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In Permanente Medical Group, the plaintiff alleged only that she told her supervisor that she had been “ill” with what appeared to be the flu and that she required sick leave for one week.
Summary of this case from Alejandro v. St Micro Electronics, Inc.Opinion
CIV. NO. 2:13-01560 WBS AC
2013-09-19
JACQUELINE KING, Plaintiff, v. THE PERMANENTE MEDICAL GROUP, INC., and Does 1 through 50, inclusive, Defendant.
MEMORANDUM AND ORDER RE: MOTION
TO DISMISS
Plaintiff Jacqueline King brought this action against defendant Permanente Medical Group and fifty unnamed Permanente Medical Group employees sued as Doe defendants arising out of the termination of her employment by defendant for alleged attendance issues. Defendant now moves to dismiss each of her claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), and to dismiss her claims brought under California Government Code Sections 12940(m) and 12940(n) for failure to exhaust her administrative remedies.
Plaintiff has filed no opposition to the motion. The Clerk left a phone message on the answering machine of plaintiff's attorney, inquiring whether he intends to file any response to the motion, but has received no return call or other reply from or on behalf of plaintiff's attorney. Despite the best efforts of the court and defendant's attorneys to notify plaintiff's attorney of the pendency of this motion and to invite his response, plaintiff's attorney has not given the court or counsel the courtesy of a response. Accordingly, pursuant to the provisions of Local Rule 230(c), the motion is taken under submission without oral argument.
I. Factual & Procedural History
Plaintiff alleges that she began work as a "tele[-] service representative" for defendant in January 2003. (Compl. ¶ 7 (Docket No. 1).) Plaintiff allegedly became ill with what she believed to be the flu on December 30, 2011, was diagnosed with severe dehydration on January 5, 2012, and gave her supervisor a doctor's note stating that she was ill and unable to work from December 30, 2011 until January 6, 2012. (Compl. ¶ 8.) On January 19, 2012, plaintiff allegedly left work about three hours early to see a doctor and provided a note to her supervisor documenting this visit. (Id. ¶ 9.) Plaintiff allegedly became ill again on March 2, 2012, and was advised by her doctor not to return to work until March 5, 2012. (Id. ¶ 10.) On March 9, 2012, defendant allegedly terminated plaintiff for "alleged attendance issues." (Id. ¶ 11.)
On January 7, 2013, plaintiff filed a complaint with the California Department of Fair Employment and Housing ("DFEH") in which she alleged that she experienced discrimination on or before March 9, 2012, because of a medical condition. (Def.'s Req. for Judicial Notice, Ex. A ("DFEH Compl.") at 6 (Docket No. 5-3).) Plaintiff alleged that she was warned by her supervisor on "January 27, 2011" that she had excessive absences. (Id.) Plaintiff alleged that defendant conducted an "investigation to see what they were going to do with [her]" lasting more than two months. (Id.) Plaintiff then alleged that she "kept asking [and] asking then finally on March 9 2012 my supervisor . . . tells [her] that they decided to terminate [her]." (Id.)
Plaintiff's exact allegation is that "per [her] conversation with [her] Supervisor on January 27, 2011, [her supervisor] came to [plaintiff] and told [her] that . . . [plaintiff] [has] [too] many occurrences for excessive absenteeism . . . ." (DFEH Compl. at 6.) The chronology of plaintiff's complaint to DFEH is not entirely clear, but it appears that plaintiff alleges that she was warned of excessive absenteeism after having taken sick leave from December 30, 2011, to January 6, 2012, but before she was terminated on March 9, 2012.
In her DFEH complaint, plaintiff further alleged that she filed a union grievance "to get [her] job back to full status with no time lost," and that she and her union representative were not able to meet with defendant until July 25, 2012. (Id.) Although defendant allegedly told plaintiff at that meeting that "a decision would be made by August 31, 2012," and then allegedly revised that date to December 3, 2012, plaintiff alleged that defendant did not contact her or her union representative following the meeting. (Id.) After plaintiff filed her complaint with DFEH, DFEH issued plaintiff a right-to-sue notice on January 21, 2013, authorizing her to bring a claim against defendant under the California Fair Employment and Housing Act ("FEHA"). (Compl. ¶ 5; Compl. Ex. A at 11.)
