Wilson v. Timec Services Co.,.

Opinion

----oo0oo---- MARVONTE WILSON and DOMONIQUE No. 2:23-cv-00172 WBS KJN DANIELS, individually and on behalf of all others similarly situated, MEMORANDUM AND ORDER RE: Plaintiffs, DEFENDANTS’ MOTION TO DISMISS v. TIMEC SERVICES COMPANY, INC.; INFRASTRUCTURE, INC.; VALERO REFINING COMPANY-CALIFORNIA; DISA GLOBAL SOLUTIONS; and DOES 1 through 50, inclusive, Defendants. ----oo0oo---- Plaintiffs Marvonte Wilson and Domonique Daniels brought this putative class action in Solano County Superior Court against Timec Services Company, Inc. (“Timec”); Ferrovial Services Infrastructure, Inc. (“Ferrovial”); Valero Refining Company-California (“Valero”); and DISA Global Solutions (“DISA”). Plaintiffs allege employment discrimination based on race in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, and the California Fair Employment and Housing Act (“FEHA”), Cal. Gov. Code § 12940; race discrimination in violation of 42 U.S.C. § 1981; employment discrimination based on perceived disability in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a); and negligence under California law. (First Am. Compl (“FAC”) (Docket No. 14).) Defendant DISA now moves to dismiss the complaint, joined in part by defendants Timec, Valero, and Ferrovial. (Docket Nos. 22, 24, 25, 26.) I. Factual Background1 Defendants Timec, Ferrovial, and Valero are businesses in the refinery industry. (FAC ¶¶ 8-9.) At all relevant times, Ferrovial owned Timec.2 (Id. ¶ 8.) DISA is a drug-testing company providing services to hundreds of employers in the refining, chemical, and petrochemical industries, including defendants Timec/Ferrovial and Valero. (Id. ¶ 17.) DISA operates the DISA Contractor’s Consortium (“DCC”), an online platform that provides information about whether employees are compliant with DISA’s drug-testing policies. (See id.) When an employee fails to comply with DISA’s drug-testing policies, he or she is designated as “inactive” on DCC. (Id.) To regain “active” status, employees must pay DISA to either take a retest or complete a substance

1 All facts recited herein are as alleged in the Complaint unless otherwise noted. 2 The court will refer to Timec and Ferrovial as “Timec/Ferrovial.” abuse course. (Id.) DISA uses a variety of drug-testing methods, including urine, blood, and hair testing. Hair tests cannot detect drug usage that occurred approximately five to seven days prior to the test, but can detect earlier drug usage. (See id. ¶¶ 15-16.) DISA claims that hair testing can detect “repeat drug use up to a 90-day window.” (Id. ¶ 16.) Hair testing is less effective on melanin-rich, or darker, hair. (Id. ¶ 14.) As a result, samples of melanin-rich hair -- a feature black people commonly have –- are at a higher risk of false positive test results than samples of lighter colored hair. (Id.) Despite these known issues, DISA advertises its hair testing as an accurate indicator of drug use. (Id. ¶¶ 16-17.) Plaintiffs Marvonte Wilson and Domonique Daniels are black men. (Id. ¶¶ 18, 33.) Mr. Wilson was employed by Timec/Ferrovial from 2016 to 2019. (Id. ¶ 18.) Mr. Daniels was employed by Timec/Ferrovial from 2001 to 2019. (Id. ¶ 33.) Through contracts with Valero, Timec/Ferrovial placed plaintiffs at Valero’s work sites. (Id. ¶¶ 19, 34.) Valero required multiple types of drug tests, including hair tests, to be administered by DISA. (See id. ¶¶ 20, 35.) In January and February 2019, respectively, Mr. Daniels and Mr. Wilson received positive hair test results for methamphetamines and cocaine, respectively, despite never having used those drugs. (Id. ¶¶ 23, 37.) Mr. Daniels also received saliva and urine tests, which both came back negative for all drugs. (Id. ¶ 37.) Mr. Wilson received a urine test, which came back negative for all drugs. (Id. ¶ 23.) As a result of the false positive hair tests, DISA classified plaintiffs as “inactive” on the DCC platform. (Id. ¶¶ 28, 39.) When plaintiffs notified DISA that the results were false positives, DISA informed plaintiffs that they had two options: pay $175 for a retest of the same hair sample by DISA, or complete a substance abuse course administered by DISA at a cost ranging from $600 to $850. (Id. ¶¶ 24, 37.) Plaintiffs informed Timec/Ferrovial that the results were false positives, but Timec/Ferrovial told plaintiffs that they had to resolve the issue with DISA. (Id. ¶¶ 24, 38.) Mr. Wilson