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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`San Francisco Division
`
`EMMA MAJO,
`Plaintiff,
`
`v.
`
`SONY INTERACTIVE
`ENTERTAINMENT LLC,
`Defendant.
`
`Case No. 21-cv-09054-LB
`
`
`ORDER GRANTING MOTION TO
`DISMISS
`Re: ECF No. 24
`
`
`
`INTRODUCTION
`This is a putative class and collective action against Sony Interactive Entertainment alleging
`pervasive gender discrimination at Sony. The named plaintiff — a female former employee —
`brought individual, class, and collective claims, alleging that (1) she was harassed, denied
`promotion, demoted, and terminated, all because of gender bias, and (2) Sony employees who are
`female or identify as female do not receive the same compensation as similarly situated male
`employees and are denied promotions.1
`The plaintiff’s first amended complaint (FAC) has thirteen claims: one collective claim on
`behalf of herself and a nationwide class under the Fair Labor Standards Act (FLSA) as amended by
`
`
`1 First Am. Compl. (FAC) – ECF No. 22. Citations refer to material in the Electronic Case File (ECF);
`pinpoint citations are to the ECF-generated page numbers at the top of documents.
`
`ORDER – No. 21-cv-09054-LB 
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`Case 3:21-cv-09054-LB Document 35 Filed 04/21/22 Page 2 of 20
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`the Equal Pay Act; six state-law class claims on behalf of herself and a California class; one claim
`on behalf of herself and both classes under the Declaratory Judgment Act, 28 U.S.C. § 2201; and
`five individual claims under state law.2 Sony moved to dismiss the FAC under Federal Rule of Civil
`Procedure 12(b)(6), mainly on the ground that the plaintiff alleges only unactionable run-of-the-mill
`personnel activity and thus does not plausibly plead claims. It also moved to strike the claims under
`Rule 12(f) on the ground that the allegations are “highly individual” and do not establish that a class
`or collective action is procedurally proper.3
`The court grants the motion to dismiss (with leave to amend) for most claims because the
`allegations are mostly conclusory, but the following individual claims survive: statutory and
`common-law wrongful termination, whistleblower retaliation under Cal. Lab. Code § 1102.5(b),
`and retaliation under the California Fair Employment and Housing Act (FEHA). Because the court
`dismisses the federal claim, though, it does not have jurisdiction over the state claims and so
`dismisses all claims. The court denies the motion to strike without prejudice because it is premature
`to decide it based on an inadequately pled complaint.
`
`
`STATEMENT
`1. Allegations Regarding Individual Claims
`The plaintiff alleged that she was harassed, denied promotion, demoted, and terminated
`“because of gender bias, because she is a female, and because she spoke up about gender bias.”4
`The specific allegations in the FAC are as follows.
`The plaintiff worked at Sony from 2015 until 2021. (She does not describe her job title or
`responsibilities.)5 During that time, she was never promoted and could not find out how to get
`promoted, despite asking multiple managers and her mentor.6 When she asked, her managers would
`
`
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`2 Id. (¶¶ 79–199).
`3 Mot. – ECF No. 24.
`4 FAC – ECF No. 22 (¶ 78).
`5 Id. at 13 (¶ 64), 16 (¶ 77).
`6 Id. at 14–15 (¶¶ 68–71, 73–74).
`
`ORDER – No. 21-cv-09054-LB
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`Case 3:21-cv-09054-LB Document 35 Filed 04/21/22 Page 3 of 20
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`“say something to the effect of, ‘yeah we should talk about that.’”7 Even though she had a direct
`subordinate for several years, she was never a manager.8 At one point, her “requests for a path to
`management resulted in the creation of a plan for more levels within [her] department instead of any
`communication that tasks, behavior modification, or knowledge was needed on [her] part.”9
`She alleges she was effectively demoted. She at first reported to a vice president, but “after
`asking about how to get promoted, she was then told to report to a manager below the VP.” The
`change was ostensibly because the VP “did not have time to handle subordinates,” but the plaintiff
`“noticed that other male co-workers continued reporting to the VP.”10
`In 2021, Sony terminated the plaintiff “[s]oon after” she “submitted a signed statement to Sony
`detailing the gender bias she [had] experienced.” The termination was ostensibly because her
`department was being eliminated, but she was not “a member of the department being dissolved.”11
`There are other allegations about gender bias. “Sony has managers (e.g., Yu Sugita) who will not
`be alone in a room with a female with the door closed” and who will speak only to male colleagues
`even if a female is present.12 (The plaintiff does not specify that Sugita was her manager.) When the
`plaintiff wanted something done, she needed to send the request through a male because if she
`communicated with Sugita directly, he would ignore her. A “request would garner a response when it
`came from a male intern,” but a “a virtually identical request would be ignored if it came from a
`higher-level female employee.”13 At one point, the plaintiff left the “Security Governance, Risk, and
`Compliance” department because she thought promotion was unavailable (although the FAC also
`alleges she left the department because she was asked to and felt she had no choice because of office
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`7 Id. at 14 (¶ 69).
