Brazill v. Cal. Northstate Coll. of Pharmacy, LLC

• Decision Date: 24 October 2012
• Docket Number: No. CIV. 2:12–1218 WBS GGH.,CIV. 2:12–1218 WBS GGH.
• Citation: 904 F.Supp.2d 1047
• Court: U.S. District Court — Eastern District of California
• Parties: Bradley BRAZILL, Plaintiff, v. CALIFORNIA NORTHSTATE COLLEGE OF PHARMACY, LLC, California Northstate University, LLC, and Does 1 through 10, inclusive, Defendants.

904 F.Supp.2d 1047

Bradley BRAZILL, Plaintiff,

v.CALIFORNIA NORTHSTATE COLLEGE OF PHARMACY, LLC, California Northstate University, LLC, and Does 1 through 10, inclusive, Defendants.

No. CIV. 2:12–1218 WBS GGH.

United States District Court,

E.D. California.

Oct. 24, 2012.

Manolo H. Olaso, Johnny L. Griffin, III, Law Offices of Johnny L. Griffin III, Sacramento, CA, for Plaintiff.

Kerri Lynn Ruzicka, William A. Munoz, Murphy Pearson Bradley and Feeney, Sacramento, CA, for Defendants.

MEMORANDUM AND ORDER RE: MOTION TO DISMISS

WILLIAM B. SHUBB, District Judge.

Plaintiff Bradley Brazill brings this action against defendants California Northstate College of Pharmacy, LLC, and California Northstate University, LLC (“College” collectively), arising from defendants' allegedly wrongful conduct related to defendants' termination of plaintiff's employment. Defendants now move to dismiss the First Amended Complaint (“FAC”) for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).

I. Factual and Procedural Background

Plaintiff is a fifty-five-year-old licensed pharmacist who owns and operates a pharmacy in Yolo County. (FAC ¶ 14 (Docket No. 10).) Plaintiff has been a pharmacist for over twenty-five years and a professor of pharmacy for over twenty years. ( Id.) In August 2009, defendants hired plaintiff full-time as Chair of the Department for Clinical and Administrative Sciences at the College, a for-profit, unaccredited college located in Rancho Cordova, California. ( Id. ¶ 15.) Plaintiff alleges that he was hired under a one-year contract that was later extended “up to and including his last day of employment.” ( Id. ¶ 18.) Plaintiff alleges that after his “outstanding 2010 performance review,” he received a four percent performance raise. ( Id.)

During plaintiff's employment, the College was a candidate for accreditation by the Western Association of Schools and Colleges (“WASC”). ( Id. ¶ 19.) In October 2010, members of WASC visited the College to assess its candidacy. ( Id. ¶ 20.) When WASC members asked plaintiff to give an assessment as to whether the College had appropriate resources to complete its mission, he responded that it did not. ( Id.) In several follow-up meetings, plaintiff reasserted that the College had insufficient resources and explained that the College's cost-cutting measures put profits before students' education. ( Id.)

Plaintiff states that during that same academic year, he confronted the College administration regarding its tuition practices. ( Id. ¶ 21.) He alleges that he “repeatedly and emphatically” told Dean David Hawkins that the practices were “fraud” that could subject the College to “civil and criminal sanctions from the federal government.” ( Id.)

With respect to the College's tuition practices, plaintiff alleges that the College does not receive federal student aid assistance because it is unaccredited. ( Id. ¶ 25.) Instead, plaintiff alleges, the College participates in a scheme in which it encouraged students to apply for enrollment at an accredited school in Michigan, apply for excess student loans, and then use the excess loan money to pay for the College's tuition. ( Id. ¶ 24.)

More specifically, plaintiff alleges that at Vice President Norman Fong's urging, some students certified to the U.S. Department of Education (“DOE”) as part of their federal student aid applications that their aid would be used only for attendance at an “eligible institution.” ( Id. ¶ 28.) In fact, however, the students knew that the aid would be used at a “non-eligible institution,” the College. ( Id.) Plaintiff further alleges that the DOE relied on the students' written certifications to authorize disbursement of the student aid. ( Id.) Plaintiff allegedly believed that this practice violated federal provisions requiring that student loans be used by students only at “eligible institution[s].” ( Id. ¶ 26.)