Plaintiff brought this action in Sacramento County Superior Court on May 30, 2013. (See Compl. at 1.) Plaintiff alleges that defendant (1) wrongfully denied her medical leave in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2612, and the California Family Rights Act ("CFRA"), Cal. Gov't Code § 12945, (2) wrongfully terminated her in violation of public policy, and violated FEHA by (3) discriminating against her on the basis of her disability in violation of Cal. Gov't Code § 12940(a), (4) failing to accommodate her disability in violation of Cal. Gov't Code § 12940(m), and (5) failing to engage in the interactive process in violation of Cal. Gov't Code § 12940(n). On July 30, 2013, defendant removed the case to this court under its federal question jurisdiction pursuant to 28 U.S.C. § 1441(a). (See Docket No. 1.) Defendant now moves to dismiss all claims for failure to state a claim on which relief may be granted under Rule 12(b)(6), and to dismiss plaintiff's fourth and fifth claims for failure to exhaust administrative remedies. Plaintiff does not oppose the motion.
II. Request for Judicial Notice
In general, a court may not consider items outside the pleadings when deciding a motion to dismiss, but it may consider items of which it can take judicial notice. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). A court may take judicial notice of facts "not subject to reasonable dispute" because they are either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201. Judicial notice may properly be taken of matters of public record outside the pleadings. See MGIC Indem. Corp v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986).
Defendant requests that the court take judicial notice of the Complaint of Discrimination filed by plaintiff with DFEH.Because this complaint is a public record of an administrative agency, the court will judicially notice it. See Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012). Although the court will not take judicial notice of any disputed facts contained in her administrative complaint for their truth, see Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001), it will take notice of plaintiff's allegations contained therein "for the limited purpose of showing [whether] [p]laintiff . . . exhaust[ed] her administrative remedies." Hellmann-Blumberg v. Univ. of Pac., No. 2:12-cv-00286-GEB-DAD, 2013 WL 1326469, at *1 (E.D. Cal. Mar. 29, 2013).
Defendant also requests that the court take judicial notice of the Complaint for Damages filed by plaintiff in Sacramento County Superior Court. (Def.'s Req. for Judicial Notice at 1.) Because the case was removed to this court, the complaint filed by plaintiff in state court is the operative complaint and we need not take notice of it.
III. Legal Standard
To survive a motion to dismiss for failure to state a claim, a plaintiff must plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).
In deciding whether a plaintiff has stated a claim, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). However, "the court is not required to accept legal conclusions cast in the form of factual allegations if those allegations cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994); see also Iqbal, 556 U.S. at 678 ("'[L]abels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'") (quoting Twombly, 550 U.S. at 555).
IV. Discussion
A. Exhaustion of Administrative Remedies
FEHA provides that any person claiming to be aggrieved by an alleged unlawful employment practice may file a complaint with DFEH identifying the name and address of the party alleged to have committed the complained-of practice and "set[ting] forth the particulars thereof." Cal. Gov't Code § 12960(b). In order to bring a civil action "[u]nder the FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with [DFEH] and must obtain from the Department a notice of right to sue . . . ." Romano v. Rockwell Int'l, Inc., 14 Cal. 4th 479, 492 (1996) (citations omitted); Rodriguez v. Airborne Express, 265 F.3d 890, 896 (9th Cir. 2001).
Defendant does not dispute that plaintiff timely filed a complaint with DFEH and obtained a right-to-sue letter. (See Def.'s Mem. in Supp. of Def.'s Mot. to Dismiss ("Def.'s Mem. in Supp.") at 8 (Docket No. 5-1).) Rather, defendant contends that plaintiff's administrative complaint failed to specify a claim for failure to accommodate plaintiff's disability or for failure to engage in the interactive process. (See id.) "To exhaust [a plaintiff's] administrative remedies as to a particular act made unlawful by [FEHA], the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts." Martin v. Lockheed Missiles & Space Co., 29 Cal. App. 4th 1718, 1724 (6th Dist. 1994). "Allegations in the civil complaint that fall outside the scope of the administrative charge are barred for failure to exhaust." Rodriguez, 265 F.3d at 897.