was terminated by Valero and informed that he could not return to work for Timec/Ferrovial until he regained active status. (Id. ¶ 24.) A retest of Mr. Wilson’s original sample again came back with a false positive. (Id. ¶ 27.) Mr. Wilson refused to take the substance abuse course and did not again work for Timec/Ferrovial or Valero. (Id. ¶ 28.) Mr. Daniels inquired repeatedly with DISA about receiving a retest, but by the time DISA responded, the deadline for retesting had passed. (Id. ¶ 39.) During the time he was designative “inactive,” Mr. Daniels was not allowed to work for either Timec/Ferrovial or Valero. (Id.) Mr. Daniels ultimately paid for and completed DISA’s substance abuse course to regain his active status on DCC. (Id.) However, the jobs he subsequently received were lower-ranking and paid less than his previous employment. (Id. ¶ 40.) II. Legal Standard Federal Rule of Civil Procedure 12(b)(6) allows for dismissal when a complaint fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). “A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The inquiry before the court is whether, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff’s favor, the complaint has alleged “sufficient facts . . . to support a cognizable legal theory,” id., and thereby stated “a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Courts are not, however, “required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see Bell Atl. Corp., 550 U.S. at 555. Accordingly, “for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). III. Defendant DISA A. Employment Under Title VII, FEHA, and ADA DISA argues that the Title VII, FEHA, and ADA claims should be dismissed because plaintiffs have failed to establish that DISA was plaintiffs’ “employer” and that DISA subjected them to adverse employment actions. Plaintiffs argue that DISA was plaintiffs’ indirect employer and that the “inactive” designations on DISA’s platform constituted adverse employment actions. Title VII makes it “an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e–2(a). The FEHA makes it an “unlawful employment practice, unless based upon a bona fide occupational qualification,” to “discriminate against the person in compensation or in terms, conditions, or privileges of employment” on the basis of, inter alia, race, color, or national origin. See Cal. Gov. Code § 12940. The ADA provides that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). 1. Indirect Employer The applicable provisions of Title VII, the FEHA, and the ADA “predicate potential liability on the status of the defendant as an ‘employer.’” See Mayfield v. County of Merced, No. 1:13-cv-01619 LJO, 2014 WL 5822913, at *3 (E.D. Cal. Nov. 10, 2014) (Title VII and FEHA); Buchanan v. Watkins & Letofsky, LLP, 30 F.4th 874, 877 (9th Cir. 2022) (ADA). Thus, plaintiffs must plausibly allege that they were “employees” of DISA. In establishing an employment relationship, “the connection with employment need not necessarily be direct.” Lutcher v. Musicians Union Loc. 47, 633 F.2d 880, 883 (9th Cir. 1980). A defendant can be held liable as an “indirect employer” where it acted in a discriminatory manner to “interfere” with the plaintiff’s direct employment and “had some peculiar control over the employee’s relationship with the direct employer.” Anderson v. Pac. Mar. Ass’n, 336 F.3d 924, 932 (9th Cir. 2003). The defendant must have exercised “actual ‘[c]ontrol over access to the job market’” and “considerable power over [employees’] ability to form employment relationships with third parties.” See Ass’n of Mexican-Am. Educators v. California, 231 F.3d 572, 581 (9th Cir. 2000) (quoting Sibley Mem’l Hosp. v. Wilson, 488 F.2d 1338, 1341 (D.C. Cir. 1973)).3 If it were alleged that DISA only administered drug tests, the FAC might not have sufficiently alleged that DISA performed an action that controlled access to the job market. See Ass’n of Mexican-Am. Educators, 231 F.3d at 583 (“Title VII does not apply when the only connection among the licensing agency, the plaintiff, and the universe of prospective employers is the agency’s implementation of a general licensing examination.”) (emphasis added). However, plaintiffs allege that

