Yanez-Davison v. UPS, Inc.

• Court: District Court, E.D. California
• Decided: February 26, 2025
• Docket: 2:23-cv-03016
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTINA YANEZ-DAVISON, No. 2:23-cv-03016-DC-AC 12 Plaintiff, 13 v. ORDER GRANTING IN PART DEFENDANT UPS’S MOTION TO DISMISS, GRANTING 14 UNITED PARCEL SERVICE, INC., et al., DEFENDANT DAVIES’S MOTION TO DISMISS, AND DENYING DEFENDANT 15 Defendants. UPS’S MOTION TO STAY DISCOVERY AS MOOT 16 (Doc. Nos. 5, 12, 21) 17 18 This matter is before the court on Defendant United Parcel Service, Inc.’s (“UPS”) motion 19 to dismiss (Doc. No. 5) and motion to stay discovery (Doc. No. 12), and Defendant Jeff Davies’s 20 motion to dismiss (Doc. No. 21). Pursuant to Local Rule 230(g), the pending motions were taken 21 under submission to be decided on the papers. (Doc. Nos. 6, 15, 23.) For the reasons explained 22 below, the court will grant in part Defendant UPS’s motion to dismiss, grant Defendant Davies’s 23 motion to dismiss, and deny as moot Defendant UPS’s motion to stay discovery. 24 BACKGROUND 25 Plaintiff Christina Yanez-Davison filed this employment action in the San Joaquin 26 Superior Court against Defendant UPS, her former employer; Defendant Joseph Dalia (“Dalia”), 27 her former supervisor; Defendant Davies, a manager at UPS; and Does 1–10. (Doc. No. 1-2.) In 28 her complaint, Plaintiff alleges the following: 1 Defendant UPS hired Plaintiff as “Sort Supervisor” on March 18, 2011, at its Merced 2 Center in Merced, California, and she worked there for eleven years, during which time she 3 maintained a clean disciplinary record. (Id. at ¶¶ 11–12, 49.)1 When she was hired, Plaintiff was 4 the only female supervisor in operations and her job duties included overseeing the department. 5 (Id. at ¶¶ 11–12.) 6 Plaintiff experienced harassing behavior from “at least five male supervisors” and “four 7 union representatives and stewards.” (Id. at ¶ 17.) Plaintiff’s supervisor, Defendant Dalia, would 8 “sit in on Plaintiff’s operations” and harassed her for years with “several altercations almost every 9 other month.” (Id. at ¶ 19–22.) Plaintiff went to the human resources department at Defendant 10 UPS regarding Defendant Dalia, and they told Plaintiff to “kill him with kindness.” (Id. at ¶ 23.) 11 Plaintiff believes this discussion with human resources occurred in 2013. (Id.) According to 12 Plaintiff, Defendant UPS was “going to do absolutely nothing to protect her,” and Defendant 13 Dalia’s behavior continued for years. (Id. at ¶¶ 24–25.) 14 In the summer of 2017, Defendant Dalia grabbed Plaintiff’s wrist during an altercation at 15 work. (Id. at ¶¶ 27–30.) Plaintiff contacted her “center manager” and took medical leave 16 following the incident. (Id. at ¶ 31.) Defendant UPS then placed Defendant Dalia on a leave of 17 absence pending an investigation. (Id. at ¶ 33.) Defendant UPS allowed Defendant Dalia to return 18 to work “right before Plaintiff was to testify” regarding the incident. (Id. at ¶ 35.) Plaintiff’s car 19 tires were slashed shortly after she returned to work from medical leave. (Id. at ¶ 36.) Plaintiff 20 then endured “months of harassment despite the mandated distance from her harasser.” (Id. at 21 ¶ 37.) 22 Plaintiff also alleges a center manager falsely accused Plaintiff of taking company 23 property and then visited Plaintiff’s residence without invitation. (Id. at ¶ 38.) The same center 24 manager allegedly harassed Plaintiff via email following her maternity leave. (Id. at ¶ 47.) 25

1 The court notes that the paragraphs in the complaint are not consistently numbered in sequential 26 order, as there are three paragraphs numbered “10” and paragraphs numbered 11–15 repeat a 27 second time on pages 5 and 6 of the complaint. (See Doc. No. 1-2 at 4–6.) To avoid confusion, the court will simply refer to the numbered paragraph as stated in the complaint instead of 28 renumbering the paragraphs. 1 On October 7, 2022, Plaintiff filed an administrative complaint and received a right to sue 2 letter from California’s Civil Rights Department (“CRD”).2 (Doc. No. 1-2 at 23–30.) Also on 3 October 7, 2022, Plaintiff was named as a plaintiff and one of over a dozen proposed class 4 representatives in a class action brought on behalf of female employees of Defendant UPS in the 5 Northern District of California: Goins et al. v. United Parcel Serv. Inc., No. 21-cv-08722-PJH. 6 On April 20, 2023, the court in Goins granted in part UPS’s motion to dismiss and dismissed 7 Plaintiff Yanez-Davison and several other plaintiffs from that action based on their failure to 8 exhaust administrative remedies. See Goins v. United Parcel Serv. Inc., No. 21-cv-08722-PJH, 9 2023 WL 3047388, at *15 (N.D. Cal. Apr. 20, 2023). 