1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LEE BOWMAN, No. 2:18-cv-00472-TLN-KJN 12 Plaintiff, 13 v. ORDER 14 ADAMS & ASSOCIATES, INC., et al., 15 Defendants. 16 17 This matter is before the Court on Defendant Adams & Associates, Inc.’s (“Defendant”) 18 Motion to Dismiss. (ECF No. 14.) Plaintiff Lee Bowman (“Plaintiff”) opposed the motion (ECF 19 No. 15), and Defendant replied (ECF No. 16). For the reasons set forth below, the Court 20 GRANTS in part and DENIES in part Defendant’s motion. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND1 2 Plaintiff is an African American woman. (ECF No. 13 at 10.) On February 4, 2002, 3 Defendant’s predecessor hired Plaintiff at the Sacramento Job Corps (“Job Corps”). (Id. at 3.) 4 Job Corps is a federally-sponsored training program, which provides economically disadvantaged 5 young people with technical and academic training at no cost. (Id.) In March 2014, Defendant 6 became the new managing corporation for Job Corps and hired Plaintiff as a Center Shift 7 Manager. (Id.) Plaintiff alleges that during the initial months of Defendant’s operation of Job 8 Corps, its management targeted older, minority, union employees for excessive discipline and 9 termination. (Id.) Plaintiff also alleges Kelly McGillis, the Center’s director, specifically asked 10 other employees if Plaintiff was “union friendly.” (Id.) 11 In January 2015, Plaintiff alleges she testified before the National Labor Relations Board 12 (“NLRB”) in an action brought by several union members. (Id.) Prior to testifying, Plaintiff 13 alleges Defendant’s attorneys met with her and attempted to influence her testimony by telling 14 her to deny any improper or illegal actions against union members. (Id. at 3–4.) Defendant’s 15 personnel allegedly implied Plaintiff would be subject to retribution in her continued employment 16 if she refused to change her testimony. (Id. at 4.) Despite Defendant’s alleged efforts to dissuade 17 her, Plaintiff testified before the NLRB about Defendant’s anti-union conduct and unfair 18 treatment of employees based on protected classifications. (Id.) 19 Plaintiff alleges Defendant’s management treated her with immediate hostility following 20 her testimony. (Id.) On March 9, 2015, Plaintiff received her annual evaluation and was 21 informed she was failing in her position. (Id.) When Plaintiff asked about the specifics and 22 documentation, management failed to provide details of specific incidents or warnings from the 23 previous year. (Id.) Plaintiff informed management she was concerned her performance 24 evaluations were being altered with false allegations in retaliation for her testimony. (Id.) 25 Subsequently, Plaintiff filed harassment and retaliation complaints against Defendant for her 26 evaluation and asserted she was being targeted for testifying against Defendant. (Id.) 27 1 The following of recitation of facts is taken, sometimes verbatim, from the First Amended 28 Complaint (“FAC”). (ECF No. 13.) 1 At all times relevant to this matter, Plaintiff alleges she suffered from diabetes. (Id. at 7.) 2 On or about March 28, 2015, Plaintiff had a health emergency related to her diabetes and 3 exposure to stress and poor health conditions at the Defendant’s property, forcing her to take a 4 medical leave of absence. (Id. at 4, 7.) In June 2015, Plaintiff’s physician approved her return to 5 work with the accommodation of the use of a scooter, but Plaintiff alleges Defendant denied her 6 return to work. (Id. at 4.) On June 22, 2015, Plaintiff provided a note from her physician to 7 Defendant’s management team stating she could conduct her job duties so long as she had a 8 scooter to allow mobility. (Id.) Penny Steiner, a member of Defendant’s management team, 9 called Plaintiff and informed her she could not return to work or come to the campus because she 10 was seeking an accommodation. (Id.) Plaintiff continued to provide additional paperwork as 11 requested by Defendant’s management team and was repeatedly denied permission to return to 12 work with accommodations. (Id. at 5–6.) Plaintiff alleges she was unable to return to her 13 position or have an open, interactive process about her accommodations until August 2015. (Id at 14 6.) 15 Plaintiff returned to work on August 22, 2015. (Id. at 6, 17.) Plaintiff alleges she filed a 16 workers’ compensation claim and Equal Employment Opportunity (“EEO”) claim upon her return 17 to work and subsequently faced greater hostility from management. (Id. at 6.) When Plaintiff 18 attempted to speak to management about the hostile work environment and management’s failure 19 to accommodate her, Defendant’s personnel denied any failure to accommodate and reiterated 20 Plaintiff’s failing job performance. (Id.) Plaintiff alleges she spoke to management and 21 repeatedly asserted she believed she was being targeted with false performance evaluations as a 22 pretext for retaliatory and discriminatory practices. (Id.) 23 Plaintiff alleges she reported Defendant was using improper procedures for handling 24 employee discipline, including the use of unverified claims that employees were sleeping as an 25 excuse for terminations without due process. (Id.) Plaintiff alleges she is aware of other similarly 26 situated employees who were not African American and not disabled, but raised similar concerns 27 as Plaintiff and were not threatened with discipline or termination. (Id. at 9–10.) On or about 28 November 16, 2015, Plaintiff attended a meeting with Defendant’s management staff regarding 1 an employee who was sleeping on the job. (Id. at 6.) At the meeting, Plaintiff alleges 2 Defendant’s management team accused Plaintiff herself of failing to follow procedure, which 3 Plaintiff denied. (Id.) 4 Plaintiff alleges Defendant did not investigate her complaints regarding the failure to 5 provide her with accommodations or the false disciplinary charges and termination. (Id. at 7.) 