Simmons v. Marriot Court Yard

Opinion

1 2 3

Case No. 19-cv-04431-PJH 8 Plaintiff,

9 v. ORDER GRANTING IN PART AND DENYING IN PART MOTION TO 11 Defendant. Re: Dkt. No. 9 12

13 14 Before the court is defendant Courtyard Management Corporation’s1 (“Marriott” or 15 “defendant”) motion to dismiss. The matter is fully briefed and suitable for decision 16 without oral argument. Having read the parties’ papers and carefully considered their 17 arguments and the relevant legal authority, and good cause appearing, the court rules as 18 follows. 20 On August 1, 2019, pro se plaintiff Dawnia Simmons (“plaintiff”) filed a complaint 21 (“Compl.”) in this action. Dkt. 1. The complaint alleges three causes of action: (1) 22 defamation of character; (2) retaliation; and (3) discrimination. See id. 23 The complaint alleges that plaintiff worked for Marriott Courtyard in 2017, and she 24 complained about not getting a raise and how she was treated. Id. at 3.2 After she 25 resigned in 2018, plaintiff sought employment at other hotels. Id. at 4. When potential 26

27 1 Defendant is erroneously named in the complaint as “Marriot Court Yard.” 1 employers called Marriott for a reference, Marriott employees falsely told them that she 2 was fired, when in fact she had resigned. Id. Plaintiff then asked Marriott for a copy her 3 letter of resignation in order to demonstrate to future potential employers that she 4 resigned and was not fired. Id. Marriott refused to give her a copy. Id. Plaintiff then 5 asked someone at the NAACP to ask a general manager at Marriott for a copy of her 6 letter of resignation, which resulted in the manager faxing the letter. Id. 7 Plaintiff’s first claim is for defamation of character. Plaintiff alleges that Marriott 8 falsely told her potential employers that she was fired from Marriott. Id. at 5. The effect 9 was to prevent her from obtaining employment at another hotel. Plaintiff’s second claim 10 is for discrimination. Plaintiff alleges that she complained about not getting a raise 11 following her time as a probationary employee. Id. at 6. Although she resigned, she 12 claims that she was discriminated against because Marriott made it difficult for her to get 13 other employment because Marriott defamed her. Id. Plaintiff’s third claim is for 14 retaliation. Plaintiff alleges that every time a potential employer calls Marriott for a 15 reference, Marriott falsely informs the employers she was terminated. Id. at 8. 16 On October 17, 2019, defendant filed a motion to dismiss the complaint in its 17 entirety pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, 18 plaintiff’s discrimination and retaliation claims should be dismissed pursuant to Rule 12(e) 19 for a more definite statement. Dkt. 9. On December 12, 2019, the parties stipulated to 20 participate in mediation, which the court approved the following day. Dkt. 29. On 21 January 17, 2020, the court referred plaintiff to the federal pro bono project and stayed 22 the action pending appointment of counsel. Dkt. 36. Despite repeated attempts to 23 secure counsel for the purposes of mediation, the federal pro bono project was unable to 24 do so, and the court withdrew the referral on November 10, 2020. Dkt. 37. 26 A. Legal Standard 27 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the 1 1199–1200 (9th Cir. 2003). Under Federal Rule of Civil Procedure 8, which requires that 2 a complaint include a “short and plain statement of the claim showing that the pleader is 3 entitled to relief,” Fed. R. Civ. P. 8(a)(2), a complaint may be dismissed under Rule 4 12(b)(6) if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient 5 facts to support a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th 6 Cir. 2013). 7 While the court is to accept as true all the factual allegations in the complaint, 8 legally conclusory statements, not supported by actual factual allegations, need not be 9 accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). The complaint must proffer 10 sufficient facts to state a claim for relief that is plausible on its face. Bell Atl. Corp. v. 11 Twombly, 550 U.S. 544, 555, 558–59 (2007). 12 “A claim has facial plausibility when the plaintiff pleads factual content that allows 13 the court to draw the reasonable inference that the defendant is liable for the misconduct 14 alleged.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court 15 to infer more than the mere possibility of misconduct, the complaint has alleged—but it 16 has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. 17 P. 8(a)(2)). Where dismissal is warranted, it is generally without prejudice, unless it is 18 clear the complaint cannot be saved by any amendment. In re Daou Sys., Inc., 411 F.3d 19 1006, 1013 (9th Cir. 2005). 20 Review is generally limited to the contents of the complaint, although the court can 21 also consider documents “whose contents are alleged in a complaint and whose 22 authenticity no party questions, but which are not physically attached to the plaintiff’s 23 pleading.