Case Name: Joseph Riley v. LinkedIn, et al.

Case No.: 1-14-CV-261070

Demurrer by Defendant LinkedIn Corporation to the Third Cause of Action for Negligence of Plaintiff Joseph Riley’s First Amended Complaint

On February 21, 2014, Plaintiff filed a Complaint against Defendants LinkedIn Corporation and Jeff Weiner asserting causes of action for: (1) Wrongful Termination – Age Discrimination; (2) Hostile Work Environment – Age Discrimination; (3) Failure to Prevent Harassment; (4) Retaliation; (5) Intentional Infliction of Emotional Distress; (6) Negligence; and (7) Civil Conspiracy.

On April 29, 2014, this court sustained Defendants’ demurrer to the Complaint. On May 9, 2014, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action for: (1) Wrongful Termination – Age Discrimination [against LinkedIn only]; (2) Retaliation [against LinkedIn only]; and (3) Negligence. On May 30, 2014, Plaintiff filed a request for dismissal of the third cause of action against Defendant Weiner only.

On June 11, 2014, Defendant LinkedIn filed this demurrer to the third cause of action for negligence in the FAC on the ground that the third cause of action does not state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).)

In his third cause of action, Plaintiff incorporates all his prior allegations and further alleges Defendant LinkedIn “owed a duty of reasonable care to Plaintiff, to include [sic] but not limited to the duty to act in good faith and engage in fair dealings, and the duty to refrain from discriminating on the basis of age in violation of FEHA.” (FAC, ¶60.) Plaintiff further alleges defendant LinkedIn “knew or should have known that the double matrix and other policies herein alleged discriminated on the basis of age in violation of their duties alleged above. … This is an alternative theory of liability in the event that Defendants’ conduct was not intentional.” (FAC, ¶61.)

Earlier in the FAC, Plaintiff alleges LinkedIn “instituted and sanctioned a deliberate ‘review policy’ [“double matrix”] which as a practical matter truly served to encourage, facilitate and orchestrate the tendering of low performance review scores to older employees … thus leading to the deliberate ouster of older employees.” (FAC, ¶¶16, 19, 20.)

As LinkedIn did on its previous demurrer, LinkedIn now demurs to the third cause of action for negligence on the ground that the same conduct cannot be both intentional and negligent. Insofar as Plaintiff is alleging a breach of an implied covenant of good faith and fair dealing (see FAC, ¶60), our Supreme Court has squarely held, “In the employment context, an implied covenant theory affords no separate measure of recovery, such as tort damages.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 352.) Tort recovery in the employment discharge context is limited to an employee whose termination violated a substantial public policy. (See Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654 and Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167.) Here, Plaintiff has already stated such a tort claim in his first cause of action for wrongful termination – age discrimination.

Apart from alleging a duty of good faith and fair dealing, Plaintiff has only alleged LinkedIn had a “duty to refrain from discriminating on the basis of age in violation of FEHA.” (FAC, ¶60.) The same conduct underlying the first two causes of action serves as the basis for the third cause of action. In his opposition, Plaintiff contends he is merely pleading alternative theories. Plaintiff cites, among other cases, Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 29 where the court wrote, “Where the exact nature of the facts is in doubt, or where the exact legal nature of plaintiff’s right and defendant’s liability depend on facts not well known to the plaintiff, the pleading may properly set forth alternative theories in varied and inconsistent counts.”

While this legal principle may be apt in other circumstances, it is not so here. Plaintiff argues in his opposition, “the proximate and actual results of an intended course of conduct may be incongruent with the anticipated consequence.” (Plaintiff’s Opposition, p. 5, lines 9 – 10.) Essentially Plaintiff is arguing that an intentional act may lead to a negligent result. Plaintiff’s concern, however, is already contemplated by legal principles of proof developed in the age discrimination context. Namely, a plaintiff may establish discrimination by showing “disparate treatment” or “disparate impact.” Disparate treatment requires a showing of the employer’s discriminatory intent through either direct or circumstantial evidence. On the other hand, “To establish a prima facie case of employment discrimination through disparate impact, … plaintiff need not show that the employer had a discriminatory intent but need only demonstrate that a particular practice in actuality operates to exclude members of his [protected class].” (Ibarbia v. Regents of Univ. of Cal. (1987) 191 Cal.App.3d 1318, 1328; emphasis added.)

The conduct alleged in the third cause of action does not give rise to a separate cause of action for negligence. Accordingly, Defendant LinkedIn’s demurrer to the third cause of action on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for negligence is SUSTAINED WITHOUT LEAVE TO AMEND.