However, "claims not originally brought in verified complaints may nonetheless be brought in subsequently when they are 'like or reasonably related to' the initial allegations." Dep't of Fair Emp't & Hous. v. Law Sch. Admission Council, Inc., 896 F. Supp. 2d 849, 862 (N.D. Cal. 2012) (quoting Rodriguez, 265 F.3d at 897). "This standard is met where the allegations in the civil suit are within the scope of the administrative investigation 'which can reasonably be expected to grow out of the charge of discrimination.'" Rodriguez, 265 F.3d 897 (quoting Sandhu v. Lockheed Missiles & Space Co., 26 Cal. App. 4th 846, 859 (6th Dist. 1994)). In assessing whether a plaintiff has raised her claim before DFEH, courts "construe the language of . . . charges with utmost liberality since they are made by those unschooled in the technicalities of formal pleading." B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1100 (9th Cir. 2002) (citations omitted) (internal quotation marks omitted).
Plaintiff's complaint filed with DFEH is labeled as one for "discrimination," and does not explicitly state that defendant failed to accommodate her disability or failed to engage in the interactive process. (DFEH Compl. at 6.) Plaintiff's complaint specifically alleges, however, that "[i]t took the employer more than 2 months to do an investigation" after she was informed that she had excessive absences and that "she kept asking [and] asking" about the status of this investigation before she was ultimately terminated. (Id.) Plaintiff's complaint also alleges that defendant did not meet with plaintiff and her union representative until July 25, 2012, and that defendant took no further action to address her grievance even though plaintiff was "told a decision would be made on August 31, 2012 . . . ." (Id.)
Although plaintiff's complaint did not explicitly allege that defendant failed to accommodate her disability or engage in the interactive process, it is "the factual allegations of the original complaint, rather than the legal theory, [that] establish the proper boundaries of the charge." Rodriguez, 265 F.3d at 899. For instance, several courts have held that a complaint to DFEH alleging racial discrimination would not encompass later claims based on different factual grounds that were not raised before DFEH. See, e.g., id. at 898 ("reject[ing] Rodriguez's contention that his original charge . . . that he was discriminated against because he was Mexican-American[] should be construed to include a claim of disability discrimination[]"); Okoli v. Lockheed Technical Operations Co., 36 Cal. App. 4th 1607, 1613 (6th Dist. 1995) (holding that Okoli's retaliation claim was barred because it was "neither like nor reasonably related to his DFEH claim" alleging race and national origin discrimination.)
By contrast, a plaintiff who raises different claims based on the same factual allegations contained in her complaint to DFEH has not failed to exhaust her administrative remedies with respect to those claims. Department of Fair Employment & Housing v. Law School Admission Council, 896 F. Supp. 2d 849 (N.D. Cal. 2012), is instructive. There, DFEH had received numerous complaints alleging that the Law School Admission Council had violated FEHA and the Unruh Act by failing to provide disabled test-takers with reasonable accommodations and "flagging" the score reports of those who requested accommodations. Id. at 853-54. Based on those complaints, DFEH filed a civil complaint alleging several violations of the Americans with Disabilities Act. Id. Although LSAC argued that these claims had not been exhausted because they were not initially raised to DFEH, the court disagreed, and held that "all five claims advanced by DFEH involve the same kind of improper conduct - the denial of reasonable accommodations on a standardized test on account of disability." Id. at 864.