`8 Id. at 14–15 (¶ 71).
`9 Id. at 14 (¶ 68).
`10 Id. (¶ 70).
`11 Id. at 16 (¶ 77).
`12 Id. at 14 (¶ 66).
`13 Id. (¶ 67).
`
`ORDER – No. 21-cv-09054-LB
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`Case 3:21-cv-09054-LB Document 35 Filed 04/21/22 Page 4 of 20
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`politics). After being told that she could return to her former department any time that there was an
`opening, she applied but never heard back about her application.14
`Sony’s human-resources department “creates resistance when women try to get promoted” by
`“losing track of females seeking promotion” and denying females promotion because of their
`current job titles, “without a real examination of [their] skills.”15 By contrast, Sony promotes a
`“notable” number of men “out of cycle” (meaning, not during “in cycle” promotions at the time of
`annual performance reviews). The plaintiff knows of no female out-of-cycle promotions.16
`When she joined Sony, the plaintiff’s department was about forty percent female, but over time
`there was a “shift towards more and more males.” “As of 2021, Sony is dominated by males.”17
`The plaintiff has also “heard [Sony] managers make gender-biased comments about female
`workers” (such as saying, “[w]e can understand she is not performing well because she has a lot
`going on at home”), but she never heard like comments about men.18
`
`2. Class and Collective Allegations
`Sony employees “who are female or identify as female . . . were not compensated equally to
`male employees who performed substantially similar work” and “were denied promotions.”19
`“Even though nearly half of [Sony] PlayStation owners are females,” a third-party gender-balance
`survey “revealed that Sony’s Executive Committee was 100% male” and gave Sony “the worst
`possible rating . . . because [it] did not have any females in either Staff or Line leadership roles.”20
`The class and collective definitions are as follows.
`
`
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`14 Id. at 14–15 (¶¶ 68, 73).
`15 Id. at 16 (¶ 76).
`16 Id. at 15–16 (¶ 75).
`17 Id. at 13 (¶ 65).
`18 Id. at 15 (¶ 72).
`19 Id. at 4 (¶ 13).
`20 Id. (¶ 14); Gender Balance Report, Ex. A to id. – ECF No. 22 at 41–43.
`
`ORDER – No. 21-cv-09054-LB
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`Case 3:21-cv-09054-LB Document 35 Filed 04/21/22 Page 5 of 20
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`For the collective action under the Equal Pay Act claim, the proposed “Nationwide Class” is
`“[a]ll individuals employed by Sony Interactive Entertainment, LLC in the United States at any
`time during the time period beginning three years prior to the filing of this Complaint through the
`date of trial in this action who are either (a) female or (b) identify as female.”21
`For the state-law class claims, the proposed California Class is “[a]ll individuals employed by
`Sony Interactive Entertainment, LLC in California at any time during the time period beginning
`four years prior to the filing of this Complaint through the date of trial in this action who are either
`(a) female or (b) identify as female.”22 The proposed “Former Employee Subclass” is “members of
`the California Class who are no longer employed by Sony.”23
`The FAC contains basic allegations for the class claims about numerosity, common questions
`of law and fact, typicality, adequacy of representation, and the requirements for Rule 26(b)(2) and
`(b)(3) classes. It also recites basic allegations about collective claims under the Equal Pay Act
`pursuant to the FLSA, 29 U.S.C. § 216(b).24
`The plaintiff attached declarations from female Sony employees, among other documents, to
`her opposition.25 The court does not consider them in evaluating Sony’s motion. See, e.g., Hal
`Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989) (district
`court generally must disregard material outside the pleadings in considering a motion to dismiss);
`Graves v. Sw. & Pac. Specialty Fin., Inc., No. C 13-1159 SBA, 2013 WL 5945851, at *4 (N.D.
