1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 MARVONTE WILSON and DOMONIQUE No. 2:23-cv-00172 WBS KJN DANIELS, individually and on 13 behalf of all others similarly situated, 14 MEMORANDUM AND ORDER RE: Plaintiffs, DEFENDANTS’ MOTION TO DISMISS 15 v. 16 TIMEC SERVICES COMPANY, INC.; 17 FERROVIAL SERVICES INFRASTRUCTURE, INC.; VALERO 18 REFINING COMPANY-CALIFORNIA; DISA GLOBAL SOLUTIONS; and DOES 19 1 through 50, inclusive, 20 Defendants. 21 22 ----oo0oo---- 23 Plaintiffs Marvonte Wilson and Domonique Daniels 24 brought this putative class action in Solano County Superior 25 Court against Timec Services Company, Inc. (“Timec”); Ferrovial 26 Services Infrastructure, Inc. (“Ferrovial”); Valero Refining 27 Company-California (“Valero”); and DISA Global Solutions 28 (“DISA”). Plaintiffs allege employment discrimination based on 1 race in violation of Title VII of the Civil Rights Act of 1964 2 (“Title VII”), 42 U.S.C. § 2000e, and the California Fair 3 Employment and Housing Act (“FEHA”), Cal. Gov. Code § 12940; race 4 discrimination in violation of 42 U.S.C. § 1981; employment 5 discrimination based on perceived disability in violation of the 6 Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a); 7 and negligence under California law. (First Am. Compl (“FAC”) 8 (Docket No. 14).) Defendant DISA now moves to dismiss the 9 complaint, joined in part by defendants Timec, Valero, and 10 Ferrovial. (Docket Nos. 22, 24, 25, 26.) 11 I. Factual Background1 12 Defendants Timec, Ferrovial, and Valero are businesses 13 in the refinery industry. (FAC ¶¶ 8-9.) At all relevant times, 14 Ferrovial owned Timec.2 (Id. ¶ 8.) 15 DISA is a drug-testing company providing services to 16 hundreds of employers in the refining, chemical, and 17 petrochemical industries, including defendants Timec/Ferrovial 18 and Valero. (Id. ¶ 17.) DISA operates the DISA Contractor’s 19 Consortium (“DCC”), an online platform that provides information 20 about whether employees are compliant with DISA’s drug-testing 21 policies. (See id.) When an employee fails to comply with 22 DISA’s drug-testing policies, he or she is designated as 23 “inactive” on DCC. (Id.) To regain “active” status, employees 24 must pay DISA to either take a retest or complete a substance 25
26 1 All facts recited herein are as alleged in the Complaint unless otherwise noted. 27 2 The court will refer to Timec and Ferrovial as 28 “Timec/Ferrovial.” 1 abuse course. (Id.) 2 DISA uses a variety of drug-testing methods, including 3 urine, blood, and hair testing. Hair tests cannot detect drug 4 usage that occurred approximately five to seven days prior to the 5 test, but can detect earlier drug usage. (See id. ¶¶ 15-16.) 6 DISA claims that hair testing can detect “repeat drug use up to a 7 90-day window.” (Id. ¶ 16.) 8 Hair testing is less effective on melanin-rich, or 9 darker, hair. (Id. ¶ 14.) As a result, samples of melanin-rich 10 hair -- a feature black people commonly have –- are at a higher 11 risk of false positive test results than samples of lighter 12 colored hair. (Id.) Despite these known issues, DISA advertises 13 its hair testing as an accurate indicator of drug use. (Id. ¶¶ 14 16-17.) 15 Plaintiffs Marvonte Wilson and Domonique Daniels are 16 black men. (Id. ¶¶ 18, 33.) Mr. Wilson was employed by 17 Timec/Ferrovial from 2016 to 2019. (Id. ¶ 18.) Mr. Daniels was 18 employed by Timec/Ferrovial from 2001 to 2019. (Id. ¶ 33.) 19 Through contracts with Valero, Timec/Ferrovial placed plaintiffs 20 at Valero’s work sites. (Id. ¶¶ 19, 34.) Valero required 21 multiple types of drug tests, including hair tests, to be 22 administered by DISA. (See id. ¶¶ 20, 35.) 23 In January and February 2019, respectively, Mr. Daniels 24 and Mr. Wilson received positive hair test results for 25 methamphetamines and cocaine, respectively, despite never having 26 used those drugs. (Id. ¶¶ 23, 37.) Mr. Daniels also received 27 saliva and urine tests, which both came back negative for all 28 drugs. (Id. ¶ 37.) Mr. Wilson received a urine test, which came 1 back negative for all drugs. (Id. ¶ 23.) As a result of the 2 false positive hair tests, DISA classified plaintiffs as 3 “inactive” on the DCC platform. (Id. ¶¶ 28, 39.) When 4 plaintiffs notified DISA that the results were false positives, 5 DISA informed plaintiffs that they had two options: pay $175 for 6 a retest of the same hair sample by DISA, or complete a substance 7 abuse course administered by DISA at a cost ranging from $600 to 8 $850. (Id. ¶¶ 24, 37.) Plaintiffs informed Timec/Ferrovial that 9 the results were false positives, but Timec/Ferrovial told 10 plaintiffs that they had to resolve the issue with DISA. (Id. ¶¶ 11 24, 38.) 12 Mr. Wilson was terminated by Valero and informed that 13 he could not return to work for Timec/Ferrovial until he regained 14 active status. (Id. ¶ 24.) A retest of Mr. Wilson’s original 15 sample again came back with a false positive. (Id. ¶ 27.) Mr. 16 Wilson refused to take the substance abuse course and did not 17 again work for Timec/Ferrovial or Valero. (Id. ¶ 28.) 