10 On October 10, 2023, Plaintiff filed a complaint in San Joaquin Superior Court initiating 11 this action, in which she brings nine causes of action, eight of which are brought against 12 Defendant UPS and Does 1–10 and one claim that is brought against all Defendants. (Doc. No. 1- 13 2.) Specifically, Plaintiff brings her first and third through ninth claims against Defendant UPS 14 and Does 1–10 as follows: (claim 1) hostile work environment in violation of the California Fair 15 Employment and Housing Act (“FEHA”), California Government Code § 12900, et seq.; 16 (claim 3) assault and battery; (claim 4) failure to take reasonable steps to prevent discrimination, 17 harassment, or retaliation in violation of FEHA; (claim 5) failure to engage in the interactive 18 process in violation of FEHA; (claim 6) intentional infliction of emotional distress; (claim 7) 19 unfair business practice in violation of the California Unfair Competition Law (“UCL”), 20 California Business and Professions Code § 17200, et seq.; (claim 8) violation of the Equal Pay 21 Act; and (claim 9) wrongful termination in violation of public policy. (Id. at 9–20.) Plaintiff also 22 brings her second claim against all Defendants for sexual harassment in violation of FEHA (claim 23 2). (Id. at 9–11.) 24 On December 27, 2023, Defendant UPS filed a notice of removal of Plaintiff’s complaint

25 2 Plaintiff attaches as an exhibit to her complaint a copy of her administrative complaint and right-to-sue letter, which reflect the letterhead of California’s Department of Fair Employment 26 and Housing (“DFEH”). (Doc. No. 1-2 at 23–30.) However, in July 2022, DFEH became the 27 Civil Rights Department (“CRD”). See https://calcivilrights.ca.gov/aboutcrd/. The parties refer to CRD and DFEH interchangeably in their briefs. To avoid confusion, the court will refer to the 28 department as CRD in this order. 1 to this court. (Doc. No. 1 at 3.) 2 On January 3, 2024, Defendant UPS filed its pending motion to dismiss all claims brought 3 against it with prejudice.3 (Doc. No. 5.) Plaintiff filed an opposition to that motion on January 17, 4 2024. (Doc. No. 8.) Defendant UPS filed a reply thereto on January 26, 2024. (Doc. No. 9.) 5 On April 10, 2024, Defendant UPS filed a motion for a protective order to stay discovery 6 while its motion to dismiss was pending before the court. (Doc. No. 12.) Plaintiff filed an 7 opposition to that motion on May 9, 2024. (Doc. No. 16.) Defendant UPS filed a reply thereto on 8 May 13, 2024. (Doc. No. 17.) 9 On September 30, 2024, Defendant Davies filed his pending motion to dismiss Plaintiff’s 10 sole claim brought against him—sexual harassment (claim 2). (Doc. No. 21.) Plaintiff filed an 11 opposition to that motion on October 24, 2024. (Doc. No. 25.) Defendant Davies filed a reply 12 thereto on November 4, 2024. 4 (Doc. No. 26.) 13 LEGAL STANDARD 14 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) asks a court to 15

16 3 Defendant UPS also concurrently filed a request for judicial notice of the second amended complaint filed in the Goins action, as well as the order issued in Goins on April 20, 2023. (Doc. 17 No. 5-5.) Pursuant to Federal Rule of Evidence 201(b), a court may “judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s 18 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose 19 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). “Because court filings are ‘capable of accurate and ready determination by resort to sources whose accuracy cannot 20 reasonably be questioned,’ pleadings filed and orders issued in related litigation are proper subjects of judicial notice under Rule 201. McVey v. McVey, 26 F. Supp. 3d 980, 984 (C.D. Cal. 21 2014) (citing Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006) (“We may take judicial notice of court filings and other matters of public record.”)). Given the 22 Goins action is a related litigation in which Plaintiff Yanez-Davison was a named plaintiff, the 23 court will take judicial notice of these documents from the Goins action. Defendant UPS also requests the court take judicial notice of Plaintiff’s administrative complaint to CRD and right-to- 24 sue letter dated October 7, 2022, but those documents are attached as exhibits to Plaintiff’s complaint in this action. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) 25 (explaining that in ruling on a motion to dismiss, courts may consider documents outside the pleadings if those documents are attached to the complaint, incorporated by reference in the 26 complaint, or are matters of which judicial notice is taken). For that reason, the court will deny 27 Defendant UPS’s request to take judicial notice of the CRD complaint and right-to-sue letter.