`Cal. Nov. 4, 2013) (“The grounds for a motion to strike must be readily apparent from the face of
`the pleadings or from materials that may be judicially noticed.”).
`
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`21 FAC – ECF No. 22 at 12 (¶ 55).
`22 Id. at 6 (¶ 23).
`23 Id. (¶ 24).
`24 Id. at 6–12 (¶¶ 29–54), 13 (¶¶ 59–63).
`25 Ilg Decl. – ECF No. 27; Exs. 1–13 to id. – ECF Nos. 27-1 to -13.
`
`ORDER – No. 21-cv-09054-LB
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`Case 3:21-cv-09054-LB Document 35 Filed 04/21/22 Page 6 of 20
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`3. Relevant Procedural History
`The FAC has thirteen claims: (1) denial of equal pay for equal work, in violation of the FLSA
`as amended by the Equal Pay Act (claim one on behalf of the plaintiff and the nationwide class);
`(2) declaratory judgment (claim two on behalf of the plaintiff and all class members); (3) six state-
`law claims (claims three through eight) on behalf of the plaintiff and the California class: denial of
`equal pay in violation of California’s Equal Pay Act, Cal. Lab. Code §§ 1197.5 et seq. & 1194.5;
`discrimination and harassment in the form of unequal pay and a failure to promote, in violation of
`Cal. Gov’t Code § 12940 et seq.; failure to prevent and investigate discrimination and harassment
`in violation of Cal. Gov’t Code § 12940 et seq.; failure to pay final wages in violation of Cal. Lab.
`Code §§ 201–203; unfair competition in violation of California’s Unfair Competition Law (UCL),
`Cal. Bus. & Prof. Code § 17200; and a claim under California’s Private Attorneys General Act
`(PAGA) based on the Labor Code violations; and (4) five state-law claims (claims nine through
`thirteen) brought by the plaintiff individually: wrongful termination; intentional and negligent
`infliction of emotional distress; discrimination and harassment in the form of wrongful
`termination, in violation of Cal. Gov’t Code § 12940 et seq.; and retaliatory discharge in violation
`of Cal. Lab. Code §§ 232.5 & 1102.5.26
`The court has federal-question jurisdiction under 28 U.S.C. § 1331 and supplemental
`jurisdiction over the plaintiff’s state-law claims under 28 U.S.C. § 1367. All parties consented to
`magistrate-judge jurisdiction under 28 U.S.C. § 626.27 The court held a hearing on April 14, 2022.
`
`
`STANDARD OF REVIEW
`1. Motion to Dismiss — Rule 12(b)(6)
`A complaint must contain a “short and plain statement of the claim showing that the pleader is
`entitled to relief” to give the defendant “fair notice” of what the claims are and the grounds upon
`which they rest. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A
`
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`26 FAC – ECF No. 22 at 16–36 (¶¶ 79–199).
`27 Consents – ECF Nos. 15–16.
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`ORDER – No. 21-cv-09054-LB
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`complaint does not need detailed factual allegations, but “a plaintiff’s obligation to provide the
`‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic
`recitation of the elements of a cause of action will not do. Factual allegations must be enough to
`raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (cleaned up).
`To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual
`allegations, which when accepted as true, “state a claim to relief that is plausible on its face.”