6 Defendant terminated Plaintiff’s employment on December 5, 2015, and Plaintiff alleges her 7 termination was in retaliation for her testimony before the NLRB and based on her race, health 8 condition, and support of other employees. (Id.) 9 Plaintiff asserts nine causes of action against Defendant in her FAC: (1) disability 10 discrimination; (2) race discrimination; (3) wrongful termination against public policy; (4) 11 retaliation; (5) harassment; (6) failure to prevent discrimination; (7) failure to accommodate; (8) 12 failure to engage in the interactive process; and (9) intentional infliction of emotional distress 13 (“IIED”). (ECF No. 13 at 1.) Defendant filed the instant motion to dismiss on May 20, 2020. 14 (ECF No. 14.) 15 II. STANDARD OF LAW 16 A motion to dismiss for failure to state a claim upon which relief can be granted under 17 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests the legal sufficiency of a complaint. 18 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Rule 8(a) requires a pleading contain “a 19 short and plain statement of the claim showing that the pleader is entitled to relief.” See Ashcroft 20 v. Iqbal, 556 U.S. 662, 678–79 (2009). Under notice pleading in federal court, the complaint 21 must “give the defendant fair notice of what the claim . . . is and the grounds upon which it rests.” 22 Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). “This 23 simplified notice pleading standard relies on liberal discovery rules and summary judgment 24 motions to define disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz 25 v. Sorema N. A., 534 U.S. 506, 512 (2002). 26 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 27 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give plaintiff the benefit of every 28 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 1 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 2 “‘specific facts beyond those necessary to state his claim and the grounds showing entitlement to 3 relief.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads 4 factual content that allows the court to draw the reasonable inference that the defendant is liable 5 for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). 6 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 7 factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 8 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an 9 unadorned, the defendant–unlawfully–harmed–me accusation.” Iqbal, 556 U.S. at 678. A 10 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 11 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 12 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 13 statements, do not suffice.”). Moreover, it is inappropriate to assume the plaintiff “can prove 14 facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not 15 been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 16 U.S. 519, 526 (1983). 17 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 18 facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting 19 Twombly, 550 U.S. at 570). Only where a plaintiff has failed to “nudge[] [his or her] claims . . . 20 across the line from conceivable to plausible,” is the complaint properly dismissed. Id. at 680. 21 While the plausibility requirement is not akin to a probability requirement, it demands more than 22 “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility inquiry is 23 “a context–specific task that requires the reviewing court to draw on its judicial experience and 24 common sense.” Id. at 679. If a complaint fails to state a plausible claim, “[a] district court 25 should grant leave to amend even if no request to amend the pleading was made, unless it 26 determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez 27 v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 28 484, 497 (9th Cir. 1995)); see also Gardner v. Marino, 563 F.3d 981, 990 (9th Cir. 2009) (finding 1 no abuse of discretion in denying leave to amend when amendment would be futile). Although a 2 district court should freely give leave to amend when justice so requires under Rule 15(a)(2), “the 3 court’s discretion to deny such leave is ‘particularly broad’ where the plaintiff has previously 4 amended its complaint.” Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 5 (9th Cir. 2013) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)). 6 III. ANALYSIS 7 Defendant moves to dismiss each of Plaintiff’s claims, arguing they do not allege “the 8 requisite level of factual detail” to comply with the requirements of Rule 8 as well as Twombly 9 and Iqbal. (See ECF No. 14.) The Court will discuss each claim in turn. 10 A. Claim One: Disability Discrimination 11 In order to bring a prima facie claim for disability discrimination under FEHA, Plaintiff 12 must show she: “(1) suffered from a disability, or was regarded as suffering from a disability; (2) 13 could perform the essential duties of the job with or without reasonable accommodations[;] and 14 (3) was subjected to an adverse employment action because of the disability or perceived 15 disability.” Alsup v. U.S. Bancorp, No. 2:14-cv-01515-KJM-DAD, 2015 WL 6163453, at *4 16 (E.D. Cal. Oct. 2015) (citing Wills v. Superior Ct., 195 Cal. App. 4th 143, 159–60 (2011)). 17 i. Whether Plaintiff Suffers from a Disability 18 FEHA defines “physical disability” as a condition that both affects one or more body 19 systems and limits a major life activity, including working. Cal. Gov’t Code § 12926(m)(1). 20 “Essential duties” are defined as “the fundamental job duties of the employment position of the 21 individual with a disability holds or desires.” Cal. Gov’t Code § 12926(f)(1). Determining the 22 essential functions of a position requires a highly fact-intensive inquiry. Lui v. City & Cnty. of 23 San Francisco, 211 Cal. App. 4th 962, 971 (2012). 24 With respect to the first prong, Plaintiff alleges she suffered from diabetes “[a]t all times 25 relevant to this matter,” and that she fell ill in March 2015 because of her diabetes, stress, and 26 “poor health conditions” at Defendant’s property. (ECF No. 13 at 7.) Plaintiff specifically 27 alleges she is a member of a protected class because she has a physical disability as defined by 28 California Government Code § 12926(m), which “limited her life activities, including her ability 1 to work[,] unless [she was] provided reasonable accommodation. (Id. at 8.) The Court finds 2 these allegations plausibly suggest Plaintiff had a physical disability. 