18 Mr. Daniels inquired repeatedly with DISA about 19 receiving a retest, but by the time DISA responded, the deadline 20 for retesting had passed. (Id. ¶ 39.) During the time he was 21 designative “inactive,” Mr. Daniels was not allowed to work for 22 either Timec/Ferrovial or Valero. (Id.) Mr. Daniels ultimately 23 paid for and completed DISA’s substance abuse course to regain 24 his active status on DCC. (Id.) However, the jobs he 25 subsequently received were lower-ranking and paid less than his 26 previous employment. (Id. ¶ 40.) 27 II. Legal Standard 28 Federal Rule of Civil Procedure 12(b)(6) allows for 1 dismissal when a complaint fails to state a claim upon which 2 relief can be granted. See Fed. R. Civ. P. 12(b)(6). “A Rule 3 12(b)(6) motion tests the legal sufficiency of a claim.” Navarro 4 v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The inquiry before 5 the court is whether, accepting the allegations in the complaint 6 as true and drawing all reasonable inferences in the plaintiff’s 7 favor, the complaint has alleged “sufficient facts . . . to 8 support a cognizable legal theory,” id., and thereby stated “a 9 claim to relief that is plausible on its face,” Bell Atl. Corp. 10 v. Twombly, 550 U.S. 544, 570 (2007). 11 Courts are not, however, “required to accept as true 12 allegations that are merely conclusory, unwarranted deductions of 13 fact, or unreasonable inferences.” Sprewell v. Golden State 14 Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see Bell Atl. Corp., 15 550 U.S. at 555. Accordingly, “for a complaint to survive a 16 motion to dismiss, the non-conclusory ‘factual content,’ and 17 reasonable inferences from that content, must be plausibly 18 suggestive of a claim entitling the plaintiff to relief.” Moss 19 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting 20 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 21 III. Defendant DISA 22 A. Employment Under Title VII, FEHA, and ADA 23 DISA argues that the Title VII, FEHA, and ADA claims 24 should be dismissed because plaintiffs have failed to establish 25 that DISA was plaintiffs’ “employer” and that DISA subjected them 26 to adverse employment actions. Plaintiffs argue that DISA was 27 plaintiffs’ indirect employer and that the “inactive” 28 designations on DISA’s platform constituted adverse employment 1 actions. 2 Title VII makes it “an unlawful employment practice for 3 an employer . . . to fail or refuse to hire or to discharge any 4 individual, or otherwise to discriminate against any individual 5 with respect to his compensation, terms, conditions, or 6 privileges of employment, because of such individual's race, 7 color, religion, sex, or national origin . . . .” 42 U.S.C. § 8 2000e–2(a). The FEHA makes it an “unlawful employment practice, 9 unless based upon a bona fide occupational qualification,” to 10 “discriminate against the person in compensation or in terms, 11 conditions, or privileges of employment” on the basis of, inter 12 alia, race, color, or national origin. See Cal. Gov. Code § 13 12940. The ADA provides that “[n]o covered entity shall 14 discriminate against a qualified individual on the basis of 15 disability in regard to job application procedures, the hiring, 16 advancement, or discharge of employees, employee compensation, 17 job training, and other terms, conditions, and privileges of 18 employment.” 42 U.S.C. § 12112(a). 19 1. Indirect Employer 20 The applicable provisions of Title VII, the FEHA, and 21 the ADA “predicate potential liability on the status of the 22 defendant as an ‘employer.’” See Mayfield v. County of Merced, 23 No. 1:13-cv-01619 LJO, 2014 WL 5822913, at *3 (E.D. Cal. Nov. 10, 24 2014) (Title VII and FEHA); Buchanan v. Watkins & Letofsky, LLP, 25 30 F.4th 874, 877 (9th Cir. 2022) (ADA). Thus, plaintiffs must 26 plausibly allege that they were “employees” of DISA. 27 In establishing an employment relationship, “the 28 connection with employment need not necessarily be direct.” 1 Lutcher v. Musicians Union Loc. 47, 633 F.2d 880, 883 (9th Cir. 2 1980). A defendant can be held liable as an “indirect employer” 3 where it acted in a discriminatory manner to “interfere” with the 4 plaintiff’s direct employment and “had some peculiar control over 5 the employee’s relationship with the direct employer.” Anderson 6 v. Pac. Mar. Ass’n, 336 F.3d 924, 932 (9th Cir. 2003). The 7 defendant must have exercised “actual ‘[c]ontrol over access to 8 the job market’” and “considerable power over [employees’] 9 ability to form employment relationships with third parties.” 10 See Ass’n of Mexican-Am. Educators v. California, 231 F.3d 572, 11 581 (9th Cir. 2000) (quoting Sibley Mem’l Hosp. v. Wilson, 488 12 F.2d 1338, 1341 (D.C. Cir. 1973)).3 13 If it were alleged that DISA only administered drug 14 tests, the FAC might not have sufficiently alleged that DISA 15 performed an action that controlled access to the job market. 16 See Ass’n of Mexican-Am. Educators, 231 F.3d at 583 (“Title VII 17 does not apply when the only connection among the licensing 18 agency, the plaintiff, and the universe of prospective employers 19 is the agency’s implementation of a general licensing 20 examination.”) (emphasis added). However, plaintiffs allege that 21