3 The “indirect employment” analysis applies equally in the Title VII, FEHA, and ADA contexts. See Orosa v. Therakos, Inc., No. 11-cv-2143 EMC, 2011 WL 3667485, at *3 (N.D. Cal. Aug. 22, 2011) (analyzing indirect employment in context of FEHA claim); Vernon v. California, 116 Cal. App. 4th 114, 126, 130 (1st Dist. 2004) (cited with approval in Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 682 (9th Cir. 2009)) (applying 9th Circuit Title VII case law on indirect employment doctrine to FEHA claim); Walsh v. Nev. Dep’t of Hum. Res., 471 F.3d 1033, 1038 (9th Cir. 2006) (“Title I of the ADA adopts a definition of ‘employer’ and a remedial scheme that is identical to Title VII”). DISA did more than merely administer tests. DISA allegedly created a set of policies that employees who received positive drug test results were required to follow in order to maintain “active” standing on DISA’s online platform, which DISA held out to an entire industry as an accurate characterization of employees’ drug use or lack thereof. Plaintiffs allege that pursuant to DISA’s policies, those who tested positive -- even where there was reason to believe the test results were false positives, or where other test types came back negative –- had to pay DISA for either a retest of the same sample or a substance abuse course. (See FAC ¶¶ 24, 37.) DISA allegedly refused employees’ requests to take a second test of a new hair sample, even though DISA claims that hair tests can detect drug use that occurred weeks or even months prior and therefore would likely return another positive result if the employee had actually used drugs. (See id. ¶¶ 16, 24.) Plaintiff Wilson even acquired a second hair test by a different lab, which came back negative, but DISA refused to consider it. (Id. ¶¶ 26-27.) Plaintiffs tried to communicate their concerns over false positive results with their direct employer, Timec/Ferrovial, but were told that Timec/Ferrovial were unable to provide any resolution; plaintiffs’ only option was to comply with DISA’s requirement of either a retest or a substance abuse course. (See id. ¶¶ 24, 38.) Notably, plaintiffs allege that they the hair tests for only one specific employer, Valero. (See id. ¶¶ 20, 35.) Rather than merely communicating that plaintiffs were not compliant with Valero’s hair test requirement, DISA declared plaintiffs “inactive,” which affected their ability to work for all employers contracted with DISA -- presumably including employers that did not require hair tests at all. (See id. ¶ 17.) Assuming the truth of plaintiff’s allegations, DISA reached out into an entire industry to convey plaintiffs’ inactive status, thereby interfering with plaintiffs’ employment opportunities with hundreds of potential employers. Rather than merely administering drug tests, it is alleged that DISA devised its own set of policies that employees industry-wide had to comply with to be eligible to work for hundreds of potential employers. See Sibley, 488 F.2d at 1342 (control over access to direct employers “for purposes of the initiation of . . . employment” brought defendant “within the strictures of Title VII”). Accordingly, plaintiffs have sufficiently pled that defendant DISA was their indirect employer under Title VII, the FEHA, and the ADA. 2. Adverse Employment Action To state claims of discrimination under Title VII, the FEHA, and the ADA, plaintiffs must allege that defendant subjected them to adverse employment actions. See Davis v. Team Elec. Co., 520 F.3d 1080, 1093–94 (9th Cir. 2008) (Title VII); Flores v. City of Westminster, 873 F.3d 739, 748 (9th Cir. 2017) (FEHA); Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004) (ADA). An adverse employment action is one that materially affects the terms, conditions, or privileges of employment. See Davis, 520 F.3d at 1089 (Title VII); Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1036 (Cal. 2005) (FEHA); Weeks v. Union Pac. R.R. Co., 137 F. Supp. 3d 1204, 1216–17 (E.D. Cal. 2015) (citing Jefferson v. Time Warner Cable Enters. LLC, 584 F. App’x 520, 522 (9th Cir. 2014)) (ADA). Plaintiffs allege that DISA’s classification of plaintiffs as “inactive” on DISA’s online platform constituted adverse employment actions. Defendant DISA argues that only the subsequent actions taken by Timec/Ferrovial and Valero qualify as adverse employment actions, though it cites no authority supporting this position. Plaintiffs allege that as a direct result of their placement on “inactive” status on DISA’s platform, they were allegedly terminated by Valero and suspended from new assignments