Abikar v. Bristol Bay Native Corp.
Abikar v. Bristol Bay Native Corp.
Opinion of the Court
Before the Court is Defendants' motion to dismiss Plaintiffs' First Amended Complaint ("FAC"). (ECF No. 7.) The motion is fully briefed. Based on the moving papers, and for the reasons below, the Court GRANTS in part and DENIES in part the motion to dismiss.
I. Allegations
In this putative class action, Plaintiffs allege the following relevant facts. Plaintiffs are East African refugees who currently are, or formerly were, employees of Defendants Bristol Bay Corporation ("BBNC"), Glacier Technical Solutions, LLC ("GTS"), and Workforce Resources, LLC ("Workforce"). (FAC, ECF No. 5 at ¶ 2.) BBNC is an Alaskan Native Corporation based in Anchorage, Alaska. (FAC ¶ 30.) BBNC wholly owns GTS and Workforce. (FAC ¶¶ 31-32.) BBNC "operates as a joint employer with GTS and Workforce ... by sharing or codetermining policies, human resource functions, management functions, and more." (FAC ¶ 30.) GTS and Workforce maintain offices in Oceanside, California. (FAC ¶¶ 31-32.)
Defendants contract with the Department of Defense to train Marines in foreign cultures. (FAC ¶ 3.) In doing so, Defendants employ East African refugees, on a "temporary, part-time, and sporadic" basis, to "role play" as residents of a foreign nation as a way to accustom American soldiers to African cultures. (Id. ) Plaintiffs "performed most of their work on various U.S. military bases, particularly but not exclusively on Camp Pendleton in Oceanside, California," but "also worked off military bases, particularly but not exclusively in and near" GTS and Workforce's shared offices outside of Camp Pendleton. (FAC ¶ 7.) Plaintiffs are from extremely poor communities and are mostly "Somali Bantu immigrants who were driven from their homeland of Somalia by civil war and terrorism that began 25 years ago and continue to today." (FAC ¶ 4.) Few understand English, most are illiterate in their native language, and "[m]ost or perhaps all" live below the federal poverty line. (Id. )
According to the complaint, "[t]he Defendants have a consistent and pervasive history ... of treating East African role-players less favorably than role-players who are not East African," such as employees of Iraqi, Afghani, or Filipino descent. (FAC ¶¶ 6, 9.) This differential treatment "was and is advanced and effected" by Site Manager Habit Tarzi, and "adopted and endorsed by other management employees including" General Manager Carol Giannini, Scheduling Manager Weston Giannini, Assistant Site Manager *1097Atiq Hamid, and Deputy Project Manager David Tarzi. (Id. ) These decisions were "made and effected" from "locations outside military bases" including GTS and Workforce offices in Oceanside and Anchorage, Alaska. (FAC ¶ 8.) When employees complained of the disparate treatment and harassment, Defendants worsened their actions and threatened the employees with termination. (FAC ¶ 9.) Between December 2015 and February 2016, East African role players filed claims of discrimination, harassment, and retaliation with the federal Equal Employment Opportunity Commission ("EEOC"). (FAC ¶ 10.) The East African role players also filed an unfair labor practice charge with the National Labor Relations Board ("NLRB") on July 12, 2016, alleging violations of protected concerted activity. (FAC ¶ 11.)