28 4 Defendant Dalia filed an answer to Plaintiff’s complaint on December 20, 2024. (Doc. No. 29.) 1 dismiss a plaintiff’s complaint for failure to state a claim upon which relief can be granted. 2 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A claim may be dismissed for lack of a 3 cognizable legal theory or the absence of sufficient facts to support a cognizable legal 4 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (citing Robertson v. 5 Dean Witter Reynolds, Inc., 749 F.2d 530, 533–34 (9th Cir. 1984)). 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.’” Ashcroft v. Iqbal, 556 8 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see 9 also Fed. R. Civ. P. 8(a)(2) (a complaint must contain a short and plain statement of the claim 10 showing that the pleader is entitled to relief). A complaint satisfies the plausibility requirement if 11 it contains sufficient facts for the court to “draw [a] reasonable inference that the defendant is 12 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). For 13 purposes of a motion to dismiss, “[a]ll allegations of material fact are taken as true and construed 14 in the light most favorable to the nonmoving party.” Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 15 337–38 (9th Cir. 1996). If a court dismisses certain claims, “[l]eave to amend should be granted 16 unless the district court ‘determines that the pleading could not possibly be cured by the 17 allegation of other facts.’” Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009) 18 (quoting Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc)). 19 ANALYSIS 20 A. FEHA Claims against Defendants UPS and Davies 21 A plaintiff is required to exhaust all administrative remedies before filing a civil action 22 bringing claims under FEHA based on allegations of discrimination or retaliation. Chew v. City & 23 Cnty. of San Francisco, 714 F. App’x 687, 690 (9th Cir. 2017). To satisfy the exhaustion 24 requirement, a plaintiff must: (1) file a written complaint with CRD within one year of the 25 unlawful employment conduct, and (2) receive a right to sue notice from CRD. Rodriguez v. 26 Airborne Express, 265 F.3d 890, 896 (9th Cir. 2001). “The scope of the written administrative 27 charges defines the permissible scope of the subsequent civil action.” Id. at 897 (citing Yurick v. 28 Super. Ct., 209 Cal. App. 3d 1116, 1121–23 (1989)). If an allegation in the civil complaint is 1 outside the scope of the written administrative charge, that allegation is barred for failure to 2 exhaust, unless that allegation is “like or reasonably related to the allegations” in the 3 administrative charge. Chew, 714 F. App’x at 690 (internal quotation marks omitted). 4 Defendant UPS moves to dismiss all of Plaintiff’s FEHA claims—hostile work 5 environment (claim 1); sexual harassment (claim 2); failure to take reasonable steps to prevent 6 and correct harassment, discrimination, and retaliation (claim 4); and failure to engage in the 7 interactive process (claim 5). (Doc. No. 5 at 10.) Defendant UPS argues these claims should be 8 dismissed because Plaintiff failed to properly exhaust her administrative remedies prior to filing 9 this lawsuit, among other reasons. (Id. at 10–11.) 10 Defendant Davies likewise moves to dismiss Plaintiff’s FEHA sexual harassment claim 11 due to failure to exhaust administrative remedies, among other reasons. (Doc. No. 21 at 5–6.) In 12 her opposition to Defendant Davies’s motion, Plaintiff responds that the administrative complaint 13 includes “specific instances of harassment, including the hostile work environment created by 14 Defendant Davies and other male supervisors and employees at the UPS Merced Center, which 15 Plaintiff detailed in her reports to HR and management.” (Doc. No. 25 at 5.) However, it is 16 unclear what administrative complaint she is referencing. Notably, Plaintiff does not cite to any 17 document in support of this contention, nor does she attach any exhibits to her opposition brief, 18 such as a copy of the referenced administrative complaint. 19 As noted above, Plaintiff attached as an exhibit to her complaint the administrative 20 complaint she filed with the CRD on October 7, 2022, and the right-to-sue letter she received in 21 response. (Doc. No. 1-2 at 23–30.) In that CRD complaint, Plaintiff includes all of the bases of 22 discrimination, harassment, and retaliation that are listed on the CRD form complaint, including 23 “race, ancestry, national origin (includes language restrictions), color, sex/gender, gender identity 24 or expression, sexual orientation, disability (physical or mental), sexual harassment–hostile 25 environment, sexual harassment–quid pro quo, family care or medical leave (cfra), pregnancy, 26 childbirth, breast feeding, and/or related medical conditions.” (Id. at 28–30.) But Plaintiff does 27 not include in that complaint any specific information regarding her employment at Defendant 28 UPS, or the conduct of Defendant UPS or her supervisors. Plaintiff includes no factual 1 information whatsoever to substantiate the boilerplate allegations in her administrative complaint. 