by Timec/Ferrovial. (See FAC ¶¶ 24, 39.) The inactive status thus led to a change in the terms, conditions, or privileges of employment. See Kang v. U. Lim Am., Inc., 296 F.3d 810, 819 (9th Cir. 2002) (termination constitutes change in terms and conditions of employment); Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1196 (9th Cir. 2003), opinion amended on denial of reh’g, No. 00-35999, 2003 WL 21027351 (9th Cir. May 8, 2003) (suspension constitutes adverse employment action). That DISA did not directly carry out the suspensions or terminations occasioned by its actions does not absolve it of potential liability; the placement on inactive status can constitute an independent adverse employment action. Plaintiffs allege that maintenance of “active” status is a necessary precondition for employment at Timec/Ferrovial, Valero, and hundreds of other employers in the refining industry. Some courts have found that interference with a prerequisite for employment (such as licensing or training) can constitute an adverse employment action. For instance, in Bastidas v. Good Samaritan Hospital LP, a hospital failed to take action to correct an inaccurate notion on a physician’s online professional profile. No. 13-cv-04388 SI, 2016 WL 1029465, at *6 (N.D. Cal. Mar. 15, 2016). The profile erroneously described him as “incompetent” based on the hospital’s representations to the third-party company maintaining the website. Id. The court concluded that the hospital’s omission constituted an adverse employment action because the inaccurate online profile “affects licensing and professional privileges until such time as it is remedied” and thereby affects the terms, conditions, or privileges of the physician’s employment. Id. Similarly to the physician’s online profile in Bastidas, plaintiffs’ DCC profiles reflecting “inactive” status affected their professional privileges and ability to maintain employment. Other cases have found that denial of training constitutes an adverse employment action where that training is a prerequisite for employment opportunities. See Nelsen v. McHugh, No. 3:08-CV-1424-ST, 2011 WL 3439190, at *3 (D. Or. Aug. 5, 2011); Wheeler v. Chertoff, No. C 08-1738 SBA, 2009 WL 2157548, at *6 (N.D. Cal. July 17, 2009). As where an employer interferes with the licensure or training an employee needs to work, DISA allegedly interfered with the drug test compliance status that plaintiffs required to maintain employment. Another line of cases indicates that where an investigation, evaluation, or accusation is factually unfounded, it can constitute an adverse employment action if it affects the terms, conditions, or privileges of employment. See Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1113 (9th Cir. 2000) (undeserved negative performance evaluation can constitute adverse employment action if disseminated, leading to changes to the terms, conditions, or privileges of employment); Sanchez v. City of Santa Ana, 915 F.2d 424, 431 (9th Cir. 1990) (unfounded negative evaluations that led to denial of merit pay constituted constructive discharge); Washington v. Cal. City Corr. Ctr., No. 1:10-cv-02031 AWI, 2012 WL 2577557, at *4–5 (E.D. Cal. July 3, 2012) (false accusation of misconduct could constitute adverse employment action for FEHA discrimination claim); Plymale v. City of Fresno, No. 09-cv-0802 LJO DLB, 2009 WL 1810765, at *5 (E.D. Cal. June 25, 2009) (discriminatory investigation that resulted in termination constituted adverse employment action). Similarly to the false evaluations and accusations in these cases, placing plaintiffs on “inactive” status based on false drug test results affected the terms, conditions, and privileges of their employment and can therefore qualify as adverse employment actions. Accordingly, plaintiffs have sufficiently alleged that defendant DISA carried out adverse employment actions as required to state a claim under Title VII, the FEHA, and the ADA. B. Timeliness of Negligence Claim There is a two-year statute of limitations for negligence claims under California law. Cal. Civ. Proc. Code § 335.1. Plaintiffs argue that although the negligence claim was filed outside that period, the statute of limitations is subject to equitable tolling. Equitable tolling is a judicially created doctrine that suspends or extends the statute of limitations period. See McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88, 