IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________________________________
HAYWARD JACKSON,
Plaintiff-Appellant,
v.
EQUIFAX WORKFORCE SOLUTIONS, et al.,
Defendants-Appellees.
_______________________________________
On Appeal from the United States District Court
for the Central District of California
The Honorable Fernando M. Olguin, District Judge
No. 5:17cv143
_______________________________________
BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND IN FAVOR OF REVERSAL
_______________________________________
JAMES L. LEE U.S. EQUAL EMPLOYMENT
Deputy General Counsel OPPORTUNITY COMMISSION
Office of General Counsel
JENNIFER S. GOLDSTEIN 131 M St. NE, Fifth Floor
Associate General Counsel Washington, D.C. 20507
(202) 663-4699
ANNE NOEL OCCHIALINO anne.king@eeoc.gov
Acting Assistant General Counsel Attorneys for amicus curiae
U.S. Equal Employment
ANNE W. KING Opportunity Commission
Attorney
The SAC states plausible race discrimination claims under Section 1981 and FEHA.
A. The SAC satisfies Rule 8(a)(2).
B. In dismissing Jackson’s SAC, the district court failed to accept Jackson’s allegations as true.
CERTIFICATE OF COMPLIANCE.............................................................
CERTIFICATE OF SERVICE......................................................................
Ashcroft v. Iqbal,
556 U.S. 662 (2009)..............................................................10, 16, 18
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)....................................................................10, 23
Burka v. N.Y.C. Transit Auth.,
739 F. Supp. 814 (S.D.N.Y. 1990)....................................................14
Conley v. Gibson,
355 U.S. 41 (1957)............................................................................10
Erickson v. Pardus,
551 U.S. 89 (2007)................................................................11, 16, 19
Estelle v. Gamble,
429 U.S. 97 (1976)............................................................................11
Gonzalez v. Metro. Transp. Auth.,
174 F.3d 1016 (9th Cir. 1999)..............................................13, 14, 21
Ishikawa v. Delta Airlines, Inc.,
343 F.3d 1129 (9th Cir. 2003),
amended on denial of reh’g, 350 F.3d 915 (9th Cir. 2003).............14
Mayes v. WinCo Holdings, Inc.,
846 F.3d 1274 (9th Cir. 2017)..............................................25, 26, 27
Nat’l Treasury Emps. Union v. Von Raab,
489 U.S. 656 (1989)..........................................................................21
Reynaga v. Roseburg Forest Prods.,
847 F.3d 678 (9th Cir. 2017)..................................................1, 11, 17
Santillan v. USA Waste of Cal., Inc.,
853 F.3d 1035 (9th Cir. 2017)............................................................1
Scheuer v. Rhodes,
416 U.S. 232 (1974)..........................................................................11
Sheppard v. David Evans & Assoc.,
694 F.3d 1045 (9th Cir. 2012)..........................................9, 10, 15, 16
Staub v. Proctor Hosp.,
562 U.S. 411 (2011)..............................................................15, 25, 26
Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002)..........................................................................16
Zeinali v. Raytheon Co.,
636 F.3d 544 (9th Cir. 2011)............................................................17
STATUTES
28 U.S.C. § 1915(d)......................................................................................6
28 U.S.C. § 1915(e)(2)..................................................................................5
42 U.S.C. § 1981................................................................................passim
42 U.S.C. § 1981(a)....................................................................................11
Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq...................................................................1
42 U.S.C. § 2000e-2............................................................................1
California Fair Employment and Housing Act (FEHA),
Cal. Gov’t Code § 12940.....................................................................1
Cal. Gov’t Code § 12940(a)...............................................................11
RULES
Fed. R. App. P. 29(a)...................................................................................2
Fed. R. Civ. P. 4(c)(3)..................................................................................6
Fed. R. Civ. P. 8(a)(2)................................................................9, 10, 16, 22
Fed. R. Civ. P. 12(b)(6)......................................................................passim
Fed. R. Civ. P. 12(b)(4)................................................................................6
OTHER
Jennifer S. Goldstein, Comment, Drug Testing and the Unemployment Compensation System, 1988 U. Chi. Legal F. 313..........................14
The Equal Employment Opportunity Commission (EEOC or Commission) is charged by Congress with the administration, interpretation, and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Title VII prohibits discrimination because of race in an employee’s terms and conditions of employment. See 42 U.S.C. § 2000e-2. Plaintiff-Appellant Hayward Jackson appeals the district court’s dismissal of his race discrimination claims under 42 U.S.C. § 1981 and the California Fair Employment and Housing Act (FEHA), Cal. Gov’t Code § 12940. Although this appeal arises under Section 1981 and FEHA, the Commission has an interest because this Court applies the same legal principles to Section 1981 and Title VII claims, Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 686, 690-91 (9th Cir. 2017), and relies on Title VII decisions when interpreting FEHA. Santillan v. USA Waste of Cal., Inc., 853 F.3d 1035, 1043 n.7 (9th Cir. 2017).
