1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ARNITRA LEAVY, an individual, Case No.: 21-CV-1913 JLS (WVG)
12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANT’S MOTION TO DISMISS 14 GFS GROUP, a corporate entity form
unknown; and DOES 1 through 50, 15 inclusive, (ECF No. 4) 16 Defendants. 17
18 Presently before the Court is the Motion to Dismiss (“Mot.,” ECF No. 4) filed by 19 Defendant Global Food Services LLC (“Defendant” or “GFS”), erroneously named as GFS 20 Group. Plaintiff Arnitra Leavy (“Plaintiff”) filled an Opposition to (“Opp’n,” ECF No. 6), 21 and Defendant filed a Reply in support of (“Reply,” ECF No. 8), the Motion. The Court 22 vacated the hearing on the Motion and took it under submission without oral argument 23 pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 9. Having considered Plaintiff’s 24 Complaint (“Compl.,” ECF No. 1-2 at 10–33), the Parties’ briefing, and the law, the Court 25 GRANTS IN PART AND DENIES IN PART Defendant’s Motion for the reasons that 26 follow. 27 / / / 28 / / / 1 BACKGROUND 2 Defendant, who “operate[s] out of Oceanside, California,” hired Plaintiff on or about 3 September 18, 2007. Compl. ¶¶ 9–10. Plaintiff suffers from arthritis and, since 2007, has 4 been designated as permanently disabled and requiring light duty. Id. ¶ 11. Plaintiff 5 eventually became a shift lead supervisor earning an hourly wage of $14.51. Id. ¶ 10. 6 “Plaintiff has always worked diligently,” and “ha[s] even earned awards for her hard work 7 and excellent customer service.” Id. ¶ 11. 8 Donna, the dining manager, had been arriving late for and leaving prior to the end 9 of her shifts. Id. ¶ 12. “Defendant’s agent was forcing Plaintiff to take over [Donna’s] 10 shifts,” which was “more work than one person can cover” and “far more work than the 11 position encompassed by a shift lead [supervisor],” and “also verbally attack[ing] Plaintiff 12 with foul and demeaning language.” Id. In or around October 2019, Plaintiff complained 13 to Defendant’s human resources department (“HR”) about Donna’s actions, but Defendant 14 failed to remedy the hostile work environment, instead permitting the situation to continue 15 and escalate. Id. ¶ 13. 16 By in or around December 2019, the “constant harassment and work-related stress” 17 was causing Plaintiff’s health to suffer. Id. ¶ 14. On one occasion, Donna “unfairly wrote 18 up Plaintiff five (5) times in one day just to harass and retaliate against her for her 19 complaints to HR.” Id. This caused Plaintiff to shake and have difficulty breathing. Id. 20 Plaintiff began to see stars and requested that a paramedic be called because of blood 21 pressure concerns. Id. However, Defendant failed to call for paramedics or provide 22 Plaintiff with workers’ compensation documentation. Id. Plaintiff was suspended without 23 pay for a week following the incident. Id. Thereafter, instead of reprimanding Donna, 24 / / / 25 26 27 1 The facts alleged in Plaintiff’s Complaint are accepted as true for purposes of Defendant’s Motion. See Vasquez v. Los Angles Cnty., 487 F.3d 1246, 1249 (9th Cir. 2007) (holding that, in ruling on a motion to 28 1 Defendant moved Plaintiff from zone to zone, “forcing her to work new jobs and with 2 different staff.” Id. ¶ 16. “[Defendant] even placed [Plaintiff] on probation.” Id. 3 In or around January 2020, Defendant hired a new project manager, Dante. Id. 4 “[Dante] constantly pressured Plaintiff to work harder and faster than was reasonable or 5 safe.” Id. Plaintiff complained to Dante that he was supposed to assign her modified duties 6 due to her disability. Id. Plaintiff also reported that she was experiencing pain and swelling 7 in her right leg and requested workers’ compensation paperwork. Id. However, Defendant 8 denied Plaintiff’s requests. Id. In fact, Dante removed personnel from Plaintiff’s zones, 9 thus forcing Plaintiff to do the work of multiple individuals herself. Id. ¶ 17. He would 10 also stand near Plaintiff’s work area to watch and intimidate Plaintiff. Id. 11 Dante instructed Plaintiff’s supervisor, Tracy Williams, to find a reason to terminate 12 Plaintiff. Id. ¶ 18. Defendant and its agents “w[ere] constantly looking for a reason to 13 write [Plaintiff] up.” Id. ¶ 21. Whenever Plaintiff requested time off for illness, Defendant 14 accused her of “faking it” and wrote her up. Id. No other employee was treated this way. 15 Id. In May of 2020, Plaintiff’s younger sister passed away, and Plaintiff asked for time off 16 for the burial. Id. ¶ 22. Defendant refused to believe Plaintiff’s request until Plaintiff 17 texted a picture of her deceased sister. Id. 18 In August 2020, Plaintiff accepted a demotion because Defendant refused to 19 accommodate Plaintiff. Id. ¶ 24. However, Plaintiff’s health continued to deteriorate, and 20 on or about September 16, 2020, “Plaintiff’s doctor placed her off work for work-related 21 stress and an arthritis flare up in her right shoulder.” Id. Plaintiff attempted to give HR 22 her doctor’s note, but Defendant refused to accept the document. Id. “[O]n or about May 23 3, 2021, Defendant wrongfully terminated Plaintiff.” Id. ¶ 25. 