22 3 The “indirect employment” analysis applies equally in the Title VII, FEHA, and ADA contexts. See Orosa v. Therakos, 23 Inc., No. 11-cv-2143 EMC, 2011 WL 3667485, at *3 (N.D. Cal. Aug. 22, 2011) (analyzing indirect employment in context of FEHA 24 claim); Vernon v. California, 116 Cal. App. 4th 114, 126, 130 (1st Dist. 2004) (cited with approval in Doe I v. Wal-Mart 25 Stores, Inc., 572 F.3d 677, 682 (9th Cir. 2009)) (applying 9th Circuit Title VII case law on indirect employment doctrine to 26 FEHA claim); Walsh v. Nev. Dep’t of Hum. Res., 471 F.3d 1033, 27 1038 (9th Cir. 2006) (“Title I of the ADA adopts a definition of ‘employer’ and a remedial scheme that is identical to Title 28 VII”). 1 DISA did more than merely administer tests. DISA allegedly 2 created a set of policies that employees who received positive 3 drug test results were required to follow in order to maintain 4 “active” standing on DISA’s online platform, which DISA held out 5 to an entire industry as an accurate characterization of 6 employees’ drug use or lack thereof. 7 Plaintiffs allege that pursuant to DISA’s policies, 8 those who tested positive -- even where there was reason to 9 believe the test results were false positives, or where other 10 test types came back negative –- had to pay DISA for either a 11 retest of the same sample or a substance abuse course. (See FAC 12 ¶¶ 24, 37.) DISA allegedly refused employees’ requests to take a 13 second test of a new hair sample, even though DISA claims that 14 hair tests can detect drug use that occurred weeks or even months 15 prior and therefore would likely return another positive result 16 if the employee had actually used drugs. (See id. ¶¶ 16, 24.) 17 Plaintiff Wilson even acquired a second hair test by a different 18 lab, which came back negative, but DISA refused to consider it. 19 (Id. ¶¶ 26-27.) Plaintiffs tried to communicate their concerns 20 over false positive results with their direct employer, 21 Timec/Ferrovial, but were told that Timec/Ferrovial were unable 22 to provide any resolution; plaintiffs’ only option was to comply 23 with DISA’s requirement of either a retest or a substance abuse 24 course. (See id. ¶¶ 24, 38.) 25 Notably, plaintiffs allege that they the hair tests for 26 only one specific employer, Valero. (See id. ¶¶ 20, 35.) Rather 27 than merely communicating that plaintiffs were not compliant with 28 Valero’s hair test requirement, DISA declared plaintiffs 1 “inactive,” which affected their ability to work for all 2 employers contracted with DISA -- presumably including employers 3 that did not require hair tests at all. (See id. ¶ 17.) 4 Assuming the truth of plaintiff’s allegations, DISA reached out 5 into an entire industry to convey plaintiffs’ inactive status, 6 thereby interfering with plaintiffs’ employment opportunities 7 with hundreds of potential employers. Rather than merely 8 administering drug tests, it is alleged that DISA devised its own 9 set of policies that employees industry-wide had to comply with 10 to be eligible to work for hundreds of potential employers. See 11 Sibley, 488 F.2d at 1342 (control over access to direct employers 12 “for purposes of the initiation of . . . employment” brought 13 defendant “within the strictures of Title VII”). 14 Accordingly, plaintiffs have sufficiently pled that 15 defendant DISA was their indirect employer under Title VII, the 16 FEHA, and the ADA. 17 2. Adverse Employment Action 18 To state claims of discrimination under Title VII, the 19 FEHA, and the ADA, plaintiffs must allege that defendant 20 subjected them to adverse employment actions. See Davis v. Team 21 Elec. Co., 520 F.3d 1080, 1093–94 (9th Cir. 2008) (Title VII); 22 Flores v. City of Westminster, 873 F.3d 739, 748 (9th Cir. 2017) 23 (FEHA); Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th 24 Cir. 2004) (ADA). An adverse employment action is one that 25 materially affects the terms, conditions, or privileges of 26 employment. See Davis, 520 F.3d at 1089 (Title VII); Yanowitz v. 27 L’Oreal USA, Inc., 36 Cal. 4th 1028, 1036 (Cal. 2005) (FEHA); 28 Weeks v. Union Pac. R.R. Co., 137 F. Supp. 3d 1204, 1216–17 (E.D. 1 Cal. 2015) (citing Jefferson v. Time Warner Cable Enters. LLC, 2 584 F. App’x 520, 522 (9th Cir. 2014)) (ADA). 