Like DFEH's claims in Law School Admission Council, plaintiff's claims that defendant failed to accommodate her disability and failed to engage in the interactive process "have not markedly shifted from one type of discriminatory behavior . . . to another . . . ." Id. Plaintiff's DFEH complaint, construed liberally, see Maui Police Dept., 276 F.3d at 1100, includes factual allegations that defendant initiated an "investigation" of her absenteeism, failed to respond to her inquiries about the status of this investigation, terminated her, and refused to address her union grievance or negotiate with her union representative in good faith. (See DFEH Compl. at 6.)
In addition, an investigation of plaintiff's claim that she was terminated because of her disability necessarily implicates the question of whether defendant had engaged in an interactive process to find a reasonable accommodation for her disability prior to terminating her. Cf. E.E.O.C. v. Farmer Bros., 31 F.3d 891, 899 (9th Cir. 1994) (noting that failure to raise a discriminatory layoff claim before the EEOC would not bar plaintiff's claim because her charge alleging discriminatory failure to rehire made it "necessary for the EEOC to investigate the circumstances of [plaintiff's] layoff").
Plaintiff's claims that defendant failed to accommodate her disability and engage in the interactive process are therefore "like or reasonably related to" the allegations in her DFEH complaint that defendant discriminated against her because of her disability. See Rodriguez, 265 F.3d at 898. Accordingly, plaintiff has exhausted her administrative remedies with respect to each of her claims brought pursuant to FEHA.
B. Unlawful Denial of Medical Leave Under FMLA and CFRA
Both the FMLA and CFRA provide, in pertinent part, that an eligible employee is entitled to a total of twelve workweeks of leave during any twelve-month period because of a "serious health condition" that makes the employee unable to perform the functions of his or her job. 29 U.S.C. § 2 612(a)(1)(D); Cal. Gov't Code § 12945.2(c)(3)(C). The Ninth Circuit has clarified that the FMLA protects not only an employee's "right to use a certain amount of leave for protected reasons," but also the "right to return to his or her job or an equivalent job after using protected leave." Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1122 (9th Cir. 2001).
Both statutes provide that a "serious health condition" requires either an "illness" involving "inpatient care in a hospital, hospice, or residential medical facility" or "continuing treatment by a health care provider." 29 U.S.C. § 2611; 2 C.C.R. § 7297.0(o). "Continuing treatment" entails a period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves either (a) treatment two or more times by a health care provider within thirty days of the first day of incapacity or (b) treatment by a health care provider on at least one occasion resulting in a regimen of continuing treatment under that provider's supervision. 29 C.F.R. § 825.115; 2 C.C.R. § 7297.0(o) (adopting the definition of continuing treatment "as detailed in FMLA and its implementing regulations").
Plaintiff's allegations that she was terminated because she took sick leave to recuperate from the flu and severe dehydration, (Compl. ¶¶ 9, 14), fail to establish a claim under either the FMLA or CFRA. Plaintiff does not allege at any point in the Complaint that she was under inpatient care. Nor does plaintiff allege sufficient facts to make out a claim that she was under "continuing treatment." Plaintiff alleges that she was unable to return to work from December 30, 2011 to January 6, 2012 and that she was diagnosed with severe dehydration on January 5, 2012. (Id. ¶ 8.) Plaintiff does not allege that she was placed on a regimen of continuing treatment by her doctor on January 5, 2012, or that she received two treatments by a health care provider during the period between December 30, 2011, and January 6, 2012, in which she was allegedly unable to work. (See id.)
Defendant asserts "the flu does not qualify as a serious health condition" under either FMLA or CFRA. (Def.'s Mem. in Supp. at 2:20-21.) The regulation implementing the FMLA, which has in turn been adopted by the CFRA, see 2 C.C.R. § 7297.0(o), states that "[o]rdinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave." 29 C.F.R. § 825.113(d) (emphasis added). At least one court in California has held that this regulation "expressly excludes" the flu from coverage under the FMLA or CFRA. Gibbs v. Am. Airlines, Inc., 74 Cal. App. 4th 1, 8-9 (1st Dist. 1999).