3 ii. Whether Plaintiff Can Perform Her Job With or Without 4 Accommodations 5 With respect to the second prong, although Plaintiff does not set forth what the essential 6 duties of her position were, she alleges she could perform the essential duties of her job with 7 accommodations of an electric scooter to assist her in her rounds. (Id. at 7–8.) Specifically, her 8 physician found her capable of returning to work but noted she would require the use of a scooter. 9 (Id. at 8.) Plaintiff alleges her disability and need for accommodations were communicated to 10 Defendant by Plaintiff and her physician through verbal and written communications. (Id.) In the 11 absence of contrary argument, the Court can infer from these allegations that Plaintiff could 12 perform the essential duties of her position with reasonable accommodation. See Achal v. Gate 13 Gourmet, Inc., 114 F. Supp. 3d 781, 798 (N.D. Cal. 2015) (finding where plaintiff had alleged 14 that he performed “in good standing” and that there was “never any question” as to his job 15 performance, “[t]he [c]ourt can infer . . . that [plaintiff] was capable of performing the essential 16 duties of his position with reasonable accommodation”). 17 iii. Whether Plaintiff Was Subjected to an Adverse Employment Action 18 The standard for determining whether an employee has been subjected to “adverse 19 employment action” is whether employment action materially affected “terms and conditions of 20 employment,” with that term being liberally construed in order to afford employees “appropriate 21 and generous protection against employment discrimination.” Yanowitz v. L’Oreal USA, Inc., 36 22 Cal. 4th 1028, 1054 (2005) (citing Cal. Gov’t Code §§ 12940(a),(h)). Dissemination of a 23 negative employment reference, issuance of a negative performance evaluation, and termination 24 all constitute adverse employment actions. Id. at 1060–61; see also Brooks v. City of San Mateo, 25 229 F.3d 917, 928 (9th Cir. 2000). To satisfy the third element of a § 12940(a) disability 26 discrimination claim, the plaintiff’s disability must have been a “substantial motivating factor” in 27 the particular employment decision. Harris v. City of Santa Monica, 56 Cal. 4th 203, 232 (2013). 28 1 Plaintiff alleges she received a negative performance evaluation and was terminated from 2 her position. (ECF No. 13 at 4, 7.) The crux of the matter is whether Plaintiff adequately alleges 3 that Plaintiff’s disability was a “substantial motivating factor” in the adverse employment actions 4 alleged. Defendant argues Plaintiff failed to remedy the deficiencies in the Complaint, and the 5 FAC lacks sufficient factual allegations which would suggest Defendant subjected Plaintiff to an 6 adverse employment action because of her medical condition or disability. (ECF No. 14 at 9–10.) 7 Defendant contends Plaintiff’s allegations that other similarly situated employees outside of her 8 protected class were treated more favorably is merely conclusory. (Id. at 10–11.) Defendant 9 further argues Plaintiff’s allegations are not sufficiently detailed “to show that these individuals 10 actually exist and that they have actually been treated more favorably than [her].” (Id. at 11.) In 11 opposition, Plaintiff argues she sufficiently alleges that other employees who shared her 12 equivalent position and were not disabled did not face the same threats of discipline and 13 termination, and this is sufficient to establish Defendant acted with a discriminatory motive. 14 (ECF No. 15 at 6–7.) 15 The facts alleged in Plaintiff’s FAC, taken together, give rise to a plausible inference that 16 Plaintiff’s termination was related to her disability and need for accommodation. (See ECF No. 17 13 at 4 –9.) Plaintiff specifically identifies at least two similarly situated employees, who shared 18 the same job title as Plaintiff, who were not disabled but were treated more favorably than 19 Plaintiff. (Id. at 12); see also Achal, 114 F. Supp. 3d at 800 (a plaintiff can demonstrate 20 discriminatory motive by showing “other similarly situated employees outside of the protected 21 class were treated more favorably”). Plaintiff also alleges she was replaced by an individual who 22 was not similarly disabled. (ECF No. 13 at 7.) Finally, Plaintiff identifies specific 23 communications and interactions in which Defendant delayed the interactive process and 24 repeatedly denied Plaintiff’s return to work because of her request for accommodations. (Id. at 4– 25 6.) The Court finds Plaintiff sufficiently alleges she was subject to an “adverse employment 26 action.” See Yanowitz, 36 Cal. 4th at 1060–61; Brooks, 229 F.3d at 928–29. 27 /// 28 /// 1 The Court finds Plaintiff sufficiently alleges facts to state a claim for disability 2 discrimination. Accordingly, Defendant’s motion to dismiss Plaintiff’s claim for disability 3 discrimination in violation of California Government Code § 12940(a) is DENIED. 4 B. Claim Two: Racial Discrimination 5 Defendant argues the FAC’s conclusory allegations are insufficient to give rise to an 6 inference that Defendant acted with a discriminatory motive. (ECF No. 14 at 11–12.) In 7 opposition, Plaintiff argues she sufficiently alleges facts to state a plausible claim that her 8 disparate treatment was based on her race. (ECF No. 15 at 6–7.) 9 To state a claim for racial discrimination, Plaintiff must allege: (1) she was a member of a 10 protected class; (2) she was performing competently in the position she held; (3) she suffered an 11 adverse employment action; and (4) other similarly situated employees outside of the protected 12 class were treated more favorably, or other circumstances surrounding the adverse employment 13 action give rise to an inference of discrimination. Achal, 114 F. Supp. 3d at 800; see also Ayala 14 v. Frito Lay, 263 F.Supp.3d 891, 905 (E.D. Cal. 2017). A plaintiff can demonstrate the employer 15 acted with a discriminatory motive by direct or circumstantial evidence. Achal, 114 F. Supp. 3d 16 at 801 (citing Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221–22 (9th Cir. 1998)). 