White v. Capital One

• Court: District Court, E.D. California
• Decided: October 23, 2024
• Docket: 1:24-cv-00633
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DOLORES WHITE, Case No. 1:24-CV-00633-KES-SKO 12 Plaintiff, ORDER GRANTING DEFENDANTS’ PARTIAL MOTION TO DISMISS 13 v. (Doc. 5) 14 CAPITAL ONE, National Association; MARY DICKSON, an individual; and 15 DOES 1 through 50, inclusive, 16 Defendants. 17

18 19 Defendants Capital One and Mary Dickins (sued as “Mary Dickson”) (collectively 20 “defendants”) filed this motion to dismiss on June 5, 2024, seeking to dismiss plaintiff Dolores 21 White’s first, second, fourth, seventh, and eighth causes of action as insufficiently pled pursuant 22 to Federal Rule of Civil Procedure 12(b)(6).1 Doc. 5. White filed her opposition, and Capital 23 One replied. Docs. 7, 8. The Court heard oral argument on August 5, 2024. 24

25 1 The complaint sues “Mary Dickson” as the individual defendant. Doc. 7-1. In her motion to dismiss, the individual defendant indicates her name is “Mary Dickins” and that she was 26 erroneously named in the complaint as “Mary Dickson.” See Doc. 5 at 2. This Order hereafter 27 refers to the defendant as “Mary Dickins,” as in the motion to dismiss; all such references are to the individual named in the complaint as “Mary Dickson.” 28 1 I. BACKGROUND AND FACTS2 2 White began working at Capital One in or about September 2019 and initially received 3 positive performance evaluations. Doc. 7-1 (“Compl.”) at ¶¶ 7–8. In late 2022, White took 4 maternity leave. Id. at ¶ 9. She returned to work in early 2023 after the birth of her child. Id. at 5 ¶ 10. After resuming work in early 2023, White worked at home. Id. at ¶¶ 10, 12. Dickins, a 6 Capital One Team Lead at the time, made comments about White’s child crying and making 7 noise in the background. Id. at ¶¶ 3,12. White’s child would cry when the child needed to be 8 breastfed. Id. at ¶ 12. Dickins told White that she could breastfeed only before or after White’s 9 regularly scheduled breaks. Id. at ¶ 11. White informed Dickins that she also needed to 10 breastfeed at other times due to her child’s feeding schedule, but Dickins refused to allow White 11 to breastfeed at such other times. Id. at ¶ 11. 12 From September 9, 2023, to September 26, 2023, White took two weeks of medical leave 13 due to stress, anxiety, and postpartum depression. Id. at ¶¶ 13–15. White provided Capital One’s 14 Leave and Accommodations Center with a note from her medical provider confirming the need 15 for such medical leave. Id. at ¶¶ 13–14. Upon her return to work from this medical leave, White 16 requested to work a reduced schedule for a limited time, but Dickins informed White that Capital 17 One did not offer reduced schedules. Id. at ¶¶ 16–17. 18 White subsequently used sick days and took time off to attend doctor’s appointments and 19 to address issues related to her physical disabilities. Id. at ¶¶ 18–19. Dickins stated that White 20 was going to be written up for missing work. Id. at ¶ 19. White informed Dickins that she had 21 medical documentation for the time she was forced to miss work, but Dickins told White that, 22 even with doctor notes, her absences would not be approved. Id. 23 Around November 14, 2023, White provided Capital One’s Leave and Accommodations 24 Center with a note from her medical provider advising that White could work only half days. Id. 25

2 The facts are taken from the complaint attached to White’s opposition. See Doc. 7-1. The 26 complaint attached to the notice of removal omitted page 5 of the complaint. See Doc. 1-1. The 27 parties confirmed at oral argument that the full complaint is at Doc. 7-1. The allegations in the complaint are taken as true solely for the purposes of this Rule 12(b)(6) motion. See Cruz v. Beto, 28 405 U.S. 319, 322 (1972). 1 at ¶¶ 20–21. However, Capital One continued to require White to work full time. Id. at ¶ 22. 2 During this period, White communicated with Capital One’s Leave and Accommodation Center 3 concerning taking intermittent leave under the California Family Rights Act. Id. at ¶ 23. White 4 was informed that she had until January 25, 2024, to provide the necessary paperwork related to 5 her request for accommodation and medical leave. Id. at ¶ 24. 