`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); NorthBay Healthcare Grp., Inc. v. Kaiser Found. Health
`Plan, Inc., 838 F. App’x 231, 234 (9th Cir. 2020). “[O]nly the claim needs to be plausible, and not
`the facts themselves.” NorthBay, 838 F. App’x at 234 (citing Iqbal, 556 U.S. at 696); see Interpipe
`Contracting, Inc. v. Becerra, 898 F.3d 879, 886–87 (9th Cir. 2018) (the court must accept the factual
`allegations in the complaint “as true and construe them in the light most favorable to the plaintiff”)
`(cleaned up). “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.” Iqbal,
`556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
`more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads
`facts that are merely consistent with a defendant’s liability, it stops short of the line between
`possibility and plausibility of ‘entitlement to relief.’” Id. (cleaned up). Still, “a formulaic recitation of
`the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
`If a court dismisses a complaint, it should give leave to amend unless the “pleading could not
`possibly be cured by the allegation of other facts.” United States v. United Healthcare Ins. Co., 848
`F.3d 1161, 1182 (9th Cir. 2016) (cleaned up).
`
`2. Motion to Strike — Rule 12(f)
`The court may “strike from a pleading an insufficient defense or any redundant, immaterial,
`impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “[T]he function of a 12(f) motion to
`strike is to avoid the expenditure of time and money that must arise from litigating spurious issues
`by dispensing with those issues prior to trial.” Sidney–Vinstein v. A.H. Robins Co., 697 F.2d 880,
`885 (9th Cir. 1983). Motions to strike are generally disfavored and “should not be granted unless
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`ORDER – No. 21-cv-09054-LB
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`Case 3:21-cv-09054-LB Document 35 Filed 04/21/22 Page 8 of 20
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`the matter to be stricken clearly could have no possible bearing on the subject of the litigation. If
`there is any doubt whether the portion to be stricken might bear on an issue in the litigation, the
`court should deny the motion.” Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057
`(N.D. Cal. 2004) (cleaned up). “With a motion to strike, just as with a motion to dismiss, the court
`should view the pleading in the light most favorable to the nonmoving party.” Id. “Ultimately,
`whether to grant a motion to strike lies within the sound discretion of the district court.” Cruz v.
`Bank of N.Y. Mellon, No. 12-cv-00846-LHK, 2012 WL 2838957, at *2 (N.D. Cal. July 10, 2012)
`(citing Whittlestone, Inc. v. Handi–Craft Co., 618 F.3d 970, 973 (9th Cir. 2010)).
`
`
`ANALYSIS
`Sony moved to dismiss, generally on the ground that the plaintiff failed to allege facts to
`sustain her claims.28 The court dismisses most claims on this ground without prejudice. The
`following individual claims survive: statutory and common-law wrongful termination,
`whistleblower retaliation under Cal. Lab. Code § 1102.5(b), and FEHA retaliation. But because
`the court dismisses the federal claim, it does not have jurisdiction over the state claims and thus
`dismisses the entire complaint. The court denies the motion to strike class allegations without
`prejudice until the filing of any amended complaint.
`
`1. Motion to Dismiss
`1.1 FLSA/Equal Pay Act Collective Claim for Nationwide Class (Claim One)
`Claim one — a putative nationwide collective claim for wage discrimination under the FLSA
`as amended by the federal Equal Pay Act (and an individual claim by the plaintiff) — is dismissed
`because the plaintiff failed to allege any relevant facts.
`“The principle of the Equal Pay Act, 29 U.S.C. § 206(d), is that employees doing equal work
`should be paid equal wages, regardless of sex.” Maxwell v. City of Tucson, 803 F.2d 444, 445–46
`(9th Cir. 1986). “To establish a prima facie case [under the Act], a plaintiff must show that the
`
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`28 Mot. – ECF No. 24 at 18–26, 32–34.
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`ORDER – No. 21-cv-09054-LB
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`employer pays different wages to employees of the opposite sex for substantially equal work.”
`E.E.O.C. v. Maricopa Cnty. Cmty. Coll. Dist., 736 F.2d 510, 513 (9th Cir. 1984). The plaintiff
`must present a comparison of “the jobs in question,” not “the individuals who hold the jobs.”
`Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1074 (9th Cir. 1999). “[N]o intent to discriminate need
`be shown.” Maxwell, 803 F.2d at 446.
`Jobs are “substantially equal” if they satisfy a two-part analysis. Stanley, 178 F.3d at 1074. First,
`the plaintiff must show that they have a “common core of tasks, i.e., a significant portion of the two
`jobs is identical.” Id. Second, “the court must then determine whether any additional tasks,
`incumbent on one job but not the other, make the two jobs substantially different.” Id. (cleaned up).