17 Here, the FAC alleges a plausible prima facie case of racial discrimination. With respect 18 to the first element, Plaintiff alleges she is an African American and therefore part of a protected 19 class. With respect to the second and third elements, as discussed under the disability 20 discrimination claim, the Court can infer from Plaintiff’s pleadings that she could perform the 21 essential duties of her position with reasonable accommodation and Plaintiff suffered an adverse 22 employment action. 23 At issue here is whether Plaintiff adequately alleges the fourth element: other similarly 24 situated employees outside of the protected class were treated more favorably giving rise to an 25 inference of discrimination. See Achal, 114 F. Supp. 3d at 800. Plaintiff identifies two other 26 employees who shared the same job title as Plaintiff but were not African American. (ECF No. 27 13 at 3.) Plaintiff alleges these employees were treated differently with regards to discipline and 28 evaluations. (Id. at 12.) Plaintiff alleges she is aware of other similarly situated employees who 1 were not African American who had job performance issues but were not impacted in their 2 performance evaluations. (Id. at 10.) Plaintiff further alleges she is aware of other non-African 3 American employees that raised concerns about Defendant’s improper procedures for employee 4 discipline, but who were not threatened with discipline or termination. (Id.) Finally, Plaintiff 5 alleges she was replaced in her position with an employee who was not African American. (Id. at 6 7.) Although Plaintiff’s allegations regarding similarly situated employees constitute 7 circumstantial evidence, the Court can infer at least a plausible discriminatory motive behind 8 Plaintiff’s termination. 9 At this early stage of litigation and giving the Plaintiff the benefit of every reasonable 10 inference, the Court finds Plaintiff sufficiently alleges facts to state a claim for racial 11 discrimination. Accordingly, Defendant’s motion to dismiss Plaintiff’s claim for racial 12 discrimination in violation of California Government Code § 12940(a) is DENIED. 13 C. Claim Three: Wrongful Termination in Violation of Public Policy 14 Defendant argues Plaintiff’s claim for wrongful termination in violation of public policy 15 fails because it is derivative of her insufficiently pleaded discrimination claims. (ECF No. 14 at 16 12) (citing Sanders v. Arneson Prods., Inc., 91 F.3d 1351, 1354 (9th Cir. 1996), cert. denied, 520 17 U.S. 1116 (1997); Muller v. Auto. Club of S. Cal., 61 Cal. App. 4th 431, 450–52 (1998)). In 18 opposition, Plaintiff argues that her discrimination claims were sufficiently plead and therefore 19 the claim for wrongful termination in violation of public policy must also survive. (ECF No. 15 20 at 7.) 21 “The elements of a claim for wrongful discharge in violation of public policy are[:] (1) an 22 employer-employee relationship[;] (2) the employer terminated the plaintiff’s employment[;] (3) 23 the termination was substantially motivated by a violation of public policy[;] and (4) the 24 discharge caused the plaintiff harm.” Yau v. Santa Margarita Ford, Inc., 229 Cal. App. 4th 144, 25 154 (2014). With respect to the first and second elements, Plaintiff alleges she was employed by 26 Defendant from 2002 until she was terminated on December 5, 2015. (ECF No. 13 at 1, 7.) 27 /// 28 /// 1 With respect to the third element, the public policy implicated must be: “(1) delineated in 2 either constitutional or statutory provisions; (2) ‘public’ in the sense that it ‘inures to the benefit 3 of the public’ rather than serving merely the interests of the individual; (3) well established at the 4 time of discharge; and (4) substantial and fundamental.” Freund v. Nycomed Amersham, 347 5 F.3d 752, 758 (9th Cir. 2003) (quoting City of Moorpark v. Superior Ct., 18 Cal. 4th 1143, 1159 6 (1998)). The public policy implicated in Plaintiff’s claim is articulated in California Government 7 Code § 12920, which declares it is “the public policy of this state that it is necessary to protect 8 and safeguard the right and opportunity of all persons to seek, obtain, and hold employment 9 without discrimination or abridgment on account of . . . race . . . physical disability . . . [or] 10 medical condition . . . .” Cal. Gov’t Code § 12920. The public policy against racial and disability 11 discrimination as reflected in FEHA is sufficient to form the basis of a common law wrongful 12 termination claim. City of Moorpark, 18 Cal. 4th at 1161; Kap-Cheong v. Korea Express, USA, 13 Inc., No. C 02-4041 CRB, 2003 WL 946103, at *5 (N.D. Cal. Feb. 12, 2003) (“Violations of 14 FEHA and/or the California Constitution based on race/national origin discrimination are issues 15 of fundamental state public policy and fall under this category.”). Similarly, FEHA’s policy 16 prohibiting disability discrimination in employment is sufficiently substantial and fundamental to 17 support a claim for wrongful termination in violation of public policy. City of Moorpark, 18 Cal. 18 4th at 1159–1161. Accordingly, the third element is met. 19 Finally, with respect to the fourth element, it is undisputed that Plaintiff suffered damages 20 from her termination. 21 Based on the foregoing, Plaintiff sufficiently alleges facts to state a claim for wrongful 22 termination in violation of public policy. Accordingly, Defendant’s motion to dismiss Plaintiff’s 23 claim for wrongful termination in violation of public policy is DENIED. 