Merrell v. All Seasons Resorts, Inc.

• Citation: 720 F. Supp. 815
• Decision Date: 01 September 1989
• Docket Number: No. CV 89-3218 DT.,CV 89-3218 DT.
• Parties: Tracey R. MERRELL, Plaintiff, v. ALL SEASONS RESORTS, INC., Defendant.
• Court: U.S. District Court — Central District of California

720 F. Supp. 815

Tracey R. MERRELL, Plaintiff, v. ALL SEASONS RESORTS, INC., Defendant.

No. CV 89-3218 DT.

United States District Court, C.D. California.

September 1, 1989.

Harris E. Kerschnar, Wallin & Klarich, Tustin, Cal., for plaintiff.

Debby R. Hambleton, Rexon, Freedman & Klepetar, Los Angeles, Cal., for defendant.

OPINION

TEVRIZIAN, District Judge:

On August 14, 1989 this Court heard defendant ALL SEASONS RESORTS, INC.'s motion to dismiss count three of plaintiff TRACEY MERRELL's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and defendant's motion for an order pursuant to Federal Rule of Civil Procedure 39(a)(2) setting count one of plaintiff's complaint for court trial. For the reasons discussed below, this Court denies defendant's motion to dismiss count three without prejudice, and grants defendant's motion for an order that count one of the complaint be set for court trial.

Background

This is an action for pregnancy discrimination. Plaintiff Tracey Merrell was hired as a junior accountant for defendant All Seasons Resorts on November 1, 1988. Two weeks later, plaintiff informed defendant that she was pregnant and would require time off for medical care and an extended leave of absence near and after her due date.

Defendant contends that it informed plaintiff at her job interview that the junior accountant position required months of training, routine overtime and weekend hours, and that the accountant would be on call seven days a week. Defendant contends that plaintiff did not give any indication at her interview that she could not fulfill these requirements. Defendant claims that it offered plaintiff another position in the accounting department at the same salary and that the offered position did not have the same strenuous job requirements. Plaintiff declined the offered position and voluntarily resigned. See Complaint, Exh. A (November 18, 1988 management resignation letter, signed by plaintiff). Plaintiff alleges that the offered position was temporary rather than permanent, and that it did not include any of the fringe benefits of the junior accountant position, including vacation, sick time and health insurance. Complaint para. 6, 8.

Plaintiff alleges that she filed charges of discrimination with the California Department of Fair Employment and Housing, and that the Department issued her a right to sue letter on December 9, 1988. Complaint para. 16. That right to sue letter is not attached to the complaint. Plaintiff received a right to sue letter from the Equal Employment Opportunity Commission on March 31, 1989. Complaint para. 13 and Exh. B.

On May 25, 1989, plaintiff filed suit against defendant All Seasons Resorts, alleging:

1. pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e-2;

2. pregnancy discrimination in violation of the California Fair Employment and Housing Act, Cal. Govt. Code section 12945; and

3. sex discrimination in violation of article I, section 8 of the California Constitution.

On July 11, 1989 defendant answered and filed the instant motion to dismiss plaintiff's third claim for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) and motion for order setting count one for court trial.

Discussion

I. Defendant's motion to dismiss plaintiff's third claim

A. The standard

On a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), the movant admits the well-pleaded material allegations of the complaint but denies their legal sufficiency. Thus, the motion will be granted only where it is clear that the non-moving party is entitled to no relief under any state of facts which could be proved in support of her claim. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). All material allegations in the complaint must be accepted as true, and all inferences must be construed in favor of the non-moving party. Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1439 (9th Cir.1987); Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 889-90 (9th Cir.1986).

B. Consideration of "outside materials"

As an initial matter, plaintiff opposes the introduction of matters "outside the pleadings" into defendant's motion to dismiss. The outside matters referenced by defendant are statements made in the factual summary of defendant's motion to dismiss. The references objected to are (1) that the position of junior accountant required months of training, and (2) that plaintiff was informed of these requirements during her interview for this position.