`This claim is dismissed because the plaintiff merely recited the elements of the claim and did
`not allege any specific facts. For example, she does not describe her work or how her work was
`substantially equal to the work of any male allegedly paid more than she was paid.
`1.2 State-Law California-Class Claims (Claims Three Through Eight)
`The plaintiff brought six state-law claims on behalf of herself and the California Class. She did
`not plausibly plead the claims.
`First, claim three (for a violation of the California Equal Pay Act, Cal. Lab. Code § 1197.5)
`fails for the same reasons as the federal Equal Pay Act claim. “The California Equal Pay Act is
`nearly identical to the federal civil rights provision, and California courts rely upon federal case
`law to interpret the state statute.” Negley v. Jud. Council of Cal., No. C 08-03690 MHP, 2010 WL
`11545605, at *5 (N.D. Cal. June 21, 2010); Hall v. Cnty. of Los Angeles, 148 Cal. App. 4th 318,
`323 n.4 (2007).
`Second, claim four is for discrimination (based on both disparate-treatment and disparate-
`impact theories) and harassment, in connection with compensation and failure to promote, under
`the FEHA, Cal. Gov’t Code § 12940(a) & (j). The claim and its subclaims — disparate-treatment
`discrimination in compensation, disparate-treatment discrimination in failure to promote,
`disparate-impact discrimination, and harassment — are not plausibly pled.
`As to wage discrimination, claim four fails for the same reasons the Equal Pay Act claims fail.
`“[W]hen a plaintiff asserts a discriminatory compensation claim under FEHA, [it] must meet the
`
`ORDER – No. 21-cv-09054-LB
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`same standard as an Equal Pay Act claim.” Negley, 2010 WL 11545605, at *5 (collecting cases);
`see also Guz v. Bechtel Nat’l Inc., 24 Cal. 4th 317, 354 (2000).
`As to discrimination in the form of failure to promote, the FAC has insufficient factual
`allegations to support the claim. The Act prohibits employers from discriminating based on sex,
`gender, gender identity, or gender expression. Cal. Gov’t Code § 12940(a). To maintain a claim for
`discrimination, the plaintiff must establish that (1) she is a member of a protected class, (2) she was
`qualified for the position, (3) she experienced an adverse employment action, and (4) similarly
`situated individuals outside the protected class “were treated more favorably, or other circumstances
`surrounding the adverse employment action give rise to an inference of discrimination.” Fitch v.
`S.F. Unified Sch. Dist., No. 15-cv-02769-SI, 2015 WL 6551668, at *5 (N.D. Cal. Oct. 29, 2015).
`The FAC is mostly conclusory. It does plausibly allege that the plaintiff was qualified to be
`promoted (because her managers expressed receptivity to promoting her).29 But there are no
`allegations that raise an inference of discrimination. For example, there are no allegations that males
`who were given out-of-cycle promotions were similarly situated to the plaintiff. There are
`allegations that Sony’s human-resources department “creates resistance when women try to get
`promoted” by various methods, but the FAC does not allege that those methods were used against
`the plaintiff.30 Kannan v. Apple Inc., No. 5:17-cv-07305-EJD, 2018 WL 3820857, at *6 (N.D. Cal.
`Aug. 10, 2018) (dismissing a FEHA failure-to-promote claim where the plaintiff failed to allege
`circumstances establishing an inference of discrimination because “[he] does not allege, for
`example, that he had similar qualifications to . . . other people” treated more favorably).
`As to disparate-impact discrimination, the plaintiff did not dispute Sony’s argument that the
`claim is not plausibly pled.31 In any event, her allegations are conclusory.
`As to the harassment theory of claim four, it also fails. As Sony contended, the plaintiff’s
`“claims are grounded in unactionable personnel management actions such as demotions,
`
`
`29 FAC – ECF No. 22 at 14 (¶ 69).
`30 Id. at 16 (¶ 76).
`31 Opp’n – ECF No. 26 at 17–19 (arguing only that the plaintiff’s “disparate impact claims can satisfy
`the class certification standards”), 25–26.
