1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRANDON LYNCH, No. 2:22-cv-01908-TLN-DMC 12 Plaintiff, 13 v. ORDER 14 ULTA SALON, COSMETICS & FRAGRANCE, INC., 15 Defendant. 16
17 18 This matter is before the Court on Defendant Ulta Salon, Cosmetics & Fragrance, Inc.’s 19 (“Defendant”) Motion to Dismiss. (ECF No. 14.) Plaintiff Brandon Lynch (“Plaintiff”) filed an 20 opposition. (ECF No. 17.) Defendant filed a reply. (ECF No. 21.) For the reasons set forth 21 below, the Court hereby GRANTS Defendant’s motion. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff is Defendant’s former employee. (ECF No. 11 at 2, ¶ 5.) On or about May 8, 3 2021, Plaintiff informed Defendant he was not feeling well and that he would like “a few days 4 off” from work. (Id. at 2, ¶ 6.) Between May 8 and May 10, 2021, Plaintiff alleges he “was 5 informed and believe[d] that he was suffering from symptoms of COVID-19 including but not 6 limited to fatigue and nausea.” (Id. at 2, ¶ 7.) On May 10, 2021, Plaintiff requested an additional 7 seven days off work. (Id. at 2, ¶¶ 7–8.) Defendant responded to Plaintiff’s request for additional 8 sick time with a text message that stated, “we have decided to accept your resignation effective 9 today.” (Id. at 2, ¶ 9.) Defendant terminated Plaintiff’s employment on May 10, 2023. (Id.) 10 On November 15, 2022, Plaintiff filed the operative First Amended Complaint (“FAC”), 11 alleging seven causes of action related to his employment with Defendant. (Id. at 2-14.) On 12 November 29, 2022, Defendant filed the instant motion to dismiss Claims Two and Three 13 pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). (ECF No. 14.) 14 II. STANDARD OF LAW 15 A Rule 12(b)(6) motion tests the legal sufficiency of a complaint. Navarro v. Block, 250 16 F.3d 729, 732 (9th Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain 17 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a); see also 18 Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). Under notice pleading in federal court, the 19 complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon 20 which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and 21 quotations omitted). “This simplified notice pleading standard relies on liberal discovery rules 22 and summary judgment motions to define disputed facts and issues and to dispose of 23 unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 24 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 25 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the benefit of every 26 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 27 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 28 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 1 relief.” Twombly, 550 U.S. at 570 (internal citation omitted). 2 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 3 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 4 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 5 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 6 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 7 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 8 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 9 statements, do not suffice.”). Thus, “[c]onclusory allegations of law and unwarranted inferences 10 are insufficient to defeat a motion to dismiss” for failure to state a claim. Adams v. Johnson, 355 11 F.3d 1179, 1183 (9th Cir. 2004) (citations omitted). Moreover, it is inappropriate to assume the 12 plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws 13 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 14 Council of Carpenters, 459 U.S. 519, 526 (1983). 15 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 16 facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim 17 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 18 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 19 680. While the plausibility requirement is not akin to a probability requirement, it demands more 20 than “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility 21 inquiry is “a context-specific task that requires the reviewing court to draw on its judicial 22 experience and common sense.” Id. at 679. Thus, only where a plaintiff fails to “nudge [his or 23 her] claims . . . across the line from conceivable to plausible[,]” is the complaint properly 24 dismissed. Id. at 680 (internal quotations omitted). 25 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 26 amend even if no request to amend the pleading was made, unless it determines that the pleading 27 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 28 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). 1 III. ANALYSIS 2 A. Claim Two 3 In Claim Two, Plaintiff alleges Defendant retaliated against him in violation of Labor 4 Code § 98.6 (“§ 98.6”) because he used sick leave and/or COVID-19 supplemental paid sick 5 leave as afforded to him by Labor Code §§ 246, 248.6, 248.7 and 6409.6. (ECF No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRANDON LYNCH, No. 2:22-cv-01908-TLN-DMC 12 Plaintiff, 13 v. ORDER 14 ULTA SALON, COSMETICS & FRAGRANCE, INC., 15 Defendant. 16
