Wilson v. Timec Servs. Co.,.
| Decision Date | 12 May 2023 |
| Docket Number | 2:23-cv-00172 WBS KJN |
| Parties | MARVONTE WILSON and DOMONIQUE DANIELS, individually and on behalf of all others similarly situated, Plaintiffs, v. TIMEC SERVICES COMPANY, INC.; FERROVIAL SERVICES INFRASTRUCTURE, INC.; VALERO REFINING COMPANY-CALIFORNIA; DISA GLOBAL SOLUTIONS; and DOES 1 through 50, inclusive, Defendants. |
| Court | U.S. District Court — Eastern District of California |
MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION TO DISMISS
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.)
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 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.
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.)
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)).
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).
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 DISA did more than...
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