24 Plaintiff claims she filed at least four grievances concerning harassment and 25 discrimination, but Defendant failed to remedy its hostile work environment. Id. ¶ 18. 26 Plaintiff claims she was discriminated against on the basis of her age, id. ¶ 19, and her race, 27 given that she was the only Black woman in her workplace, id. ¶ 20. Prior Black employees 28 who have held Plaintiff’s position have resigned as a result of the harassment and 1 discrimination they have faced. Id. ¶ 23. Plaintiff further asserts she was discriminated 2 against, retaliated against, and harassed due to her work-related injuries and her disability. 3 Id. ¶ 26. 4 Plaintiff initiated this action on September 3, 2021, when she filed the Complaint in 5 the Superior Court of the State of California for the County of San Diego. See generally 6 Compl. The Complaint asserts nine claims for violations of California law: (1) 7 discrimination in violation of California Government Code § 12940 et seq.; (2) failure to 8 accommodate in violation of California Government Code § 12940(m); (3) failure to 9 engage in interactive process in violation of California Government Code § 12940(n); (4) 10 age discrimination in violation of California Government Code § 12940 et seq.; (5) 11 race/national origin discrimination in violation of California Government Code § 12940 et 12 seq.; (6) failure to prevent discrimination in violation of California Government Code 13 § 12940(k); (7) retaliation in violation of California Government Code § 12940(h); (8) 14 wrongful termination; and (9) violation of California Business & Professions Code § 17200 15 et seq. (the “UCL”). See generally id. 16 On November 10, 2021, Defendant removed to this District on the basis of diversity 17 jurisdiction and federal enclave jurisdiction. See generally ECF No. 1 (“Notice of 18 Removal”). The same day, Defendant filed the instant Motion. 19 LEGAL STANDARD 20 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 21 defense that the complaint “fail[s] to state a claim upon which relief can be granted,” 22 generally referred to as a motion to dismiss. The Court evaluates whether a complaint 23 states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil 24 Procedure 8(a), which requires a “short and plain statement of the claim showing that the 25 pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual 26 allegations,’ . . . it [does] demand more than an unadorned, the-defendant-unlawfully- 27 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 28 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to 1 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 2 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 3 Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A 4 complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual 5 enhancement.’” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557). 6 To survive a motion to dismiss, “a complaint must contain sufficient factual matter, 7 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 8 Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible 9 when the facts pled “allow the court to draw the reasonable inference that the defendant is 10 liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 11 556). That is not to say that the claim must be probable, but there must be “more than a 12 sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent 13 with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting 14 Twombly, 550 U.S. at 557). This review requires context-specific analysis involving the 15 Court’s “judicial experience and common sense.” Id. at 675 (citation omitted). “[W]here 16 the well-pleaded facts do not permit the court to infer more than the mere possibility of 17 misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is 18 entitled to relief.’” Id. 19 “In reviewing a Rule 12(b)(6) motion to dismiss, a district court must accept as true 20 all facts alleged in the complaint, and draw all reasonable inferences in favor of the 21 plaintiff.” Wi-LAN Inc. v. LG Elecs., Inc., 382 F. Supp. 3d 1012, 1020 (S.D. Cal. 2019) 22 (citing Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 23 945 (9th Cir. 2014)). Where a complaint does not survive 12(b)(6) analysis, the Court will 24 grant leave to amend unless it determines that no modified contention “consistent with the 25 challenged pleading . . . [will] cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 26 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture 27 Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). 