24 D. Claim Four: Retaliation in Violation of Cal. Gov’t Code § 12940(h) 25 Defendant argues Plaintiff fails to allege sufficient facts to show Plaintiff was engaged in 26 a protected activity. (ECF No. 14 at 12–13.) Defendant further argues that even if Plaintiff had 27 sufficiently pleaded facts to show Plaintiff was engaged in a protected activity, she fails to make a 28 showing that there is a causal link between such allegations and her termination. (Id. at 13.) In 1 opposition, Plaintiff argues the factual allegations of the FAC state the required elements of a 2 retaliation claim and create an inference that Defendant knowingly took adverse employment 3 action against Plaintiff based on protected activity. (ECF No. 15 at 8.) 4 FEHA makes it unlawful for an employer “to discharge, expel, or otherwise discriminate 5 against any person because the person has opposed any practices forbidden under this part or 6 because the person has filed a complaint, testified, or assisted in any proceeding under this part.” 7 Cal. Gov’t Code § 12940(h). To establish a claim for retaliation in violation of § 12940(h), a 8 plaintiff must show “(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected 9 the employee to an adverse employment action, and (3) a causal link existed between the 10 protected activity and the employer’s action.” Yanowitz, 36 Cal. 4th at 1042 (2005); Ayala, 263 11 F. Supp. 3d at 911. “‘[P]rotected activity’ for purposes of [a FEHA retaliation claim] involves 12 some level of opposition to the employer’s actions based on the employee’s reasonable belief that 13 some act or practice of the employer is unlawful.” Kelley v. Corr. Corp. of Am., 750 F. Supp. 2d 14 1132, 1144 (E.D. Cal. 2010). 15 Here, with respect to the first element, Plaintiff’s allegations of filing of an EEO claim 16 upon her return to work and her repeated attempts to speak to management regarding a hostile 17 work environment constitute “protected activity” for purposes of a retaliation claim under FEHA. 18 (ECF No. 13 at 6–7); see also Passantino v. Johnson & Johnson Consumer Prod., Inc., 212 F.3d 19 493, 506–507 (9th Cir. 2000) (finding an employee’s informal complaints to a supervisor 20 regarding unlawful discrimination is a “protected activity” and actions taken against the employee 21 after such complaints may constitute retaliation). With respect to the second element, as 22 established above, Plaintiff suffered an adverse employment action when she was terminated as 23 she faced a hostile work environment which failed to accommodate her disability. (ECF No. 13 24 at 6); see Brooks, 229 F.3d at 928–29. 25 With respect to the third element, the Court finds Plaintiff sufficiently alleges a causal link 26 between the protected activity and the adverse employment action. The Ninth Circuit has held 27 that “when adverse employment decisions are taken within a reasonable period after complaints 28 of discrimination have been made, retaliatory intent may be inferred.” Passantino, 212 F.3d at 1 507 (citing Yartzoff v. Thomas, 809 F.2d 1371, 1375–76 (9th Cir. 1987) (finding causation based 2 on timing of retaliation); Miller v. Fairchild Industries, Inc., 885 F.2d 498, 505 (9th Cir. 1989) 3 (holding that discharges 42 and 59 days after EEOC hearings were sufficient to establish prima 4 facie case of causation); Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997)). Here, Plaintiff 5 alleges she attended a meeting where she reported that Defendant was using improper procedures 6 in employee discipline. (ECF No. 13 at 6.) She alleges that it was two weeks later when she was 7 terminated from her position. (Id. at 7.) The Court can infer a causal link between the protected 8 activity and the adverse employment action based on the timing of the relevant actions. 9 Based on the foregoing, Plaintiff sufficiently alleges facts to state a claim for retaliation. 10 Accordingly, Defendant’s motion to dismiss Plaintiff’s claim for retaliation is DENIED. 11 E. Claim Five: Harassment 12 Defendant argues Plaintiff alleges only a few isolated incidents in support of her claim for 13 harassment, which are insufficient to show a hostile work environment. (ECF No. 14 at 14.) 14 Defendant further argues Plaintiff fails to establish that Plaintiff was subject to harassment 15 because she is a member of a protected group. (Id.) In opposition, Plaintiff argues she was 16 “faced with untrue accusations about her job performance” based on her protected characteristics. 17 (ECF No. 15 at 9.) 18 FEHA prohibits harassment based on a variety of protected categories such as race, 19 religious creed, color, national origin, ancestry, and physical or mental disability. Cal. Gov’t 20 Code §§ 12940(j)(1), (3). To state a claim for harassment, Plaintiff must show: (1) she is a 21 member of a protected group; (2) she was subjected to harassment because she is a member of 22 that protected group; and (3) the harassment was so severe or pervasive that it created a hostile 23 work environment. Whitten v. Frontier Commc’ns Corp., No. 2:12-cv-02926-TLN-EFB, 2015 24 WL 269435, at *14 (E.D. Cal. Jan. 21, 2015) (citing Lawler v. Montblanc N. Am., LLC, 704 F.3d 25 1235, 1244 (9th Cir. 2013); Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121 (1999)). 26 “Harassment cannot be occasional, isolated, sporadic, or trivial . . . rather the plaintiff must show 27 a concerted pattern of harassment of a repeated, routine or a generalized nature.” McKenna v. 28 Permanente Med. Grp., Inc., 894 F. Supp. 2d 1258, 1281 (E.D. Cal. 2012). Factors constituting 1 harassment may include: “the frequency of the discriminatory conduct; its severity; whether it is 2 physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably 3 interferes with an employee’s work performance.” Miller v. Dep’t of Corrections, 36 Cal. 4th 4 446, 462 (2005). 