3 Plaintiffs allege that DISA’s classification of 4 plaintiffs as “inactive” on DISA’s online platform constituted 5 adverse employment actions. Defendant DISA argues that only the 6 subsequent actions taken by Timec/Ferrovial and Valero qualify as 7 adverse employment actions, though it cites no authority 8 supporting this position. 9 Plaintiffs allege that as a direct result of their 10 placement on “inactive” status on DISA’s platform, they were 11 allegedly terminated by Valero and suspended from new assignments 12 by Timec/Ferrovial. (See FAC ¶¶ 24, 39.) The inactive status 13 thus led to a change in the terms, conditions, or privileges of 14 employment. See Kang v. U. Lim Am., Inc., 296 F.3d 810, 819 (9th 15 Cir. 2002) (termination constitutes change in terms and 16 conditions of employment); Raad v. Fairbanks N. Star Borough Sch. 17 Dist., 323 F.3d 1185, 1196 (9th Cir. 2003), opinion amended on 18 denial of reh’g, No. 00-35999, 2003 WL 21027351 (9th Cir. May 8, 19 2003) (suspension constitutes adverse employment action). That 20 DISA did not directly carry out the suspensions or terminations 21 occasioned by its actions does not absolve it of potential 22 liability; the placement on inactive status can constitute an 23 independent adverse employment action. 24 Plaintiffs allege that maintenance of “active” status 25 is a necessary precondition for employment at Timec/Ferrovial, 26 Valero, and hundreds of other employers in the refining industry. 27 Some courts have found that interference with a prerequisite for 28 employment (such as licensing or training) can constitute an 1 adverse employment action. For instance, in Bastidas v. Good 2 Samaritan Hospital LP, a hospital failed to take action to 3 correct an inaccurate notion on a physician’s online professional 4 profile. No. 13-cv-04388 SI, 2016 WL 1029465, at *6 (N.D. Cal. 5 Mar. 15, 2016). The profile erroneously described him as 6 “incompetent” based on the hospital’s representations to the 7 third-party company maintaining the website. Id. The court 8 concluded that the hospital’s omission constituted an adverse 9 employment action because the inaccurate online profile “affects 10 licensing and professional privileges until such time as it is 11 remedied” and thereby affects the terms, conditions, or 12 privileges of the physician’s employment. Id. Similarly to the 13 physician’s online profile in Bastidas, plaintiffs’ DCC profiles 14 reflecting “inactive” status affected their professional 15 privileges and ability to maintain employment. 16 Other cases have found that denial of training 17 constitutes an adverse employment action where that training is a 18 prerequisite for employment opportunities. See Nelsen v. McHugh, 19 No. 3:08-CV-1424-ST, 2011 WL 3439190, at *3 (D. Or. Aug. 5, 20 2011); Wheeler v. Chertoff, No. C 08-1738 SBA, 2009 WL 2157548, 21 at *6 (N.D. Cal. July 17, 2009). As where an employer interferes 22 with the licensure or training an employee needs to work, DISA 23 allegedly interfered with the drug test compliance status that 24 plaintiffs required to maintain employment. 25 Another line of cases indicates that where an 26 investigation, evaluation, or accusation is factually unfounded, 27 it can constitute an adverse employment action if it affects the 28 terms, conditions, or privileges of employment. See Kortan v. 1 Cal. Youth Auth., 217 F.3d 1104, 1113 (9th Cir. 2000) (undeserved 2 negative performance evaluation can constitute adverse employment 3 action if disseminated, leading to changes to the terms, 4 conditions, or privileges of employment); Sanchez v. City of 5 Santa Ana, 915 F.2d 424, 431 (9th Cir. 1990) (unfounded negative 6 evaluations that led to denial of merit pay constituted 7 constructive discharge); Washington v. Cal. City Corr. Ctr., No. 8 1:10-cv-02031 AWI, 2012 WL 2577557, at *4–5 (E.D. Cal. July 3, 9 2012) (false accusation of misconduct could constitute adverse 10 employment action for FEHA discrimination claim); Plymale v. City 11 of Fresno, No. 09-cv-0802 LJO DLB, 2009 WL 1810765, at *5 (E.D. 12 Cal. June 25, 2009) (discriminatory investigation that resulted 13 in termination constituted adverse employment action). Similarly 14 to the false evaluations and accusations in these cases, placing 15 plaintiffs on “inactive” status based on false drug test results 16 affected the terms, conditions, and privileges of their 17 employment and can therefore qualify as adverse employment 18 actions. 19 Accordingly, plaintiffs have sufficiently alleged that 20 defendant DISA carried out adverse employment actions as required 21 to state a claim under Title VII, the FEHA, and the ADA. 22 B. Timeliness of Negligence Claim 23 There is a two-year statute of limitations for 24 negligence claims under California law. Cal. Civ. Proc. Code § 25 335.1. Plaintiffs argue that although the negligence claim was 26 filed outside that period, the statute of limitations is subject 27 to equitable tolling. 