CORRECTED ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS
Plaintiff Melissa Landucci (“Plaintiff’) brings this action against Defendants State Farm Insurance Company (“State Farm”), David Colker, and Does 1 through 25 (collectively, “Defendants”). Defendants move to dismiss Plaintiffs third through seventh causes of action: hostile work environment, wrongful termination in violation of public policy, intentional infliction of emotional distress, breach of implied contract, and breach of the covenant of good faith and fair dealing. Pursuant to Civil
I. BACKGROUND
A. Factual Allegations
Plaintiff is a former employee of State Farm. She had been with the company for twenty-eight years, twenty-one of those as a damages estimator, before being terminated on January 1, 2013. ECF No. 1, Complaint (“Compl.”) at ¶5. Defendant David Colker worked as her supervisor since 1998. Id. at ¶ 5. Plaintiff alleges that Colker engaged in a series of harassing acts towards her as early as 2001. Id. at ¶¶ 7-8. Around 2001 to 2003, Colker allegedly micromanaged and humiliated Plaintiff by looking into her company vehicle and asking why there were shopping bags in the back seat, and checking to see where she stored her computer at night and confiscating it. Id. Around 2003, Colker attempted to terminate her employment. Id. at ¶¶ 7-9. Starting in 2011, Colker engaged in a similar pattern of micromanagement. Id. at ¶ 10. Colker would instruct Plaintiff on how to write auto estimates, how to take photographs, and how to talk to customers. Id. These micromanaging incidents “sapped [Plaintiffs] confidence.” Id. at ¶ 11-12. In 2011, Colker began making statements about Plaintiffs age, asking multiple times indirectly and directly how old she was. Id. at ¶ 13. He also commented on her physical capabilities. At one point in 2012, Colker asked Plaintiff if she had trouble bending down on her knees and stated: “We’re not as young as we used to be.” Id. at ¶ 16. In 2011 and 2012, Colker made these comments at least five or six times. Id. at ¶ 31. Colker also asked multiple times when Plaintiff was going to retire in order to intimidate her into resigning from her job. Id. at ¶¶ 12, 16.
After a performance review in April of 2011 when she received good marks, Colker increased his micromanagement of Plaintiff. Id. at ¶¶ 30-31. He criticized her performance on frequent occasions to the point where “there was no way to silence or deflect this criticism.” Id. at 20. He would find fault with her commute times, customer service, and hours worked. Id. He made these criticisms in order to discriminate against her because of her gender, age, and medical condition. Id. at ¶ 39. Plaintiff alleges that his criticisms were unfounded, citing incidents in which she did an excellent job on a task by writing extra claims for customers and even found a shortcut to help expedite claims. See id. at ¶¶21, 24-29. Colker would also drop by or call unannounced while Plaintiff was working. Id. at ¶41. He would call her several times in the day to berate her, which sometimes adversely affected her work performance by making her late to appointments. Id. at ¶¶ 37-41. He even critiqued minor errors, such as a minute discrepancy in her time card or the use of the IT department. Id: at ¶¶ 38, 43. Colker admitted to spending eighty percent of his time supervising Plaintiff compared to his male employees. Id. at ¶ 45.
Plaintiff alleges Colker gave special preference to the males in her workgroup, pointing to the favorable overtime hours they were given as well as the relatively lax scrutiny they were under. Id. at ¶ 33-35. Despite asking for overtime work on a consistent basis, Plaintiff received only four hours of overtime between 2011 and 2013. Id. at ¶ 33. Before 2011, Plaintiff used to regularly receive overtime work.
In 2011, Colker inquired if Plaintiff had ADD. Id. at ¶ 46. He also refused to accommodate her various requests for sick time or to go home early due to feeling ill. Id. at ¶¶ 48-49. On four occasions, Plaintiff had become ill while working, but Colker refused to allow her to leave early. Id. at ¶¶ 50-52.