At issue in this appeal is whether the district court applied the proper standard in dismissing Jackson’s discriminatory termination claims under Rule 12(b)(6). Because the application of Rule 12(b)(6) in the context of race discrimination claims is important to the effective enforcement of Title VII, the Commission offers its views to this Court. Fed. R. App. P. 29(a).
Whether the district court erred in dismissing Jackson’s race discrimination claims against his former employer under Rule 12(b)(6).
Plaintiff-Appellant Hayward Jackson, who is African American, was an employee at Labor Ready Southwest, a company that hires workers to perform light industrial work for temporary assignments. R.12 at 1-4 (Page ID #125-28) (Second Amended Complaint (SAC) ¶¶ 1, 7, 14, 16). Labor Ready periodically drug tests its employees. Id. at 4 (Page ID #128) (SAC ¶ 16). During a prior work assignment at a casino, Jackson underwent drug testing once a week and passed each test. Id. at 4, 9 (Page ID #128, 133) (SAC ¶¶ 17, 44).
On or about April 30, 2015, Labor Ready assigned Jackson to the company’s office in Upland, California. Id. at 4, 9 (Page ID #128, 133) (SAC ¶¶ 18, 45). Another temporary employee, who had smoked marijuana that day, transported Jackson to the Upland office. Id.
At the Upland office, a Labor Ready employee named Vargas required Jackson and the employee who transported Jackson to take a drug test.[2] Id. at 1, 3-4, 9 (Page ID #125, 127-28, 133) (SAC ¶¶ 1, 10, 18, 45). Vargas “falsely stated” that Jackson failed the drug test. Id. at 4, 9 (Page ID #128, 133) (SAC ¶¶ 18, 45). After taking the Upland test, Jackson took a follow-up drug test at Labor Ready’s office in San Bernardino, California, a “day later.”[3] Id. Jackson passed the San Bernardino test, which was “like the test they use at all Labor Ready Offices” and “very similar” to the Upland test. Id.
Before taking the Upland and San Bernardino drug tests, Jackson was an employee in good standing at Labor Ready. Id. at 3 (Page ID #127) (SAC ¶ 15). However, Labor Ready terminated Jackson’s employment. Id. at 4-5, 10 (Page ID #128-29, 134) (SAC ¶¶ 20, 47). Jackson alleged that Labor Ready “wrongfully terminated [him] because of his race.” Id. Jackson added, “Even though he ‘failed’ the drug test in the Upland Office, a reason why Labor Ready terminated Plaintiff, but passed it in the San Bernardino Office, Labor Ready and the other Defendants did not want Plaintiff to work at any Labor Ready because of his race.” Id.
Jackson asserted that the Upland Labor Ready office—specifically, Vargas and two other Labor Ready employees, Raquel Madrigal and Waleska Stanford—“set the [Upland] drug test to fail, because they did not want Plaintiff to work there because of his race.” Id. at 2-4, 9-10 (Page ID #126-28, 133-34) (SAC ¶¶ 3-4, 10, 19, 46). Jackson further alleged that he “and other employees heard that … Stanford said she did not like African-Americans, because … [she] used to live in the ‘Little Africa’ neighborhood of San Bernardino and felt harassed by African-Americans.” Id. at 4, 9-10 (Page ID #128, 133-34 (SAC ¶¶ 19, 46).