99 (Cal. 2008). It is designed to prevent unjust forfeitures of a right to trial when there has been timely notice to defendants of plaintiff’s claims. Id. California’s equitable tolling doctrine applies, inter alia, “when an injured person has several legal remedies and, reasonably and in good faith, pursues one.” Elkins v. Derby, 12 Cal. 3d 410, 414 (Cal. 1974). Its application in such circumstances is meant to ease pressures on parties seeking redress in multiple forums and to encourage parties to pursue informal remedies. See McDonald, 45 Cal. 4th at 100. Equitable tolling has three requirements: (1) timely notice to defendants; (2) lack of prejudice to defendants; and (3) reasonable and good faith conduct on the part of the plaintiffs. See Addison v. California, 21 Cal. 3d 313, 319 (Cal. 1978); Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993). “‘A motion to dismiss based on the running of the statute of limitations period may be granted only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.’” Sosa v. Hulse, No. 1:19-cv-01333 EPG PC, 2021 WL 289377, at *6 (E.D. Cal. Jan. 28, 2021), report and recommendation adopted, 2021 WL 859375 (E.D. Cal. Mar. 8, 2021) (quoting Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206–07 (9th Cir. 1995)). See also Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003–04 (9th Cir. 2006) (“Generally, the applicability of equitable tolling depends on matters outside the pleadings, so it is rarely appropriate to grant a Rule 12(b)(6) motion to dismiss (where review is limited to the complaint) if equitable tolling is at issue.”). Thus, the question here is whether plaintiffs pled sufficient facts such that they could ultimately prove the statute was tolled. Given that many of the same facts underlie the negligence and discrimination claims (see FAC ¶¶ 60-124), it is possible that the claims are “at least so similar that the defendant[s’] investigation of the [administrative claims] will put [them] in a position to fairly defend” the negligence claim such that equitable tolling applies. See Cervantes, 5 F.3d at 1276. See also Rosas v. Chipotle Mexican Grill, Inc., No. 1:22- cv-189 JST RNB, 2013 WL 12170553, at *4 (C.D. Cal. Sept. 9, 2013) (concluding negligence claim was subject to equitable tolling because it “[arose] out of the same factual allegations” as the plaintiff’s Title VII and FEHA claims, which plaintiff had administratively exhausted and thereby given defendants adequate notice). Accordingly, the court will deny the motion to dismiss the negligence claim. IV. All Defendants A. Section 1981 Section 1981 states, in relevant part, “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts.” 42 U.S.C. § 1981(a). “To state a claim under § 1981, a plaintiff must identify an impaired ‘contractual relation,’ by showing that the intentional racial discrimination prevented the creation of a contractual relationship or impaired an existing contractual relationship.” Jackson v. Farmers Ins. Exch., No. 2:12-cv-01020 WBS, 2012 WL 5337076, at *3 (E.D. Cal. Oct. 26, 2012) (quoting Boyd v. Feather River Cmty. Coll. Dist., No. 2:11-cv-0231 JAM EFB, 2011 WL 5024547, at *4 (E.D. Cal. Oct. 20, 2011)). To state a claim under § 1981, “a plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered the loss of a legally protected right.” Comcast Corp. v. Nat’l Ass'n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020).4 Plaintiffs’ § 1981 claim is premised on the inaccuracy of hair drug tests on “melanin-rich hair.” (See Opp’n at 25; FAC ¶¶ 1, 104.) While black people tend to have hair with more melanin, dark hair is a trait seen across people of all races, including white people. Although physical traits can act as a proxy for race, hair color alone is insufficient because it is “shared by many not of [plaintiffs’] race or belonging to any racial minority.” See Tolbert v. Gomez, 190 F.3d 985, 989 (9th Cir. 1999) (where beliefs of prospective juror subject to allegedly race-based peremptory challenge were shared by people of all races, those beliefs could not be considered a “proxy” for race); Johnson v. Sutton, No. 2:17-cv-00958 KJM ACP, 2022 WL 2134956, at *15 (E.D. Cal. June 14, 2022), report and recommendation adopted, 2022 WL 3579871 (E.D. Cal. Aug. 19, 2022) (same). Cf. Yoshimoto v. O’Reilly Auto., Inc., No. C 10-5438