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (quoting In re Silicon 24 Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999), superseded by statute on 25 other grounds as stated in In re Quality Sys., Inc. Sec. Litig., 865 F.3d 1130 (9th Cir. 26 2017)); see also Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007) (“[A] court can 27 consider a document on which the complaint relies if the document is central to the 1 omitted)). The court may also consider matters that are properly the subject of judicial 2 notice (Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001)), and exhibits 3 attached to the complaint (Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 4 1542, 1555 n.19 (9th Cir. 1989)). 5 B. Analysis 6 1. First Claim: Defamation 7 Plaintiff’s first claim is for defamation. Compl. at 5. “Defamation is an invasion of 8 the interest in reputation.” Gilbert v. Sykes, 147 Cal. App. 4th 13, 27 (Ct. App. 2007) 9 (quoting Ringler Assocs. Inc. v. Md. Cas. Co., 80 Cal. App. 4th 1165, 1179 (Ct. App. 10 2000)). “The tort involves the intentional publication of a statement of fact that is false, 11 unprivileged, and has a natural tendency to injure or which causes special damage.” 12 Smith v. Maldonado, 72 Cal. App. 4th 637, 645 (Ct. App. 1999) (citing Cal. Civ. Code 13 §§ 45–46). “Publication means communication to some third person who understands 14 the defamatory meaning of the statement and its application to the person to whom 15 reference is made. Publication need not be to the ‘public’ at large; communication to a 16 single individual is sufficient.” Id. (citations omitted). 17 Defendant argues that plaintiff fails to allege sufficient facts on the issue of her 18 injury, including that the alleged statement regarding her termination was a substantial 19 factor in causing her harm. Mtn. at 5. 20 Plaintiff pleads sufficient facts to state a claim for defamation. The allegedly false 21 statement occurred when Marriott stated that plaintiff was fired when in fact she resigned. 22 The publication occurred when other potential employers called Marriott in regard to 23 plaintiff and Marriott informed those third parties that plaintiff was fired. With regard to 24 injury and causation, plaintiff alleges that she “can’t get hired at another hotel because 25 everytime [sic] a hotel call[s] to verify that I worked for Marriot [sic] they tell them I was 26 terminated.” Compl. at 5. Plaintiff sufficiently alleges an injury because she was unable 27 to secure other employment and that she has been in a state of depression because she 1 because plaintiff alleges she cannot secure employment elsewhere because, on multiple 2 occasions, other employers called Marriott to inquire about plaintiff and the false 3 statement about her being fired was the reason she could not secure a job. 4 For the foregoing reasons, defendant’s motion to dismiss plaintiff’s first claim is 6 2. Second & Third Claims: Discrimination and Retaliation 7 Plaintiff’s second claim is for discrimination and her third claim is for retaliation. 8 Compl. at 6, 8. Though she does not cite the statute, the court construes her claims as 9 violations of Title VII. “Title VII of the Civil Rights Act of 1964 proscribes discrimination in 10 employment on the basis of race, color, religion, sex, or national origin . . . . [and] 11 prohibits retaliation against persons who assert rights under the statute.” Fort Bend Cty. 12 v. Davis, 139 S. Ct. 1843, 1846 (2019) (citing 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a)). 13 To prove a prime facie case of discrimination under Title VII, plaintiff must show 14 that (1) she is a member of a protected class; (2) she was qualified for her position and 15 performing her job satisfactorily; (3) she experienced an adverse employment action; and 16 (4) that similarly situated individuals outside the protected class were treated more 17 favorably, or other circumstances surrounding the adverse employment action that give 18 rise to an inference of discrimination. Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 19 1156 (9th Cir. 2010) (citations omitted). To prove a claim of retaliation in violation of Title 20 VII, a plaintiff must show “(1) involvement in protected activity opposing an unlawful 21 employment practice, (2) an adverse employment action [by the defendant], and (3) a 22 causal link between the protected activity and the adverse action.” Freitag v. Ayers, 468 23 F.3d 528, 541 (9th Cir. 2006) (citation omitted). 24 Defendant argues that plaintiff’s second and third claims must be dismissed 25 because plaintiff has failed to allege any allegations regarding whether she filed an 26 administrative charge with the Equal Employment Opportunity Commission (“EEOC”). 27 Mtn. at 4–5. 1 with the EEOC within 180 days of the alleged unlawful employment practice. 