Plaintiff alleges that the State Farm management was unhelpful to her concerning her problems with Colker. Plaintiff spoke to Human Resources (“HR”) representatives during this two year period. In eai-ly 2011, she spoke to an HR employee about the treatment she was receiving and asked if she would receive a pension if Colker fired her. Id. at ¶ 14. The employee stated: “You could steal from the company and still get a pension. You are vested.” Id. Later in 2011, Plaintiff again spoke to the same HR employee as well as the entire section manager. Id. at ¶¶ 22-25. Plaintiff again reiterated her concerns about the unfair and demeaning treatment by Colker. Id. at ¶ 23. After these two meetings, nothing was done by State Farm to alter Colker’s behavior. Id. at ¶ 28.
In late 2012, Colker hired another estimator to serve as Plaintiffs replacement. Id. at ¶ 55. In January 2013, Colker informed Plaintiff she was no longer employed by State Farm. Id.
B. Procedural Background
Landucci filed her complaint in state court on January 21, 2014, and Defendants removed the case to federal court on February 21, 2014. ECF No. 1. Plaintiff alleges seven causes of action: (1) Retaliation under California’s Fair Employment and Housing Act (“FEHA”) against State Farm (Compl. at ¶ 58); (2) Discrimination under Title VII of the Civil Rights Act and FEHA against State Farm (Compl. at ¶ 63); (3) Hostile Work Environment violation under Title VII and FEHA against State Farm and Colker (Compl. at ¶ 67); (4) Wrongful Termination in Violation of Public Policy against State Farm and Colker (Compl. at ¶ 70); (5) Intentional Infliction of Emotional Distress against State Farm and Colker (Compl. at ¶ 75); (6) Breach of Implied Contract against State Farm (Compl. at ¶ 78); and (7) Breach of Implied Covenant of Good Faith and Fair Dealing against State Farm (Compl. at ¶ 84).
On March 10, 2014, Defendants filed a Motion to Dismiss. ECF No. 15 (“Mot.”). On March 24, 2014, Plaintiffs filed an Opposition. ECF No. 17 (“Opp’n”). Defendants filed a reply on March 31, 2014. ECF No. 17 (“Reply”).
II. LEGAL STANDARDS
A. Motion to Dismiss
A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block,
B. Leave to Amend
If the Court determines that the complaint should be dismissed, it must then decide whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend ■“should be freely granted when justice so requires,” bearing in mind that “the underlying purpose of Rule 15 ... [is] to facilitate decision on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith,
III. ANALYSIS
Defendants move to dismiss Plaintiffs causes of action for hostile work environment under FEHA, wrongful termination, intentional infliction of emotional distress, breach of implied contract, and breach of the covenant of good faith and fair dealing. The Court GRANTS in part and DENIES in part Defendants’ motion to dismiss these claims, as explained below.
A. Violation of the FEHA: Hostile Work Environment
Plaintiffs third cause of action against both Defendants State Farm and Colker alleges a hostile work environment violation under FEHA and Title VII based on
1. FEHA Liability for Colker and State Farm
It is unlawful “[f]or an employer ... or any other person, because of race, religious creed ... physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age ... to harass an employee!.]” Cal. Gov’t Code § 12940(j)(l). The FEHA specifically makes harassment by an employee unlawful. See Cal. Gov’t Code § 12940(j)(3) (“An employee ... is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer ... knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”). Moreover, “an employer is strictly liable under the FEHA for sexual harassment by a supervisor.” State Dept. of Health Services v. Sup.Ct. (McGinnis),
Here, Defendant Colker, as an employee of State Farm, may be held liable under the FEHA for any harassing acts he made. State Farm may also be held liable for Colker’s actions because Plaintiff has pleaded sufficient facts that Colker is a “supervisor” under FEHA: Plaintiff states Colker was Plaintiffs “team manager” with supervisory power over Plaintiff and with power to fire her. Compl. at ¶¶ 5, 55.