6 Despite White having been informed that she had until January 25, 2024, to provide 7 medical documentation to support her California Family Rights Act leave request, Capital One 8 terminated White’s employment on January 4, 2024. Id. at ¶ 25. On January 5, 2024, after being 9 terminated, White received a letter from Capital One’s Leave and Accommodation Center stating 10 that Capital One required medical information to evaluate White’s pending request for an 11 accommodation, and that she had until January 25, 2024, to provide the necessary medical 12 documentation. Id. at ¶ 26. 13 II. STANDARD OF LAW 14 A motion to dismiss for failure to state a claim upon which relief can be granted tests the 15 legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Fed. R. 16 Civ. P. 12(b)(6). Rule 8(a) requires that a pleading contain “a short and plain statement of the 17 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a); see also Ashcroft v. 18 Iqbal, 556 U.S. 662, 677–78 (2009). On a motion to dismiss, the factual allegations of the 19 complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give 20 the plaintiff the benefit of every reasonable inference to be drawn from the “well-pleaded” 21 allegations of the complaint. Retail Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 22 (1963). A plaintiff need not allege “‘specific facts’ beyond those necessary to state his claim and 23 the grounds showing entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) 24 (internal citation omitted). 25 III. DISCUSSION AND ANALYSIS 26 Defendants challenge the sufficiency of White’s first cause of action for retaliation under 27 California Labor Code section 246.5; second cause of action for harassment under the California 28 Fair Employment and Housing Act (“FEHA”) based on White’s pregnancy and breastfeeding; 1 fourth cause of action for harassment under FEHA based on White’s physical disability; seventh 2 cause of action for retaliation in violation of the California Family Rights Act, Cal. Gov’t Code 3 § 12945.1 et seq. (“CFRA”); and eighth cause of action for interference with White’s exercise of 4 her right to medical leave under the CFRA. 5 1. Retaliation under Cal. Labor Code § 246.5 (First Cause of Action) 6 In her first cause of action, White claims Capital One retaliated against her for using her 7 paid sick days, in violation of Cal. Labor Code § 246.5, which is part of the Healthy Workplaces, 8 Healthy Families Act of 2014 (“HWHFA”). Section 246.5 provides, in part, that an employer 9 “shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, 10 demote, suspend, or in any manner discriminate against an employee for using accrued sick days 11 [or] attempting to exercise the right to use accrued sick days.” Id. § 246.5(c)(1). It also provides 12 that a rebuttable presumption of unlawful retaliation applies in certain circumstances. Id. 13 § 246.5(c)(2). 14 Capital One argues that the HWHFA did not create a private right of action for violations 15 of Labor Code § 246.5, as another provision, § 248.5, grants only the Labor Commissioner and 16 the Attorney General the ability to bring a civil action under the HWHFA. Id. § 248.5(e) 17 (providing that “[t]he Labor Commissioner or the Attorney General may bring a civil action in a 18 court of competent jurisdiction against the employer or other person violating this article”). 19 White argues that § 248.5(e) nonetheless implies a private right of action because it also refers to 20 “any person or entity” enforcing the act “on behalf of the public as provided for under applicable 21 state law.” See Doc. 7 at 10 (quoting Cal. Labor Code § 248.5(e)). However, this latter reference 22 in § 248.5(e) refers not to a private right of action under the HWHFA, but to the possibility that a 23 party might enforce a violation of the act under another California law provision. 