28 / / / 1 ANALYSIS 2 Defendant moves to dismiss primarily on the basis that GFS is located on Camp 3 Pendleton, a federal enclave, and thus Plaintiff’s claims are barred under the federal 4 enclave doctrine. See ECF No. 4-1 (“Mot. Mem.”) at 8–11. Alternatively, Defendant 5 argues that Plaintiff’s claims all fail as a matter of law for failure to state a claim. Id. at 6 12–22. Defendant seeks dismissal of Plaintiff’s Complaint with prejudice. Id. at 23.2 7 The Court addresses Defendant’s arguments in turn. 8 I. The Federal Enclave Doctrine 9 As an initial matter, Defendant contends that Plaintiff’s claims are all subject to 10 dismissal pursuant to the federal enclave doctrine. Mot. Mem. at 8. “Under the 11 Constitution, the United States has the power to acquire land from the states for certain 12 specified uses and to exercise exclusive jurisdiction over such lands, which are known as 13 federal enclaves.” Swords to Plowshares v. Kemp, 423 F. Supp. 2d 1031, 1034 (N.D. Cal. 14 2005) (citing Lord v. Local Union No. 2088, Int’l Bhd. of Elec. Workers, 646 F.2d 1057, 15 1059 (5th Cir. 1981)). “Claims due to acts that took place on a federal enclave are under 16 exclusive federal law jurisdiction.” Rosseter v. Indus. Light & Magic, No. C 08-4545 17 WHA, 2009 WL 210452, at *1 (N.D. Cal. Jan. 27, 2009). “However, in order to ensure 18 that no such area is left without a developed legal system for private rights, preexisting 19 state law not inconsistent with federal policy becomes federal law and remains in existence 20 until altered by national legislation.” Snow v. Bechtel Const. Inc., 647 F. Supp. 1514, 1521 21 (C.D. Cal. 1986) (citing Pac. Coast Dairy v. Dep’t of Agriculture of Cal., 318 U.S. 285, 22 294 (1943)). 23 / / / 24 25 2 In her Opposition, Plaintiff states: “Importantly, Defendant made no attempt to meet and confer with 26 Plaintiff’s counsel regarding the substance of its Motion prior to its filing on November 10, 2021.” Opp’n at 2 (emphasis in original). However, while the Civil Local Rules require parties to meet and confer prior 27 to the filing of any discovery motion, there is no such requirement for motions to dismiss. See S.D. Cal. CivLR 21.6(a). Further, Plaintiff was entitled to amend her Complaint as a matter of course rather than 28 1 Here, Defendant argues that “Plaintiff alleges all claims occurred and accrued out of 2 GFS’s Oceanside operations, which is located on Camp Pendleton,” which is and has been 3 a federal enclave since no later than 1942. Mot. Mem. at 8 (citations omitted). Because 4 the California Fair Employment and Housing Act, alleged violations of which underpin 5 Plaintiff’s first seven claims, was not enacted until 1980, Plaintiff’s first seven claims are 6 barred by the federal enclave doctrine. Id. at 8–9. Further, California’s common law claim 7 for wrongful termination in violation of public policy was recognized at the earliest in 8 1959, so Plaintiff’s eighth claim also is barred by the federal enclave doctrine. Id. at 9–10. 9 To the extent Plaintiff seeks restitution under the UCL, such relief was not available under 10 the predecessor statute at the time Camp Pendleton became a federal enclave, thus barring 11 that claim for relief. Id. at 10–11. Finally, because FEHA was not in existence in 1942, 12 the right to attorneys’ fees under FEHA did not exist at the time Camp Pendleton became 13 a federal enclave, either, thus necessitating the dismissal of Plaintiff’s request for fees. Id. 14 at 11. 15 Plaintiff counters that “Defendant ignores the fact that the Complaint does not allege 16 that Plaintiff worked at Camp Pendleton” and that Defendant therefore improperly “relies 17 upon its own Declaration of Clifford Guzman,” filed in support of its Notice of Removal, 18 to support this request. Opp’n at 4–5. At any rate, Plaintiff argues that her claims fall 19 within an exception to the federal enclave doctrine codified in 28 U.S.C. § 5001. Id. at 5– 20 6. Finally, to the extent the Court finds the federal enclave doctrine bars Plaintiff’s claims, 21 Plaintiff requests leave to amend to assert her claims as federal causes of action. Id. at 6– 22 7. 23 In its Reply, Defendant argues that Plaintiff cannot avoid the application of the 24 federal enclave doctrine by artfully pleading to avoid mention of Camp Pendleton. Reply 25 at 3. Defendant argues that Plaintiff’s workplace—Camp Pendleton—forms “the basis of 26 plaintiff’s claim,” and therefore the Guzman Declaration submitted in support of the Notice 27 of Removal is properly incorporated by reference. Id. at 4. Further, Defendant argues that 28 the section 5001 exception to the federal enclave doctrine only applies to physical injuries; 1 because Plaintiff only alleges emotional distress, her claims do not fall within the exception 2 and are subject to dismissal. Id. at 5–6. 3 Although the Court finds it proper to take judicial notice of the fact that Camp 4 Pendleton is a federal enclave, see Jamil v. Workforce Res., LLC, No. 18-CV-27-JLS 5 (NLS), 2018 WL 2298119, at *2 (S.D. Cal. May 21, 2018) (citing Shurow v. Gino Morena 6 Enters., LLC, No. 3:16-cv-2844-L-KSC (S.D. Cal. 2017); Stiefel v. Bechtel Corp., 497 F. 7 Supp. 2d 1138, 1147 (S.D. Cal. 2007)), the Court finds that it is unable to determine, at this 8 early point in the proceedings, whether the federal enclave doctrine bars Plaintiff’s claims. 