2. Gender, Medical Condition, and Age Harassment
Defendants argue that Plaintiffs hostile environment claims are insufficiently pled. The elements for a claim of hostile environment under FEHA are: (1) the plaintiff belongs to a protected group; (2) the plaintiff was subjected to unwelcome harassment because of being a member of that group; and (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. See Aguilar v. Avis Rent A Car System, Inc.,
Below, the Court will address each of Plaintiffs claims of harassment based on gender, medical condition, and age separately.
a. Gender
• Plaintiff alleges she suffered gender-based harassment such that a “reasonable female in [her] circumstances would have considered the work environment to be. hostile or abusive.” Compl. at ¶ 68. Plaintiff alleges that Colker’s micromanagement of her, his excessive criticisms of her work, and his “pattern and practice of stopping by her place of work at the drive-ins to reprimand, her” were due to her gender. Id. at ¶¶ 39, 41. She alleges Colker criticized her “work habits, company van, hours, work quantity, attitude, and opinions,” and “made disparaging remarks about nearly every aspect of her work product.” Id. at ¶¶ 39, 43. He would find fault with her commute times, customer service, and hours worked. Id. at ¶20. Further, Colker recorded the number of times she contacted the IT department for aid. Id. at ¶ 43. Plaintiff alleges that “the other estimators and trainers” were “not subjected to the same treatment as she was. Some were able to make business decisions without experiencing much in the way of negative feedback.” Id. at ¶ 33. Colker “used a different set of rules for her than he did for the males, often imposing discriminatory discipline on [Plaintiff] and no discipline at all on male coworkers.” Id. at ¶ 35. Colker also gave special preference to the males in her workgroup not only by giving them lax scrutiny of their work, but also by giving them favorable overtime hours. Id. at ¶¶ 33-35. Finally, Plaintiff alleges Colker twice made derogatory statements to her about her choice of clothing. Colker one time chastised Plaintiff about her choice to wear orthopedic shoes and another time criticized her for wearing a white blouse. Id. at ¶ 42. He did not “in any way direct the males estimators as to what shirt, shoes or clothes they should wear.” Id. Defendants move to dismiss Plaintiffs gender-harassment claim, arguing that “there were no offensive gender related comments or actions,” and thus the Plaintiffs allegations fail to meet the “severe or pervasive” standard for harassment. Mot. at 5, 7. The Court DENIES Defendants’ motion.
First, the Court finds that Plaintiffs- allegations suffice to show that Defendants’ harassment was “severe or pervasive.” In addition to alleging that Colker commented on Plaintiffs choice of clothing several times while not commenting on the clothing of' male employees, Plaintiff alleges that, as a result of her gender, Colker treated Plaintiff completely differently than her male co-workers by consistently and excessively micromanaging her every step and criticizing her work nonstop. Compl. at ¶¶20, 35^13. Such allegations suffice because conduct direct
Second, the Court addresses Defendants’ argument that Colker’s micromanagement and criticisms of Plaintiff constituted “necessary personnel management duties” and thus cannot serve as a basis for a hostile work environment claim as a matter of law. Mot. at 6, 8-9 (citing Reno v. Baird,
Under the FEHA, harassment and discrimination fall under separate stat- . utory prohibitions. See Cal. Gov. Code §§ 12940(a), (j)(l). To give effect to this distinction, California courts have distinguished harassing acts from discriminatory acts. Reno,
Despite this distinction, the California Supreme Court has held that “official employment actions” can be considered as part of the conduct supporting a harass
The import of Reno and Roby is that Defendants here are correct that “managerial actions” typically form the basis of a discrimination claim under FEHA, not a harassment claim. See Reno,
In sum, the Court DENIES Defendants’ motion to dismiss Plaintiffs claim for gender-based harassment.