17 18 This matter is before the Court on Defendant Ulta Salon, Cosmetics & Fragrance, Inc.’s 19 (“Defendant”) Motion to Dismiss. (ECF No. 14.) Plaintiff Brandon Lynch (“Plaintiff”) filed an 20 opposition. (ECF No. 17.) Defendant filed a reply. (ECF No. 21.) For the reasons set forth 21 below, the Court hereby GRANTS Defendant’s motion. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff is Defendant’s former employee. (ECF No. 11 at 2, ¶ 5.) On or about May 8, 3 2021, Plaintiff informed Defendant he was not feeling well and that he would like “a few days 4 off” from work. (Id. at 2, ¶ 6.) Between May 8 and May 10, 2021, Plaintiff alleges he “was 5 informed and believe[d] that he was suffering from symptoms of COVID-19 including but not 6 limited to fatigue and nausea.” (Id. at 2, ¶ 7.) On May 10, 2021, Plaintiff requested an additional 7 seven days off work. (Id. at 2, ¶¶ 7–8.) Defendant responded to Plaintiff’s request for additional 8 sick time with a text message that stated, “we have decided to accept your resignation effective 9 today.” (Id. at 2, ¶ 9.) Defendant terminated Plaintiff’s employment on May 10, 2023. (Id.) 10 On November 15, 2022, Plaintiff filed the operative First Amended Complaint (“FAC”), 11 alleging seven causes of action related to his employment with Defendant. (Id. at 2-14.) On 12 November 29, 2022, Defendant filed the instant motion to dismiss Claims Two and Three 13 pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). (ECF No. 14.) 14 II. STANDARD OF LAW 15 A Rule 12(b)(6) motion tests the legal sufficiency of a complaint. Navarro v. Block, 250 16 F.3d 729, 732 (9th Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain 17 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a); see also 18 Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). Under notice pleading in federal court, the 19 complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon 20 which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and 21 quotations omitted). “This simplified notice pleading standard relies on liberal discovery rules 22 and summary judgment motions to define disputed facts and issues and to dispose of 23 unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 24 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 25 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the benefit of every 26 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 27 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 28 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 1 relief.” Twombly, 550 U.S. at 570 (internal citation omitted). 2 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 3 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 4 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 5 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 6 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 7 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 8 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 9 statements, do not suffice.”). Thus, “[c]onclusory allegations of law and unwarranted inferences 10 are insufficient to defeat a motion to dismiss” for failure to state a claim. Adams v. Johnson, 355 11 F.3d 1179, 1183 (9th Cir. 2004) (citations omitted). Moreover, it is inappropriate to assume the 12 plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws 13 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 14 Council of Carpenters, 459 U.S. 519, 526 (1983). 15 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 16 facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim 17 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 18 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 19 680. While the plausibility requirement is not akin to a probability requirement, it demands more 20 than “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility 21 inquiry is “a context-specific task that requires the reviewing court to draw on its judicial 22 experience and common sense.” Id. at 679. Thus, only where a plaintiff fails to “nudge [his or 23 her] claims . . . across the line from conceivable to plausible[,]” is the complaint properly 24 dismissed. Id. at 680 (internal quotations omitted). 25 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 26 amend even if no request to amend the pleading was made, unless it determines that the pleading 27 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 28 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). 1 III. ANALYSIS 2 A. Claim Two 3 In Claim Two, Plaintiff alleges Defendant retaliated against him in violation of Labor 4 Code § 98.6 (“§ 98.6”) because he used sick leave and/or COVID-19 supplemental paid sick 5 leave as afforded to him by Labor Code §§ 246, 248.6, 248.7 and 6409.6. (ECF No. 11 at 4.) 6 Section 98.6(a) states 7 A person shall not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against any 8 employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, 9 including the conduct described in subdivision (k) of Section 96, and Chapter 5 (commencing with Section 1101) of Part 3 of Division 2, 10 or because the employee or applicant for employment has filed a bona fide complaint or claim or instituted or caused to be instituted 11 any proceeding under or relating to his or her rights that are under the jurisdiction of the Labor Commissioner, made a written or oral 12 complaint that he or she is owed unpaid wages, or because the employee has initiated any action or notice pursuant to Section 2699, 13 or has testified or is about to testify in a proceeding pursuant to that section, or because of the exercise by the employee or applicant for 14 employment on behalf of himself, herself, or others of any rights afforded him or her. 15 16 In moving to dismiss, Defendant argues Plaintiff fails to allege he engaged in “protected 17 conduct” within the meaning of § 98.6 because there are no allegations Plaintiff complained about 18 unpaid wages or Labor Code violations during his employment. (ECF No. 14-1 at 5.) In 19 opposition, Plaintiff cites Grinzi v. San Diego Hospice Corp., 120 Cal. App. 4th 72 (2004), to 20 support the contention that § 98.6 broadly prohibits terminations for the exercise of “any rights” 21 protected by the Labor Code, such as using sick leave. (ECF No. 17 at 6.) 