In this action, Plaintiffs categorize themselves into three putative classes: (1) East African refugees from Somalia, Ethiopia, the Democratic Republic of Congo, and Burundi (the "East African Class"); (2) female East African refugees (the "Female Class"); and (3) Muslim East African refugees (the "Muslim Class"). (FAC ¶ 13.) With respect to the East African Class, Plaintiffs allege that "Defendants engaged in a continuing policy and practice of discrimination and harassment based on race, color, and national origin ... by denying them terms and conditions of employment that were as favorable as those provided to non-East African Class members," including "subjecting members of the East African Class to daily or near-daily insults, ridicule, scorn, mockery, and other disparagements direct towards their race, color, national origin, language culture, and traditions"; requiring East African Class members to "perform janitorial duties that were outside their job description ... for the benefit of Defendants without compensation"; denying East African Class members "promotional opportunities, rest and meal breaks, drinking water, food and snacks, and transportation"; and retaliating against the East African Class members for complaining about this adverse treatment. (FAC ¶ 14.) With respect to the Female Class, Plaintiffs allege that Defendants "engaged in a continuing policy and practice of discrimination and harassment based on gender/sex ... by denying them terms and conditions of employment that are as favorable as those provided to Female Class members," including "subjecting members of the Female Class to daily or near-daily insults, ridicule, scorn, mockery, and other disparagements directed toward their gender/sex"; "refusing to allow members of the Female Class to wear traditional clothing but allowing non-Female Class members to wear traditional clothing"; requiring Female Class members to "perform stereotypically female cleaning and housekeeping duties not within their job description ... without compensation"; denying Female Class members "promotional opportunities to the same extent and in as favorable a manner" as non-Female Class members; and retaliating against Female Class members for complaining about their adverse treatment. (FAC ¶ 15.) With respect to the Muslim Class, Plaintiffs allege that Defendants "failed to provide [them] religious accommodation ... as required by law, and engaged in a continuing policy and practice of discrimination and harassment based on religion .. by denying them terms and conditions of employment that are as favorable as those provided to non-Muslim Class members," including "subjecting members of the Muslim Class to daily or near-daily insults, ridicule, scorn, mockery, and other disparagements directed toward their religion and religious practices"; "failing to provide religious accommodation to members of the Muslim Class but allowing such accommodation to non-Muslim Class members"; and retaliating against Muslim Class members for complaining *1098about their adverse treatment. (FAC ¶ 16.)
Plaintiffs assert the following claims: (1) race discrimination and harassment in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"); (2) color discrimination and harassment in violation of Title VII; (3) national original discrimination and harassment in violation of Title VII; (4) race discrimination with respect to the making, performance, and termination of contracts in violation of
Defendants now move to dismiss Plaintiffs' complaint in the entirety, and in the alternative, strike Plaintiffs' allegations involving conduct prior to the statute of limitations. (ECF No. 7.)
II. Rule 12(b)(6) Challenges
A. Legal Standard
A motion to dismiss under Rule 12(b)(6) motion attacks the complaint as containing insufficient factual allegations to state a claim for relief. "To survive a motion to dismiss [under Rule 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal ,
B. Title VII's Applicability to Defendants
Defendants contend first that Plaintiffs' Title VII actions must be dismissed because BBNC is an Alaska Native Corporations ("ANC") and, as such, it and its wholly owned subsidiaries are not governed by Title VII. The Alaska Native Claim Settlement Act ("ANCSA") establishes:
[f]or the purposes of implementation of the Civil Rights Act of 1964 [ 42 U.S.C. § 2000a et seq. ], a Native Corporation and corporations, partnerships, joint ventures, trusts, or affiliates in which the Native Corporation owns not less than 25 per centum of the equity shall be within the class of entities excluded from the definition of "employer" by section 701(b)(1) of Public Law 88-352 (78 Stat. 253 ), as amended [ 42 U.S.C. § 2000e(b)(1) ], or successor statutes.
According to the FAC, BBNC is "an Alaskan Native Corporation." (FAC ¶ 30.) BBNC is therefore not governed by Title VII's requirements and prohibitions. Moreover, according to the FAC, GTS and Workforce are both "wholly owned subsidiar[ies *1099]" of BBNC. (FAC ¶¶ 31-32.) Because GTS and Workforce are "affiliates in which the Native Corporation owns not less than 25 per centum of the equity," GTS and Workforce are also excluded from the definition of "employer" under Title VII. See, e.g. , Pratt v. Chenega Integrated Sys. , No. C 07-01573 JSW,
Plaintiffs respond by asserting that Defendants have "waived" their exclusion from the definition of employer under Title VII by signing an agreement with the Department of Defense. (ECF No. 10 at 5-11.) This argument lacks merit. Parties cannot amend a statutory provision via contract. They can, of course, agree on terms in a contract paralleling the requirements and prohibitions of a statute. But even if Defendants' contract with the federal government commits Defendants to a nondiscrimination policy mirroring Title VII, Plaintiffs would not be able to seek legal redress through Title VII; instead, Plaintiffs would have to rely on a different source of law for their claims. See Pratt ,
C. The FEHA Claims' Timeliness
Defendants assert that Plaintiffs' FEHA claims are untimely. Under FEHA, an individual must bring a civil action against the employer within one year of the date the California Department of Fair Employment and Housing ("DFEH") issues a right-to-sue notice.