28 Equitable tolling is a judicially created doctrine that 1 suspends or extends the statute of limitations period. See 2 McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88, 99 3 (Cal. 2008). It is designed to prevent unjust forfeitures of a 4 right to trial when there has been timely notice to defendants of 5 plaintiff’s claims. Id. California’s equitable tolling doctrine 6 applies, inter alia, “when an injured person has several legal 7 remedies and, reasonably and in good faith, pursues one.” Elkins 8 v. Derby, 12 Cal. 3d 410, 414 (Cal. 1974). Its application in 9 such circumstances is meant to ease pressures on parties seeking 10 redress in multiple forums and to encourage parties to pursue 11 informal remedies. See McDonald, 45 Cal. 4th at 100. Equitable 12 tolling has three requirements: (1) timely notice to defendants; 13 (2) lack of prejudice to defendants; and (3) reasonable and good 14 faith conduct on the part of the plaintiffs. See Addison v. 15 California, 21 Cal. 3d 313, 319 (Cal. 1978); Cervantes v. City of 16 San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993). 17 “‘A motion to dismiss based on the running of the 18 statute of limitations period may be granted only if the 19 assertions of the complaint, read with the required liberality, 20 would not permit the plaintiff to prove that the statute was 21 tolled.’” Sosa v. Hulse, No. 1:19-cv-01333 EPG PC, 2021 WL 22 289377, at *6 (E.D. Cal. Jan. 28, 2021), report and 23 recommendation adopted, 2021 WL 859375 (E.D. Cal. Mar. 8, 2021) 24 (quoting Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 25 1206–07 (9th Cir. 1995)). See also Huynh v. Chase Manhattan 26 Bank, 465 F.3d 992, 1003–04 (9th Cir. 2006) (“Generally, the 27 applicability of equitable tolling depends on matters outside the 28 pleadings, so it is rarely appropriate to grant a Rule 12(b)(6) 1 motion to dismiss (where review is limited to the complaint) if 2 equitable tolling is at issue.”). Thus, the question here is 3 whether plaintiffs pled sufficient facts such that they could 4 ultimately prove the statute was tolled. 5 Given that many of the same facts underlie the 6 negligence and discrimination claims (see FAC ¶¶ 60-124), it is 7 possible that the claims are “at least so similar that the 8 defendant[s’] investigation of the [administrative claims] will 9 put [them] in a position to fairly defend” the negligence claim 10 such that equitable tolling applies. See Cervantes, 5 F.3d at 11 1276. See also Rosas v. Chipotle Mexican Grill, Inc., No. 1:22- 12 cv-189 JST RNB, 2013 WL 12170553, at *4 (C.D. Cal. Sept. 9, 2013) 13 (concluding negligence claim was subject to equitable tolling 14 because it “[arose] out of the same factual allegations” as the 15 plaintiff’s Title VII and FEHA claims, which plaintiff had 16 administratively exhausted and thereby given defendants adequate 17 notice). Accordingly, the court will deny the motion to dismiss 18 the negligence claim. 19 IV. All Defendants 20 A. Section 1981 21 Section 1981 states, in relevant part, “[a]ll persons 22 within the jurisdiction of the United States shall have the same 23 right in every State and Territory to make and enforce 24 contracts.” 42 U.S.C. § 1981(a). “To state a claim under § 25 1981, a plaintiff must identify an impaired ‘contractual 26 relation,’ by showing that the intentional racial discrimination 27 prevented the creation of a contractual relationship or impaired 28 an existing contractual relationship.” Jackson v. Farmers Ins. 1 Exch., No. 2:12-cv-01020 WBS, 2012 WL 5337076, at *3 (E.D. Cal. 2 Oct. 26, 2012) (quoting Boyd v. Feather River Cmty. Coll. Dist., 3 No. 2:11-cv-0231 JAM EFB, 2011 WL 5024547, at *4 (E.D. Cal. Oct. 4 20, 2011)). 5 To state a claim under § 1981, “a plaintiff must 6 initially plead and ultimately prove that, but for race, it would 7 not have suffered the loss of a legally protected right.” 8 Comcast Corp. v. Nat’l Ass'n of Afr. Am.-Owned Media, 140 S. Ct. 9 1009, 1019 (2020).4 10 Plaintiffs’ § 1981 claim is premised on the inaccuracy 11 of hair drug tests on “melanin-rich hair.” (See Opp’n at 25; FAC 12 ¶¶ 1, 104.) While black people tend to have hair with more 13 melanin, dark hair is a trait seen across people of all races, 14 including white people. Although physical traits can act as a 15 proxy for race, hair color alone is insufficient because it is 16 “shared by many not of [plaintiffs’] race or belonging to any 17 racial minority.” See Tolbert v. Gomez, 190 F.3d 985, 989 (9th 18 Cir. 1999) (where beliefs of prospective juror subject to 19 allegedly race-based peremptory challenge were shared by people 20 of all races, those beliefs could not be considered a “proxy” for 21 race); Johnson v. Sutton, No. 2:17-cv-00958 KJM ACP, 2022 WL 22 2134956, at *15 (E.D. Cal. June 14, 2022), report and 23 recommendation adopted, 2022 WL 3579871 (E.D. Cal. Aug. 19, 2022) 24 (same). Cf. Yoshimoto v. O’Reilly Auto., Inc., No. C 10-5438