22 Neither party provides authority directly on point. While Grinzi does seem to suggest that 23 § 98.6 should be interpreted broadly, the plaintiff in Grinzi did not allege a § 98.6 claim. Rather, 24 she brought a wrongful termination in violation of public policy claim, alleging she was 25 terminated because of her membership in an investment group that met outside of working hours. 26 120 Cal. App. 4th at 78. The Grinzi court only examined § 98.6 to decide whether it supported 27 the existence of a “public policy against termination for lawful conduct during nonworking 28 hours.” Id. at 84–85. Not only is Grinzi procedurally different than the instant case, but it also 1 did not address the specific question of whether using sick leave constitutes “protected conduct” 2 within the meaning of § 98.6. In short, although Plaintiff cites various Labor Code violations as 3 the basis for Claim Two, he fails to adequately explain how those violations — even if 4 sufficiently alleged — constitute “protected conduct” under § 98.6. 5 For its part, Defendant fails to cite authority to support its argument that “protected 6 conduct” is limited to complaints about unpaid wages or Labor Code violations. However, most, 7 if not all, of the cases the parties cite involve retaliation for some type of complaint or 8 whistleblowing. See Moreno v. UtiliQuest, LLC, 29 F.4th 567, 575 (9th Cir. 2022) (dismissing 9 plaintiff’s retaliatory whistleblowing claim on his employer’s anti-union activities because 10 plaintiff did not begin a formal complaint with the Labor Commission); Alabado v. French 11 Concepts, No. CV 15–2830 FMO (AJWx), 2016 WL 5929247 at *10 (C.D. Cal. May 2, 2016) 12 (finding a § 98.6 violation because the plaintiffs began the process of filing a whistleblower 13 complaint with the Labor Commission); Hollie v. Concentra Health Services, Inc., No. C 10– 14 5197 PJH, 2012 WL 993522 at *5 (N.D. Cal. Mar. 23, 2016) (reasoning an employee 15 complaining to company superiors of labor practices — without further action — and refusing to 16 come to work do not constitute “protected conduct” under § 98.6). 17 Based on the limited authority on this issue and the lack of meaningful analysis by 18 Plaintiff, the Court concludes Plaintiff fails to allege he engaged in “protected conduct” within the 19 meaning of § 98.6. Accordingly, the Court GRANTS Defendant’s motion to dismiss Claim Two 20 with leave to amend. 21 B. Claim Three 22 In Claim Three, Plaintiff alleges Defendant retaliated against him for being ordered to 23 quarantine or isolate in violation of Labor Code § 6409.6 (“§ 6409.6”). (ECF No. 11 at 6.) 24 Section 6409.6 states in relevant part, “[an] employer shall not retaliate against a worker for 25 disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate.” Lab. Code § 26 6409.6(j). 27 Defendant moves to dismiss Claim Three for three reasons: (1) any action under § 6409.6 28 requires a “positive COVID-19 test or diagnosis,” not just mere symptoms of COVID-19; (2) § 1 6409.6 does not create a private right of action, and the exclusive remedy under § 6409.6 is 2 through the Labor Commission; and (3) the Plaintiff missed the statute of limitations, which 3 specifies any action must be filed within one year of the incident. (ECF No. 14-1 at 6–7.) 4 Because the Court agrees with Defendant’s first argument, the Court need not and does not 5 address Defendant’s remaining arguments. 6 Plaintiff alleges he “was informed and believe[d] he was suffering from symptoms of 7 COVID-19 including but not limited to fatigue and nausea.” (ECF No. 11 at 2, ¶ 7.) Other than 8 his symptoms, Plaintiff makes no assertions as to how he was “informed” he had COVID-19. 9 Thus, Plaintiff fails to persuade the Court that these facts equate to a “positive COVID-19 test or 10 diagnosis” as required by § 6409.6. Moreover, since 2020, California courts have defined a 11 positive COVID-19 case as any of the following: (1) “a positive COVID-19 diagnosis from a 12 licensed health care provider”; (2) “a positive COVID-19 test”; (3) “the person is subject to a 13 COVID-19-related order to isolate issued by a local or state health official”; or (4) the person 14 “has died due to COVID-19.” Cal. Code Regs. Tit. 8, § 3205(b)(3)(A-D); see also W. Growers 15 Assn. v. Occupational Safety and Health Standards Bd., 73 Cal. App 5th 916, 946 (2021) 16 (holding that the definitions set forth in § 3205 of the Code of Regulations for a positive COVID- 17 19 diagnosis are comprehensive and no other alternatives will be accepted) (emphasis added). 18 Plaintiff’s allegations do not meet any of the forementioned definitions of a COVID-19 diagnosis, 19 and Plaintiff fails to cite any authority to suggest that some other definition applies. 20 Accordingly, the Court GRANTS Defendant’s motion to dismiss Claim Three with leave 21 to amend. 22 IV. CONCLUSION 23 For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss with leave 24 to amend. (ECF No. 14.) Plaintiff may file an amended complaint not later than thirty (30) days 25 from the electronic filing date of this Order. Defendant shall file a responsive pleading not later 26 than twenty-one (21) days from the electronic filing date of the amended complaint. If Plaintiff 27 opts not to file an amended complaint, the case will proceed on Plaintiff’s remaining claims and 28 Defendant shall file an answer not later than twenty-one (21) days from Plaintiff’s deadline for 1 | filing an amended complaint. 2 IT IS SO ORDERED. 3 | Date: June 12, 2023 /) 4 ( | 5 “ □ / } Vn) 6 Troy L. Nunley ; United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28