24 The California court of appeal held in Seviour-Iloff v. LaPaille, 295 Cal. Rptr. 3d 762, 779 25 (2022), that “there is no private right of action” created by Cal. Labor Code § 248.5. In Seviour- 26 Iloff, the court considered whether a plaintiff was allowed to seek civil penalties for violation of 27 the HWHFA’s requirement that an employer provide sick leave and concluded that the plaintiff 28 could not assert a claim under the HWHFA for such violation because the Act did not authorize a 1 private right of action. Id. 2 Other courts have similarly concluded that the HWHFA did not create a private right of 3 action in the context of violations of Labor Code sections similar to § 246.5. For example, in 4 Titus v. McLane Foodservice, Inc., No. 2:16-cv-00635-KJM-EFB, 2016 WL 4797497, at *4 (E.D. 5 Cal. 2016), the court found there was no private right of action under the HWHFA when the 6 plaintiff attempted to bring a claim under § 246(h) for violation of sick leave notice provisions. 7 See also Phuong v. Winco Holdings, Inc., No. 2:21-cv-2033-MCE-JDP, 2022 WL 3636369, at *6 8 (E.D. Cal. 2022) (finding no private right of action in Labor Code § 246 for improper payment of 9 sick leave wages and dismissing claim without leave to amend); Rudolph v. Herc Rentals, No. 10 2:20-cv-05412-ODW (Ex), 2021 WL 5994514, at *3 (C.D. Cal. Aug. 27, 2021) (finding Labor 11 Code § 248.5 provides for Labor Commissioner to enforce the HWHFA and allows employees to 12 report violations to Labor Commissioner, but gives no private right of action to aggrieved 13 employee). 14 In support of her argument that a private right of action exists for violations of § 246.5, 15 White cites only Lobo v. Air-India Ltd., No. 20-cv-08790-WHO, 2021WL 254312 (N.D. Cal. Jan. 16 26, 2021). However, Lobo specifically noted that “courts have concluded that there is no stand- 17 alone cause of action under the HFHW Act, [although] they do recognize that a claim for 18 violation of the Act may be raised under other provisions of the Labor Code or under the UCL.” 19 Id. at *3. The court in Lobo dismissed the stand-alone HWHFA claim but gave leave to amend to 20 allow the plaintiff to allege the claim under a different law that did provide a private right of 21 action. Id. 22 Accordingly, Capital One’s motion to dismiss White’s first cause of action, the stand- 23 alone claim under Labor Code § 246.5, is granted. As White may be able to assert the alleged 24 violation of Labor Code § 246.5 as a claim under another California statute, see Lobo, 2021 WL 25 254312, at *3, the dismissal is with leave to amend.3 However, White may not replead a stand- 26 3 White appears to argue that she could enforce Labor Code § 246.5 through her eighteenth cause 27 of action, which asserts a violation of California Business & Professions Code § 17200. Doc. 7 at 10–11. White’s eighteenth cause of action is not at issue on defendants’ motion to dismiss, and 28 this Order does not address that claim or whether it can be used to enforce a violation of Labor 1 alone cause of action under Cal. Labor Code § 246.5, as the HWHFA does not provide a private 2 right of action. 3 2. FEHA harassment claim based on breastfeeding/pregnancy (Second Cause of Action) 4 Defendants argue that White has failed to allege a harassment claim as her allegations are 5 not sufficiently severe or pervasive, or closely linked to a harassing social environment. Doc. 5 at 6 8. To establish a prima facie case of a hostile work environment, White must allege that “(1) she 7 is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the 8 harassment was based on her protected status; (4) the harassment unreasonably interfered with her 9 work performance by creating an intimidating, hostile, or offensive work environment; and 10 (5) defendants are liable for the harassment.” Ortiz v. Dameron Hosp. Ass'n, 250 Cal. Rptr. 3d 1, 11 11 (Ct. App. 2019). 12 White argues that, in addition to Dickins’s comments, the personnel management 13 decision to deny White’s accommodations and write up White for missing work is evidence of 14 harassment. Doc. 7 at 13. White relies on Roby v. McKesson Corp. for the assertion that 15 personnel actions, in addition to supporting retaliation and discrimination claims, can also support 16 a harassment claim if the personnel management decisions reflect a pattern of harassment or bias. 17 Id. (citing Roby v. McKesson Corp., 101 Cal. Rptr. 3d 773, 792 (2009)). 