Kim v. Yoon

Background

Andrew Kim sued Kihwan Yoon, whom the complaint identifies as Kim’s immediate supervisor at Applied Materials Inc. Kim alleged that Yoon gave him a low performance rating after Kim took Family and Medical Leave Act (FMLA) leave. Applied Materials later changed the rating from “Limited Contribution” to “Valued Contributor” and reinstated Kim’s bonus.

Kim asserted claims for FMLA retaliation, defamation/libel per se, and intentional infliction of emotional distress. Yoon moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), which requires dismissal when a complaint does not adequately state a claim for relief. The court also took judicial notice of two Yahoo! Finance charts showing historical Applied Materials stock prices.

FMLA claim

The court granted the motion to dismiss Kim’s FMLA retaliation claim. The complaint referred to Kim taking FMLA leave in July 2020, but it did not adequately allege what notice Kim gave Yoon or anyone else that he was taking FMLA leave. The court also found that the complaint did not allege compensable losses because it stated that Kim’s bonus was reinstated after the performance review was reversed. Kim’s argument that he lost money because the bonus was delayed was not included in the existing complaint.

The court granted Kim leave to amend the FMLA claim to address these deficiencies.

Defamation/libel per se claim

The court granted in part and denied in part the motion to dismiss the defamation/libel per se claim, which was based solely on Yoon’s performance review.

The court rejected Yoon’s argument that Kim failed to plead publication. The complaint specifically alleged that the performance review was published, and that fact could also be inferred from other allegations.

The court denied the motion to dismiss based on the general rule that defamation claims ordinarily cannot be based on performance reviews. The parties agreed that an exception may apply when a review includes accusations involving criminal conduct, lack of integrity, dishonesty, incompetence, or reprehensible personal characteristics or behavior. At the pleading stage, the court could not determine whether the statements alleged by Kim were privileged or fell within an exception. Kim alleged that the review said he failed to attend meetings, failed to provide coverage during his absence, and took paid time off rather than FMLA leave; he argued that these statements concerned his competence or integrity and were assertions of fact.

The court granted the motion on the separate issue of reputational harm. It found Kim’s allegation that the review damaged his reputation and standing conclusory, particularly because the complaint also alleged that the review was reversed. The court granted Kim leave to amend this claim.

Intentional infliction of emotional distress

The court granted the motion to dismiss Kim’s intentional infliction of emotional distress claim because the complaint did not plausibly allege extreme and outrageous conduct, intent or reckless disregard for causing emotional distress, or actual and proximate causation. The allegation that Kim suffered “severe emotional distress” was conclusory and lacked facts describing the nature or severity of that distress.

The court granted Kim leave to amend this claim. It denied, without prejudice, Yoon’s argument that workers’ compensation barred the claim. Because Kim would have an opportunity to amend and the pleadings were not yet settled, the court found it premature to decide whether an exception to workers’ compensation exclusivity applied.

Disposition

The court ordered that Yoon’s motion to dismiss the complaint was granted in part and denied in part. Kim may file a First Amended Complaint within 14 days of the order. Yoon must respond within 14 days after that filing, and any motion to dismiss the amended complaint will follow the ordinary briefing schedule. The scheduled case-management conference was vacated. Judge Susan Van Keulen signed the order.