4 The court notes that Title VII has a different causation standard than § 1981. Under Title VII, race must only be a “motivating factor” for the adverse employment action, which is a lower standard than but-for causation. See Comcast, 140 S. Ct. at 1017. Defendants did not raise the issue of causation on plaintiffs’ other claims. PJH, 2013 WL 6446249, at *11 (N.D. Cal. Dec. 9, 2013) (derogatory comments about plaintiff’s white hair were evidence of age discrimination). See also McCleskey v. Kemp, 481 U.S. 279, 341 (1987) (Brennan, J., dissenting) (“One could hardly contend that this Nation has on the basis of hair color inflicted upon persons deprivation comparable to that imposed on the basis of race.”).5 Further, plaintiffs do not allege that black employees with dark hair were treated differently than other employees with dark hair. And assuming the truth of plaintiffs’ allegations, it seems likely that white employees with dark hair were also subject to an increased rate of false positive drug test results. See Pac. Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142, 1159 (9th Cir. 2013) (noting that “a plaintiff [may] raise an inference of discrimination by identifying a similarly situated entity who was treated more favorably”); Frazier v. City of Fresno, No. 1:20-cv-01069 DAD SAB, 2022 WL 1128991, at *11 (E.D. Cal. Apr. 15, 2022) (dismissing § 1981 claim because plaintiff failed to allege that similarly situated non-minority individuals were treated more favorably and therefore failed to plead that race was but-for cause of injury).

5 This is not to say that hair-related characteristics can never form the basis of race discrimination claims. See Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 168 (7th Cir. 1976) (en banc) (recognizing a claim for racial discrimination based on the plaintiff’s allegation that she was 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. Mar. 31, 2020) (“there is no question that racial discrimination claims by Black women on the basis of their hair texture . . . are viable”); Cornwell v. California Bd. of Barbering & Cosmetology, 962 F. Supp. 1260, 1276 n.13 (S.D. Cal. 1997) (noting that people of African descent have a unique hair texture). The court therefore concludes that plaintiffs have not adequately pled that race was a but-for cause of the false positive test results or any resulting actions, including DISA listing them as inactive on DCC, Timec/Ferrovial suspending their job site placements, or Valero terminating their employment. Plaintiffs have thus failed to state a claim under § 1981. Accordingly, plaintiffs’ § 1981 claim will be dismissed in its entirety.6 B. ADA Claim Based on Perceived Disability The ADA prohibits covered entities from “discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A person with a “disability” is defined to include an individual who is “regarded as having” an impairment. 42 U.S.C. § 12102(1)(C). “An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Id. § 12102(3)(A). “The term ‘qualified individual with a disability’ does ‘not include any employee or applicant who is currently engaging 6 Though it does not reach the issue, the court notes that a claim under § 1981 also requires “proof of intentional discrimination.” Gen. Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 376 (1982). in the illegal use of drugs, when the covered entity acts on the basis of such use.’” Collings v. Longview Fibre Co., 63 F.3d 828, 831 (9th Cir. 1995) (quoting 42 U.S.C. § 12114(a)). “The ADA does, however, protect individuals . . . who are erroneously regarded as using drugs when in fact they are not.” Id. at 831- 32 (citing 42 U.S.C. § 12114(b)). In such cases, “a plaintiff must show that the employer knew that the employee had an actual impairment or perceived the employee to have an impairment, and that the impairment was not transitory or minor.” Equal Emp. Opportunity Comm’n v. BNSF Ry. Co., 902 F.3d 916, 923 (9th Cir. 2018), as amended (Sept. 12, 2018). The term impairment is “construe[d] . . . broadly,” id., and includes drug addiction, see Thompson v. Davis, 295 F.3d 890, 896 (9th Cir. 2002). In claiming that defendants engaged in disability discrimination due to false positive drug test results, plaintiffs must allege sufficient facts to conclude that defendants took the adverse employment actions “because [plaintiffs] were addicts or because it perceived they were addicts . . . .” See Jones v. City