Proceeding pro se, Jackson brought suit against Labor Ready and several individual defendants, alleging (among other claims) race discrimination under Section 1981 and FEHA. R.1 at 1-5, 8-10 (Page ID#1-5, 8-10). On March 16, 2017, and again on May 30, 2017, the magistrate judge dismissed Jackson’s complaint under 28 U.S.C. § 1915(e)(2), and granted leave to amend. R.7 at 2 (Page ID #47); R.11 at 3 (Page ID #115). The magistrate judge concluded, among other things, that Jackson did not adequately allege discrimination under Section 1981. R.7 at 4-8 (Page ID #49-53); R.11 at 5-8 (Page ID #117-20). Jackson amended his complaint twice in response to the dismissal orders. R.8; R.12.
Three individual defendants filed a motion to dismiss the SAC. R.13. On September 22, 2017, the magistrate judge issued a report and recommendation recommending dismissal of Jackson’s SAC under Rule 12(b)(6) without leave to amend. R.20 at 3 (Page ID #207). The magistrate judge characterized the SAC as “nearly identical to [Jackson’s] first two pleadings,” and opined that it “failed to remedy the vast majority of the deficiencies identified by the Court in its dismissal orders.” Id. at 2 (Page ID #206).
Although Labor Ready had not yet been served and did not seek dismissal, the magistrate judge dismissed all claims against Labor Ready and other nonmoving defendants on the ground that “the [SAC] sues all Defendants on all theories based on a single set of undifferentiated factual allegations.” Id. at 3 (Page ID #207).[4] The magistrate judge assumed that Jackson had a contractual relationship with Labor Ready that would support a Section 1981 claim, but held that “the [SAC] does not contain factual allegations showing that that interest was impaired by the conduct of any Defendant.” Id. at 8 (Page ID #212). The magistrate judge did not separately analyze Jackson’s FEHA claim.
The magistrate judge characterized Jackson’s race discrimination allegations as “nothing but speculation.” Id. at 9 (Page ID #213). In particular, the magistrate judge focused on Jackson’s allegations about Stanford’s racial animus, stating that Jackson asserted only that he and others heard that Stanford “felt” negative toward African Americans (not that Stanford actually made negative comments about African Americans), and opining that the SAC did not establish a connection between Stanford’s comments and Jackson’s termination. Id. at 8 (Page ID #212). Also, the magistrate judge stated that the SAC “does not indicate what reason, if any, Labor Ready cited for [the] decision” to terminate Jackson. Id.
The magistrate judge acknowledged that Jackson alleged that he took the San Bernardino drug test “about a day later” than the Upland drug test, that the San Bernardino and Upland drug tests were “very similar,” and that the “San Bernardino test was ‘like the test they use at all Labor Ready Offices.’” Id. at 9 (Page ID #213) (quoting SAC ¶ 18). Nevertheless, the magistrate judge held that Jackson should have provided “specific allegations of how the [Upland and San Bernardino] tests were similar or different, such as which substances were tested for each time, how and by whom each test was administered, [and] how and by whom the results were obtained.” Id. The magistrate judge added that Jackson “[did] not even allege that when he took the Upland test he had not recently used drugs.” Id.
Because the complaint lacked those details, the magistrate judge determined that “[Jackson’s] contention that the results of the Upland drug test were necessarily falsified because he passed another drug test at a later time is not plausible.” Id. In the magistrate judge’s assessment, the SAC did not adequately allege “why the different [drug test] results could not be attributed to factors other than discrimination.” Id.
The magistrate judge went on to assert that, “even if the Upland results were falsified based on racial discrimination, [Jackson] has not alleged facts showing that that act proximately caused the cessation of his employment with Labor Ready.” Id. In particular, the magistrate judge faulted Jackson because he did not allege who made the termination decision, the nature of the relationship between Stanford and the decisionmaker, “or how, if at all, [the termination] decision was affected by the drug-screening results or any Defendant’s allegedly discriminatory beliefs.” Id. at 9-10 (Page ID #213-14). The magistrate judge added that Jackson had alleged that Labor Ready “conducted drug testing not necessarily for hiring and firing purposes” but to minimize workers’ compensation claims. Id. at 10 (Page ID #214).
Jackson filed objections to the magistrate judge’s report and recommendation. R.21. The district court judge adopted the magistrate judge’s report and recommendation without further analysis. R. 23 at 1 (Page ID #239).