9 The Court declines, at this preliminary stage of the litigation, to convert this Motion to a 10 motion for summary judgment or partial summary judgment under Federal Rule of Civil 11 Procedure 56. See Powell v. Tessada & Assocs., Inc., No. C 04-05254 JF, 2005 WL 12 578103, at *1 (N.D. Cal. Mar. 10, 2005). That being so, while “[t]he Court may ‘look[ ] 13 beyond the face of the complaint’ to determine whether the complaint is ‘artfully pleaded’ 14 to avoid federal jurisdiction,” Jamil v. Workforce Res., LLC, No. 18-CV-27-JLS (NLS), 15 2018 WL 2298119, at *4 (S.D. Cal. May 21, 2018) (citing Young v. Anthony’s Fish 16 Grottos, Inc., 830 F.2d 993, 997 (9th Cir. 1987)), “neither the complaint nor the facts over 17 which this court takes judicial notice indicate where the events underlying this action 18 occurred,” Zuniga v. Chugach Maint. Servs., No. CVF060048AWILJO, 2006 WL 769317, 19 at *6 (E.D. Cal. Mar. 24, 2006). 20 The Complaint only states that the claims “occurred and accrued in the County of 21 San Diego, State of California.” Compl. ¶ 9. Camp Pendleton is not referenced. While 22 the Declaration of Clifford Guzman (“Guzman Decl.,” ECF No. 1-3) states that, “[b]ased 23 on my review of the information contained in the personnel file for Plaintiff, . . . Plaintiff 24 worked for GFS at Camp Pendleton,” id. ¶ 7, it does not go so far as to state that Plaintiff 25 worked exclusively out of premises located within Camp Pendleton, or that all, or even a 26 substantial portion of, the relevant events occurred on Camp Pendleton. Further, the 27 exhibits to the Guzman Declaration do not convince this Court that the claims necessarily 28 arose from actions that took place on Camp Pendleton, given that Defendant’s California 1 street address specified in the Statement of Information filed with the California Secretary 2 of State does not appear to be within the confines of Camp Pendleton. See Guzman Decl. 3 Ex. B. Accordingly, to the extent Defendant argues that Plaintiff’s claims must be 4 dismissed pursuant to the federal enclave doctrine, the Court DENIES the Motion. Given 5 this determination, the Court need not reach the question of whether Plaintiff’s claims fall 6 within the 28 U.S.C. § 5001 exception to the federal enclave doctrine. 7 II. Sufficiency of Discrimination Claims (Claims 1, 4, and 5) 8 Defendant argues that Plaintiff’s claims premised on allegedly discriminatory acts 9 fail as a matter of law “[i]n light of the infrequent, minor, and non-actionable conduct of 10 GFS combined with Plaintiff’s allegations of GFS’s valid reasons for reprimanding her.” 11 Mot. Mem. at 14. Plaintiff counters that her claims are adequately pleaded. Opp’n at 8– 12 11. 13 “To establish a prima facie case of disability discrimination under FEHA, a plaintiff 14 must show ‘(1) [she] suffers from a disability; (2) [she] is otherwise qualified to do [her] 15 job; and, (3) [she] was subjected to adverse employment action because of [her] 16 disability.’” Martinez v. Costco Wholesale Corp., 481 F. Supp. 3d 1076, 1090 (S.D. Cal. 17 2020) (quoting Faust v. Cal. Portland Cement Co., 150 Cal. App. 4th 864 (2007)). “To 18 state a prima facie case of race or age discrimination under FEHA, a plaintiff must show 19 that: ‘(1) [she] was a member of a protected class, (2) [she] was qualified for the position 20 [she] sought or was performing competently in the position [she] held, (3) [she] suffered 21 an adverse employment action . . . , and (4) some other circumstance suggests 22 discriminatory motive.’” Chisolm v. 7-Eleven, Inc., 383 F. Supp. 3d 1032, 1059 (S.D. Cal. 23 2019) (quoting Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089, 1113(Cal. 2000)), aff’d, 814 F. 24 App’x 194 (9th Cir. 2020). 25 “California defines adverse employment actions as those ‘materially affect[ing] the 26 terms, conditions, or privileges of employment.’” Flores v. City of Westminster, 873 F.3d 27 739, 748 (9th Cir. 2017) (quoting Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1052 28 (2005)). “[T]he phrase ‘terms, conditions, or privileges’ of employment must be 1 interpreted liberally and with a reasonable appreciation of the realities of the workplace in 2 order to afford employees the appropriate and generous protection against employment 3 discrimination that the FEHA was intended to provide.” Id. (quoting Yanowitz, 36 Cal. 4th 4 at 1054) (internal quotation marks omitted). 5 “Among those employment decisions that can constitute an adverse employment 6 action are termination[.]” Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) 7 (citations omitted). Accordingly, to the extent Defendant argues that the actions of which 8 Plaintiff complains are “minor” or “non-actionable,” see Mot. Mem. at 14, Defendant is 9 focusing on certain conduct alleged in the Complaint to the exclusion of others. Further, 10 while Plaintiff’s Complaint acknowledges the reasons Defendant gave for some of its 11 conduct—for example, accusing Plaintiff of “faking it” when she requested time off for 12 illness and accordingly “writ[ing her] up,” Compl. ¶ 21—the Court can and does plausibly 13 infer, based on the facts alleged in the Complaint, that Plaintiff contends that these reasons 14 were pretextual. Whether or not Defendant in fact had “valid reasons for reprimanding 15 [Plaintiff],” Mot. Mem. at 14, is a determination for the trier of fact to make at a later stage 16 in the proceedings. 17 Plaintiff alleges that she suffered from one or more legally cognizable disabilities, 18 see Compl. ¶¶ 14–15, 24, 30; see, e.g., Wilfong v. Tharco Packaging, Inc., 671 F. App’x 19 549, 549 (9th Cir. 2016) (recognizing gout and arthritis could limit major life activities of 20 working and walking); Kailikole v. Palomar Cmty. Coll. Dist., 384 F. Supp. 3d 1185, 1193 21 (S.D. Cal. 2019) (“Anxiety, nervousness, depression, helplessness, and panic attacks could, 22 as a matter of law, meet the definition of mental disability even under the ‘substantial 23 limitation’ standard.”) (citation omitted); that she was otherwise qualified to hold her 24 position and able to perform the essential duties thereof, see Compl. ¶¶ 11, 32; and that 25 Defendant took numerous adverse actions against her—including, ultimately, 26 termination—as a result of Plaintiff’s disability, see id. ¶¶ 25, 35. Accordingly, Plaintiff 27 has adequately pleaded, at this early stage in the proceedings, a claim for disability 28 discrimination and the Court DENIES Defendant’s Motion as to Plaintiff’s first claim. 1 As to Plaintiff’s claims for age and race/national origin discrimination, Plaintiff 2 states that she is a Black woman in her fifties. Id. ¶¶ 10, 20.3 Accordingly, she is a member 3 of a protected class both with regards to her age discrimination claim, see id. ¶¶ 75–76 4 (citing Cal. Gov’t Code §§ 12940(a), 12941), and her race/national origin claim, see id. 5 ¶¶ 90–91 (citing Cal. Gov’t Code § 12900 et seq.). Plaintiff pleads that she was qualified 6 to hold her position and performing competently in her position. See id. ¶¶ 79, 94. She 7 again alleges that she was terminated because of her membership in the protected classes, 8 which, as noted supra, can constitute an adverse employment action. See id. ¶¶ 80, 95. 9 Accordingly, Plaintiff satisfactorily pleads the first three elements of her age and 10 race/national origin discrimination claims. 11 As to the final element, whether some other circumstance suggests a discriminatory 12 motive, “[a] plaintiff satisfies this prong by plausibly alleging similarly situated individuals 13 outside [her] protected class were treated more favorably or by plausibly alleging other 14 circumstances surrounding the adverse employment action gives rise to an inference of 15 discrimination.” Smith v. W.W. Grainger, Inc., No. EDCV181405JGBSPX, 2019 WL 16 1670942, at *3 (C.D. Cal. Feb. 5, 2019) (citing Pleasant v. Autozone, Inc., 2013 WL 17 3121360, at *6 (C.D. Cal. June 19, 2013)). 18 Here, while Plaintiff pleads that “Defendant’s Black employees who previously held 19 Plaintiff’s position have resigned due to the unbearable indignity, harassment, and 20 discrimination in this hostile work environment,” id. ¶ 23, and alleges, on information and 21 belief, “that Plaintiff was replaced with an employee below the age of 40,” id. ¶ 77, Plaintiff 22 fails to plead concrete facts tending to show that other Black employees were terminated 23 on the basis of their race, or that Plaintiff’s non-Black and/or substantially younger work 24 colleagues were treated more favorably—i.e., not terminated—because they were outside 25 26 27 3 Later, the Complaint alleges that “Plaintiff identifies as Hispanic,” id. ¶ 92, but also refers to Plaintiff as “he,” see id. ¶ 94, and “him,” id. ¶ 102. Accordingly, the Court assumes that the later references to Plaintiff 28 1 Plaintiff’s protected class(es). Accordingly, the Court finds that Plaintiff has failed to 2 adequately plead the fourth element of her age and race/national origin discrimination 3 claims and GRANTS Defendant’s Motion as to Plaintiff’s fourth and fifth claims. 4 III. Sufficiency of Failure to Accommodate Claim (Claim 2) 5 Defendant contends that Plaintiff’s claim for failure to accommodate must be 6 dismissed because Plaintiff’s allegations are inconsistent in that Plaintiff claims that 7 Defendant accommodated her disability but later claims Defendant did not accommodate 8 her. Mot. Mem. at 14–15 (citing Compl. ¶¶ 11, 25). Defendant argues that the Court can 9 and should disregard Plaintiff’s inconsistent allegations, thereby rendering Plaintiff’s claim 10 defective. Id. at 15 (citations omitted). Plaintiff counters that “Defendant blatantly 11 misrepresents the allegations of Plaintiff’s Complaint,” and “at no point in her Complaint 12 does Plaintiff allege that she was accommodated by Defendant.” Opp’n at 12. Defendant 13 responds that if Plaintiff “require[d]” light duty since 2007, and Plaintiff worked for 14 thirteen years with Defendant, “by Plaintiff’s own allegations, GFS accommodated her.” 15 Reply at 8–9. 