25 4 The court notes that Title VII has a different causation standard than § 1981. Under Title VII, race must only 26 be a “motivating factor” for the adverse employment action, which 27 is a lower standard than but-for causation. See Comcast, 140 S. Ct. at 1017. Defendants did not raise the issue of causation on 28 plaintiffs’ other claims. 1 PJH, 2013 WL 6446249, at *11 (N.D. Cal. Dec. 9, 2013) (derogatory 2 comments about plaintiff’s white hair were evidence of age 3 discrimination). See also McCleskey v. Kemp, 481 U.S. 279, 341 4 (1987) (Brennan, J., dissenting) (“One could hardly contend that 5 this Nation has on the basis of hair color inflicted upon persons 6 deprivation comparable to that imposed on the basis of race.”).5 7 Further, plaintiffs do not allege that black employees 8 with dark hair were treated differently than other employees with 9 dark hair. And assuming the truth of plaintiffs’ allegations, it 10 seems likely that white employees with dark hair were also 11 subject to an increased rate of false positive drug test results. 12 See Pac. Shores Properties, LLC v. City of Newport Beach, 730 13 F.3d 1142, 1159 (9th Cir. 2013) (noting that “a plaintiff [may] 14 raise an inference of discrimination by identifying a similarly 15 situated entity who was treated more favorably”); Frazier v. City 16 of Fresno, No. 1:20-cv-01069 DAD SAB, 2022 WL 1128991, at *11 17 (E.D. Cal. Apr. 15, 2022) (dismissing § 1981 claim because 18 plaintiff failed to allege that similarly situated non-minority 19 individuals were treated more favorably and therefore failed to 20 plead that race was but-for cause of injury).
21 5 This is not to say that hair-related characteristics 22 can never form the basis of race discrimination claims. See Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 168 23 (7th Cir. 1976) (en banc) (recognizing a claim for racial discrimination based on the plaintiff’s allegation that she was 24 denied a promotion because she wore her hair in a natural Afro); Haymon v. Metra, No. 18 C 848, 2020 WL 1548953, at *12 (N.D. Ill. 25 Mar. 31, 2020) (“there is no question that racial discrimination claims by Black women on the basis of their hair texture . . . 26 are viable”); Cornwell v. California Bd. of Barbering & 27 Cosmetology, 962 F. Supp. 1260, 1276 n.13 (S.D. Cal. 1997) (noting that people of African descent have a unique hair 28 texture). 1 The court therefore concludes that plaintiffs have not 2 adequately pled that race was a but-for cause of the false 3 positive test results or any resulting actions, including DISA 4 listing them as inactive on DCC, Timec/Ferrovial suspending their 5 job site placements, or Valero terminating their employment. 6 Plaintiffs have thus failed to state a claim under § 1981. 7 Accordingly, plaintiffs’ § 1981 claim will be dismissed in its 8 entirety.6 9 B. ADA Claim Based on Perceived Disability 10 The ADA prohibits covered entities from 11 “discriminat[ing] against a qualified individual on the basis of 12 disability in regard to job application procedures, the hiring, 13 advancement, or discharge of employees, employee compensation, 14 job training, and other terms, conditions, and privileges of 15 employment.” 42 U.S.C. § 12112(a). A person with a “disability” 16 is defined to include an individual who is “regarded as having” 17 an impairment. 42 U.S.C. § 12102(1)(C). “An individual meets 18 the requirement of ‘being regarded as having such an impairment’ 19 if the individual establishes that he or she has been subjected 20 to an action prohibited under [the ADA] because of an actual or 21 perceived physical or mental impairment whether or not the 22 impairment limits or is perceived to limit a major life 23 activity.” Id. § 12102(3)(A). 24 “The term ‘qualified individual with a disability’ does 25 ‘not include any employee or applicant who is currently engaging 26 6 Though it does not reach the issue, the court notes 27 that a claim under § 1981 also requires “proof of intentional discrimination.” Gen. Bldg. Contractors Ass’n, Inc. v. 28 Pennsylvania, 458 U.S. 375, 376 (1982). 1 in the illegal use of drugs, when the covered entity acts on the 2 basis of such use.’” Collings v. Longview Fibre Co., 63 F.3d 3 828, 831 (9th Cir. 1995) (quoting 42 U.S.C. § 12114(a)). “The 4 ADA does, however, protect individuals . . . who are erroneously 5 regarded as using drugs when in fact they are not.” Id. at 831- 6 32 (citing 42 U.S.C. § 12114(b)). In such cases, “a plaintiff 7 must show that the employer knew that the employee had an actual 8 impairment or perceived the employee to have an impairment, and 9 that the impairment was not transitory or minor.” Equal Emp. 10 Opportunity Comm’n v. BNSF Ry. Co., 902 F.3d 916, 923 (9th Cir. 11 2018), as amended (Sept. 12, 2018). The term impairment is 12 “construe[d] . . . broadly,” id., and includes drug addiction, 13 see Thompson v. Davis, 295 F.3d 890, 896 (9th Cir. 2002). 