b. Medical Condition
Plaintiff brings a hostile work environment claim based on harassment due to her medical condition. Plaintiff alleges she “suffers from Obsessive Compulsive Disorder (OCD), Attention Deficit Disorder (ADD), high blood pressure, diabetes, irritable bowel syndrome (IBS), high cholesterol, edema, vertigo and depression.” Compl. at ¶ 46. Plaintiff alleges that all these medical conditions were known to Defendants and were documented in her medical file. Id. In addition, she alleges Colker denied her request to go home when she was feeling sick at least four times in 2011 to 2013, thus compelling her to work while she was “severely ill.” Id. at ¶¶ 50-52. Plaintiff also alleges Colker “denied-her requests for time to maintain her medical appointments” and insisted that she “use vacation time instead of sick leave for doctor’s appointments.” Id. at ¶¶ 47, 68. Colker also “created impediments to her efforts to seek medical treatment for her various medical conditions.” Id. at ¶ 53. Colker also had a “pattern, practice, custom and habit of making demeaning comments” about her medical conditions. Id. at ¶ 68. Colker once directly inquired if Plaintiff had ADD in 2011, and “often attempted to determine the reason for her request for going to the doctor.” Id. at ¶¶ 47, 53. Finally, like her gender harassment claim, Plaintiff alleges that Colker’s micromanagement of her, his excessive criticisms of her work, and his “pattern and practice of stopping by her place of work at the drive-ins to reprimand her” were due to her medical condition. Id. at ¶¶ 39, 41. She alleges Colker criticized her “work habits, company van, hours, work quantity, attitude, and opinions,” and “made disparaging remarks about nearly every aspect of her work product.” Id. at ¶¶ 39, 43.
Defendants move to dismiss Plaintiffs allegations, focusing solely on the
The Court agrees that Plaintiffs allegation of one comment by Colker concerning whether she had ADD does not by itself meet the “severe or pervasive” prong of the test. See Lyle,
Defendants again argue that conduct arising out of “necessary personnel management duties,” such as the refusal to grant a request for sick leave or criticize plaintiffs work product, “cannot form the basis of a harassment claim.” Mot. at 7 n.2, (citing Reno,
In sum, the Court DENIES Defendants’ motion to dismiss Plaintiffs medical condition harassment claim.
c. Age
“To prevail on an age-based hostile workplace/harassment claim, [a plaintiff] must show that she was subjected to verbal or physical conduct of an age-related nature, that the conduct was unwelcome, and that the conduct was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.” Cozzi v. County of Mann,
Plaintiff alleges that Colker made a series of age-related demeaning comments to her from 2011 to 2013. See Compl. at ¶¶ 14, 22-25. Colker would ask questions such as “How old are you anyway” or “We’re not as young as we used to be” or “Aren’t you a baby boomer?” or “When are you going to retire anyway?” Compl. at ¶¶ 13, 16. Colker also suggested Plaintiff was too old to competently perform her job, stating that “[t]he estimating world has passed you by.” Compl at ¶ 31. Plaintiff alleges Colker made these verbal comments at least 5 or 6 times throughout 2011 and 2012. Compl. at ¶ 31; see id. at ¶ 68 (alleging Colker had a “pattern, practice, custom and habit of making demeaning comments” about her age). One time he even asked her how old she was, stating that he could look up her age in her “HR Shield,” referring to her personnel file. Id. at ¶ 18. This was the third time he had asked her directly for her age. Id.
Beyond these direct comments, Plaintiff alleges Colker implied to Plaintiff that Plaintiffs age meant she should retire. For example, Colker made comments such as “you would not make this much money somewhere else,” “that she needed to stay current in her job by enhancing her estimating knowledge,” and it was “difficult to compete in a company that was changing so rapidly.” Compl. at ¶¶ 11-12. He also commented on “how hard it was to change, his clear point being that older people (like her) are resistant to change.” Id. at ¶ 13.
Plaintiff alleges that in addition to these verbal comments, Colker engaged in a series of overly-harsh micro-managerial actions designed to harass her based on her age. Id. at ¶ 39. She alleges that Colker criticized her “work habits, company van, hours, work quantity, attitude, and opinions,” and “made disparaging remarks about nearly every aspect of her work product.” Id. at ¶¶ 39, 43.