16 “The elements of a failure to accommodate claim are (1) the plaintiff has a disability 17 under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the 18 position, and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” 19 Chisolm, 383 F. Supp. 3d at 1054 (quoting Lui v. City & Cnty. of San Francisco, 211 Cal. 20 App. 4th 962 (2012)). “A reasonable accommodation is ‘a modification or adjustment to 21 the workplace that enables the employee to perform the essential functions of the job held 22 or desired.’” Id. (citing Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952 23 (2008); Taylor v. Trees, Inc., 58 F. Supp. 3d 1092, 1111 (E.D. Cal. 2014)). 24 The Court finds that Plaintiff has adequately pleaded her claim. As noted supra, 25 Plaintiff states that she suffered from several potentially disabling conditions under FEHA, 26 including arthritis and work-related stress and anxiety. See Compl. ¶¶ 14–15, 24, 30. She 27 pleads that she was qualified to perform the essential functions of her job. Id. ¶ 48. And 28 she pleads that Defendant failed to reasonably accommodate her disabilities, instead 1 making her work even harder. Id. ¶¶ 16–17, 24–25, 47. Whether or not Defendant may 2 have accommodated Plaintiff’s disability and need for light duty based on her arthritis 3 during Plaintiff’s first thirteen years of duty, see Reply at 8–9, Plaintiff’s allegations make 4 clear that subsequent requests for accommodation were rejected. This is not, as Defendant 5 contends, contradictory. Accordingly, the Court DENIES Defendant’s Motion as to 6 Plaintiff’s second claim. 7 IV. Sufficiency of Failure to Engage in Interactive Process Claim (Claim 3) 8 Defendant argues that Plaintiff’s claim for failure to engage in interactive process 9 fails for the same reason her failure to accommodate claim fails—namely, because 10 “Plaintiff alleges that GFS accommodated Plaintiff beginning in 2007, when it placed her 11 on light duty,” then “GFS, in fact, engaged in the interactive process and accommodated 12 Plaintiff.” Mot. Mem. at 16–17. Defendant contends that any inconsistent allegations to 13 the contrary should be disregarded. Id. Plaintiff objects to this argument on the basis that 14 she never alleges Defendant accommodated her. Opp’n at 12–13. 15 “Under the FEHA, it is unlawful for an employer to ‘fail to engage in a timely, good 16 faith, interactive process with the employee . . . to determine effective reasonable 17 accommodations, if any, in response to a request for reasonable accommodation by an 18 employee or applicant with a known physical or mental disability or known medical 19 condition.’” Martinez, 481 F. Supp. 3d at 1098 (quoting Cal. Gov. Code § 12940(n)). “The 20 duty to engage in the interactive process is generally ‘triggered upon notification of the 21 disability and the desire for accommodation.’” Id. (quoting Vinson v. Thomas, 288 F.3d 22 1145, 1154 (9th Cir. 2002)). 23 For the reasons provided supra, the Court finds that Plaintiff adequately pleads her 24 failure to accommodate claim. Further, Plaintiff alleges that Defendant was aware of her 25 disabilities and failed and refused to engage in the interactive process. Compl. ¶¶ 61–62, 26 26. Accordingly, the Court finds that Plaintiff has stated a plausible claim for failure to 27 engage in the interactive process and DENIES Defendant’s Motion as to Plaintiff’s third 28 claim. 1 V. Sufficiency of Failure to Prevent Discrimination Claim (Claim 6) 2 Defendant contends that, because Plaintiff’s discrimination claims fail, so too must 3 the derivative failure to prevent claim. Mot. Mem. at 17–18. Although Plaintiff does not 4 directly address this claim in her Opposition, as noted supra, she argues that her 5 discrimination claims are adequately pleaded. See Opp’n at 8–11. 6 “A plaintiff seeking to recover on a failure to prevent discrimination claim under 7 FEHA must show that (1) [she] was subjected to discrimination; (2) defendant failed to 8 take all reasonable steps to prevent discrimination; and (3) this failure caused plaintiff to 9 suffer injury, damage, loss or harm.” Ravel v. Hewlett-Packard Enter., Inc., 228 F. Supp. 10 3d 1086, 1098 (E.D. Cal. 2017) (quoting Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 11 804 (N.D. Cal. 2015)). “Employers should not be held liable to employees for failure to 12 take necessary steps to prevent [discrimination], except where the actions took place and 13 were not prevented.” Trujillo v. N. Cnty. Transit Dist., 63 Cal. App. 4th 280, 289 (1998), 14 as modified (May 12, 1998). Thus, if a plaintiff’s discrimination claim is defective, “[her] 15 claim for failure to prevent discrimination and retaliation ‘must also fail.’” Chisolm, 383 16 F. Supp. 3d at 1069 (citations omitted). However, the converse is also true: a plaintiff who 17 adequately pleads a claim for discrimination “therefore adequately plead[s] the requisite 18 foundation of discrimination required for a [failure to prevent discrimination] claim.” 