of Bos., 752 F.3d 38, 58 (1st Cir. 2014); see also Hernandez v. Hughes Missile Sys. Co., 362 F.3d 564, 568 (9th Cir. 2004) (in regarded-as claim by former employee with history of substance abuse, trier of fact must determine whether employer’s failure to re-hire was due to employer’s knowledge of the plaintiff’s “status as an [addict]”). In arguing that DISA discriminated against them based on perceived addiction, plaintiffs rely on a statement on DISA’s website that its hair tests are able to “detect repeat drug use up to a 90-day window,” and DISA’s general policy of offering a substance abuse course as one option for employees who test positive. (See Opp’n at 21-22; FAC ¶ 111.) Plaintiffs do not provide any additional facts in support of their allegation that Timec, Ferrovial, and Valero, perceived plaintiffs as addicts; rather, they merely state that these defendants “adopt[ed] and rel[ied] upon . . . DISA’s false positive results as valid.” (See FAC ¶ 112.) An advertising statement concerning what the tests may be able to do and the generally applicable course policy, without more, are not sufficient to establish that any of the defendants actually perceived plaintiffs as repeat users -- let alone addicts -- based on a single positive test. Cf. Hernandez, 362 F.3d at 564, 568–69 (trier of fact could find that employer perceived employee as an addict based on knowledge that employee had previously completed an addiction treatment program and a letter indicating that employee was attending Alcoholics Anonymous). Plaintiffs have therefore failed to sufficiently allege that defendants perceived them as having drug addictions. Accordingly, the court will dismiss the ADA claim in its entirety. C. Administrative Exhaustion Under Title VII and the FEHA, “a plaintiff must exhaust her administrative remedies by filing a timely charge with the EEOC, or the appropriate state agency, thereby affording the agency an opportunity to investigate the charge.” See B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002), as amended (Feb. 20, 2002) (citing 42 U.S.C. § 2000e–5(b)) (Title VII); Rodriguez v. Airborne Express, 265 F.3d 890, 896 (9th Cir. 2001) (FEHA). “The scope of the written administrative charge defines the permissible scope of the subsequent civil action,” which must be “like or reasonably related to” the administrative claims. Rodriguez, 265 F.3d at 897 (FEHA); see also Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001) (Title VII). “This standard is met where the allegations in the civil suit are within the scope of the administrative investigation which can reasonably be expected to grow out of the charge of discrimination.” Rodriguez, 265 F.3d at 897 (internal quotation marks omitted); see also Sommatino, 255 F.3d at 708. In determining whether the plaintiffs have exhausted their administrative remedies, “employment discrimination charges are to be construed with the utmost liberality.” Paige v. California, 102 F.3d 1035, 1041 (9th Cir. 1996) (internal quotation marks omitted). Plaintiffs filed charges of discrimination against defendants with the Equal Employment Opportunity Commission (“EEOC”) and California Department of Fair Employment and Housing (“DFEH”) in 2019. (FAC ¶ 13.) Defendants argue that plaintiffs nonetheless failed to administratively exhaust their class and disparate impact claims because they did not raise them in their administrative complaints. As to Timec, Ferrovial, and Valero, this argument is factually lacking in merit; each of plaintiffs’ administrative complaints against them explicitly referred to multiple other employees of the same race who suffered similar harms, and alleged that defendants “unlawfully discriminated against me and have a disparate impact upon a similarly-situated class of African-American applicants and returning employees.” (See Docket No. 28-1 at 8, 16 (emphasis added).) Accordingly, plaintiffs’ class and disparate impact claims could reasonably be expected to grow out of their administrative charges against Timec, Ferrovial, and Valero. See Rodriguez, 265 F.3d at 897. The administrative charges against DISA do not explicitly identify disparate impact and class claims. However, that level of specificity is not required. In Paige v. California, the Ninth Circuit held that the plaintiff had administratively exhausted her class action claims on a theory of disparate impact, despite the fact that the underlying administrative charge alleged only “discrimination” against the plaintiff. 