This Court reviews de novo a district court’s dismissal of a complaint for failure to state a claim. Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1048 (9th Cir. 2012). A complaint “must contain … a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). That is, a complaint must “give the defendant fair notice of what the [plaintiff’s] claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). To withstand a Rule 12(b)(6) motion, the complaint must allege “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 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.” Id.
Rule 8(a)(2) “does not require that a complaint contain ‘detailed factual allegations,’” Sheppard, 694 F.3d at 1049 (quoting Iqbal, 556 U.S. at 678), or “require heightened fact pleading of specifics.” Twombly, 550 U.S. at 570. Therefore, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable and ‘that a recovery is very remote and unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Moreover, “a document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right … to make and enforce contracts … as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). Therefore, “an employer is liable under … [Section] 1981 when it subjects an employee to disparate treatment” based on race. Reynaga, 847 F.3d at 690. Similarly, FEHA prohibits employers from “discriminat[ing] against [a] person in compensation or in terms, conditions, or privileges of employment” “because of … race.” Cal. Gov’t Code § 12940(a).
Second, Jackson’s allegations support an inference that his termination was based on discriminatory animus. Jackson asserted that the Upland Labor Ready office, led by Vargas, Madrigal, and Stanford, “set the drug test to fail, because they did not want [Jackson] to work there because of his race.” R.12 at 4, 9-10 (Page ID #128, 133-34) (SAC ¶¶ 19, 46). Jackson added allegations that Stanford expressed racial animus toward African Americans, quoting specific comments that Stanford supposedly made. Id. Stanford’s alleged comments bolster the plausibility of Jackson’s assertion that Labor Ready employees “set the drug test to fail” because of Jackson’s race. Although the district court claimed the SAC alleges only that “‘Plaintiff and other employees heard’ that Stanford felt” negative toward African Americans, R.20 at 8 (Page ID #212), the SAC actually alleges that “[Jackson] and other employees heard that … Stanford said that she did not like African-Americans.” R.12 at 4, 9-10 (Page ID #128, 133-34) (SAC ¶¶ 19, 46). To the extent the district court suggested that Stanford’s alleged comments should be disregarded as hearsay, that would be premature at the motion-to-dismiss stage, when Jackson has not yet had an opportunity to obtain admissible evidence through discovery.
One could infer several scenarios based on the facts alleged in the complaint and accepting Jackson’s allegation that the supposedly positive Upland drug test result was incorrect. To begin, the Upland result could have been a false positive that occurred spontaneously, and which Labor Ready cited as a pretext to terminate Jackson. See, e.g., Gonzalez v. Metro. Transp. Auth., 174 F.3d 1016, 1023 (9th Cir. 1999) (citing “anomalous chemical reactions with other substances in people’s bodies such as medications and foods” as a factor that might generate false positives in urine drug tests); Burka v. N.Y.C. Transit Auth., 739 F. Supp. 814, 837 (S.D.N.Y. 1990) (summarizing evidence that “the ingestion of certain lawful drugs or herbs,” including ibuprofen and naproxen, “causes false positives in” certain urine drug tests); see generally Jennifer S. Goldstein, Comment, Drug Testing and the Unemployment Compensation System, 1988 U. Chi. Legal F. 313, 321-22 (discussing false positives in employer-administered drug tests). Or, Jackson’s Upland drug test result could have been interchanged with the marijuana-smoking worker’s drug test result—deliberately or not—and used as a pretext for Jackson’s termination. See, e.g., Ishikawa v. Delta Airlines, Inc., 343 F.3d 1129, 1131 (9th Cir. 2003) (noting that “putting someone else’s identification on the sample container” is one type of “error[]” that might generate a false positive in a urine drug test), amended on denial of reh’g, 350 F.3d 915 (9th Cir. 2003); Gonzalez, 174 F.3d at 1023 (identifying errors that might generate false positives in urine drug tests, “including containers marked with someone else’s name or number than the person who urinated into them[] [and] typographical errors in the reports of test results and identifications of which employees produced which results”).