However, several courts have rejected this categorical reading, and have held that the flu can qualify as a serious health condition if the plaintiff otherwise satisfies the relevant statutory and regulatory criteria for a serious health condition. See, e.g., Miller v. AT&T Corp., 250 F.3d 820, 832 (4th Cir. 2001). Which way a particular panel decides this question may depend upon whether any of the judges on that panel have had the flu. This court need not decide whether the flu qualifies as a serious health condition because plaintiff ultimately fails to allege facts that satisfy the requirements for "continuing treatment" set forth by 29 C.F.R. § 825.115.
Plaintiff alleges that she left work about three hours early on January 19, 2012, twenty days after she was initially incapacitated, to see a doctor. (Compl. ¶ 9.) Although this visit occurred within thirty days of when plaintiff was allegedly first incapacitated, plaintiff's allegations still do not satisfy the requirements of continuing treatment because she does not allege that her doctor's visit on January 19 was related to her earlier bout of the flu and dehydration. (See id.)
Moreover, even if plaintiff's visit to the doctor on January 19 were related to her earlier illness, it would not satisfy the requirements of continuing treatment because it did not take place within the period in which she was incapacitated. Although the Ninth Circuit has not addressed this question, numerous courts have agreed that the second treatment must occur within the same period of incapacity as the first treatment in order to satisfy the requirements of "continuing treatment." See, e.g., Branham v. Gannett Satellite Info. Network, 619 F.3d 563, 571 (6th Cir. 2010) ("[T]he second treatment must occur during the same period of incapacity as the first[.]"); Jones v. Denver Pub. Sch., 427 F.3d 1315, 1321 (10th Cir. 2005) ("[T]o qualify for FMLA protection, the health condition must . . . entail[] an absence of more than three consecutive calendar days during which the employee obtained treatment by a health care provider at least two times . . . ." (emphasis added)); Thorson v. Gemini, Inc., 205 F.3d 370, 377 (8th Cir. 2001) (noting that a "serious health condition" requires both a period of incapacity exceeding three calendar days and ""continuing treatment' . . . within that period" (emphasis added)).
Therefore, even if plaintiff's allegations were sufficient to establish that her visit to her doctor on January 19, 2012 was related to her earlier illness, this would not establish that plaintiff suffered from an illness requiring continuing treatment. See, e.g., Jones, 427 F.3d at 1322 (noting that "one treatment, with a follow-up check-up weeks after the employee has returned to work" is insufficient to make out a claim under the FMLA); Doughtie v. Ashland, Inc., No. 03-2073 ML/AN, 2005 WL 1239286, at *4 (W.D. Tenn. May 24, 2005) (holding that plaintiff who was incapacitated due to surgery for more than three days did not suffer from a "serious health condition" because his first follow-up appointment did not occur until eleven days after he had returned to work).
Finally, plaintiff alleges that she was terminated because she took sick leave from March 2, 2012 to March 5, 2012. (Compl. ¶ 10.) This allegation is also insufficient to make out a claim that plaintiff suffered from a serious health condition under the FMLA or CFRA. Plaintiff does not allege that she received inpatient care during this period. (See id.) Nor does plaintiff allege any facts that indicate that she sought treatment from a health care provider two or more times during this period or that any visit with a health care provider resulted in a regimen of continuing treatment under the supervision of that health care provider. (See id.) Accordingly, the court must grant defendant's motion to dismiss plaintiff's claim that she was unlawfully denied medical leave.
C. Wrongful Termination
California law recognizes a cause of action for an employee who is wrongfully terminated in violation of public policy. Tameny v. Atl. Richfield Co., 27 Cal. 3d 167, 170 (1980). Although the precise contours of this rule are not well-defined, courts have held that wrongful termination in violation of either the FMLA or CFRA contravenes public policy. See, e.g., Xin Liu v. Amway Corp., 347 F.3d 1125, 1138 (9th Cir. 2003) ("[V]iolation of the FMLA must . . . constitute a violation of public policy."); Nelson v. United Techs., 74 Cal. App. 4th 597, 607 (6th Dist. 1999) ("[A] claim for tortious wrongful discharge based upon the CFRA . . . may be stated under California law.").