"The time for commencing an action for which the statute of limitations is tolled under [ § 12965(d)(1) ] expires when the federal right-to-sue period to commence a civil action expires, or one year *1100from the date of the right-to-sue notice by the [DFEH], whichever is later."
Plaintiffs' federal deadline came later. The EEOC issued all Plaintiffs individual right-to-sue notices on February 14, 2017. (ECF No. 7-4, Exs. 17-32.) Federal law requires an individual to file suit under Title VII "within ninety days after the giving of [an EEOC right-to-sue] notice." 42 U.S.C. § 2000e-5(f)(1). That time period begins "from the date on which a right-to-sue notice letter arrived at the claimant's address of record." Payan v. Aramark Mgmt. Servs. Ltd. P'ship ,
There is, however, an additional complication. While Plaintiffs filed the original complaint before the expiration of the period to file their FEHA claims, that original complaint asserted only federal claims. (See ECF No. 1.) It was not until October 6, 2017, that Plaintiffs amended their complaint to include FEHA claims. (See ECF No. 5.) Defendants argue that this fact renders Plaintiffs' FEHA claims untimely because "[c]ourts have repeatedly determined that bringing Title VII claims under federal law does not toll FEHA claims under state law, and vice versa." (ECF No. 7-1 at 15.) The two cases Defendants cite, however, do not support that proposition. Defendants first cite Thomas v. City & Cty. of San Francisco , No. 03-1258 MMC,
*1101claims were untimely because those claims were first asserted more than a year after the date of the original DFEH notice
The Thomas and Dornell courts, however, missed a crucial part of this analysis: whether the plaintiffs' untimely claims related back to their timely claims. "An amendment to a pleading relates back to the date of the original pleading when ... the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading ..." Fed. R. Civ. P. 15(c)(B). The Ninth Circuit has offered the following guidance regarding whether Rule 15(c)(B) renders timely an otherwise untimely amended claim:
An amended claim arises out of the same conduct, transaction, or occurrence if it will likely be proved by the same kind of evidence offered in support of the original pleading. To relate back, the original and amended pleadings [must] share a common core of operative facts so that the adverse party has fair notice of the transaction, occurrence, or conduct called into question. The relation back doctrine of Rule 15(c) is liberally applied.
ASARCO, LLC v. Union Pac. R. Co. ,
D. The Federal Enclave Doctrine
Defendants assert that the Court should dismiss Plaintiffs' FEHA claims under the federal enclave doctrine. This doctrine originates from Article I, Section 8, Clause 17, of the United States Constitution, which "provides that Congress shall have the power to exercise exclusive legislation over all places purchased by the consent of the legislature of the state in which the same shall be." Stiefel v. Bechtel Corp. ,
The Court takes judicial notice of the fact that Camp Pendleton is a federal enclave, and that the federal government purchased that land from the State of California "no later than December 31, 1942."
Plaintiffs do not appear to dispute that their FEHA claims are barred to the extent that they are premised on conduct occurring on Camp Pendleton. Instead, Plaintiffs offer two arguments in response: (1) Defendants made their "decisions regarding the plaintiffs' employment from locations outside California," and (2) FEHA still applies to Plaintiff's work performed outside of Camp Pendleton. (ECF No. 11 at 21-23.) Plaintiffs' first argument is plainly meritless: "the plaintiff's place of employment [i]s the significant factor in determining where the plaintiff's employment claims arose under the federal enclave doctrine." Lockhart v. MVM, Inc. ,
Plaintiffs' second argument, however, is persuasive. Defendants offer no compelling reason why FEHA would not apply to Plaintiffs' work performed outside of a federal enclave. As the FAC states, Plaintiffs engaged in work outside of Camp Pendleton:
The East African employees performed most of their work on various U.S. military bases, particularly but not exclusively on Camp Pendleton in Oceanside, California. The East African employees also worked off military bases, particularly but not exclusively in and near the shared offices of defendants GTS and Workforce, and outside the gates of Camp Pendleton.