19 Achal, 114 F. Supp. 3d at 804. 20 For the reasons provided supra, the Court finds that Plaintiff has adequately pleaded 21 a claim for disability discrimination in violation of FEHA, and thus the first element of her 22 failure to prevent discrimination claim. Plaintiff also alleges that Defendant failed to 23 prevent or remedy the disability discrimination Plaintiff faced. Compl. ¶ 106. Finally, 24 Plaintiff claims that Defendant’s failures in this regard caused her to suffer both economic 25 and emotional harm. Id. ¶¶ 107–08. Accordingly, the Court finds that Plaintiff has also 26 stated a plausible claim for failure to prevent discrimination and DENIES Defendant’s 27 Motion as to Plaintiff’s sixth claim. 28 / / / 1 VI. Sufficiency of Retaliation Claim (Claim 7) 2 Defendant argues that the retaliation claim is defective “because the vast majority of 3 the allegedly retaliatory acts simply do not rise to the level of retaliation as a matter of 4 law.” Mot. Mem. at 18. “To establish a prima facie case of retaliation under FEHA, a 5 plaintiff must demonstrate that: (1) [she] engaged in a protected activity, (2) [her] employer 6 subjected [her] to an adverse employment action, and (3) there is a causal link between the 7 protected activity and the employer’s action.” Chisolm, 383 F. Supp. 3d at 1065–66 8 (citation omitted). 9 Here, Plaintiff alleges that she complained to her supervisor, Dante, that Defendant 10 was supposed to assign her modified duties because of her disability, see Compl. ¶ 16, and 11 that she filed at least four grievances complaining about discrimination, id. ¶ 18; 12 accordingly, Plaintiff adequately pleads the first element of her retaliation claim, as 13 “opposing discrimination or other conduct made unlawful by FEHA is a protected 14 activity.” Smith v. W.W. Grainger, Inc., No. EDCV181405JGBSPX, 2019 WL 1670942, 15 at *4 (C.D. Cal. Feb. 5, 2019) (citing Cal. Gov’t Code § 12940(h)). Further, as noted supra, 16 termination of employment can rise to the level of an adverse employment action. Finally, 17 Plaintiff alleges that Defendant refused to engage in the interactive process and ultimately 18 terminated her as a result of “her requests for disability accommodations, requests for 19 FMLA, filing/perceived filing for workers’ compensation, and complaints to Defendant 20 about harassing and discriminatory acts being committed against Plaintiff.” Compl. ¶ 115. 21 Accordingly, the Court concludes that Plaintiff has adequately pleaded a claim for 22 retaliation in violation of FEHA and DENIES Defendant’s Motion as to Plaintiff’s seventh 23 claim. 24 VII. Sufficiency of Wrongful Termination Claim (Claim 8) 25 Defendant asserts that the wrongful termination claim must be dismissed because 26 “[Plaintiff] alleges GFS had valid, non-discriminatory reasons for terminating her and thus 27 any alleged violation of public policy was not a substantial motivating factor in her 28 termination.” Mot. Mem. at 20. Further, Defendant contends that, “by her own account, 1 Plaintiff suffered no wrongful termination.” Id. at 21. Plaintiff, however, claims that 2 “Defendant’s har[]assment, demotion, and ultimately termination of Plaintiff was based 3 upon wanting to get rid of her due to her disability, requests for accommodation and FMLA 4 leave, as well as her age (53 years old) and race/national origin.” Opp’n at 14. Plaintiff 5 argues that “the progression of events and Dante’s direct instructions leading to termination 6 are more than sufficient to establish a ‘substantial motivating reason’ for Plaintiff’s 7 termination.” Id. Defendant counters that “the suspicious timing argument is undermined 8 by the slew of non-discriminatory reasons Plaintiff pleads for her termination.” Reply at 9 9. 10 “The elements of a claim for wrongful discharge in violation of public policy are (1) 11 an employer-employee relationship, (2) the employer terminated the plaintiff’s 12 employment, (3) the termination was substantially motivated by a violation of public 13 policy, and (4) the discharge caused the plaintiff harm.” Yau v. Santa Margarita Ford, 14 Inc., 229 Cal. App. 4th 144, 154 (2014) (citing Haney v. Aramark Unif. Servs., Inc., 121 15 Cal. App. 4th 623, 641 (2004)). 