Defendants move to dismiss Plaintiffs age harassment claim because the comments Plaintiff alleges are “isolated statements over a two year period” and thus cannot rise to the level required by the “severe or pervasive” prong of the FEHA. Mot at 7. The'Court disagrees.
Plaintiff has pleaded sufficient facts supporting her claim of age-based harassment. For one thing, “[offensive comments alone may cause an employee’s work environment to be sufficiently hostile to constitute actionable harassment if they are pervasive enough to interfere with the reasonable victim’s work environment.” Mayfield,
Again, here, Defendants’ argument that Colker’s micromanagement and criticisms of Plaintiff constituted “commonly necessary personnel management decisions” and thus cannot serve as a basis for a hostile work environment claim, Mot. at 6, 8-9, fails because Plaintiff has pleaded plausible facts supporting the inference that Colker’s micro-management was done out of animus towards her age and had the “secondary effect of communicating a hostile message.” This is because Plaintiff pleads that those actions were done in an “unnecessarily demeaning manner.” Roby,
. In sum, the Court DENIES Defendants’ motion to dismiss Plaintiffs age-based harassment claim.
B. Wrongful Termination In Violation of Public Policy
Plaintiffs fourth cause of action alleges State Farm and Colker engaged in ' discriminatory and retaliatory action by wrongfully terminating her without an appropriate investigation beforehand, in violation of public policy. Compl. ¶¶ 70-72. Defendants move to dismiss Colker as a Defendant on this claim, correctly noting that a non-employer individual defendant, such as a supervisor or manager, cannot be held liable as a matter of law for the tort of wrongful termination because he or she is not the plaintiffs employer. See Mot. at 5; Miklosy v. The Regents of the University of California,
C. Intentional Infliction of Emotional Distress
Defendants move to dismiss Plaintiffs fifth cause of action, which is an intentional infliction of emotional distress (“IIED”) claim against both State Farm and Colker. Mot. at 9. The Court GRANTS Defendants’ motion with leave to amend.
Under California law, the tort of IIED comprises three elements: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiffs injuries were actually and proximately caused by the defendant’s outrageous conduct.” Cochran v. Cochran,
Plaintiff alleges both Defendants engaged in “extreme and outrageous conduct by discriminating” against her with the intent to cause Plaintiff “mental anguish, anxiety, and distress.” Id. at ¶¶ 76-77; Opp’n at 20. Defendants move to dismiss Plaintiffs IIED claim by arguing that “normal supervisory conduct, such as managing and reviewing employee work, performance evaluations, criticism and discipline and the like do not constitute extreme and outrageous conduct as a matter of law.” Mot. at 10 (citing Reno,
*1 (9th Cir.2014) (unpublished) (quoting Sparling v. Hoffman Const. Co.,
The California Supreme Court has held that emotional distress resulting in minor physical harm does not fulfill the “severe or extreme” distress prong. See Hughes,
Here, Plaintiff fails to allege any form of emotional distress beyond the conclusory allegation that Defendants’ actions “cause[d] her mental anguish, anxiety, and distress” and that at some point she “felt extremely emotionally distressed and pained, fearing for her job and livelihood.” Compl. at ¶¶ 28, 77. She also fails to explain the nature and extent of the mental distress suffered. Accordingly, Plaintiff has failed to plead sufficient facts to satisfy the “severe or extreme emotional distress” prong. See, e.g, Nelson v. County of Sacramento,
Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiffs cause of action for IIED. The Court grants the motion with leave to amend because no “undue delay, bad faith or dilatory motive” by Plaintiff has been shown. Carvalho,
D. Breach of Implied Contract
Defendants move, to dismiss Plaintiffs sixth cause of action that Defendant State Farm breached her implied contract when terminating her without good cause and without conducting an “appropriate investigation,” and by not taking all “reasonable steps to prevent discrimination and protect her from discrimination.” Compl. at ¶¶ 78-83. The Court GRANTS Defendants’ motion to dismiss this cause of action.