(FAC ¶ 7 (emphasis added).) Defendants respond first by arguing that it is "implausible" that Plaintiffs would "be summoned to an administrative location to perform hours of office work" in light of the fact that Plaintiffs mostly cannot speak or read English. (ECF No. 17 at 9.) The FAC, however, does not allege that Plaintiffs were summoned to non-enclave offices for "office work." For example, the FAC states that Defendants forced Plaintiffs, on a discriminatory basis, to perform unpaid janitorial work.
Defendants also suggest that the federal enclave doctrine bars FEHA claims even if "portions of [Plaintiffs'] work occurred off-base." (ECF No. 17 at 9.) In essence, Defendants suggest that there is an established "de minimis" rule within the federal enclave doctrine, which instructs that so long as most of a plaintiff's work is performed within the boundaries a federal enclave, state law also is inapplicable to work performed outside the enclave. But the cases Defendants cite do not support this theory. Defendants first cite Lockhart , in which the plaintiff argued that the federal enclave doctrine was inapplicable to her claims because her "termination was decided and implemented at respondent's headquarters" outside of a federal enclave.
Lockhart , Powell , and Naigan all rejected Plaintiffs' first argument addressed above, i.e. , the fact that Defendants made employment decisions outside the federal enclave renders the doctrine inapplicable. They do not, however, address the issue of the federal enclave doctrine's applicability to an employee's work performed outside of the enclave. Because "the plaintiff's place of employment" determines the applicability of the federal enclave doctrine, it appears that where Plaintiffs performed their work is crucial in determining the doctrine's applicability. In the absence of any authority supporting a de minimis rule suggested by Defendants, the Court is persuaded that the federal enclave doctrine does not bar Plaintiffs' FEHA claims to the extent they are premised on work Plaintiffs performed outside of Camp Pendleton.
E. Section 1981
Defendants contend that Plaintiffs' allegations are insufficient to state a claim under
Defendants' sole argument is that Plaintiffs' allegations are insufficient because they assert mere "boilerplate" regarding the conditions of their employment. Defendants aver that other courts have dismissed analogous allegations, but the cases Defendants cite differ from the allegations asserted in Plaintiffs' FAC. In Middlebrooks v. Godwin Corp. ,
For the same reason, this case is distinguishable from Bastidas . There, the plaintiff-a physician born in Colombia-claimed that he was discriminated against when the defendants suspended his operating privileges after one of his patients died three days after surgery. Bastidas v. Good Samaritan Hosp. ,
Plaintiffs' allegations here are distinguishable from Bastidas on all fronts. The FAC presents allegations that do raise the inference that Plaintiffs' disparate treatment was racially motivated because Plaintiffs, as a national origin group, were the only employees subjected to ridicule, forced to perform unpaid additional work, and denied benefits. Moreover, unlike in Bastidas , Plaintiffs' allegations suggesting disparate treatment relate not to other employees, but to Plaintiffs themselves.
Finally, Plaintiffs' allegations are similarly distinguishable from those in Jackson v. Universal Health Servs., Inc. , No. 2:13-cv-01666-GMN-NJK,
It is worth noting, however, that Defendants correctly argue Plaintiffs' § 1981 claim may be brought only under a theory of disparate treatment on the basis of race. Plaintiffs cannot pursue their § 1981 claim under theories of religious or sex discrimination, nor can they prove their § 1981 claim under a disparate impact theory. See, e.g. , Gen. Bldg. Contractors Ass'n, Inc. v. Pennsylvania ,
III. General Challenges to the FAC
Defendants include in their motion a section with the heading "All Defendants Move to Dismiss All of Plaintiffs' Claims Due to Plaintiffs' Imprecise Pleading," in which Defendants complain that the allegations in the FAC are too vague. (ECF No. 7-1 at 21-22.) Defendants assert that the FAC does not provide Defendants a reasonable opportunity "to ascertain (1) which entity each claim is brought against, (2) who was the actor carrying out various alleged actions, (3) against whom Plaintiffs seek declaratory relief, and (4) the geographic scope of Plaintiffs' putative claims." (Id. at 21.) Defendants alternatively move for a more definite statement with respect to these issues under Federal Rule of Civil Procedure 12(e). That rule provides: "[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The *1106motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired."