2 For these reasons, Plaintiff’s October 7, 2022 administrative complaint is insufficient to 3 satisfy the administrative exhaustion requirement, even when liberally construed. See Rodriguez, 4 265 F.3d at 897 (explaining that FEHA’s procedural requirements should be liberally construed to 5 accomplish the Act’s purposes of eliminating employment discrimination). “In determining 6 whether the exhaustion requirement has been satisfied, it is appropriate to consider such factors as 7 the alleged basis of the discrimination, dates of discriminatory acts specified within the charge, 8 perpetrators of discrimination named in the charge, and any locations at which discrimination is 9 alleged to have occurred.” Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 10 2002) (internal quotation marks omitted). “[T]he crucial element of a charge of discrimination is 11 the factual statement contained therein.” Id. Here, consideration of the factors outlined in 12 Freeman is not possible because Plaintiff’s administrative complaint does not allege any facts 13 describing the alleged discriminatory acts—let alone dates, locations, and alleged perpetrators. 14 Indeed, Plaintiff left the “additional complaint details” section of the complaint form blank. (See 15 Doc. No. 1-2 at 29.) 16 Because Plaintiff has clearly failed to exhaust her administrative remedies under FEHA, 17 the court will grant Defendant UPS’s motion to dismiss Plaintiff’s FEHA claims (claims 1, 2, 4 18 and 5) and Defendant Davies’s motion to dismiss Plaintiff’s FEHA claim (claim 2), without leave 19 to amend. 20 B. Assault and Battery Claim against Defendant UPS 21 Defendant UPS moves to dismiss Plaintiff’s assault and battery claim on the ground that it 22 is time-barred by the applicable two-year statute of limitations. (Doc. No. 5 at 13.) In opposing 23 Defendant UPS’s motion, Plaintiff counters that she delayed in filing the complaint initiating this 24 action until October 10, 2023, because she reasonably relied on the class action in Goins to 25 address her claims, and she believes the limitations period was equitably tolled during the period 26 of time that Goins was pending such that she can pursue her assault and battery claim in this 27 action. (Doc. No. 8 at 16.) Under California state law, causes of action for assault and battery 28 must be brought within two-years of the incident. Cal. Civ. Proc. Code § 335.1. Plaintiff’s claim 1 for assault and battery in this case is premised on an incident in which Plaintiff’s supervisor, 2 Defendant Dalia, allegedly grabbed Plaintiff’s wrist and shoved her in the summer of 2017. (Doc. 3 No. 1-2 at ¶¶ 25–32.) Plaintiff filed this action on October 10, 2023, well after the two-year 4 statute of limitations had passed. 5 Therefore, the court finds Plaintiff’s claim for assault and battery time barred and 6 concludes that Plaintiff will not be able to overcome the statute of limitations with any 7 amendment to her allegations. See Lopes v. Fremont Freewheelers, 362 F. App’x 874, 875 (9th 8 Cir. 2010)5 (affirming district court’s dismissal with prejudice of state law claim for assault and 9 battery on statute of limitations grounds where Plaintiff filed the action more than two years after 10 the alleged incident occurred); Rodriguez v. Wells Fargo Bank, N.A., No. 2:11-cv-00553 JAM, 11 2011 WL 2946381, at *4 (E.D. Cal. July 21, 2011) (dismissing a claim that was barred by the 12 applicable statute of limitations with prejudice because amendment would be futile). 13 Accordingly, the court will dismiss Plaintiff’s assault and battery claim against Defendant 14 UPS (claim 3) without leave to amend. 15 C. Intentional Infliction of Emotional Distress6 Claim against Defendant UPS 16 To state a claim for intentional infliction of emotional distress (“IIED”) under California 17 law, a plaintiff must show “‘(1) extreme and outrageous conduct by the defendant with the 18 intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the 19 plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation 20 of the emotional distress by the defendant’s outrageous conduct.’” Avina v. United States, 681 21 F.3d 1127, 1131 (9th Cir. 2012) (quoting Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009)). “A 22 defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually 23 5 Citation to the unpublished Ninth Circuit opinions such as those cited here and elsewhere in this 24 order is appropriate pursuant to Ninth Circuit Rule 36-3(b).