14 In claiming that defendants engaged in disability 15 discrimination due to false positive drug test results, 16 plaintiffs must allege sufficient facts to conclude that 17 defendants took the adverse employment actions “because 18 [plaintiffs] were addicts or because it perceived they were 19 addicts . . . .” See Jones v. City of Bos., 752 F.3d 38, 58 (1st 20 Cir. 2014); see also Hernandez v. Hughes Missile Sys. Co., 362 21 F.3d 564, 568 (9th Cir. 2004) (in regarded-as claim by former 22 employee with history of substance abuse, trier of fact must 23 determine whether employer’s failure to re-hire was due to 24 employer’s knowledge of the plaintiff’s “status as an [addict]”). 25 In arguing that DISA discriminated against them based 26 on perceived addiction, plaintiffs rely on a statement on DISA’s 27 website that its hair tests are able to “detect repeat drug use 28 up to a 90-day window,” and DISA’s general policy of offering a 1 substance abuse course as one option for employees who test 2 positive. (See Opp’n at 21-22; FAC ¶ 111.) Plaintiffs do not 3 provide any additional facts in support of their allegation that 4 Timec, Ferrovial, and Valero, perceived plaintiffs as addicts; 5 rather, they merely state that these defendants “adopt[ed] and 6 rel[ied] upon . . . DISA’s false positive results as valid.” 7 (See FAC ¶ 112.) An advertising statement concerning what the 8 tests may be able to do and the generally applicable course 9 policy, without more, are not sufficient to establish that any of 10 the defendants actually perceived plaintiffs as repeat users -- 11 let alone addicts -- based on a single positive test. Cf. 12 Hernandez, 362 F.3d at 564, 568–69 (trier of fact could find that 13 employer perceived employee as an addict based on knowledge that 14 employee had previously completed an addiction treatment program 15 and a letter indicating that employee was attending Alcoholics 16 Anonymous). 17 Plaintiffs have therefore failed to sufficiently allege 18 that defendants perceived them as having drug addictions. 19 Accordingly, the court will dismiss the ADA claim in its 20 entirety. 21 C. Administrative Exhaustion 22 Under Title VII and the FEHA, “a plaintiff must exhaust 23 her administrative remedies by filing a timely charge with the 24 EEOC, or the appropriate state agency, thereby affording the 25 agency an opportunity to investigate the charge.” See B.K.B. v. 26 Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002), as 27 amended (Feb. 20, 2002) (citing 42 U.S.C. § 2000e–5(b)) (Title 28 VII); Rodriguez v. Airborne Express, 265 F.3d 890, 896 (9th Cir. 1 2001) (FEHA). “The scope of the written administrative charge 2 defines the permissible scope of the subsequent civil action,” 3 which must be “like or reasonably related to” the administrative 4 claims. Rodriguez, 265 F.3d at 897 (FEHA); see also Sommatino v. 5 United States, 255 F.3d 704, 708 (9th Cir. 2001) (Title VII). 6 “This standard is met where the allegations in the civil suit are 7 within the scope of the administrative investigation which can 8 reasonably be expected to grow out of the charge of 9 discrimination.” Rodriguez, 265 F.3d at 897 (internal quotation 10 marks omitted); see also Sommatino, 255 F.3d at 708. In 11 determining whether the plaintiffs have exhausted their 12 administrative remedies, “employment discrimination charges are 13 to be construed with the utmost liberality.” Paige v. 14 California, 102 F.3d 1035, 1041 (9th Cir. 1996) (internal 15 quotation marks omitted). 16 Plaintiffs filed charges of discrimination against 17 defendants with the Equal Employment Opportunity Commission 18 (“EEOC”) and California Department of Fair Employment and Housing 19 (“DFEH”) in 2019. (FAC ¶ 13.) Defendants argue that plaintiffs 20 nonetheless failed to administratively exhaust their class and 21 disparate impact claims because they did not raise them in their 22 administrative complaints. 23 As to Timec, Ferrovial, and Valero, this argument is 24 factually lacking in merit; each of plaintiffs’ administrative 25 complaints against them explicitly referred to multiple other 26 employees of the same race who suffered similar harms, and 27 alleged that defendants “unlawfully discriminated against me and 28 have a disparate impact upon a similarly-situated class of 1 African-American applicants and returning employees.” (See 2 Docket No. 28-1 at 8, 16 (emphasis added).) Accordingly, 3 plaintiffs’ class and disparate impact claims could reasonably be 4 expected to grow out of their administrative charges against 5 Timec, Ferrovial, and Valero. See Rodriguez, 265 F.3d at 897. 6 The administrative charges against DISA do not 7 explicitly identify disparate impact and class claims. However, 8 that level of specificity is not required. In Paige v. 9 California, the Ninth Circuit held that the plaintiff had 10 administratively exhausted her class action claims on a theory of 11 disparate impact, despite the fact that the underlying 12 administrative charge alleged only “discrimination” against the 13 plaintiff. 