Wilson v. City of Fresno
| Decision Date | 04 September 2020 |
| Docket Number | No. 1:19-cv-01658-DAD-BAM,1:19-cv-01658-DAD-BAM |
| Parties | LA-KEBBIA WILSON and CHARLES SMITH, Plaintiffs, v. CITY OF FRESNO, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS
This matter is before the court on defendants' three separate motions to dismiss the complaint filed by plaintiffs La-Kebbia Wilson and Charles Smith. (Doc. Nos. 6, 6-1 ,8.) A hearing on the motions was held on January 22, 2020. (Doc. No. 21.) Attorney Gary Goyette and Rachel Simons appeared telephonically on behalf of plaintiffs. Attorney Joseph Rubin appeared on behalf of defendant City of Fresno ("the City") and defendants Jeffrey Cardell, Jennifer Clark, Kelli Furtado, Timothy Burns, Kevin Watkins, Andreia Cuevas, and Del Estabrooke (collectively, the "Individual Defendants"). Attorney Bruce Berger appeared on behalf of defendant Howard Lacy ("defendant Lacy"). The court has considered the parties' briefs and arguments, and for the reasons set forth below, will grant defendants' motions to dismiss in part.
On October 22, 2019, plaintiffs filed a complaint in Fresno County Superior Court against the City, the Individual Defendants, and defendant Lacy, asserting sixteen causes of action, including: (i) discrimination, harassment, and retaliation claims under California's Fair Employment Housing Act ("FEHA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and 42 U.S.C. § 1981; (ii) 42 U.S.C. § 1983 claims for violation of the Equal Protection Clause of the United States Constitution; (iii) California Labor Code § 1102.5 claims; and (iv) claims for slander, negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress.
In their complaint, plaintiffs allege the following.1 Plaintiffs, defendant Lacy, and the Individual Defendants were at all relevant times employees of the City. (Compl. at ¶¶ 1-11.) Plaintiff Wilson began working for the City in the code enforcement division in the Development and Resource Management department ("DARM") in 2004. (Compl. at ¶ 34.) Various alleged incidents occurred between 2004 and 2009, including defendant Lacy being overheard discussing racial stereotypes, talking about hanging African-Americans at City Hall, and advising code inspectors to complete inspections of a neighborhood with a high population of African-Americans early in the morning so they would be at less risk. (Id. at ¶ 35.) In 2009, plaintiff Wilson sued the City and other individuals, alleging discrimination, harassment, and retaliation based on race and gender, and those parties settled that lawsuit in 2012. (Id. at ¶¶ 36-37.) In June 2013, plaintiff Wilson received a parking ticket for parking her city vehicle on city property, and defendant Estabrooke reported that defendant Lacy told him to issue the ticket, which he eventually voided. (Id. at ¶ 38.) Despite her seniority, plaintiff Wilson was laid off from her position as a Community Revitalization Specialist ("CRS") in August 2013 due to purported budgetary concerns, but the City kept non-African-Americans with less seniority employed, and plaintiff Wilson was at the top of the reinstatement list, which did not include any other African-Americans. (Id. at ¶ 43.) During her more than three years being laid off, plaintiff Wilson applied for and interviewed for several positions with the City, which hired less qualified, non-African-American applicants. (Id. at ¶¶ 45-69.) She was only reinstated in December 2016 afterthreatening litigation. (Id. at ¶ 67.) Plaintiff Wilson felt scrutinized and micromanaged on her first day back. (Id. at ¶¶ 70-72.) In early 2017, she was unsatisfied with an ergonomic assessment of her workspace and the keyboard she was provided; tall partitions were not installed on her cubicle until she insisted; defendant Lacy dismissed her concerns about her work truck, which was caked with mud and had a metal rod protruding out of the upholstery; she insisted her truck be detailed and defendant Lacy delayed those repairs; she was not provided a tool bag and did not want to speak to defendant Lacy to request one so she worked without a bag for a few months and then defendant Estabrooke gave her a tool bag; and she applied for several other positions with the City in 2017 and 2018 and was not selected for them. (Id. at ¶¶ 75-102.) Plaintiff Wilson also alleges that defendant Lacy zip-tied her earbud headphones together and broke her glasses. (Id. at ¶¶ 109, 126.)