25 6 In the complaint, Plaintiff identifies her sixth cause of action as a claim of negligent infliction of emotional distress. (Doc. No. 1-2 at 16.) However, Plaintiff asserts that Defendant UPS’s conduct 26 was “intentional,” “outrageous,” and “malicious.” (Id. at 16–17.) Plaintiff also characterizes her 27 sixth cause of action as one for intentional infliction of emotional distress in her opposition to Defendant UPS’s motion to dismiss. (Doc. No. 8 at 18.) Therefore, the court will treat Plaintiff’s 28 claim against Defendant UPS as one for intentional infliction of emotional distress. 1 tolerated in a civilized community.” Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1245 (9th 2 Cir. 2013) (internal quotation marks omitted). The defendant must also intend to inflict injury 3 with the understanding that injury will result. Hughes, 46 Cal. 4th at 1051. 4 Defendant UPS argues Plaintiff’s IIED claim should be dismissed because Plaintiff has 5 not alleged facts sufficient to state a cognizable claim, and her IIED claim is preempted by the 6 Worker’s Compensation Act (“WCA”) exclusivity doctrine. (Doc. No. 5 at 14–16.) In her 7 opposition to Defendant UPS’s motion, Plaintiff counters that she suffered gender discrimination 8 and Defendant UPS “forc[ed] Plaintiff into signing documentation, subject[ed] her to security 9 questioning, and den[ied] pay raises and bonuses in retaliation . . . .” (Doc. No. 8 at 18.) Plaintiff 10 argues these acts by Defendant UPS are sufficient to state an IIED claim and that her claim is not 11 barred by the WCA. (Id.) 12 Here, Plaintiff alleges Defendant UPS knew of Defendant Dalia’s “unfitness” as an 13 employee and ratified his “intentional, outrageous, and malicious” conduct. (Doc. No. 1-2 at 17.) 14 Plaintiff also alleges Defendant UPS “knew of the probable consequences of [Defendant] Dalia’s 15 continued employment, including harassment” and that she “experienced harassing and 16 intimidating behavior” from her supervisors. (Id.) Plaintiff alleges she experienced adverse 17 employment decisions in the form of lost promotions, benefits, and bonuses. (Id.) Further, 18 Plaintiff’s IIED claim incorporates the facts previously alleged in the FAC. However, the FAC 19 does not mention any conduct by Defendant UPS that was intended to cause Plaintiff severe 20 emotional distress. See Reynolds v. Shure, 148 F. Supp. 3d 928, 932 (E.D. Cal. 2015) (noting 21 plaintiff incorporated facts previously alleged in the complaint but did not further explain how 22 defendant’s actions were outrageous and or his distress severe); Newman v. San Joaquin Delta 23 Cmty. Coll. Dist., No. 20-cv-93441-WBS-KJN, 2010 WL 2179964, at *5 (E.D. Cal. May 27, 24 2010). In its current state, the FAC lacks the sufficient factual allegations to support the claim that 25 Defendant UPS’s conduct was outrageous and intentional, or that Defendant UPS acted with 26 reckless disregard of the possibility of causing emotional distress. See Dove v. PNS Stores, Inc., 27 982 F. Supp. 1420, 1425 (C.D. Cal. 1997). Indeed, Plaintiff does not clearly allege what specific 28 action taken by Defendant UPS caused her alleged emotional distress. 1 Moreover, Plaintiff fails to plead facts to show she suffered serious emotional distress 2 sufficient to state a claim for IIED. Plaintiff has a “high bar” in demonstrating she suffered severe 3 emotional distress. See Hughes, 46 Cal. 4th at 1051. “Severe emotional distress means ‘emotional 4 distress of such substantial quality or enduring quality that no reasonable [person] in civilized 5 society should be expected to endure it.’” Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1246 6 (9th Cir. 2013) (quoting Hughes, 46 Cal. 4th at 1051) (internal quotation marks omitted). 7 Plaintiff alleges in conclusory fashion that she experienced “severe emotional distress, 8 great mental pain, embarrassment, humiliation, anguish, and suffering.” (Doc. No. 1-2 at 18.) But 9 Plaintiff offers no facts to substantiate her general allegations that she suffered from these 10 symptoms or conditions. See McKenna v. Permanente Med. Grp., Inc., 894 F. Supp. 2d 1258, 11 1275 (E.D. Cal. 2012) (dismissing plaintiff’s IIED claim where plaintiff failed to plead facts 12 supporting that she suffered from conditions including embarrassment, humiliation, anxiety, and 13 anguish); Lawler, 704 F.3d at 1246 (plaintiff’s assertion that he suffered from “anxiety, 14 sleeplessness, upset stomach, and sometimes muscle twitches” did not constitute severe