5 With respect to the first element, as already discussed, Plaintiff sufficiently alleges she is 6 part of a protected group. With respect to the second element, giving Plaintiff the benefit of every 7 reasonable inference, the Court can infer that Plaintiff was subjected to harassment because she is 8 part of a protected group. Specifically, Plaintiff alleges Defendant continually denied her return 9 to work, even when given a physician’s note that she could conduct her job duties with the 10 accommodation of an electric scooter. (ECF No. 13 at 4.) Plaintiff further alleges Defendant’s 11 management personnel told Plaintiff that her medical benefits would terminate if she did not 12 return to work, knowing that Plaintiff was on medical leave and was actively attempting to return 13 to work with accommodations. (Id. at 5.) Defendant allegedly requested additional duplicative 14 documentation from Plaintiff’s physician and otherwise obstructed Plaintiff from returning to 15 work. (Id.) The Court can reasonably infer that Defendant’s continuing hostility and “several 16 occasions” of screaming were related to Plaintiff’s membership in a protected group. (Id. at 14); 17 see also Roby v. McKesson Corp., 47 Cal. 4th 686, 711 (2009), as modified (Feb. 10, 2010) 18 (holding that evidence of discrimination could support an inference of harassment in violation of 19 FEHA). 20 With respect to the third element, Plaintiff’s allegations of receiving negative reviews and 21 termination refer to common personnel activities that do not generally give rise to a harassment 22 claim. See Roby, 47 Cal. 4th at 706 (“[T]he exercise of personnel management authority properly 23 delegated by an employer to a supervisory employee might result in discrimination, but not in 24 harassment.” (emphasis in original)). The Roby court explained, “harassment focuses on 25 situations in which the social environment of the workplace becomes intolerable because the 26 harassment (whether verbal, physical, or visual) communicates an offensive message to the 27 harassed employee.” Id. (emphasis in original). Disregarding facts relating to common personnel 28 activities, Plaintiff’s allegations in support of harassment consist of Defendant making “false 1 statements” regarding her performance, screaming at Plaintiff on “several occasions,” and giving 2 “inaccurate information” about her return to work. (ECF No. 13 at 14.) Plaintiff alleges the 3 “harassment escalated to the point that Defendant[] created a hostile work environment that 4 impacted Plaintiff’s stress and led to . . . termination of Plaintiff’s employment.” (Id.) Plaintiff 5 also alleges she believes “the discipline issues she faced, the issues with her return to work with 6 reasonable accommodation, and her termination were in retaliation for her reporting of illegal and 7 improper actions and based on her race, medical condition, and support of other employees who 8 were unfairly targeted for discrimination and harassment by [Defendant’s] management.” (Id. at 9 7.) Plaintiff sufficiently alleges the harassing behavior was not “occasional, isolated, sporadic, or 10 trivial” but instead was part of a generalized pattern of harassment related to her membership in a 11 protected group. McKenna, 894 F. Supp. 2d at 1281. 12 Based on the foregoing, Plaintiff sufficiently alleges facts to state a claim for harassment. 13 Accordingly, Defendant’s motion to dismiss Plaintiff’s harassment claim is DENIED. 14 F. Claim Six: Failure to Prevent Discrimination in Violation of Cal. Gov’t 15 Code § 12940(k) 16 FEHA forbids an employer from failing “to take all reasonable steps necessary to prevent 17 discrimination and harassment . . . from occurring.” Cal. Gov’t Code § 12940(k). To state a 18 claim for failure to prevent discrimination, a plaintiff must show: (1) she was subjected to 19 discrimination; (2) defendant failed to take all reasonable steps to prevent the discrimination; and 20 (3) this failure caused plaintiff to suffer injury, damage, loss or harm. Achal, 114 F. Supp. 3d at 21 804 (citing Lelaind v. City & Cnty. of S. F., 576 F. Supp. 2d 1079, 1103 (N.D. Cal. 2008)). 22 Section 12940(k) applies to “an employer who knew or should have known of discrimination or 23 harassment” and “fail[s] to take prompt remedial action.” Vierria v. Cal. Highway Patrol, 644 F. 24 Supp. 2d 1219, 1245 (E.D. Cal. 2009). 25 Defendant argues the FAC does not state a claim for failure to prevent discrimination 26 because Plaintiff has not alleged facts sufficient to state a discrimination claim. (ECF No. 14 at 27 14.) In opposition, Plaintiff asserts she has adequately pleaded claims for discrimination, 28 harassment, and retaliation based on race and disability and that Defendant was aware of the 1 discriminatory actions and took no reasonable steps to investigate or prevent these actions. (ECF 2 No. 15 at 9–10.) 3 With respect to the first element, the Court has already found the FAC adequately alleges 4 all the elements of disability discrimination and racial discrimination. With respect to the second 5 element, Plaintiff specifically alleges Defendant owed Plaintiff the duties to refrain from 6 discriminating against her, to adequately supervise employees to prevent discriminatory acts 7 against her, and to engage in a prompt meaningful investigation of her work performance prior to 8 terminating her. (ECF No. 13 at 16.) Plaintiff also alleges she believes no investigation was 9 conducted into her complaints regarding the failure to provide her with accommodations or her 10 complaints that she was facing false disciplinary charges and ultimately termination. (Id. at 7.) 11 These are sufficient allegations to establish that Defendant was “an employer who knew or should 12 have known of discrimination” yet “fail[ed] to take prompt remedial action.” Vierra, 644 F. 13 Supp. 2d at 1245. With respect to the third element, Plaintiff alleges “[a]s a direct and proximate 14 result of Defendant[’s] acts of discrimination and retaliation, [she] has suffered and continues to 15 suffer substantial economic losses, in earnings and other benefits she would have received.” 16 (ECF No. 13 at 16.) 17 Based on the foregoing, Plaintiff sufficiently alleges facts to state a claim for failure to 18 prevent discrimination. Accordingly, Defendant’s motion to dismiss Plaintiff’s claim for failure 19 to prevent discrimination is DENIED. 