Gazaway v. Nelson

Background

Cameron Gazaway and Robert Wilson sued American Paragon Protective Services, LLC (APPS), Chenega Global Protection, LLC, and the National Aeronautics and Space Administration (NASA). They alleged that they had worked for 28 years as battalion chiefs and were terminated in September 2022 because they lacked associate degrees in Fire Science. They alleged that NASA contracted out fire services at the Moffett Field site to APPS and Chenega, which subcontracted the work to Fiore Industries, Inc., plaintiffs’ direct employer.

The plaintiffs also alleged that they were targeted because they were over 50, had complained about allegedly unlawful practices, and were forming a union. Gazaway alleged discrimination based on age, race, hair, and Messianic Christianity. Wilson alleged discrimination based on his association with Gazaway.

The complaint asserted 13 claims: age discrimination under California’s Fair Employment and Housing Act (FEHA) against APPS and Chenega; age discrimination under the federal Age Discrimination in Employment Act (ADEA) against APPS, Chenega, and NASA; race discrimination under FEHA, including California CROWN Act claims, as to Gazaway; race discrimination under Title VII as to Gazaway; religious discrimination and harassment under FEHA and Title VII as to Gazaway; association discrimination under FEHA as to Wilson; retaliation under FEHA and Title VII; retaliation related to union membership or association under the National Labor Relations Act (NLRA); failure to prevent discrimination, harassment, and retaliation under FEHA; and wrongful-termination claims under FEHA and Title VII.

APPS and NASA moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not state a legally sufficient claim.

APPS’s motion

APPS argued that all 13 claims against it should be dismissed because the complaint did not plausibly allege that APPS was plaintiffs’ joint employer. APPS also argued that the complaint relied on group allegations about Fiore, NASA, APPS, and Chenega instead of identifying conduct by APPS itself.

The court agreed. For FEHA and ADEA claims, the court explained that plaintiffs generally may sue only their employers. An entity may be liable as a joint employer when it shares control over the terms and conditions of employment. The relevant factors include control over the employees, day-to-day supervision and discipline, authority to hire and fire, control over pay, and control of employment records.

The court held that the complaint did not allege facts specific to APPS showing that it jointly employed plaintiffs with Fiore. Most allegations referred collectively to Fiore, NASA, APPS, and Chenega. Because the joint-employer inquiry is fact-intensive, those group allegations did not provide the required specificity. The court directed that any amended complaint identify APPS’s specific conduct, separate from the other defendants’ conduct, that allegedly made APPS a joint employer under FEHA and the ADEA.

The court also granted APPS’s motion as to the Title VII claims. It found that the group pleading made it impossible to determine whether APPS was a joint employer under Title VII’s common-law control test. The court likewise granted APPS’s motion as to the NLRA claims because the complaint did not allow the court to determine whether APPS or the other defendants could be considered joint employers.

The court allowed amendment of the NLRA claims but noted that employees alleging NLRA violations generally must file a charge with the National Labor Relations Board. If plaintiffs continue pursuing those claims in federal court, the court said they must identify authority establishing a private right of action—that is, legal authority allowing individual employees to sue directly in court rather than proceeding before the Board.

NASA’s motion

NASA argued that plaintiffs’ ADEA and Title VII claims against it should be dismissed because the complaint did not allege conduct by NASA separately from the other defendants and Fiore. NASA also argued that plaintiffs had not adequately pleaded that NASA was their joint employer.

The court granted NASA’s motion. It found that the complaint lacked facts describing what NASA, as opposed to the other defendants and Fiore, allegedly did that made NASA a joint employer for purposes of the ADEA and Title VII. Any amended complaint must identify NASA’s specific conduct supporting the alleged joint-employer relationship.

NASA separately argued that the court lacked subject-matter jurisdiction over several claims because the statutory provisions cited by plaintiffs apply only to private employers. The court noted that other ADEA and Title VII provisions expressly cover federal employers and instructed plaintiffs to correct what it described as a citation error in any amended complaint. The court’s conclusion states that APPS’s and NASA’s motions to dismiss were granted with leave to amend.

Disposition

The court granted APPS’s and NASA’s motions to dismiss with leave to amend. Plaintiffs may file an amended pleading within 30 days. The opinion does not state that the dismissal was with or without prejudice.