emotional 15 distress). Plaintiff does not offer any facts to demonstrate her particular susceptibility to 16 emotional distress, the causal link between Defendant UPS’s actions and her emotional state, the 17 intensity of her alleged suffering, or duration of her alleged distress. See Fletcher v. W. Nat'l Life 18 Ins. Co., 10 Cal. App. 3d 376, 397 (Ct. App. 1970) (“The intensity and duration of the distress are 19 factors to be considered in determining its severity.”); Reynolds v. Shure, 148 F. Supp. 3d 928, 20 934 (E.D. Cal. 2015) (dismissing plaintiff’s IIED claim where plaintiff stated only that he 21 suffered “anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and 22 shame” and did not “provide any facts regarding his susceptibility to emotional distress, the 23 duration of the distress, or the causal link between [defendant’s] behavior and his emotional 24 state”). For these reasons, the court finds Plaintiff’s allegations are insufficient to state a 25 cognizable IIED claim. 26 Next, the court turns to Defendant UPS’s argument that Plaintiff’s IIED claim is also 27 preempted by the WCA’s exclusivity doctrine. The WCA is the exclusive remedy for claims of 28 IIED when the claims arise out of action taken within the context of the employment relationship. 1 Carlos v. Old Dominion Freight Line, Inc., 726 F. App’x 576, 579 (9th Cir. 2018); Cole v. Fair 2 Oaks Fire Prot. Dist., 43 Cal. 3d 148, 233 (1987); Cal. Lab. Code §§ 3600, et seq. WCA 3 preemption applies even where an employer’s acts within the employment relationship are 4 “calculated to cause severe emotional disturbance.” Gantt v. Sentry Ins., 1 Cal. 4th 1083, 1099 5 (1992), overruled on other grounds by Green v. Ralee Eng’g Co., 19 Cal. 4th 66 (1998). 6 However, there exists a “long-standing view that unlawful discrimination and retaliation in 7 violation of FEHA falls outside the compensation bargain” and that “claims of such intentional 8 infliction of emotional distress based on such discrimination and retaliation” are not covered by 9 WCA exclusivity. Light v. Dep’t of Parks & Recreation, 14 Cal. App. 5th 75, 101 (2017). 10 Here, Plaintiff’s generalized allegations do not provide sufficient detail for the court to 11 determine at this point that her IIED claim would be subject to the WCA exclusivity doctrine. 12 Therefore, the court will grant Defendant UPS’s motion to dismiss Plaintiff’s IIED claim with 13 leave to amend. 14 D. UCL Claim against Defendant UPS 15 To state a UCL claim, “a plaintiff must show either an (1) ‘unlawful, unfair, or fraudulent 16 business act or practice,’ or (2) ‘unfair, deceptive, untrue or misleading advertising.’” Lippitt v. 17 Raymond James Fin. Servs., Inc., 340 F.3d 1033, 1043 (9th Cir. 2003), as amended (Sept. 22, 18 2003) (quoting Cal. Bus. & Prof. Code § 17200). 19 To state a claim under the fraudulent prong of the UCL, a plaintiff must allege facts that 20 show reasonable members of the public are likely to be deceived by the allegedly fraudulent 21 conduct. See Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1169 (9th Cir. 2012). As to the 22 fraudulent prong, plaintiff fails to allege facts to show that Defendant UPS engaged in fraudulent 23 conduct and that reasonable members of the public would likely be deceived by Defendant UPS’s 24 alleged conduct. Therefore, Plaintiff fails to state a claim under the fraudulent prong of the UCL. 25 To state a claim under the unlawful prong of the UCL, the alleged conduct must violate a 26 “borrowed” law. Davis, 691 F.3d at 1168 (internal quotation marks omitted). No independent 27 right to sue exists under the “unlawful” prong of the UCL. Mejia v. Chipotle Mexican Grill, Inc., 28 793 F. App’x 519, 521 (9th Cir. 2019). Here, Plaintiff points to California Labor Code § 6402 and 1 discrimination and harassment provisions under FEHA as the predicate for her claim under the 2 unlawful prong. Because Plaintiff’s FEHA claims fail due to Plaintiff’s failure to exhaust 3 administrative remedies, any UCL claim predicated upon them also fail. See Valladares v. 4 Specialized Loan Servicing, LLC, No. 1:23-cv-01224-NOD-JSAB, 2023 WL 8435575, at *4 5 (E.D. Cal. Dec. 5, 2023) (dismissing plaintiff’s UCL claim where plaintiff failed to properly state 6 a claim for a violation of any underlying law); Krantz v. BT Visual Images, L.L.C., 89 Cal. App. 7 4th 164, 178 (2001) (Claims “for relief under the unfair competition law (Bus. & Prof. Code, § 8 17200 et seq.)—stand or fall depending on the fate of the antecedent substantive causes of 9 action.”). 