18 Roby concerned an employee with physical disabilities who had frequent absences 19 resulting in disciplinary action. Roby, 101 Cal. Rptr. 3d at 779. The employee’s supervisor also 20 made frequent comments about the employee’s body odor and body sores resulting from 21 medication, ignored the employee at staff meetings and in distributing small gifts, and belittled 22 the employee’s job contributions in front of coworkers. Id. at 779–80. The court found 23 harassment and discrimination claims can overlap as an evidentiary matter “when the actions 24 establish a widespread pattern of bias.” Id. at 790 (citing Miller v. Dep't of Corr., 30 Cal. Rptr. 25 3d 797, 815, 115 P.3d 77, 91 (2005)). The court also noted that acts of discrimination, even if 26 characterized as official employment actions rather than hostile social interactions in the 27 Code § 246.5. 28 1 workplace, “can provide evidentiary support for a harassment claim by establishing 2 discriminatory animus on the part of the manager responsible for the discrimination, thereby 3 permitting the inference that rude comments or behavior by that same manager was similarly 4 motivated by discriminatory animus.” Id. at 790–91. 5 Defendants argue that personnel management decisions can never provide the evidentiary 6 basis for a FEHA harassment claim, relying upon Janken v. GM Hughes Electronics, 53 Cal. 7 Rptr. 2d 741 (1996), and Reno v. Braid, 76 Cal. Rptr. 2d 499 (1998). See Doc. 5 at 8–9. 8 However, these court of appeal cases predate the California Supreme Court’s decision in Roby, 9 which held that personnel management actions can be considered as evidence of harassment when 10 the actions demonstrate a pattern of bias. Roby, 101 Cal. Rptr. 3d at 790; see also Mock v. Cal. 11 Dep't of Corr. & Rehab., No. 1:15-cv-01104-MJS, 2015 WL 5604394, at *12 (E.D. Cal. Sep. 22, 12 2015) (finding additional criticism and micromanagement of different race employee sufficiently 13 stated claim for harassment through implied message); Gholson v. Beacon Health Options, Inc., 14 No. SACV 22-00445-CJC (DFMx), 2022 WL 19241012, at *2 (C.D. Cal. July 26, 2022) (“they 15 cannot escape liability for harassment simply because they chose to express the message through 16 managerial decisions rather than explicit comments.”); Garcia v. Nestle USA, Inc., No. C 23- 17 06199 WHA, 2024 WL 923774 at *4 (N.D. Cal. Mar. 1, 2024) (finding that personnel decisions 18 can support harassment claims following Roby). 19 Defendants also argue that the complaint’s allegations fail to establish harassment as they 20 are insufficiently severe or persuasive to alter the social environment of the workplace. Doc. 8 at 21 8. The totality of the allegations must demonstrate “the harassing conduct sufficiently offends, 22 humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional 23 tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise 24 interfere with and undermine the victim’s personal sense of well-being.” Cal. Gov't Code 25 § 12923. In evaluating whether the allegations rise to this level, a court should consider the 26 frequency of the conduct, whether the conduct was humiliating or physically threatening, the 27 alleged harasser’s role and status in the workplace, whether the harasser shared a physical 28 workspace with the victim, whether the harasser and victim’s work was closely intertwined, and 1 any other relevant or pertinent work environment factors that might increase or decrease the 2 severity of the harassment. See Bailey v. S.F. Dist. Attorney's Office, 323 Cal. Rptr. 3d 369, 386– 3 87 (2024). 4 The specific allegations within the complaint concerning White’s pregnancy harassment 5 claim include: (1) Dickins informed White she could breastfeed only before or after her scheduled 6 breaks and denied her request for additional accommodation to breastfeed; (2) Dickins would 7 “make comments about Plaintiff’s newborn child crying and making noise”; (3) Dickins denied 8 White the requested accommodation of working a reduced schedule to treat her postpartum 9 depression; and (4) Dickins told White she would be written up for missing work to attend 10 medical appointments for her postpartum depression despite White’s documented medical excuse. 