Alternatively, Labor Ready employees at the Upland office could have fabricated or misrepresented Jackson’s drug test result as an excuse to terminate him. As Jackson alleged, Labor Ready personnel “set the [Upland] drug test to fail” and “falsely stated” that the result was positive. R.12 at 4, 9 (Page ID#128, 133-34) (SAC ¶¶ 18-19, 45-46). That is, the complaint describes “an entirely plausible scenario of employment discrimination,” Sheppard, 694 F.3d at 1050 (internal quotation marks omitted): Labor Ready employees contrived or capitalized on the Upland drug test result as a pretext to terminate Jackson because they did not want Jackson to work at the Upland office due to his race. See, e.g., Staub v. Proctor Hosp., 562 U.S. 411, 415, 421 (2011) (holding employer could be liable under “cat’s paw” theory where plaintiff alleged he was terminated after his supervisor fabricated an allegation out of discriminatory animus). In summary, Jackson’s allegations support a “reasonable inference that [Labor Ready] is liable for the misconduct alleged,” Iqbal, 556 U.S. at 678, especially because his pro se complaint must be “liberally construed … [and] held to less stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94.
Moreover, that Jackson’s complaint pled a prima facie case of race discrimination underscores that it should have survived dismissal. An employment discrimination plaintiff is not required to set out a prima facie case to meet Rule 8(a)(2)’s threshold. Sheppard, 694 F.3d at 1050 n.2 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508-11 (2002)). However, a complaint that “pleads a plausible prima facie case of discrimination … [is] sufficient to survive a [Rule 12(b)(6)] motion to dismiss.” Id.
At the summary judgment stage, an employee may establish a prima facie case of disparate treatment under Section 1981 or FEHA by demonstrating that “(1) [he] … belongs to a protected class, (2) he was performing according to his employer’s legitimate expectations, (3) he suffered an adverse employment action, and (4) similarly situated employees were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.” Reynaga, 847 F.3d at 690-91 (Section 1981 prima facie case is equivalent to Title VII prima facie case); see also Zeinali v. Raytheon Co., 636 F.3d 544, 552 (9th Cir. 2011) (prima facie case under FEHA mirrors Title VII prima facie case). Jackson’s SAC explicitly alleged the first three elements of the prima facie case: he is African American; he was meeting Labor Ready’s expectations, as he asserted he was an employee in good standing prior to his termination and that he previously passed all drug tests; and Labor Ready terminated him. R. 12 at 2-5 (Page ID #126-29) (SAC ¶¶ 7, 15, 17, 20).
The SAC also provides facts that plausibly allege that the “circumstances surrounding the adverse employment action give rise to an inference of discrimination.” Here, at the pleading stage, Jackson’s assertions about the suspicious circumstances of his termination permit such an inference. Jackson alleged that he was terminated based on the positive Upland drug test result, even though the San Bernardino test taken shortly afterward (a “day later”) suggested that the Upland result was incorrect, and even though he passed all prior drug tests. He alleged that Labor Ready personnel “set the test to fail” based on his race, and asserted that he and others heard that Stanford made racially discriminatory statements. At the pleading stage, these allegations are sufficient to establish the fourth element of a prima facie case of disparate treatment.[5]
There is also sufficient basis to support an inference that the Upland result was falsified or, at a minimum, incorrect, based on the San Bernardino result. Urine drug tests can detect common illegal drugs several days after use, which means the negative San Bernardino result suggests Jackson had not recently used drugs. See, e.g., Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 676 (1989) (noting expert evidence that “the time it takes for particular drugs to become undetectable in urine can vary widely depending on the individual, and may extend for as long as 22 days”). Urinalysis may yield a false positive in some cases, see, e.g., Gonzalez, 174 F.3d at 1023, and the negative San Bernardino result indicates that the Upland result could have been erroneous. See, e.g., id. (observing that follow-up drug tests may “filter[] out” “false positives”).
Again, Rule 8(a)(2) provides that a complaint “must contain … a short and plain statement of the claim showing that the pleader is entitled to relief” to withstand a Rule 12(b)(6) motion to dismiss. Here, the district court incorrectly mandated that Jackson allege facts beyond what is required at the pleading stage, even though Twombly emphasizes that a complaint need not include “detailed factual allegations.” 550 U.S. at 555. In particular, the district court demanded that Jackson plead specific details about the Upland and San Bernardino drug tests, explain how Labor Ready made the termination decision, and establish that factors other than discrimination did not cause his termination.[6] This was error.