20 G. Claim Seven: Failure to Accommodate in Violation of Cal. Gov’t Code § 21 12940(m) 22 FEHA makes it an unlawful employment practice “[f]or an employer . . . to fail to make 23 reasonable accommodation for the known physical or mental disability of an applicant or 24 employee.” Cal. Gov’t Code § 12940(m). To state a claim for failure to accommodate, Plaintiff 25 must show: (1) she suffered from a disability covered by FEHA; (2) she was a qualified 26 individual; and (3) the defendant failed to reasonably accommodate her disability. Mohsin v. Cal. 27 Dep’t of Water Res., No. 2:13-cv-01236-TLN-EFB, 2016 WL 4126721, at *4 (E.D. Cal. Aug. 3, 28 2016); see also Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 256 (2000). 1 Defendant argues Plaintiff’s failure to accommodate claim must fail because Plaintiff 2 admits Defendant did accommodate her medical condition. (ECF No. 14 at 15.) Defendant 3 argues Plaintiff’s real complaint is that she did not return to work as quickly as she would have 4 liked, but this is not sufficient to state a claim for failure to accommodate. (Id.) In opposition, 5 Plaintiff asserts Defendant made threats against Plaintiff’s employment, telling her that 6 accommodation was not allowed, delayed her return to work, and forced the extension of her 7 leave unnecessarily. (ECF No. 15 at 10.) Plaintiff contends repeated denials of her request for 8 accommodation and a failure to respond in a reasonable time is sufficient to allege a failure to 9 accommodate. (Id.) Defendant does not dispute that Plaintiff is a qualified individual, and the 10 Court has found that Plaintiff suffers from a disability under FEHA. With respect to whether 11 Defendant failed to reasonably accommodate Plaintiff’s disability, Plaintiff alleges nearly three 12 months passed between Plaintiff providing a note from her physician that stated she could 13 perform the duties of her job with the use of a motorized scooter, and Defendant approval of her 14 return to work. 2 (ECF No. 13 at 4–6.) “[A]n employer’s unreasonable delay in providing 15 reasonable accommodation to a disabled employee may constitute a failure to provide such 16 accommodation. The acceptable timetable for an employer’s proving a requested accommodation 17 varies depending on the nature of the request and the circumstances of each case.” Budwig v. 18 Allegiant Air, LLC, No. 1:18-cv-01068-EPG, 2020 WL 5235671, at *12 (E.D. Cal. Sept. 2, 2020). 19 At this early stage in the litigation and giving Plaintiff the benefit of every reasonable inference, 20 the Court finds Plaintiff sufficiently alleges facts to establish Defendant failed to reasonably 21 accommodate her disability. 22 Based on the foregoing, Plaintiff sufficiently alleges facts to state a claim of failure to 23 provide reasonable accommodations. Accordingly, Defendant’s motion to dismiss Plaintiff’s 24 claim for failure to provide reasonable accommodations is DENIED. 25 26
27 2 Plaintiff alleges she went on a medical leave of absence on March 28, 2015, and was approved to return to work on June 22, 2015, with accommodations for use of a scooter. (ECF 28 No. 13 at 4.) 1 H. Claim Eight: Failure to Engage in the Interactive Process in Violation of 2 Cal. Gov’t Code § 12940(n) 3 FEHA makes it unlawful “[f]or an employer or other entity covered by this part to fail to 4 engage in a timely, good faith, interactive process with the employee or applicant to determine 5 effective reasonable accommodations, if any, in response to a request for reasonable 6 accommodation by an employee or applicant with a known physical or mental disability or 7 known medical condition.” Cal. Gov’t Code § 12940(n). So long as the employee is disabled 8 and qualified to perform his job duties, the employer has an affirmative duty “to explore further 9 methods of accommodation before terminating [the employee].” Humphrey v. Mem’l Hosps. 10 Ass’n, 239 F.3d 1128, 1133 n.6, 1137 (9th Cir. 2001). However, “an employer may be held liable 11 for failing to engage in the good faith interactive process only if a reasonable accommodation was 12 available.” Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. App. 4th 952, 979–80 (2008). 13 The good faith interactive process requires that “both sides must communicate directly, exchange 14 essential information and neither side can delay or obstruct the process.” Id. at 984–85 15 (alterations omitted). “[T]he trial court’s ultimate obligation is to isolate the cause of the 16 breakdown [in the interactive process] and then assign responsibility,” so the employer may be 17 liable only if the employer is responsible for the breakdown of the interactive process. Id. at 985 18 (alterations omitted). 19 Defendant argues Plaintiff’s claim must fail because the FAC admits Defendant engaged 20 in the interactive process and ultimately provided Plaintiff with the requested accommodation. 21 (ECF No. 14 at 15–16.) In opposition, Plaintiff asserts she alleged sufficient facts to establish 22 Defendant had unreasonably delayed and otherwise failed to sufficiently engage in the interactive 23 process. (ECF No. 15 at 11.) 24 The Court finds Plaintiff has alleged sufficient factual support to demonstrate her need for 25 accommodations. Specifically, Plaintiff alleges she provided Defendant with requested physician 26 notes, the requisite paperwork, and continually checked in with Defendant’s staff, Penny Steiner 27 and Kelly McGillis. (ECF No. 13 at 3–5.) Plaintiff alleges that, nevertheless, Defendant denied 28 her requests for accommodation. (Id.) In interpreting the facts in the light most favorable to 1 Plaintiff, the Court can draw a reasonable inference that Defendant refused to sufficiently engage 2 in the interactive process by unreasonably delaying and creating unnecessary obstacles for 3 Plaintiff’s return to work with reasonable accommodations. See Nadaf-Rahrov, 166 Cal. App. 4th 4 at 984–85. 5 Based on the foregoing, the Court finds Plaintiff has adequately asserted her claim of 6 violation of § 12940(n). Accordingly, Defendant’s motion to dismiss Plaintiff’s claim of failure 7 to engage in the interactive process under FEHA is DENIED. 