16 The Court finds that Plaintiff satisfactorily pleads these elements to survive the 17 instant Motion. Plaintiff alleges an employer-employee relationship, see Compl. ¶ 10, and 18 the termination of her employment, see id. ¶ 25. Plaintiff alleges that “Defendant 19 wrongfully terminated Plaintiff, in blatant retaliation for her requests for accommodation, 20 FMLA, and due to Plaintiff’s age, race, national origin, and disability.” Id. ¶ 25. Plaintiff 21 alleges that her wrongful termination violated the State’s public policies that “make[] it 22 illegal for an employer to prohibit an employee from discussing their working conditions,” 23 id. ¶ 122 (citing Cal. Lab. Code § 232.5); “protect[] an employee’s right to complain of 24 unsafe working conditions,” id. ¶ 123 (citing Cal. Lab. Code § 6310); “require[] employers 25 to provide a work environment that is safe for its employees,” id. ¶ 124 (citing Cal. Lab. 26 Code § 6400); and “prohibit[] forms of discrimination against protected classes of 27 employees,” id. ¶ 125 (citing Cal. Gov’t Code § 12940 et seq.). Plaintiff alleges “that a 28 determining and motivating factor in Defendants’ [sic] decision to terminate Plaintiff was 1 the desire to retaliate against her” due to her disability and protected activities, id. ¶ 126, 2 and that Defendant’s actions “resulted in damage and injury to Plaintiff,” id. ¶ 127. For 3 the reasons noted supra, the Court rejects Defendant’s claim that Plaintiff has pleaded non- 4 discriminatory reasons for Plaintiff’s termination and that therefore Plaintiff’s termination 5 necessarily was not wrongful. Accordingly, the Court DENIES Defendant’s Motion as to 6 Plaintiff’s eighth claim. 7 VIII. Sufficiency of Unfair Business Practices Claim (Claim 9) 8 Defendant argues that Plaintiff’s unfair business practices claim is derivative of her 9 other claims, and therefore fails as a matter of law. Mot. Mem. at 21–22. However, 10 because the Court has found, for the reasons provided supra, that at least some of Plaintiff’s 11 claims survive the instant Motion, the Court finds that Plaintiff has alleged that Defendant 12 engaged in unfair business practices and DENIES Defendant’s Motion as to Plaintiff’s 13 ninth claim. See, e.g., Martin v. Wells Fargo Bank, Nat’l Ass’n, No. 14 SACV110037AGMLGX, 2011 WL 13225204, at *8 (C.D. Cal. June 20, 2011). 15 IX. Leave to Amend 16 Plaintiff requests leave to amend should the Court grant any portion of Defendant’s 17 Motion. See Opp’n at 15–16. Plaintiff further notes that the allegations in her Complaint 18 “constitute valid Federal causes of action under the rules of the Equal Employment 19 Opportunity Commission (“EEOC”) at 42 U.S.C. § 2000e, et seq. and the Americans with 20 Disabilities Act at 42 U.S.C. § 12101, et seq.” Id. at 6. Accordingly, to the extent the 21 Court determines that the federal enclave doctrine applies, Plaintiff argues that leave to 22 amend should be allowed to plead corresponding federal causes of action. Id. at 7. 23 Defendant argues that, having brought her claims under California law, “Plaintiff ‘does not 24 dispute the fact that all of her causes of action are based on California state laws that either 25 postdate Camp Pendleton’s enclave status or are inconsistent with federal law,’” and 26 accordingly dismissal with prejudice is appropriate. Reply at 9 (citing Shurow v. Gino 27 Morena Enters., LLC, No. 3:16-CV-02844-L-KSC, 2017 WL 1550162, at *2, *4 (S.D. Cal. 28 May 1, 2017)). l Because the Court finds it possible that Plaintiff could cure the pleading defects 2 ||identified above as to any dismissed claims, the Court GRANTS Plaintiff's request for 3 leave to amend. However, “[g]iven the fact [Plaintiff's claims] may well [have arisen on] 4 ||a federal enclave, the court [also] will allow Defendant an additional opportunity to raise 5 issue.” Zuniga, 2006 WL 769317, at *8. Accordingly, the Court also grants Plaintiff 6 || the opportunity she requests to restate her state law claims under federal law. “When filing 7 amended complaint or further motions, the parties are cautioned to review this 8 || order[ and] the federal enclave doctrine,” and “[t]he parties are advised that all pleadings 9 || must be based upon a well-founded belief that a cognizable or arguable legal theory exists 10 || that would support the pleading.” /d. at *11 (citing Fed. R. Civ. P. 11; Les Shockley Racing 11 v. Nat'l Hot Rod Ass’n, 884 F.2d 504, 510 (9th Cir. 1989)). 12 CONCLUSION 13 In light of the foregoing, the Court GRANTS IN PART AND DENIES IN PART 14 || Defendant’s Motion to Dismiss (ECF No. 4). Specifically, the Court GRANTS 15 || Defendant’s Motion as to the Complaint’s fourth and fifth claims for age and race/national 16 origin discrimination, respectively, which are DISMISSED WITHOUT PREJUDICE. 17 || The Court otherwise DENIES Defendant’s Motion. 18 Plaintiff MAY FILE an amended complaint within thirty (30) days of the electronic 19 || docketing of this Order. Should Plaintiff elect to file an amended complaint, it must cure 20 || the deficiencies noted herein and must be complete in itself without reference to □□□□□□□□□□□ 21 || prior complaint. See S.D. Cal. CivLR 15.1. Any claims not realleged in the amended 22 ||complaint will be considered waived. See Lacey v. Maricopa Cnty., 693 F.3d 896, 925, 23 ||928 (9th Cir. 2012). 24 IT IS SO ORDERED. 25 Dated: June 14, 2022 . tt 26 pee Janis L. Sammartino 17 United States District Judge 28