’s conclusion that men do not have viable claims for sex-based wage discrimination that is 8 directed at their female coworkers under Title VII appears in line with Thompson’s zone of 9 interests. See Thompson, 131 S.Ct. at 870 (holding that Thompson was well within the zone of 10 interests protected by Title VII where he was fired by his employer, the defendant, as a form of 11 retaliation against another employee that filed a discrimination claim . . . . “Thompson is not an 12 accidental victim of retaliation . . . .”). Although OFW argues that Simmons “should not be 13 followed” because its conclusion “ignores the purpose of Title VII” and Thompson’s zone of 14 interests precedent, the Fifth Circuit in Simmons relied on Thompson, 131 S.Ct. 863, in concluding 15 that the zone of interests that Title VII protects is limited to those in employment relationships 16 with the defendant. See Simmons, 972 F.3d at 668 (“it is no accident that Thompson’s example of 17 an ‘absurd’ case for statutory standing involved a nonemployee”) (quoting Thompson, 131 S.Ct. at 18 869). 19 OFW nonetheless argues that both of its claims fall within Title VII’s zone of interests 20 because there is a “broad private right of action” to enforce Title VII’s provision prohibiting 21 employers from discriminating against employees based on race, religion, sex, national origin, et 22 cetera. Opp’n at 12:15-24. OFW points to the language in Title VII: “a civil action may be 23 brought against the respondent named in the charge (A) by the person claiming to be aggrieved 24 . . . by the alleged unlawful employment practice.” 42 U.S.C. § 2000e-5(f)(1) (emphasis added). It 25 contends it is a “person claiming to be aggrieved,” because Darden’s policies conflict with OFW’s 26 mission that is focused on ending the subminimum wage and their effect on exacerbating sex- and 27 race-based discrimination in the workplace and that it has experienced injury in its having to divert 1 of-circuit district court’s decision in Tolar v. Cummings, No. 2:13-CV- 00132-JEO, 2014 WL 2 3974671, (N.D. Ala. Aug. 11, 2014), in arguing that non-employees can fall within Title VII’s 3 zone of interest. The plaintiffs in Tolar were non-employees that did business with the bank until 4 the daughter, an employee of the bank, complained to the bank that she had been sexually 5 harassed. See id. at *1-2. The employee’s father was a lawyer that had done legal work for the 6 bank. The bank then retaliated against him by no longer referring any legal work to him. Id. at 7 *3. The bank also sued the employee’s uncle and brother after she complained of sexual 8 harassment, alleging that they fraudulently transferred money out of the family trust to thwart the 9 bank from collecting it. See id. The employee’s father, brother, and uncle sued the bank for 10 unlawful retaliation under Title VII and the court found that they had standing and were arguably 11 within Title VII’s zone of interests even though they were non-employees. See id. at *15. In 12 reaching this conclusion the court relied on case law supporting the contention that Title VII’s 13 anti-retaliation provision covers a broad range of employer conduct and “‘does not confine the 14 actions and harms it forbids to those that are related to employment or occur at the workplace’” 15 Id. at *8 (quoting Burlington Northern and Santa Fe Ry. v. White, 126 S.Ct. 2405, 2409 (2006)). 16 Additionally, the court noted that in Thompson, 131 S.Ct. at 868, the Supreme Court held that “the 17 Burlington Standard for actionable retaliation would be met if a defendant company had 18 terminated the plaintiff’s employment as a means by which to retaliate indirectly against the 19 plaintiff’s fiancé, also an employee of the company, because the fiancé had filed an EEOC charge 20 against the company. The [Supreme] Court thus rejected the employer’s argument in favor of ‘a 21 categorical rule that third-party reprisals do not violate Title VII. Id. (quoting Thompson, 131 22 S.Ct. at 868). 23 Tolar appears inconsistent with Simmons, particularly in light of Simmon’s distinction 24 between the right of the employee versus her father to bring suit. Importantly, Tolar and Simmons 25 both concern non-employee standing under Title VII’s anti-retaliation provision, which is not at 26 issue here as OFW does not allege that it was the target of unlawful retaliation like the plaintiffs in 27 Tolar and Simmons. OFW has cited no authority holding that a non-employee who is only 1 of or on behalf of the directly affected employee. Although OFW cites East Bay Sanctuary 2 Covenant to supports its claim that non-employees have standing under Title VII, standing under 3 Title VII is not synonymous with Article III standing at issue in East Bay Sanctuary Covenant. 4 See Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547-48 (2016) (injury in fact is a constitutional 5 requirement for standing and Congress cannot erase Article III’s standing requirements by 6 statutorily granting the right to sue to a plaintiff that would not otherwise have standing). 7 Simply put, OFW cites no case law establishing that a non-employee – here, an advocacy 8 organization – has standing to challenge an employment practice, particularly where the alleged 9 injury it contends renders it “aggrieved” is either purely ideological or entirely derivative of the 10 injury directly suffered by actual employees. 11 The sweeping and implausible nature of OFW’s statutory standing theory is underscored 12 by the fact that, if accepted, it would circumvent class certification pursuant to Rule 23 and its 13 requirements of numerosity, commonality, typicality, and adequate representation for class 14 certification under Rule 23(a) and (where monetary relief is sought) predominance superiority, and 15 manageability under Rule 23(b)(3). See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-360. 16 OFW’s broad standing approach would ignore the protection afforded to the class via Rule 23’s 17 requirements of notice, objection rights, and judicial scrutiny of any class settlement. This is 18 particularly pertinent here, as there may well be employees who object to the changes sought by 19 OFW to eliminate unmediated tipping. Under OFW’s proposed procedure, any advocacy 20 organization such as OFW could sidestep Rule 23 and sue for what is tantamount to classwide 21 relief – as OFW effectively seeks here. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 1 Since OFW does not have standing under Title VII to sue, this Court need not address the 2 plausibility of OFW’s theory of liability. Accordingly, this Court GRANTS Darden’s motion to 3 dismiss for failure to state a claim and does so with prejudice, as any attempt to amend would be 4 futile. 5 This order disposes of Docket Nos. 15, 16, 17, 23, and 24. 6 7 IT IS SO ORDERED. 8 9 Dated: September 14, 2021 10 11 ______________________________________ EDWARD M. CHEN 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27