Here, plaintiff's wrongful termination claim is premised on a violation of the FMLA and/or CFRA. Because plaintiff has failed to state a claim that defendant violated either the FMLA or CFRA, plaintiff's wrongful termination claim also fails. Accordingly, the court must grant defendant's motion to dismiss plaintiff's wrongful termination claim.
D. Disability Discrimination Under FEHA
FEHA makes it an unlawful employment practice to discharge a person from employment or discriminate against a person because of a physical or mental disability or medical condition. Cal. Gov't Code § 12940(a). In order to state a claim of disability discrimination, a plaintiff must allege that he or she (1) suffers from a disability, (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of his or her disability. McCarthy v. R.J. Reynolds Tobacco Co., 819 F. Supp. 2d 923, 934 (E.D. Cal. 2011) (Shubb, J.); Faust v. Cal. Portland Cement Co., 150 Cal. App. 4th 864, 886 (2d Dist. 2007).
A FEHA claim requires that "the employer had knowledge of the employee's disability when the adverse employment decision was made." Foster v. City of Oakland, 649 F. Supp. 2d 1008, 1018 (N.D. Cal. 2009) (citing Brundage v. Hahn, 57 Cal. App. 4th 228, 236-37 (2d Dist. 1997)); accord Raytheon Co. v. Hernandez, 540 U.S. 44, 54 n.7 (2003) ("If [defendant] were truly unaware that such a disability existed, it would be impossible for her hiring decision to be based, even in part, on [plaintiff's] disability . . . [Plaintiff] cannot, ipso facto, be subject to disparate treatment."). An employee's "vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the FEHA." Brundage, 57 Cal. App. 4th at 237. And "[w]hile knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts." Id.
Plaintiff has not sufficiently alleged that defendant was aware of her disability. Plaintiff alleges that she took sick leave on three occasions in January and March. (Compl. ¶¶ 8-10.) These allegations establish that defendant was aware that plaintiff took sick leave for an illness, but are insufficient to impute knowledge of her alleged disability to defendant. See Dirks v. Permanente Med. Grp., No. 2:09-CV-03399-JAM-EFB, 2010 WL 1779932, at *4 (E.D. Cal. Apr. 29, 2010) ("Although Plaintiff's allegations demonstrate that Defendant knew about plaintiff's health problems, these allegations are not sufficient to state a claim that Defendant knew about Plaintiff's disability." (emphasis added)).
Nor does it follow that defendant knew of plaintiff's alleged disability because she submitted notes from her doctor stating that she was unable to work. (See Compl. ¶¶ 8, 9.) Even taking this allegation as true, plaintiff has alleged no facts suggesting that these notes "contain[ed] sufficient information to put [defendant] on notice that plaintiff suffered from a disability." Avila v. Continental Airlines, Inc., 165 Cal. App. 4th 1237, 1249 (2d Dist. 2008). Other than noting that her doctor stated she was unable to work between December 30, 2011 and January 6, 2012, plaintiff makes no other allegations about the contents of these notes. (See Compl. ¶¶ 8, 9.)
Moreover, plaintiff did not allege any facts about her return to work that suggest defendant's "awareness of h[er] condition." Vermillion v. Corrections Corp. of Am., No. CV F 08-1069 LJO SMS, 2008 WL 4755329, at *6 (E.D. Cal. Oct. 29, 2008) (finding that plaintiff's alleged "requests to sit and need to file a worker's compensation claim" were sufficient to make out a claim that his employer knew of his disability upon returning to work). Plaintiff concedes that she returned to work on January 9, 2012, and fails to identify specific work restrictions that she requested upon returning. See Avila, 165 Cal. App. 4th at 1249 ("From [defendant's] point of view, the fact that plaintiff . . . returned to work days later without restrictions or accommodations is consistent with the conclusion that plaintiff did not suffer from a condition that qualifies as a disability.") Plaintiff's alleged disability is far from "the only reasonable interpretation of the known facts," and her factual allegations are therefore insufficient to impute knowledge of her alleged disability onto defendant. Brundage, 57 Cal. App. 4th at 237.