10 Further, California Labor Code § 6402 does not provide for a private right of action and 11 cannot serve as a basis for a UCL claim. See Wicker v. Walmart, Inc., 533 F. Supp. 3d 944, 950 12 (C.D. Cal. 2021) (dismissing plaintiff’s UCL claim predicated on violations of the Labor Code, 13 including § 6402, because they do not provide for any private right of action); see also Turner- 14 Gray v. AMN Healthcare Inc., No. 23-cv-05507-SI, 2025 WL 50419, at *3 (N.D. Cal. Jan. 7, 15 2025) (agreeing with other district courts in the Ninth Circuit that no private right of action exists 16 under Labor Code sections 6400–6407). 17 As for the unfair prong, “[a] business practice is unfair within the meaning of the UCL if 18 it violates established public policy or if it is immoral, unethical, oppressive or unscrupulous and 19 causes injury to consumers which outweighs its benefits.” McKell v. Wash. Mut., Inc., 142 Cal. 20 App. 4th 1457, 1473 (2006). Here, Plaintiff has not sufficiently alleged an unfair business 21 practice by Defendant UPS. Notably, Plaintiff’s complaint is devoid of any factual allegations to 22 support any of these elements of a UCL claim under the unfair prong. Moreover, in opposing 23 Defendant UPS’s motion to dismiss, Plaintiff does not mention her UCL claim under the unfair 24 prong, let alone offer any argument regarding that claim. 25 Therefore, the court will dismiss Plaintiff’s UCL claim with leave to amend. 26 E. Equal Pay Act Claim against Defendant UPS 27 The Equal Pay Act prohibits sex-based wage discrimination by providing that no 28 employer shall discriminate by paying different wages to employees of opposite sexes within an 1 establishment for jobs that require substantially equal skill, effort, and responsibility, and which 2 are performed under similar working conditions. 29 U.S.C. § 206(d)(1); E.E.O.C. v. Maricopa 3 Cnty. Cmty. Coll. Dist., 736 F.2d 510, 513 (9th Cir. 1984). 4 Defendant UPS argues that Plaintiff’s Equal Pay Act claim should be dismissed because 5 Plaintiff does not allege facts sufficient to state a cognizable claim. (Doc. No. 5 at 18.). According 6 to Defendant UPS, Plaintiff fails to allege: (1) that violations occurred within the “same 7 establishment” as opposite-sex comparators; (2) any facts about the work she performed for 8 which she was underpaid; and (3) how her work was substantially similar to work performed by 9 men under similar working conditions. (Id.). The court agrees that Plaintiff’s allegations are 10 deficient. Plaintiff vaguely alleges in her complaint that she is “similarly situated with respect to 11 her claims that UPS paid and promoted her less than her male counterparts.” (Doc. No. 1-2 at 12 ¶ 118.) But Plaintiff’s allegation that unidentified male employees were “similarly situated” is 13 merely a legal conclusion and is otherwise unsupported by allegations of facts elsewhere in the 14 complaint. See Werner v. Advance Newhouse P’ship, LLC, No. 1:13-cv-01259-LJO, 2013 WL 15 4487475, at *5 (E.D. Cal. Aug. 19, 2013) (dismissing Equal Pay Act claim because the plaintiff’s 16 allegation she was paid less than similarly situated male employees was conclusory and not 17 entitled to the assumption of truth absent factual support); Davis v. Inmar, Inc., No. 21-cv-03779- 18 SBA, 2022 WL 3722122, at *5 (N.D. Cal. Aug. 29, 2022) (dismissing Equal Pay Act claim where 19 plaintiff alleged only that an unidentified male colleague performed substantially similar work 20 and was paid more). Plaintiff’s complaint does not allege any facts to demonstrate she performed 21 her role under similar working conditions and that her role required similar skill, effort, and 22 responsibility as that of her male counterparts. 23 Therefore, the court will grant Defendant UPS’s motion to dismiss Plaintiff’s Equal Pay 24 Act claim with leave to amend. 25 F. Wrongful Termination Claim against Defendant UPS 26 To state a common law claim for wrongful termination in violation of public policy, 27 Plaintiff must allege: (1) she was employed by UPS; (2) UPS discharged her; (3) “violation of 28 public policy substantially motivated the discharge,” and (4) the discharge caused her harm. See 1 Diego v. Pilgrim United Church of Christ, 231 Cal. App. 4th 913, 920 (2014). The policy must be 2 “(1) delineated in either constitutional or statutory provisions; (2) public in the sense that it inures 3 to the benefit of the public rather than serving merely the interests of the individual; (3) well 4 established at the time of the discharge; and (4) substantial and fundamental.” Id. (citations and 5 quotation marks omitted). 