First, the magistrate judge found the SAC inadequate because Jackson did not plead “specific allegations” demonstrating how the Upland and San Bernardino drug tests were “similar or different.” R.20 at 9 (Page ID #213). The district court required exhaustive detail, including “which substances were tested for each time, how and by whom each test was administered, [and] how and by whom the results were obtained.” Id.
But Jackson alleged that the two drug tests were “very similar” and that the San Bernardino test was “like the test they use at all Labor Ready offices,” which, as explained supra pp. 12, 21, provides ample basis for comparing the tests. See R.12 at 4, 9 (Page ID #128, 133) (SAC ¶¶ 18, 45). He also asserted that Vargas required him to take the Upland drug test, an allegation that sheds light on which Labor Ready personnel administered the Upland test. See id. Moreover, at the pleading stage Jackson probably would not have access to some of the information the district court demanded, such as the precise substances covered and how Labor Ready obtained the results. These are the type of details more likely within the employer’s knowledge, and that an employee might seek during discovery.
Along similar lines, the district court faulted Jackson because he “does not even allege that when he took the Upland test he had not recently used drugs.” R.20 at 9 (Page ID #133). However, Jackson asserted that the Upland test’s supposedly positive result was false, which amounts to an allegation that he should have passed the test because he did not use drugs. See R.12 at 4, 9 (Page ID #128, 133) (SAC ¶¶ 18, 45). The negative San Bernardino drug test result further supports an inference that Jackson had not recently used drugs. See id.; see also supra p. 21 (explaining that urinalysis may detect certain drugs several days after use). Jackson also highlighted his history of negative drug test results. Id. at 4, 9 (Page ID#128, 133) (SAC ¶¶ 17, 44). These allegations are enough at the pleading stage.
Second, the district court faulted Jackson because he did not identify who made the termination decision or provide facts about the relationship between Stanford and the decisionmaker. R.20 at 9-10 (Page ID #213-14). However, Jackson alleged that Vargas, Madrigal, and Stanford were responsible for the false drug test result (i.e., that they “set the drug test to fail”). R.12 at 4, 9-10 (Page ID #128, 133-34) (SAC ¶¶ 19, 46). And even if none of those individuals made the termination decision, an employer may be liable where “one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision.” Staub, 562 U.S. at 421; see also Mayes v. WinCo Holdings, Inc., 846 F.3d 1274, 1281 (9th Cir. 2017) (explaining that an employer may be liable where a supervisor with discriminatory animus “influenced or participated in the decisionmaking process … [e]ven if the supervisor does not participate in the ultimate termination decision”) (citation omitted). Accepting as true Jackson’s allegation that Vargas, Madrigal, and Stanford falsified the Upland drug test result based on discriminatory animus, it is plausible that this action triggered Jackson’s termination. See Staub, 562 U.S. at 415, 421 (approving “cat’s paw” liability where a supervisor issued a false, discriminatory corrective action that led to plaintiff’s termination).
Moreover, at the pleading stage, a terminated employee may lack knowledge of details such as the identity of the final decisionmaker and the role non-decisionmakers played in the termination decision. Cf. Mayes, 846 F.3d at 1279 (identity of person “who ultimately decided to fire [plaintiff] … remain[ed] a mystery” even at the summary judgment stage where several managers denied knowing who made the termination decision). Again, such information is the type of material an employee might seek during discovery. And although Jackson did not specify whether Vargas, Madrigal, or Stanford are supervisors, he attributed certain potentially supervisory functions to Vargas, such as requiring Jackson to take a drug test and informing him of the result. The supervisory status of specific personnel is, again, information that a terminated employee may not know at the pleading stage.