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`ORDER – No. 21-cv-09054-LB
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`termination, and promotions, which cannot form the basis of a harassment claim within the
`meaning of” the Act.32 Reno v. Baird, 18 Cal. 4th 640, 647 (1998).
`The Act prohibits harassment of employees because of their sex, gender, gender identity, or
`gender expression. Cal. Gov’t Code § 12940(j). To state a claim for harassment under the Act, the
`plaintiff must allege that (1) she is a member of a protected group, (2) she was subjected to
`harassment for belonging to the group, and (3) the “alleged harassment was so severe that it
`created a hostile work environment.” Lawler v. Montblanc N. Am., 704 F.3d 1235, 1244 (9th Cir.
`2013) (citing Aguilar v. Avis Rent a Car Sys., Inc., 21 Cal. 4th 121, 129–30 (1999)). The
`harassment must be a “concerted pattern . . . of a repeated, routine or a generalized nature.” Id.
`“Isolated incidents that do not exist in a concerted pattern can also fulfill the ‘severe or pervasive’
`prong, but only if such isolated incidents consist of a physical assault or the threat thereof.”
`Landucci v. State Farm Ins. Co., 65 F. Supp. 3d 694, 703–04 (N.D. Cal. 2014) (cleaned up).
`“Harassment” under the Act differs from discrimination. Harassment “consists of actions
`outside the scope of job duties which are not of a type necessary to business and personnel
`management.” Reno, 18 Cal. 4th at 647. Thus, personnel-management action must be analyzed in
`the context of discrimination as opposed to harassment. Id. at 646–47 (hiring and termination
`decisions, job assignments, and promotions or demotions “do not come within the meaning of
`harassment”); Lewis v. UPS, Inc., 252 F. App’x 806, 808 (9th Cir. 2007) (threat of termination
`cannot be analyzed as harassment because it is a personnel-management action). But “some
`official employment actions done in furtherance of a supervisor’s managerial role can also have a
`secondary effect of communicating a hostile message” if done in an “unnecessarily demeaning”
`manner and if “the actions establish a widespread pattern of bias.” Roby v. McKesson Corp., 47
`Cal. 4th 686, 708–09 & n.10 (2009) (examples include “shunning of Roby during staff meetings,”
`“belittling of Roby’s job,” and “reprimands of Roby in front of Roby’s coworkers”).
`Here, the plaintiff mainly alleges personnel-management actions as the basis of her harassment
`claim. For example, she alleges that Sony’s “harassing actions . . . includ[ed] preventing females
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`32 Mot. – ECF No. 24 at 24.
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`ORDER – No. 21-cv-09054-LB
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`from being promoted and preventing females from equal payment.”33 As an example of
`harassment, the plaintiff pointed to a manager’s being more receptive to requests from male
`interns than higher-level female employees, and managers’ job-related gender-biased comments
`about female employees.34 But this conduct related to the performance of job duties is a personnel-
`management action that is not actionable FEHA harassment.
`Third, the FAC did not plausibly plead claim five for failure to prevent and investigate
`discrimination and harassment, in violation of the FEHA.
`The Act prohibits employers from “fail[ing] to take all reasonable steps necessary to prevent
`discrimination and harassment.” Cal. Gov’t Code § 12940(k). To state a claim for failure to
`prevent discrimination or harassment under the Act, a plaintiff must allege that (1) she was
`subjected to discrimination or harassment, (2) the defendant failed to take all reasonable steps
`necessary to prevent the discrimination or harassment, and (3) this failure caused the plaintiff to
`suffer injury, damage, loss or harm. Lelaind v. City and Cnty. of San Francisco, 576 F. Supp. 2d
`1079, 1103 (N.D. Cal. 2008). It follows that a claim under subsection (k) cannot proceed in the
`absence of an underlying discrimination or harassment claim. Kohler v. Inter–Tel Techs., 244 F.3d
`1167, 1174 n.4 (9th Cir. 2001); Trujillo v. Transit Dist., 63 Cal. App. 4th 280, 286–89 (1988).
`Because the plaintiff has not plausibly pled underlying claims of discrimination or harassment,
`the failure-to-prevent claim also fails. And although the FAC asserts that a claim for failure to
`prevent also arises from California common law, the plaintiff’s briefing addresses only the Act.35
`Thus, the failure-to-prevent claim is dismissed.