42 U.S.C. 2 § 2000e-5(e)(1). In states such as California that have state or local laws prohibiting the 3 unlawful employment practice alleged, a complainant must file a charge with that state or 4 local authority before filing a charge with the EEOC. § 2000e-5(c); Fort Bend Cty., 139 S. 5 Ct. at 1846. Where a complainant files a charge with a state or local authority, she has 6 either 300 days after the unlawful employment practice occurred or 30 days after 7 receiving notice that the state or local authority has terminated the proceedings to file 8 with the EEOC, whichever is earlier. § 2000e-5(e)(1). 9 If the EEOC or state agency dismisses the charge and issues a right-to-sue letter, 10 a complainant has 90 days to file a claim in federal court. § 2000e-5(f)(1). “[T]he failure 11 to file a timely EEOC administrative complaint is not a jurisdictional prerequisite to a Title 12 VII claim, but is merely a statutory requirement subject to waiver, estoppel and equitable 13 tolling.” Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001) (citing Zipes v. 14 Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)). However, if a defendant raises 15 exhaustion, a plaintiff must allege facts sufficient to establish substantial compliance with 16 the administrative exhaustion requirements outlined above. See Redd-Oyedele v. Santa 17 Clara Cty. Off. of Educ., 2020 WL 4732343, at *3 (N.D Cal. Aug. 14, 2020); Burnes v. 18 Chavez, 2020 WL 2306488, at *3 (N.D. Cal. May 8, 2020) (collecting cases). 19 Here, defendant has raised plaintiff’s failure to exhaust administrative remedies. 20 See Fort Bend Cty., 139 S. Ct. at 1849 (“A claim-processing rule may be ‘mandatory’ in 21 the sense that a court must enforce the rule if a party ‘properly raise[s]’ it.” (alteration in 22 original) (quoting Eberhart v. United States, 546 U.S. 12, 19 (2005) (per curiam))). In this 23 case, the complaint is silent on whether plaintiff has exhausted her administrative 24 remedies before the EEOC or any state agency, whether she received a right-to-sue 25 letter from the EEOC, and when she received that letter. In her opposition, plaintiff 26 appears to state that she had some contact with both the California Department of 27 Industrial Relations’ complaint investigation unit and the EEOC office. Opp. at 5. It 1 is unclear whether they granted such an extension or what ultimately happened to her 2 complaints in those offices. See id. There is no indication that those offices issued 3 plaintiff a right-to-sue letter. Further, as defendant points out, a plaintiff may not rely on 4 factual allegations in an opposition; plaintiff must include her factual allegations in her 5 complaint. See Fed. R. Civ. P. 8(a); Hodges v. Apple Inc., 2013 WL 6698762, at *4 (N.D. 6 Cal. Dec. 19, 2013) (“In deciding a motion to dismiss, a court must generally look at the 7 complaint only.”). 8 Thus, plaintiff has not alleged facts in her complaint demonstrating that she 9 exhausted her claims before the Department of Industrial Relations and the EEOC. 10 Plaintiff’s statements in her opposition demonstrate that she could allege additional facts 11 in an amended complaint. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“[A] 12 district court should not dismiss a pro se complaint without leave to amend unless it is 13 absolutely clear that the deficiencies of the complaint could not be cured by 14 amendment.”). Based on these statements, it is clear that leave to amend the complaint 15 is warranted; however, plaintiff must allege facts in her complaint demonstrating that she 16 exhausted her administrative remedies and she must also allege facts that she plausibly 17 meets all the elements of a Title VII discrimination claim and retaliation claim. 18 For the reasons stated, defendant’s motion to dismiss plaintiff’s second and third 19 claims is GRANTED, and the claims are DISMISSED WITH LEAVE TO AMEND. 21 For the foregoing reasons, defendant’s motion to dismiss is GRANTED IN PART 22 AND DENIED IN PART and plaintiff’s second and third claims are DISMISSED WITH 23 LEAVE TO AMEND. Plaintiff may file an amended complaint that addresses the 24 deficiencies noted in this order within 30 days of the date of this order. If plaintiff chooses 25 not to file an amended complaint, the case will proceed on plaintiff’s first claim. No 26 additional claims or parties may be added without consent of the defendant or leave of 27 court. 1 attorney, the Legal Help Center at the San Francisco and Oakland courthouses provides 2 information and limited-scope legal assistance to pro se litigants. Appointments may be 3 scheduled by calling 415-782-8982 or emailing federalprobonoproject@sfbar.org. For 4 more information, plaintiff may visit the Legal Help Center’s website: 5 https://www.cand.uscourts.gov/about/court-programs/legal-help-desks/. 7 Dated: November 13, 2020 8 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27