California Labor Code § 2922 states, “An employment, having no specified term, may be terminated at the will of either party on notice to the other....” Cal. Lab. Code § 2922. An at-will employment contract gives an employer wide latitude to terminate an employee’s contract. See Eisenberg v. Alameda Newspapers, Inc.,
Here, Plaintiff alleges she had an implied contract with Defendants with essentially two provisions: (1) that “her employment with Defendant State Farm would continue so long as she discharged her obligations and duties under the employment agreement,” or in other words, that she had a contract for permanent employment in which she could only be fired for cause; and (2) “that Defendant State Farm would honor its written policies to comply with the Laws of the United States and the Laws of the State of California by preventing discrimination and protecting her from discrimination, including retaliation.” Id. at ¶ 82. In the section of the Complaint setting forth her breach of implied contract cause of action, Plaintiff cites to only two factors supporting the formation of such an implied contract: (1) Plaintiffs loyal employment for over twenty years, and (2) her “reasonable expectation that her employment with Defendant State Farm would continue so long as she discharged her obligations and duties under the employment agreement.” Compl. at ¶¶ 80, 82. Plaintiff also incorporates all the allegations in the preceding paragraphs of her Complaint into this cause of action, and thus the Court infers that Plaintiff believes an implied contract was formed based also in part on an alleged statement from an HR Director stating “[she] could steal from the company and still get a pension. You are vested.” See Compl. at ¶ 14. Plaintiff also alleges she received good performance reviews on an annual basis. Id. at ¶ 19. Defendants move to dismiss Plaintiffs claim, arguing that (1) Plaintiffs alleged facts do not give rise to an implied contract as a matter of law, and (2) there was no consideration for such an implied contract, so the contract, was invalid even if it existed. Mot. at 11-12.
First, the Court concludes Plaintiff has failed to allege facts to support the existence of an implied contract for permanent employment. It is clear Plaintiff has presented adequate evidence to demonstrate longevity of service, one of the relevant factors, as Plaintiff alleges she was an employee for over twenty years. In Foley, the court found that six years and nine months was sufficient to satisfy the “longevity of employment” element of a claim for an implied-in-fact employment contract. Foley,
Apart from her. additional conclu-sory allegation that she had a “reasonable expectation” of a permanent employment contract, Plaintiff further alleges that when she asked an HR representative “if she would receive a pension if Defendant Colker were to fire her,” the representative told her she “could steal from the company and still get a pension. You are vested.” Compl. at ¶ 14. . Plaintiff argues this was an “action[] or communication[ ] by the employer reflecting assurances of continued employment,” one of the other factors the court is to consider in the totality of circumstances. Opp’n at 22. The Court fails to see how this statement reflects an assurance that Plaintiff had a permanent employment contract. It is not a statement concerning employment status at all, but rather pensions. It is simply a statement that Plaintiffs vested pension benefits could not be taken away from her even if she were to be fired. Even if, arguably, the statement “you are vested” may have been construed by Plaintiff to mean that her employment was in some sense “vested” and thus permanent, “vague assurances” do not suffice to show an implied contract. Horn v. Cushman & Wakefield W., Inc.,
The Court, however, dismisses - with prejudice Plaintiffs implied contract claim based on the alleged failure by Defendants to follow the law. Defendants argue Plaintiffs breach of implied contract claim fails as a matter of law because it “is based on an alleged contractually binding promise by State Farm to abide by the law” and that State Farm “breached its expressed and implied duty at law to provide a work environment free of discrimination and to take all reasonable steps to prevent discrimination.” Mot. at 12 (citing complaint at ¶ 82). Defendants argue that “contracts requiring a party to abide by the law lack adequate consideration, and therefore are invalid.” Id. at 13. Defendants are correct. In California, a promise to refrain from unlawful conduct is unlawful consideration. See Kallen v. Delug,
In sum, Defendants’ Motion to Dismiss Plaintiffs claim for breach of implied contract is GRANTED, in part with leave to amend and in part with prejudice.