Finally, the district court faulted Jackson because, in the court’s view, he did not explain “why the different [drug test] results could not be attributed to factors other than discrimination.” R.20 at 9 (Page ID #213). But it makes little sense to require an employee to anticipate and rebut alternative explanations for the employer’s allegedly discriminatory actions at the pleading stage. It is true that, at summary judgment, after the employer “articulat[es] a legitimate, nondiscriminatory reason for its allegedly discriminatory conduct … the burden shifts back to the [employee] to show that the employer’s [stated] reason is a pretext for discrimination.” Mayes, 846 F.3d at 1280. Jackson asserted that Labor Ready terminated him because of the Upland drug test, see supra pp. 19-20, but at the pleading stage he is not privy to Labor Ready’s arguments why this justification is legitimate. Moreover, as discussed supra p. 17, Jackson’s complaint provided facts that support the inference that his termination occurred under suspicious circumstances.
For the foregoing reasons, the Commission urges this court to
Respectfully submitted,
JAMES L. LEE s/ Anne W. King_____
Deputy General Counsel ANNE W. KING
Attorney
JENNIFER S. GOLDSTEIN U.S. EQUAL EMPLOYMENT
Associate General Counsel OPPORTUNITY COMMISSION
Office of General Counsel
ANNE NOEL OCCHIALINO 131 M St. NE, Fifth Floor
Acting Assistant General Counsel Washington, DC 20507
(202) 663-4699
anne.king@eeoc.gov
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because this brief contains 5,333 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in 14-point Century Schoolbook font.
s/ Anne W. King___________
ANNE W. KING
Attorney for amicus
Equal Employment
Opportunity Commission
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
131 M St. NE, Fifth Floor
Washington, DC 20507
(202) 663-4699
anne.king@eeoc.gov
Dated: March 9, 2018
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on March 9, 2018.
Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.
I further certify that some of the participants in the case are not
registered CM/ECF users. I have mailed the foregoing document by
First-Class Mail, postage prepaid, or have dispatched it to a third party
commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participant: Hayward Jackson
P.O. Box 705
San Bernardino, CA 92402
s/ Anne W. King_____
ANNE W. KING
Attorney for amicus
Equal Employment
Opportunity Commission
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
131 M St. NE, Fifth Floor
Washington, DC 20507
(202) 663-4699
[1] The Commission takes no position on any other issues in this appeal.
[2] References to “Defendant Vargas” in the SAC are likely intended to refer to Stephanie Vanegas, one of the individual defendants. See R.12 at 1 (Page ID #125) (SAC ¶ 2).
[3] The SAC originally had “days later” in two separate paragraphs but the “s” is crossed out in both paragraphs, so that the text reads “day later.” R.12 at 4, 9 (Page ID #128, 133) (SAC ¶¶ 18, 45). The magistrate judge assumed that the SAC alleged the San Bernardino drug test took place “about a day later.” R.20 at 9 (Page ID #213); see also id. at 5, 8 (Page ID #209, 212).
[4] According to the magistrate judge, Jackson served his Amended Complaint (FAC) on three individual defendants, but service was premature because the court never issued an order authorizing service of Jackson’s complaints. R.20 at 2 n.1 (Page ID #206). The magistrate judge stated that a court order and service by the United States Marshals is required when a plaintiff proceeds in forma pauperis. Id. (citing 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3)). We note, however, that the defendants’ motion to dismiss relied solely on Rule 12(b)(6), and did not invoke Rule 12(b)(4), which permits dismissal for insufficient process.
[5] It is conceivable that, at the summary judgment stage, Jackson could satisfy the fourth element by identifying similarly situated individuals who received a false positive drug test result, but whom Labor Ready did not terminate. Information about other employees’ drug test results would probably not be available to a terminated employee at the pleading stage. Instead, such information is the type of material an employment discrimination plaintiff might obtain during discovery.
[6] Jackson added numerous factual details to his amended complaints in response to the first two dismissal orders. Jackson’s FAC added at least three new paragraphs and expanded at least three paragraphs relating to his Section 1981 and FEHA claims. See R.8 at 3-4 (Page ID #62-63) (FAC ¶¶ 14-19). The SAC added at least two new paragraphs and expanded at least six paragraphs relating to those claims. See R.12 at 4-5, 9-10 (Page ID #128-29, 133-134) (SAC ¶¶ 17-20, 44-47). Nevertheless, the district court deemed the SAC “nearly identical to [Jackson’s] first two pleadings,” and stated that it “failed to remedy the vast majority of the deficiencies identified by the Court in its dismissal orders.” R.20 at 2 (Page ID #206).