11 Compl. at ¶¶ 11–12. The complaint lacks allegations concerning the frequency of Dickins’s 12 comments; the content, circumstances, and tone of the comments; and whether White received 13 any “write-up” for her medical absences. Dickins is implied to be White’s supervisor, which 14 would add severity to the allegations, but the complaint fails to provide additional information 15 concerning White and Dickins’s working relationship or concerning the nature and context of 16 Dickins’s comments. Based on the limited allegations in the complaint, the allegations of 17 harassment are not severe or pervasive. See Bailey, 16 Cal. 5th at 633 (finding harassing 18 comment’s severity and effect is dependent on nature of interactions within workplace); Griffith 19 v. Logisticare Sols., LLC, No. CV 16-8666 PSG (JEMx), 2017 WL 8220435 at *4 (C.D. Cal. 20 Mar. 9, 2017) (finding allegations that coworkers made comments to be insufficient to state 21 harassment claim without details concerning frequency of comments, when they were made, or 22 their content). 23 The isolated comments alleged in the complaint – e.g., that Dickins “made comments 24 about” White’s child crying in the background – do not meet the severity or pervasive 25 requirements needed for White’s pregnancy harassment claim to survive a Rule 12(b)(6) 26 challenge. Similarly, the allegations of Dickins’s denials of accommodation concerning White’s 27 work schedule do not identify how Dickins delivered the denials, the reasons given for the 28 denials, or whether other workers faced the same or different treatment in similar circumstances. 1 Without more, the denials do not establish severe or pervasive harassing or biased conduct. See 2 Gholson, 2022 WL 19241012, at *3 (requiring allegations of widespread and patterned favoritism 3 or other biased conduct to find harassment in personnel decisions). White has failed to 4 sufficiently allege that the denials of additional breaks were for a harassing purpose or 5 communicated a targeted harassing message affecting the workplace environment, particularly as 6 the complaint notes that Dickins indicated White could take additional time to breastfeed her 7 child right before or after her scheduled breaks. Similarly, the general allegation that Dickins 8 threatened to write-up White for absences from work does not establish harassing behavior in the 9 absence of more specific details concerning the context of that statement and whether any adverse 10 consequences ensued. 11 Defendants’ motion to dismiss White’s second cause of action is granted. As White may 12 be able to remedy the deficiencies on this claim by alleging additional facts, this cause of action is 13 dismissed with leave to amend.4 14 3. Disability harassment (Fourth Cause of Action) 15 Defendants move to dismiss White’s fourth cause of action, for disability harassment, on 16 the ground that the personnel decisions on which White bases the claim fail to establish a severe, 17 widespread pattern of bias and do not, by themselves, constitute a harassing message. Doc. 8 at 18 10. White’s claim for disability harassment is based upon: (1) Dickins’s denial of White’s 19 request for a reduced schedule to take care of her heath in late 2023, and (2) Dickins informing 20 White that she would be written up for missing work even if she had a documented medical 21 excuse. Compl. at ¶¶ 17, 19. The complaint contains even fewer allegations concerning 22 harassment based on a physical disability than concerning White’s claim of harassment based on 23 her breastfeeding, and this claim must be dismissed on the same grounds. White fails to allege a 24 pervasive or severe harassing environment sufficient to establish a prima facie claim of 25 harassment based on her disability. Dickins’s denial of a scheduling accommodation, and her 26 4 If a court dismisses a complaint for failure to state a claim, it should “freely give leave” to 27 amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). See Bacon v. Woodward, 104 F.4th 744, 753 (9th Cir. 2024) (citing Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 28 2014)). 