Plaintiff alleges that the President of the College, Alvin Cheung, discovered what plaintiff had told WASC members during their accreditation investigation and that plaintiff had been complaining that the College's tuition practices constituted “fraud.” ( Id. ¶ 30.) Plaintiff alleges that from that point forward, President Cheung and the College administration treated him hostilely and told him that he was not considered a “team player.” ( Id. ¶ 31.) President Cheung allegedly told plaintiff that “he preferred working with ‘younger people’ who could think ‘outside the box;’ ” decried plaintiff's “old school ways of thinking;” and said that plaintiff should be replaced with someone “ ‘younger,’ who had a more modern perspective on tuition payment practices.” ( Id.) Finally, plaintiff alleges that the administration implied that it was displeased with plaintiff's critical comments to the WASC and his disapproval of its tuition practices. ( Id.)

On July 14, 2011, the administration notified plaintiff that President Cheung, Dean David Hawkins, and the Director of Human Resources, Yasmin Vera, wished to meet with him to discuss a “conflict of interest” issue. ( Id. ¶ 32.) Plaintiff alleges that he met with Ms. Vera and Vice President Fong, who advised him that he could resign or be terminated. ( Id. ¶ 33.) Ms. Vera allegedly stated that plaintiff was being terminated because he had allowed faculty members to work in his retail pharmacy. ( Id.) When plaintiff advised them that the Dean had expressly authorized this practice, Vice President Fong allegedly responded that it did not matter and that plaintiff was terminated. ( Id.)

After plaintiff's termination, the College allegedly replaced him with Sonya Frausto, an assistant professor at the College, who is thirty-six years old. ( Id. ¶ 35.) Plaintiff alleges that apart from community pharmacy practice, Dr. Frausto does not have the same breadth of experience that he has. ( Id. ¶¶ 36, 37.)

After the court granted defendants' motion to dismiss, (Docket No. 9), plaintiff filed his FAC and now alleges four causes of action under federal and state law: (1) age discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621–634; (2) age discrimination under the California Fair Employment and Housing Act (“FEHA”), Cal. Gov't Code §§ 12900–12996; (3) retaliation under the False Claims Act (“FCA”), 31 U.S.C. § 3730(h); and (4) wrongful termination on the basis of violations of FEHA and federal law, 29 U.S.C. §§ 621–634, 31 U.S.C. § 3730(h). Defendants now move to dismiss all claims for failure to state a claim under Rule 12(b)(6). (Docket No. 12.)

II. Discussion

To survive a motion to dismiss, a plaintiff must plead “only enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This “plausibility standard,” however, “asks for more than a sheer possibility that a defendant has acted unlawfully,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and “[w]here a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). In deciding whether a plaintiff has stated a claim, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972).

A. Age Discrimination (Claims One and Two)

In the wake of the Supreme Court's decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), courts have considered whether a plaintiff alleging age discrimination in violation of the ADEA must plead that age is the “but for” cause of the adverse employment action. In Gross, the Court held that the ADEA does not authorize a mixed-motives age discrimination claim. Id. at 175, 129 S.Ct. 2343. Instead, a plaintiff must prove that “but for” the plaintiff's age the employer would not have taken the adverse action. Id. at 176, 129 S.Ct. 2343. This court joins the consensus among district courts finding that Gross 's application is limited to a plaintiff's burden of persuasion and does not preclude a plaintiff from pleading alternate theories for an adverse employment action. See, e.g., Fagan v. U.S. Carpet Installation, Inc., 770 F.Supp.2d 490, 495 (E.D.N.Y.2011) (holding that after Gross a plaintiff is not required to plead that age discrimination is the “but for” cause of his termination); Prisco v. Methodist Hosp., No. Civ. 10–3141, 2011 WL 1288678, at *3–4 (E.D.Pa. Apr. 4, 2011) (holding that Gross does not prevent a plaintiff from asserting multiple discrimination claims in the same action); Ries v. Winona Cnty., No. Civ. 10–1715 JNE JJK, 2010 WL 3515722, at *10 (D.Minn. July 28, 2010) (holding that Gross “was not a case involving the sufficiency of an ADEA complaint” and does not preclude plaintiffs bringing ADEA claims from pleading alternate theories of relief); Cartee v. Wilbur Smith Assocs., Inc., No. Civ. A3:08–4132, 2010 WL 1052082, at *3–4 (D.S.C. Mar. 22, 2010) (finding that Gross is not applicable to a judgment on the pleadings). ¹

The Ninth Circuit's recent determination to continue to apply the McDonnell Douglas burden-shifting evidentiary framework, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), in ADEA cases also counsels in favor of limiting Gross 's application to the determination of plaintiff's burden of persuasion at trial, see Shelley v. Geren, 666 F.3d 599, 607 (9th Cir.2012). The Shelley court reasoned that the framework is used only at the summary judgment stage to shift the...