Kasperzyk v. Shetler Sec. Servs., Inc.

• Decision Date: 03 January 2014
• Docket Number: No. C-13-3383 EMC,C-13-3383 EMC
• Court: U.S. District Court — Northern District of California
• Parties: JORDAN KASPERZYK, Plaintiff, v. SHETLER SECURITY SERVICES, INC., et al., Defendants.

JORDAN KASPERZYK, Plaintiff, v. SHETLER SECURITY SERVICES, INC., et al., Defendants.

No. C-13-3383 EMC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

Dated: January 3, 2014

ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANT

SHETLER SECURITY SERVICES,

INC.'S MOTION TO DISMISS

(Docket No. 22)

Plaintiff Jordan Kasperzyk has filed suit against Defendants Shetler Security Services, Inc. ("SSS"); Lucasfilm Ltd.; Letterman Digital Arts Ltd. ("Letterman"); Skywalker Properties; and Michael Shetler. Currently pending before the Court is SSS's motion to dismiss. Although the current operative complaint is the second amended complaint ("SAC"), that complaint was not filed at the time of the briefing on SSS's motion, nor was it filed at the time of the hearing on the motion. Accordingly, for purposes of this opinion only, the Court refers to then-governing complaint, i.e., the first amended complaint ("FAC").

Having considered the parties' briefs as well as the oral argument of counsel, the Court hereby GRANTS in part and DENIES in part the motion to dismiss.

I. FACTUAL & PROCEDURAL BACKGROUND

In the FAC, Mr. Kasperzyk alleges as follows.

Mr. Kasperzyk is a licensed security guard. See FAC ¶ 14. In 2008, he was hired by a company named Advanced-Tech, which at that time provided security at Lucasfilm's LettermanDigital Arts Center (located in the Presidio). See FAC ¶ 14. As a new hire with Advanced-Tech, Mr. Kasperzyk was required to join a local union. See FAC ¶ 17.

In January 2010, while working for Advanced-Tech, Mr. Kasperzyk hurt his back "when a motorist whose car he had ticketed for over parking [at the Center] struck him with his car." FAC ¶ 26. He was able to return to work but "on a limited basis, with medically prescribed work restrictions. These work restrictions prohibited him from any heavy lifting, and required a post that would permit him to vary his position by alternately sitting or standing occasionally for several minutes at a time to relieve the stress on his back." FAC ¶ 28.

In or about May 2010, Advanced-Tech lost its contract with Lucasfilm to provide security, with SSS being hired in Advanced-Tech's place. See FAC ¶¶ 7, 29. Advanced-Tech employees were told that Advanced-Tech would be leaving but that "anyone who wished to remain at the Center and work for [SSS] could do so by simply signing up." FAC ¶ 29. Mr. Kasperzyk did so, in part to protect his housing situation with the Presidio Trust which required employment with an employer on the Presidio. See FAC ¶ 29. Mr. Kasperzyk's allegations indicate that the contract for security services was ultimately entered into by SSS and Letterman. See FAC ¶ 31 (referring to an Independent Contract Agreement between SSS and Letterman). The security services contract included a provision (¶ 26) stating that "'[t]he validity, construction and performance of this Agreement shall be governed and interpreted in accordance with the laws of the State of California as applied to agreements between California residents which were entered into and to be performed in the State of California, without regard to conflict of laws.'" FAC ¶ 31. The security services contract also included a provision (¶ 8(b)) stating that "'[t]he Company shall not take any action contrary to any applicable law, rule, regulation or order prohibiting discrimination against employees . . . on the basis of . . . disability . . . or contrary to any other provision of law or this Agreement.'" FAC ¶ 32.

When SSS took over security, it signed not only a contract with Letterman but also a contract with the local union. The contract with the union included a provision (Article 3) that stated:

"The Union and the Company agree that they shall not discriminate in violation of federal and state law against any . . . employee in hiring, promotions, assignments, suspensions, discharge, terms and conditionsof employment, wages, training, recall or lay-off status . . . against a qualified individual with a disability (defined by the Americans with Disabilities Act)."

FAC ¶ 18. The contract also included a provision (Article 27.2) that stated:

"If a customer demands that the Company remove an employee from further employment at a location, the Company shall have the right to comply with such demand. However, unless the Company has cause to discharge the employee, the company will use its best efforts to place him/her in another job in the same County not to exceed ten (10) miles from the job site from which he or she was removed, and schedule said employee with no loss of wages, seniority or benefits and with the same shift."