Plaintiff Smith was hired as a temporary employee with the City in October 2016, under defendant Lacy' direct supervision. (Id. ¶ 15.) In December 2016, plaintiff Smith saw defendant Lacy make negative eye contact with plaintiff Wilson while walking down a hallway, and when plaintiff Smith asked him about that interaction, he responded "stay away from her because she's a no good piece of shit," "she's lazy," and that Wilson only got her job back after the lay off because she "played the race card." (Id. at ¶ 16.) Defendant Lacy told plaintiff Smith that he should avoid plaintiff Wilson "like the plague" if he wanted "any chance of being hired full-time." (Id.) Plaintiff Smith was hired for a full-time position in code enforcement in April 2018, and he attended a code enforcement training in May 2018, which plaintiff Wilson also attended. (Id. at ¶¶ 17-18.) Defendant Lacy accused plaintiff Smith of having a private meeting with plaintiff Wilson and exchanging nods with her during the training, and he told plaintiff Smith that he "had eyes and ears everywhere" and that if plaintiff Smith "stuck with him" then Smith would pass probation and continue his employment with the City. (Id. at ¶ 18.)
On June 28, 2018, plaintiff Smith attended an inspection of an African-American woman's property with defendant Lacy who told him (Id. at ¶ 20.)Plaintiff Smith told defendant Lacy to and defendant Lacy did not respond. (Id.) In early July 2018, defendant Lacy brushed off plaintiff Smith's concerns that plaintiff Smith's name was being used for inspections that he did not perform. (Id. at ¶ 22.) Defendant Lacy also purposefully withheld plaintiff Smith's evaluation so that he could not pass probation and transferred him to the tire team. (Id. at ¶¶ 23-24.) On July 10, 2018, plaintiff Smith felt he had no choice and sent his resignation letter to his manager, defendant Burns. (Id. at ¶ 25.) After his requests for an in-person, same-day meeting with defendant Burns went unanswered, plaintiff Smith resigned effective immediately instead of waiting two weeks. (Id.) As plaintiff Smith was leaving, he told plaintiff Wilson to call him. (Id. at ¶ 27.) They spoke the next day while plaintiff Wilson was at work and plaintiff Smith told her about defendant Lacy's comments. (Id.)
Plaintiff Wilson was upset and crying and told a co-worker who tried to comfort her that "they're all fuckin' liars - all of them." (Id. at ¶ 111.) Another employee, Phil Skei, complained to HR because he thought plaintiff Wilson's comment was directed at him, and the City investigated and took his complaint more seriously than her complaint about defendant Lacy's racial animus against her. (Id. at ¶¶ 111, 113, 118, 122.) Plaintiff Wilson met with HR and her union attorney a few times and was ultimately put on administrative leave and was escorted out of the building. (Id. at ¶¶ 127-129.) She returned to her employment in July 22, 2019. (Id. at ¶ 141.) On September 6, 2019, the City delivered to plaintiff Wilson a letter regarding the results of the investigation into her complaints about defendant Lacy, concluding that there was not sufficient facts and evidence to sustain her allegations. (Id. at ¶ 161.)
On May 9, 2019, plaintiff Wilson and plaintiff Smith submitted requests for right to sue letters from the California Department of Fair Employment and Housing ("DFEH"), which DFEH issued on May 17, 2019 and June 11, 2019, respectively, and which were forwarded to the City on June 28, 2019. (Id. at ¶¶ 172-174.) Also, on June 28, 2019, plaintiffs sent their City of Fresno Claims for Damages form to the City, which acknowledged receipt on July 12, 2019. (Id. at ¶¶ 175-177.) Those claims were rejected by operation of law on August 12, 2019. (Id.)
///// On October 22, 2019, plaintiffs filed their complaint, which was removed to this federal court on November 21, 2019 pursuant to 28 U.S.C. §§ 1331, 1441. (Doc. No. 1.)
On November 26, 2019, the City filed its motion to dismiss plaintiffs' complaint, to strike portions of plaintiffs' complaint, and for a more definite statement, and the Individual Defendants filed their motion to dismiss plaintiffs' complaint and for a more definite statement. (Doc. Nos. 6, 6-1, 6-2, 6-3.)2 On November 27, 2019, defendant Lacy filed his motion to dismiss the complaint. (Doc. No. 8.) On January 8, 2020, plaintiffs filed oppositions to the pending motions. (Doc. Nos. 13, 13-1, 14.) On January 15, 2020, defendants filed their replies. (Doc. Nos. 16, 17, 18.)
A. Motion to Dismiss Pursuant to Rule 12(b)(6)
The purpose of a motion to dismiss brought pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A claim for relief must contain "a short and plain statement...
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