`Fourth, claim six (for failure to pay final wages, in violation of Cal. Lab. Code §§ 201–03) is
`dismissed because the plaintiff did not oppose Sony’s motion to dismiss it.36
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`33 FAC – ECF No. 22 at 22 (¶ 113).
`34 Opp’n – ECF No. 26 at 26 (citing FAC – ECF No. 22 at 14–15 (¶¶ 67, 72)).
`35 FAC – ECF No. 22 at 23–24 (¶¶ 121, 126); Opp’n – ECF No. 26 at 26.
`36 Opp’n – ECF No. 26 at 26.
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`ORDER – No. 21-cv-09054-LB
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`Fifth, the plaintiff’s derivative claims under the UCL and PAGA (claims seven and eight) fail
`because the underlying claims fail. See, e.g., Reyna v. WestRock Co., No. 20-cv-01666-BLF, 2020
`WL 5074390, at *11–*12 (N.D. Cal. Aug. 24, 2020).
`1.3
`Individual Claims (Claims Nine Through Thirteen)
`Claims nine through thirteen are the plaintiff’s individual claims. Only the following
`individual claims (claims nine, twelve, and thirteen) survive: statutory and common-law wrongful
`termination, whistleblower retaliation under Cal. Lab. Code § 1102.5(b), and retaliation under the
`FEHA. The rest are not plausibly pled.
`First, the motion to dismiss is denied as to the claim for wrongful termination in violation of
`public policy under California common law (claim nine).
`“[W]hen an employer’s discharge of an employee violates fundamental principles of public
`policy, the discharged employee may maintain a tort action and recover damages traditionally
`available in such actions.” Tameny v. Atl. Richfield Co., 27 Cal. 3d 167, 170 (1980). “[T]he elements
`of a claim for wrongful termination in violation of public policy are (1) an employer-employee
`relationship; (2) an adverse employment action; (3) that the adverse employment action violated
`public policy; and (4) the adverse employment action caused the employee damages.” Hollie v.
`Concentra Health Servs., Inc., No. C 10-5197 PJH, 2012 WL 993522, at *7 (N.D. Cal. Mar. 23,
`2012) (citing Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 900 (2008) and Haney v. Aramark
`Uniform Servs., Inc., 121 Cal. App. 4th 623, 641 (2004)). In other words, “the plaintiff must establish
`the existence of a public policy and a nexus between the public policy and an employee’s
`termination.” Id. (citing Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1258–59 (1994)).
`For an actionable Tameny claim, a relevant public policy must be implicated. The policy must
`be: “(1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the sense that it
`‘inures to the benefit of the public’ rather than serving merely the interests of the individual; (3)
`well established at the time of discharge; and (4) substantial and fundamental.” Freund v.
`Nycomed Amersham, 347 F.3d 752, 758 (9th Cir. 2003) (quoting City of Moorpark v. Super. Ct.,
`18 Cal. 4th 1143, 1159 (1998)). The plaintiff bears the burden of identifying the public policy
`allegedly violated. Day v. Sears Holdings Corp., 930 F. Supp. 2d 1146, 1189 (C.D. Cal. 2013). In
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`California, “public policy cases fall into one of four categories: the employee (1) refused to violate
`a statute; (2) performed a statutory obligation; (3) exercised a constitutional or statutory right or
`privilege; or (4) reported a statutory violation for the public’s benefit.” Green v. Ralee Eng’g Co.,
`19 Cal. 4th 66, 76, 90 (1998) (holding that a public policy may also be premised on an
`administrative regulation).
`The plaintiff’s Tameny claim is predicated on her wrongful-termination claim under the
`FEHA.37 Because the latter claim is plausible (as discussed below), the Tameny claim is too.
`Peterson v. U.S. Bancorp Equip. Fin., Inc., No. C 10-0942 SBA, 2010 WL 2794359, at *6 (N.D.
`Cal. July 15, 2010) (a FEHA violation can support a Tameny claim).
`Second, claim ten (for intentional infliction of emotional distress) is dismissed because it is
`premised only on personnel-management activity.
`In California, “[a] cause of action for intentional infliction of emoti