1 isolated statement that White would be written up for missing work even if she had a medical 2 excuse, without further elaboration or specifics, are insufficient to allege harassment. See 3 Gholson, 2022 WL 19241012, at *3. Defendants’ motion to dismiss this claim is therefore also 4 granted. As White may be able to allege additional facts in support of her claim, this cause of 5 action is dismissed with leave to amend. 6 4. CFRA Retaliation (Seventh Cause of Action) 7 To successfully plead a CFRA retaliation claim a plaintiff must allege (1) the defendant 8 employer was covered by CFRA, (2) the plaintiff was eligible for CFRA protections, (3) the 9 plaintiff exercised her right to take CFRA leave for a qualifying purpose, and (4) the plaintiff 10 suffered an adverse employment action because she exercised her right to take CFRA leave. 11 Moore v. Regents of Univ. of Cal., 206 Cal. Rptr. 3d 841, 867 (Ct. App. 2016) (internal citations 12 omitted). Capital One does not contest that it is covered by CFRA. See Doc. 5. 13 To be eligible for CFRA leave, the employee must have “more than 12 months of service 14 with the employer” and “at least 1,250 hours of service with the employer during the previous 12- 15 month period” at the time of requesting CFRA leave. Cal. Gov’t Code. § 12945.2. White alleges 16 she began working for Capital One in 2019 and returned from maternity leave in early 2023. 17 Compl. at ¶¶ 9–10. White does not allege that she worked enough hours at Capital One in the 18 12-month period prior to filing the complaint to be eligible for CFRA leave. See Compl. This is 19 a necessary fact that White must sufficiently allege to establish that she was eligible for CFRA 20 leave and, therefore, to assert a CFRA retaliation claim. See Dudley v. Dep't of Transp., 108 Cal. 21 Rptr. 2d 739, 745 (Ct. App. 2001); Griffith, 2017 WL 8220435, at *6–7. White’s seventh cause 22 of action for retaliation under the CFRA is dismissed, with leave to amend to include additional 23 facts supporting her CFRA eligibility. 24 5. CFRA Interference (Eighth Cause of Action) 25 To assert a CFRA interference claim, the employee must allege: “(1) the employee’s 26 entitlement to CFRA leave rights; and (2) the employer’s interference with or denial of those 27 rights.” Williams v. UPS, No. CV 17-6773-PLA, 2018 WL 6136824, at *6 (C.D. Cal. Sept. 4, 28 2018) (internal citations and quotations omitted). As with White’s CFRA retaliation claim, in 1 | failing to sufficiently allege her eligibility for CFRA leave, White fails to allege a necessary 2 || component of her CFRA interference claim. Alleging that a plaintiff is eligible for CRFA leave is 3 | essential to making a CFRA claim for interference. Griffith, 2017 WL 8220435, at *6. 4 | Therefore, White’s eighth cause of action for interference with a CFRA claim is also dismissed 5 | with leave to amend. 6 | IV. CONCLUSION 7 Based on the foregoing, the Court ORDERS: 8 1. Capital One’s motion to dismiss White’s first cause of action, for retaliation under Cal. 9 Labor Code § 246.5, is GRANTED, with leave to amend to the extent set forth above. 10 White may not replead a stand-alone cause of action under Cal. Labor Code § 246.5. 11 2. Capital One and Dickins’s motion to dismiss White’s second and fourth causes of 12 action, for harassment under FEHA, is GRANTED with leave to amend. 13 3. Capital One’s motion to dismiss White’s seventh and eighth causes of action, for 14 retaliation and interference in violation of the CFRA, is GRANTED with leave to 15 amend. 16 4. White may file an amended complaint consistent with this order within 21 days of the 17 entry of the order. 18 5. Defendants’ responsive pleading is due 21 days after plaintiffs filing of an amended 19 complaint or, if plaintiff elects not to file an amended complaint, 21 days after the 20 deadline for plaintiff to file an amended complaint. 21 22 93 | SO ORDERED. _ 24 Dated: _ October 23, 2024 4h 35 UNITED STATES DISTRICT JUDGE

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