102 F.3d at 1041–43. The Ninth Circuit reasoned, “even if neither the EEOC nor the [state] charges on their face explicitly alleged class discrimination, it is plain that an EEOC investigation of class discrimination on the basis of race could reasonably be expected to grow out of” an individual allegation of discrimination. Id. at 1042. See also Arizona v. Geo Grp., Inc., 816 F.3d 1189, 1204 (9th Cir. 2016) (“an employer may be on notice of classwide allegations of discrimination from a single charge”); Brown v. Coach Stores, 163 F.3d 706, 712 (2d Cir. 1998) (plaintiff’s “disparate impact claim reasonably related to her failure to promote claim as we would expect that the EEOC, in investigating the complaint, would have assessed [the employer’s] promotion policies and their effect on minority employees”). As in Paige, an investigation into claims of disparate impact on a class of employees could reasonably be expected to grow out of plaintiffs’ charges of discrimination. The court therefore concludes that plaintiffs satisfied the administrative exhaustion requirements. D. Timeliness of Title VII and FEHA Claims Defendants argue that plaintiffs’ Title VII, FEHA, and ADA claims are time-barred. The court will address the timeliness of the remaining Title VII and FEHA claims. 1. Title VII Claims A plaintiff has ninety days from the receipt of a right-to-sue notice letter7 to initiate a Title VII lawsuit. Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1121 (9th Cir. 2007) (citing 42 U.S.C. § 2000e–5(f)(1)). The lawsuit will be time-barred if not filed within the ninety-day period. Id. The limitations period starts on “the date on which a right- to-sue notice letter arrived at the claimant’s address of record.” Id. at 1122. Rule 6 of the Federal Rules of Civil Procedure governs the computation of the Title VII limitations period. See id. at 1125. Rule 6 provides that “if the last day [of the period] is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.” Fed. R. Civ. P. 6(a)(1)(C). It is undisputed that plaintiffs’ counsel received the right-to-sue letter on August 1, 2022. (See Mot. at 15; Opp’n at 5.) Ninety days from August 1, 2022 was Sunday, October 30,

7 If an administrative agency does not bring suit on an aggrieved person’s behalf, the agency issues a right-to-sue letter notifying the individual that she can file suit. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1104 (9th Cir. 2008). 2022. “Because ninety days after that date was . . . a Sunday, Federal Rule of Civil Procedure 6(a) extends the ninety-day period” to the following Monday, October 31, 2022. See Payan, 495 F.3d at 1125. Plaintiffs’ complaint was filed on October 31, 2022. (See Docket No. 1-1.) Accordingly, plaintiffs’ Title VII claims were timely filed. 2. FEHA Claims The time period for filing a FEHA claim expires “when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the department, whichever is later.” See Cal. Gov. Code § 12965(d)(2). Defendants state that plaintiffs received their right- to-sue notices from the California Department of Fair Employment and Housing on October 30, 2019 and November 5, 2019, which plaintiffs do not dispute. (See Mot. at 15; Opp’n at 6.) One year from these dates was October 29, 2020, and November 4, 2020, respectively. The FEHA filing period thus expired on the same date as the Title VII filing period, October 31, 2022. Plaintiff’s FEHA claims were therefore timely filed. (See Docket No. 1-1.) Accordingly, the court concludes that plaintiffs have stated claims under Title VII and the FEHA, which were timely filed and administratively exhausted. Plaintiffs have also pled sufficient facts to allege that the statute of limitations applicable to the negligence claim was subject to equitable tolling. Plaintiffs have failed to state claims under the ADA and § 1981. eee OE I EI OS ISS NO mE

IT IS THEREFORE ORDERED that defendants’ motion to dismiss (Docket No. 22) is GRANTED as to plaintiffs’ § 1981 and ADA claims in their entirety. The motion to dismiss is denied in all other respects. Plaintiffs have twenty days from the date of this Order to file an amended complaint, if they can do so consistent with this Order. Dated: May 12, 2023 - ak. WILLIAMB. □□□□□□□□□□□□□□□□□□□□□□ UNITED STATES DISTRICT JUDGE 24