102 F.3d at 1041–43. The Ninth Circuit reasoned, 14 “even if neither the EEOC nor the [state] charges on their face 15 explicitly alleged class discrimination, it is plain that an EEOC 16 investigation of class discrimination on the basis of race could 17 reasonably be expected to grow out of” an individual allegation 18 of discrimination. Id. at 1042. See also Arizona v. Geo Grp., 19 Inc., 816 F.3d 1189, 1204 (9th Cir. 2016) (“an employer may be on 20 notice of classwide allegations of discrimination from a single 21 charge”); Brown v. Coach Stores, 163 F.3d 706, 712 (2d Cir. 1998) 22 (plaintiff’s “disparate impact claim reasonably related to her 23 failure to promote claim as we would expect that the EEOC, in 24 investigating the complaint, would have assessed [the employer’s] 25 promotion policies and their effect on minority employees”). As 26 in Paige, an investigation into claims of disparate impact on a 27 class of employees could reasonably be expected to grow out of 28 plaintiffs’ charges of discrimination. 1 The court therefore concludes that plaintiffs satisfied 2 the administrative exhaustion requirements. 3 D. Timeliness of Title VII and FEHA Claims 4 Defendants argue that plaintiffs’ Title VII, FEHA, and 5 ADA claims are time-barred. The court will address the 6 timeliness of the remaining Title VII and FEHA claims. 7 1. Title VII Claims 8 A plaintiff has ninety days from the receipt of a 9 right-to-sue notice letter7 to initiate a Title VII lawsuit. 10 Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1121 11 (9th Cir. 2007) (citing 42 U.S.C. § 2000e–5(f)(1)). The lawsuit 12 will be time-barred if not filed within the ninety-day period. 13 Id. The limitations period starts on “the date on which a right- 14 to-sue notice letter arrived at the claimant’s address of 15 record.” Id. at 1122. 16 Rule 6 of the Federal Rules of Civil Procedure governs 17 the computation of the Title VII limitations period. See id. at 18 1125. Rule 6 provides that “if the last day [of the period] is a 19 Saturday, Sunday, or legal holiday, the period continues to run 20 until the end of the next day that is not a Saturday, Sunday, or 21 legal holiday.” Fed. R. Civ. P. 6(a)(1)(C). 22 It is undisputed that plaintiffs’ counsel received the 23 right-to-sue letter on August 1, 2022. (See Mot. at 15; Opp’n at 24 5.) Ninety days from August 1, 2022 was Sunday, October 30, 25
26 7 If an administrative agency does not bring suit on an aggrieved person’s behalf, the agency issues a right-to-sue 27 letter notifying the individual that she can file suit. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1104 (9th Cir. 28 2008). 1 2022. “Because ninety days after that date was . . . a Sunday, 2 Federal Rule of Civil Procedure 6(a) extends the ninety-day 3 period” to the following Monday, October 31, 2022. See Payan, 4 495 F.3d at 1125. Plaintiffs’ complaint was filed on October 31, 5 2022. (See Docket No. 1-1.) Accordingly, plaintiffs’ Title VII 6 claims were timely filed. 7 2. FEHA Claims 8 The time period for filing a FEHA claim expires “when 9 the federal right-to-sue period to commence a civil action 10 expires, or one year from the date of the right-to-sue notice by 11 the department, whichever is later.” See Cal. Gov. Code § 12 12965(d)(2). 13 Defendants state that plaintiffs received their right- 14 to-sue notices from the California Department of Fair Employment 15 and Housing on October 30, 2019 and November 5, 2019, which 16 plaintiffs do not dispute. (See Mot. at 15; Opp’n at 6.) One 17 year from these dates was October 29, 2020, and November 4, 2020, 18 respectively. The FEHA filing period thus expired on the same 19 date as the Title VII filing period, October 31, 2022. 20 Plaintiff’s FEHA claims were therefore timely filed. (See Docket 21 No. 1-1.) 22 Accordingly, the court concludes that plaintiffs have 23 stated claims under Title VII and the FEHA, which were timely 24 filed and administratively exhausted. Plaintiffs have also pled 25 sufficient facts to allege that the statute of limitations 26 applicable to the negligence claim was subject to equitable 27 tolling. Plaintiffs have failed to state claims under the ADA 28 and § 1981. eee OE I EI OS ISS NO mE
1 IT IS THEREFORE ORDERED that defendants’ motion to 2 dismiss (Docket No. 22) is GRANTED as to plaintiffs’ § 1981 and 3 | ADA claims in their entirety. The motion to dismiss is denied in 4 all other respects. Plaintiffs have twenty days from the date of 5 this Order to file an amended complaint, if they can do so 6 | consistent with this Order. 7 Dated: May 12, 2023 - ak. 8 WILLIAMB. □□□□□□□□□□□□□□□□□□□□□□ 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24