FAC ¶ 19.

In November 2010, Mr. Kasperzyk was presented with a letter from SSS in which it stated that his current posting was being eliminated at the behest of the client; that it was not able to identify a posting where he could perform the essential job functions, either with or without reasonable accommodation; and that it was therefore terminating his employment. See FAC ¶ 35. According to Mr. Kasperzyk, nothing stated in the letter was actually true. See FAC ¶ 36. Mr. Kasperzyk subsequently contacted the union to challenge the termination. At a mediation held in April 2011, SSS offered Mr. Kasperzyk his job back, and he accepted.¹ See FAC ¶¶ 37-38. However, just two days later, when Mr. Kasperzyk went to obtain a letter verifying his employment with SSS, he was told by management that the client did not want him back and that he should vacate the premises. See FAC ¶ 39.

Based on, inter alia, the above allegations, Mr. Kasperzyk has asserted the following claims against SSS:

(1) Disability discrimination (California Fair Employment and Housing Act ("FEHA")). According to Mr. Kasperzyk, the adverse employment actions taken by SSS were (a) terminating him in November 2010 (i.e., pre-mediation) and then (b) terminating him a second time in April 2011 (i.e., post-mediation). See FAC ¶ 47.

(2) Breach of contract. This claim for breach of contract is based on the contract between SSS and Letterman. Mr. Kasperzyk maintains that he was a third-party beneficiary of the contract and that SSS breached the contract by discriminating against him on the basis of disability. See FAC ¶¶ 54-55.

(3) Breach of contract. This claim for breach of contract is based on the contract between SSS and the local union. Mr. Kasperzyk maintains that he was a third-party beneficiary of the contract and that SSS breached the contract (a) by discriminating against him on the basis of disability and (b) by failing to use its best efforts to place him in another job after terminating him in November 2010. See FAC ¶¶ 61-62.

(4) Breach of contract. This claim for breach of contract is based on the oral agreement made during the mediation in April 2011. According to Ms. Kasperzyk, SSS made an offer to reinstate him, which he accepted, and SSS subsequently violated that agreement by failing to re-employ him. See FAC ¶¶ 65-66.

(5) Breach of the implied covenant of good faith and fair dealing. This claim is based on the employment agreement between SSS and Mr. Kasperzyk. Mr. Kasperzyk asserts that SSS breached the implied covenant because, each time SSS terminated Mr. Kasperzyk, it did not have good and sufficient cause to do so which amounted to an unfair interference with the right of Mr. Kasperzyk to receive the benefit of the contract. See FAC ¶ 73.

(6) Retaliation (FEHA). According to Mr. Kasperzyk, after he alerted SSS to ongoing discrimination against another employee (Abbas Idris) on the basis of his religion and race, he was terminated. See FAC ¶¶ 77-78, 102-03.

(7) Failure to prevent discrimination and harassment (FEHA). According to Mr. Kasperzyk, SSS "was on notice that it had an obligation to prevent its disabled employees from discrimination and harassment in its workplace," but, in spite of that notice, SSS "took no action to protect [him] once he disclosed his protected status as a disabled person." FAC ¶ 84. Rather, SSS terminated him on two different occasions - first in November 2010 and then in April 2011. See FAC ¶ 85.

(8) Wrongful termination in violation of public policy. Mr. Kasperzyk asserts that, even though his job performance was satisfactory and he was capable of performing his duties with or without reasonable accommodation, SSS terminated him on the basis of his disability. See FAC ¶¶ 91-93.

(9) Fraud (common law). Mr. Kasperzyk alleges that, when SSS promised to reinstate him at the mediation in April 2011, it knew the promise was false. See FAC ¶¶ 97-98. According to Mr. Kasperzyk, he relied on the promise by foregoing any claims in union mediation in exchange for getting his job back. See SAC ¶ 99.

(10) Intentional infliction of emotional distress.

II. DISCUSSION

A. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss based on the failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). A motion to dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In considering such a motion, a court must take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party, although "conclusory allegations of law and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal." Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). While "a complaint need not contain detailed factual allegations . . . it must plead 'enough facts to state a claim to relief that is plausible on its face.'" Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). "The plausibility standard is not akin to a 'probability requirement,' but it asks...