8 I. Claim Nine: IIED 9 To state a claim for IIED, a plaintiff must show, among other things, “extreme and 10 outrageous conduct by the defendant with the intention of causing, or reckless disregard of the 11 probability of causing, emotional distress.” Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009). 12 Extreme and outrageous conduct must “exceed all bounds of that usually tolerated in a civilized 13 community.” Id. at 1050–51. “Whether a defendant’s conduct can reasonably be found to be 14 [extreme and] outrageous is a question of law that must initially be determined by the court.” 15 Berkley v. Dowds, 152 Cal. App. 4th 518, 534 (2007). “A simple pleading of personnel 16 management activity is insufficient to support a claim of intentional infliction of emotional 17 distress, even if improper motivation is alleged.” Janken v. GM Hughes Electrs., 46 Cal. App. 18 4th 55, 80 (1996). Personnel management activity includes, “hiring and firing, job or project 19 assignments, office or workstation assignment, promotion or demotion, performance evaluations, 20 the provision of support, the assignment or non-assignment of supervisory functions, deciding 21 who will and who will not attend meetings, deciding who will be laid off.” Id. at 64–65. 22 Defendant argues Plaintiff bases her claim solely on her termination, a personnel decision 23 that is not the type of “extreme and outrageous” conduct sufficient for an IIED claim. (ECF No. 24 14 at 16.) In opposition, Plaintiff argues that she sufficiently alleges Defendant discriminated 25 against Plaintiff, failed to investigate evidence of discrimination against Plaintiff, failed to 26 investigate reports she and other employees made of improper behavior, and acted with the intent 27 of causing harm to employees. (ECF No. 15 at 12.) Plaintiff contends these alleged facts are 28 sufficient to constitute the outrageous and extreme behavior required to state a claim for IIED. 1 (Id.) The Court disagrees. Plaintiff’s allegations arise out of her termination — an activity 2 California courts have expressly found constitutes personnel management activity. Janken, 46 3 Cal. App. 4th at 64–65. The remaining actions, such as discrimination, failure to investigate 4 reports of discrimination, and acting with the intent to harm employees, are not in themselves 5 sufficient to constitute extreme and outrageous conduct that “exceeds all bounds of that usually 6 tolerated in a civilized community.” Hughes, 46 Cal. 4th at 1050–51. 7 Plaintiff also alleges Defendant’s management screamed at Plaintiff on “several 8 occasions” in 2015. (ECF No. 13 at 14.) However, the allegations do not provide sufficient 9 detail to establish that Defendant was acting with the intention, or with reckless disregard of the 10 probability, of causing emotional distress. Plaintiff’s allegations are insufficient to establish the 11 screaming caused her “emotional distress of such substantial quantity or enduring quality that no 12 reasonable man in a civilized society should be expected to endure it.” Fletcher v. Western Nat’l 13 Life Ins. Co., 10 Cal. App. 3d 376, 397 (1970). “Ordinarily mere insulting language, without 14 more, does not constitute outrageous conduct.” Cole v. Fair Oaks Fire Protection Dist., 43 Cal. 15 3d 148, 155 n.7 (1987); see also Schneider v. TRW, Inc., 938 F.2d 986, 992–93 (9th Cir. 1991) 16 (holding that there is no basis for an IIED claim where plaintiff's evidence showed her supervisor 17 screamed, yelled, and made threatening gestures while criticizing her job performance); Alcorn v. 18 Anbro Eng'g, Inc., 2 Cal. 3d 493, 497–98 (1970) (holding that an IIED claim can stem from a 19 supervisor shouting racial epithets if coupled with aggravating circumstances). Plaintiff does not 20 provide sufficient detail to determine whether Defendant’s screaming was “mere insulting 21 language” or something more. 22 Based on the foregoing, the Court finds Plaintiff fails to sufficiently allege facts to support 23 her claim of IIED. The Court previously indicated in its April 6, 2020 Order granting 24 Defendant’s motion for judgment on the pleadings that Plaintiff must support her IIED claim with 25 factual allegations to suggest that Defendant’s conduct was “outrageous beyond the bounds of 26 human decency.” Janken, 46 Cal. App. 4th at 80. Plaintiff still fails to do so in her FAC. 27 /// 28 /// 1 Accordingly, Defendant’s motion to dismiss Plaintiff's claim for IED is GRANTED. 2 | Because the defects described above could be cured by amendment, the claim is granted with 3 | leave to amend. Lopez, 203 F.3d at 1130. 4 IV. CONCLUSION 5 For the reasons set forth above, Defendant’s motion to dismiss (ECF No. 14) is hereby 6 | GRANTED in part and DENIED in part as follows: 7 1. Defendant’s motion to dismiss Plaintiff's claim for disability discrimination is 8 DENIED; 9 2. Defendant’s motion to dismiss Plaintiff’s claim for racial discrimination is DENIED; 10 3. | Defendant’s motion to dismiss Plaintiff's claim for wrongful termination in violation 11 of public policy is DENIED; 12 4. Defendant’s motion to dismiss Plaintiff’s claim for retaliation is DENIED; 13 5. Defendant’s motion to dismiss Plaintiffs claim for harassment is DENIED; 14 6. Defendant’s motion to dismiss Plaintiffs claim for failure to prevent discrimination is 15 DENIED; 16 7. Defendant’s motion to dismiss Plaintiffs claim for failure to accommodate is 17 DENIED; 18 8. Defendant’s motion to dismiss Plaintiffs claim for failure to engage in the interactive 19 process is DENIED; and 20 9. Defendant’s motion to dismiss Plaintiff’s claim for IED is GRANTED with leave to 21 amend. 22 | Plaintiff has thirty (30) days from the electronic filing date of this Order to file an amended 23 | complaint. Defendant shall file a responsive pleading within twenty-one (21) days of the 24 | electronic filing date of the amended complaint. 25 IT IS SO ORDERED, 26 | DATED: Marcu 2, 2022 /) 27 “ / of 28 Troy L. Nuhley> United States District Judge