6 Defendant UPS argues Plaintiff’s claim for wrongful termination in violation of public 7 policy fails because Plaintiff fails to cite a specific statute or constitutional provision that was 8 violated by the termination of her employment. (Doc. No. 5 at 19.) That is, Plaintiff does not 9 allege in her complaint that she was wrongfully discharged in violation of a specific constitutional 10 or statutory provision, as is required to state a cognizable claim for wrongful termination in 11 violation of public policy. Instead, Plaintiff vaguely states that her constructive discharge was in 12 violation of “whistleblower protection” but does not cite to a specific statute or elaborate further. 13 (Doc. No. 1-2 at 20.) Plaintiff also does not allege any facts regarding her claim that she was 14 constructively discharged, nor does she allege facts to show a nexus between any reporting of 15 statutory violations (whistleblowing) and adverse treatment she faced as a result. Absent any 16 indication in Plaintiff’s complaint from which inferences could be drawn, the court declines to 17 speculate as to what specific constitutional or statutory provision Plaintiff seeks to invoke. See 18 Mejia v. Chipotle Mexican Grill, Inc., No. 16-cv-7083-R, 2017 WL 11632288, at *2 (C.D. Cal. 19 Dec. 21, 2017); Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1257 (1994). 20 Plaintiff in her opposition to Defendant UPS’s motion frames her claim for wrongful 21 termination as a derivative claim in violation of FEHA. (Doc. No. 8 at 23.) Plaintiff’s claim for 22 wrongful termination also fails as a derivative claim because all Plaintiff’s other claims fail. See 23 Sneddon v. ABF Freight Sys., 489 F. Supp. 2d 1124, 1131 (S.D. Cal. 2007) (dismissing plaintiff’s 24 cause of action for wrongful termination in violation of public policy because plaintiff failed to 25 state a claim as to the underlying FEHA cause of action). Therefore, the court will dismiss 26 Plaintiff’s claim for wrongful termination in violation of public policy with leave to amend. 27 CONCLUSION 28 For the reasons explained above: 1 1. Defendant UPS’s request for judicial notice (Doc. No. 5-5) is GRANTED in part 2 and DENIED in part as specified herein; 3 2. Defendant UPS’s motion to dismiss (Doc. No. 5) is GRANTED in part, as follows: 4 a. Plaintiff’s first claim for hostile work environment is dismissed without 5 leave to amend; 6 b. Plaintiff’s second claim for sexual harassment is dismissed without leave to 7 amend; 8 c. Plaintiff’s third claim for assault and battery is dismissed without leave to 9 amend; 10 d. Plaintiff’s fourth claim for failure to take reasonable steps to prevent and/or 11 correct harassment, discrimination, and retaliation is dismissed without 12 leave to amend; 13 e. Plaintiff’s fifth claim for failure to engage in the interactive process is 14 dismissed without leave to amend; 15 f. Plaintiff’s sixth claim for intentional infliction of emotional distress is 16 dismissed with leave to amend; 17 g. Plaintiff’s seventh claim for unfair business practice under the UCL is 18 dismissed with leave to amend; 19 h. Plaintiff’s eighth claim for violation of the Equal Pay Act is dismissed with 20 leave to amend; and 21 i. Plaintiff’s ninth claim for wrongful termination in violation of public 22 policy is dismissed with leave to amend. 23 3. Defendant Jeff Davies’s motion to dismiss is GRANTED; 24 a. Plaintiff’s second claim for sexual harassment is dismissed without leave to 25 amend; and 26 b. Defendant Jeff Davies is dismissed from this action; 27 4. Defendant UPS’s motion for a protective order to stay discovery (Doc. No. 12) is 28 denied as having been rendered moot by this order; 1 5. Within twenty-one (21) days of the date of entry of this order, Plaintiff shall file a 2 first amended complaint to amend the claims for which leave to amend has been 3 granted, or alternatively, file a notice of her intent not to file a first amended 4 complaint; 5 6. Plaintiff is warned that her failure to comply with this order may result in 6 dismissal of this action due to Plaintiff’s failure to prosecute; and 7 7. The Clerk of the Court is directed to update the docket to reflect that Defendant 8 Jeff Davies has been terminated from this case. 9 10 IT IS SO ORDERED. □ 12 | Dated: _ February 25, 2025 Qe Os Dena Coggins 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16