E. Breach of Implied Covenant of Good Faith and Fair Dealing
In her seventh cause of action, Plaintiff alleges that State Farm breached “the implied covenant of good faith and fair dealing” by failing to properly investigate all allegations against her before terminating her employment. Compl. at ¶¶ 84-87. Defendants move to dismiss this claim by arguing it is superfluous because it is not distinct from Plaintiffs breach of implied contract claim. Mot. at 13-14. The Court GRANTS Defendants’ motion with leave to amend.
Every contract contains an implied-in-law covenant of good faith and fair dealing. Foley,
However, the Court notes that if Plaintiff plans to reallege her covenant claim, Plaintiff must amend the underlying factual basis of the claim if the claim is to survive a motion to dismiss. This is because there is a second basis for dismissal of Plaintiffs covenant claim. Notably, although the California Supreme Court has held that a plaintiff may bring both a breach of contract claim and a claim for breach of the implied covenant of good faith and fair dealing, the Supreme Court has made clear that when both causes of action cite the same underlying breach, the implied covenant cause of action will be superfluous with the contract cause of action. See Guz,
Here, the Complaint states that both Plaintiffs cause of action for breach of implied contract and her cause of action for breach of the implied covenant of good faith and fair dealing are based on the allegation that State Farm failed to properly investigate the allegations against her before terminating her . employment. Compare Compl. at ¶¶ 78-83, with id. at ¶¶ 84-87. Thus, Plaintiffs breach of implied covenant claim based on this theory is “simply duplicative [of her breach of contract cause of action], and thus may be disregarded.” Careau,
However, a claim for breach of the implied covenant of good faith and fair dealing is not superfluous with a breach of contract claim when the covenant claim is based “on a different breach than the contract claim.” Daly,
IV. CONCLUSION
The Court DENIES Defendant’s motion to dismiss as to Plaintiffs hostile environment claims, GRANTS Defendants’ motion to dismiss Colker from Plaintiffs wrongful termination claim, and GRANTS Defendants’ motion to dismiss Plaintiffs IIED claim, breach of implied contract claim, and breach of implied covenant of good faith and fair dealing claim. Accordingly, the Court GRANTS IN PART and DENIES IN PART Defendant’s Motion to Dismiss. The only claim that is dismissed with prejudice is Plaintiffs breach of implied contract claim based on Defendants’ alleged failure to follow the law.
Any amendment to the Plaintiffs Complaint shall be made within 21 days of the date of filing of this Court’s previously filed Order, ECF No. 23.
IT IS SO ORDERED.
Notes
. The only change to this Order, as compared to the previously filed version, ECF No. 23, is the change to footnote 2.
. In their Reply, Defendants argue that Plaintiff filed her opposition to the motion to dismiss ten days late, and thus ask the Court to disregard the opposition. Reply at 1 nl. The Court declines Defendants' invitation. This Court's reassignment order held that the briefing schedule remained in place even after the assignment of this case to the undersigned Judge, see ECF No. 14 (pursuant to Civil L.R. 7 — 7(d)), and thus Plaintiff's opposition, filed on March 24, 2014, was in fact technically due by March 14, 2014. However, after reassignment to the undersigned Judge, Defendants improperly refiled their motion to dismiss rather than simply re-noticing their prior motion, which triggered ECF to include a notation on ECF that the new deadline for any opposition was March 24, 2014. ECF No. 15. Because Plaintiff justifiably relied on the notation in ECF that her opposition was due by March 24, 2014, the Court finds Plaintiff did not untimely file her opposition. However, the Court instructs both parties to follow the Civil Local Rules in all future filings. The Court GRANTS Plaintiff’s motion to amend the first Order, ECF No. 23.
. In Roby, the plaintiff's supervisor made negative comments to plaintiff about her body odor, ostracized her in the office, expressed disapproval when she took rest breaks, and overlooked her when handing out small gifts to other employees. He also disciplined the plaintiff over repeated absences, which were due to a medical condition, and ultimately terminated her employment. Id. at 695,
. Even Defendants themselves admit that Roby held that personnel management decisions may support a harassment claim where a plaintiff has introduced other evidence from