The Court disagrees with Defendants' contention that the FAC is too vague or that Defendants, based on the FAC, do not have a reasonable ability to prepare a response. The FAC makes clear that Plaintiffs are accusing all Defendants of discriminating against them by subjecting them to harassment, forcing them to engage in unpaid work outside of their job descriptions, denying them benefits, and imposing on them stricter clothing standards. Plaintiffs explicitly name supervisors that were primarily responsible for the discrimination. (See FAC ¶ 6 ("Most of this treatment was and is advanced and effected by management employee Habit Tarzi, Site Manager ... and adopted and endorsed by other management employees including Carol Giannini, General Manager; Weston Giannini, Scheduling Manager; Atiq Hamit, Assistant Site Manager; and David Tarzi, Deputy Project Manager.").) Requiring Plaintiffs to allege more-such as what was said to Plaintiffs or when it was said-would be tantamount to imposing Rule 9(b)'s heightened pleading standards. U.S. ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc. ,
The Court finds it unnecessary to require Plaintiffs to specify in any more definite manner "against whom Plaintiffs seek declaratory relief." The FAC states that Plaintiffs seek "[a] declaratory judgment that the practices complained of in this complaint are unlawful and violate Title VII and 2[8] U.S.C. § 1981." (FAC, Prayer for Relief ¶ 6.) This is a routine request that the Court declare the actions alleged in the FAC unlawful. Defendants may ultimately prove that certain individual defendants did not engage in the actions that are alleged in the FAC. That possibility, however, does not render the allegations themselves improperly vague.
The Court also disagrees with Defendants' assertion that, to have a reasonable opportunity to respond to Plaintiffs' allegations, Defendants need more specificity about the geographic scope of Plaintiffs' putative classes. This putative class action has not yet proceeded to the certification phase. Defendants offer no authority supporting the assertion that specificity in this respect is necessary at the pleading stage. Rather, "[t]he permissible scope of the class, if any, is a question best addressed through a motion for class certification." Henderson v. J.M. Smucker Co. , No. CV 10-4524-GHK (VBKx),
For the same reason, the Court denies Defendants' motion to strike "Plaintiffs' statements regarding the statute of limitations and all allegations prior to the statute of limitations." (ECF No. 7-1 at 22-24.) Defendants assert that it is "harassing" for Plaintiffs to craft their putative *1107classes to include employees who have worked for Defendants since 2010. (See id. at 24 ("a class period of more than seven years prior to the filing of this action appears to be an undisguised attempt to gather years of discovery that have no reasonable relation to the claims alleged").) This again amounts to an attack on Plaintiffs' initial description of their putative classes. At the motion to dismiss stage, what matters is the allegations relevant to the named Plaintiffs, not the scope of an uncertified putative class. Defendants may offer objections to the scope of the putative class when Plaintiffs seek certification, if and when this case reaches that phase.
IV. Conclusion
In sum, the Court GRANTS in part and DENIES in part Defendants' motion to dismiss. The Court dismisses Plaintiffs' Title VII claims because, under
The Court DENIES Defendants' motion for a more definite statement and DENIES Defendants' motion to strike the class allegations.
The hearing scheduled for January 12, 2018, is VACATED.
IT IS SO ORDERED.
The court takes judicial notice of the right-to-sue notices sent by the EEOC and DFEH to Plaintiffs, the accuracy of which are not in dispute. See, e.g. , Dornell v. City of San Mateo ,
Further complicating the analysis (but irrelevant here) was the fact that the plaintiff in Dornell had filed an additional charge with the DFEH and received a notice from the DFEH two days before she filed her amended complaint. But, as the court explained, the FEHA claims the plaintiff added were based only on the allegations in her original DFEH charge.
Defendants argue that Plaintiffs are "modify[ing] their allegations to suit their changing needs" because the FAC asserts that Plaintiffs were hired to work as role players in simulated villages, not for janitorial work. (ECF No. 17 at 9.) The Court disagrees. The fact that Plaintiffs were hired for one purpose does not make it implausible that Defendants later forced Plaintiffs, on a discriminatory basis, to engage in work outside of their job description.
Defendants separately cite Naigan 's statement that "[t]he application of state law to claims that did not arise within California's jurisdiction creates a due process problem."
Reference
- Full Case Name
- Abucar Nunow Abikar v. Bristol Bay Native Corporation
- Cited By
- 5 cases
- Status
- Published