Certainly, matters outside the pleadings may be considered if the court converts a Rule 12(b)(6) motion into a Rule 56 motion. Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972); Townsend v. Columbia Operations, 667 F.2d 844 (9th Cir.1982). However, the court must give the parties adequate notice that it will rely on extraneous documents, and the parties must be allowed to present declarations, affidavits and other evidence in opposition to outside material. Townsend, 667 F.2d at 848 (notice proper where court requested supporting documents referenced in complaint 5 days before hearing and told counsel during opening argument that court would rely on documents provided). A motion to dismiss may be converted into a Rule 56 motion with proper notice unless the authenticity of the outside statements is challenged. Here, plaintiff disputes whether factual statements made without reference to the complaint are proper on a Rule 12(b)(6) motion. Only the propriety of the statements is challenged; their authenticity is not in issue.

This court may consider documents submitted for a Rule 12(b)(6) motion if the complaint specifically references those documents, the authenticity of the documents is not disputed, and the affirmative defenses provided by the documents are clearly presented on the face of the complaint. Townsend, 667 F.2d at 848-49. The statements are apparently introduced to assert an affirmative defense of just cause to the discriminatory discharge claim. An affirmative defense under Federal Rule of Civil Procedure 8(c) may properly be asserted on a motion to dismiss. Townsend, 667 F.2d 844; Goodwin v. Elkins & Co., 730 F.2d 99, 113 (3d Cir.1984), cert. denied, 469 U.S. 831, 105 S.Ct. 118, 83 L.Ed.2d 61 (1984). See also Wright & Miller, Federal Practice & Procedure (1987 Supp.), Civil, Section 1277 nn. 18-19, and Section 1357 nn. 41, 87, 94-95.

The statements made in defendant's motion are contained in documents attached to plaintiff's complaint and could be considered in the context of this motion. However, the statements are not relevant to the legal issues presented. Thus, though plaintiff's opposition to the statements on this basis in misplaced, this court attaches no relevance to those statements in the context of the instant motion.

C. Plaintiff's third claim for pregnancy discrimination

The subject of the instant dispute is whether plaintiff's third claim for sex discrimination in violation of the California Constitution must be dismissed. In order for that claim to be viable, this court must find:

1. that the California Constitution provides a private right of action for sex discrimination;

2. that this constitutional prohibition against sex discrimination includes discrimination because of pregnancy;

3. that any prohibition against pregnancy discrimination provided by the constitution or the common law existed prior to the passage of the 1978 amendments to the California Fair Employment and Housing Act prohibiting pregnancy discrimination; and

4. that the California Fair Employment and Housing Act does not preempt the preexisting common law claim for pregnancy discrimination and thus does not provide plaintiff's exclusive remedy for such a claim.

The court will take each of these propositions in turn.

1. Does the California Constitution provide a private right of action for sex discrimination in employment?

Plaintiff's third claim is for breach of the prohibition against sex discrimination contained in article I, section 8 of the California Constitution, which states:

A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.

Art. I, sec. 8 (formerly art. XX, sec. 18, enacted 1879 prohibiting sex discrimination in any "business, vocation or profession"; amended 1970; amended and renumbered art. I, sec. 8 in 1974) adding "employment" and broadening the provision to include race, creed, color or national or ethnic origin.

It is axiomatic that a constitutional right needs no enabling legislation to provide for its enforcement. Rose v. California, 19 Cal.2d 713, 719, 123 P.2d 505 (1942). See, e.g., Froyd v. Cook, 681 F.Supp. 669, 673 n. 13 (E.D.Cal.1988) (private action for employment discrimination, art. I, sec. 8); Sipple v. Chronicle Publishing Co., 154 Cal.App.3d 1040, 201 Cal.Rptr. 665 (1984) (private action to enforce constitutional right to privacy, art. I sec. 1); Robertson v. Baldwin, 165 U.S. 275, 17 S.Ct. 326, 41 L.Ed. 715 (1897) (private action to enforce prohibition against involuntary servitude, art. I sec. 6); Bautista v. Jones, 25 Cal.2d 746, 155 P.2d 343 (1945) (art. I, sec. 1 provides some degree of protection against discriminatory actions by employers and labor unions). Compare Jones v. American President Lines, Ltd., 149 Cal.App.2d 319, 323, 308 P.2d 393 (1957) (prior to amendments to article I, section 8 of the California Constitution and Fair Employment and Housing Act prohibiting race discrimination, discrimination by private employers on basis of race not protected by California law).

In California, employment is presumed to be at-will. Cal.Labor...