In contrast to Avila, plaintiff does allege that she requested an accommodation upon her return to work - the right to "take certain days off due to her medical condition." (Compl. ¶ 34.) But this is a distinction without a difference: although plaintiff characterizes her request for sick leave as an "accommodation," plaintiff has not alleged that her "medical condition" imposed any limitations upon her, and has not stated sufficient facts to support her allegation that defendant knew she had a disability requiring accommodation.
Leaving aside these factual allegations, plaintiff is left with the bare allegation that "[d]efendant knew that [p]laintiff had a physical disability." (Compl. ¶ 25.) But such a "legal conclusion[] cast in the form of a factual allegation[]" is insufficient to state a claim for relief. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Absent "at least some minimal factual basis," her allegation that defendant knew of her alleged disability cannot serve as the predicate to her claim that she was terminated because of her disability. Kelley v. Corrections Corp. of Am., 750 F. Supp. 2d 1132, 1139 (E.D. Cal. 2010) (Ishii, J.) (dismissing plaintiff's claim under FEHA because she failed to allege a factual basis for a potential accommodation of her disability).
In short, Plaintiff's generalized and conclusory assertion that defendant knew of her disability is without factual support, and plaintiff has not stated a claim that defendant knew of her alleged disability or terminated her because of it. See Cal. Gov't Code § 12940(a). Accordingly, the court must grant defendant's motion to dismiss plaintiff's disability discrimination claim.
E. Failure to Accommodate Under FEHA
FEHA prohibits an employer from "fail[ing] to make reasonable accommodation for the known physical or mental disability of an applicant or employee." Cal. Gov't Code § 12940(m) (emphasis added). In other words, an employer is not "liable for failing to accommodate a disability of which it had no knowledge." Prilliman v. United Air Lines, Inc., 53 Cal. App. 4th 935, 954 (2d Dist. 1997). Under the reasonable accommodation provisions of FEHA, it is not enough to show that the employer was aware that "the employee had some impairment such as a medical or physical condition;" rather, "[t]he employer must have been aware that the impairment limited the employee in a major life activity." Jadwin v. County of Kern, 610 F. Supp. 2d 1129, 1178 (E.D. Cal. 2009) (Wanger, J.) (emphasis added).
Plaintiff alleges only that she "requested that Defendant accommodate her disabilities by allowing her to take certain days off due to her medical condition." (Compl. ¶ 34 (emphasis added).) This allegation is insufficient to plead a claim for failure to accommodate because plaintiff has not identified any limitations that this alleged condition imposed. See Avila, 165 Cal. App. 4th at 1252 ("[T]he duty of an employer reasonably to accommodate an employee's handicap does not arise until the employer is aware of respondent's . . . physical limitations.") (emphasis added).
In addition to her failure to identify any limitations, plaintiff's failure to accommodate claim also fails for the same reason as her disability discrimination claim: she has alleged no facts to support her ultimate allegation that defendant failed to accommodate a "known disability," as required by Section 12940(m). See Dirks, 2010 WL 1779932 at *4. Accordingly, because plaintiff does not state a claim that defendant failed to accommodate a known disability, see Cal. Gov't Code § 12940(m), the court must grant defendant's motion to dismiss her claim that defendant failed to accommodate her disability.
F. Failure to Engage in the Interactive Process Under FEHA
FEHA requires "an employer . . . to engage in a timely, good faith interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for a reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition." Cal. Gov't Code § 12940(n). With narrow exceptions not relevant here, "[t]he employee generally bears the burden of initiating the informal, interactive process." Stoll v. The Hartford, No. 05-CV-1907 IEG, 2006 WL 3955826, at *5 (S.D. Cal. Nov 7, 2006) (citing Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1188 (9th Cir. 2001)). Like plaintiff's other FEHA claims, a failure to interact claim requires a showing that the defendant was "aware of the need to consider an accommodation." Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34, 62 n.22 (2d Dist. 2006); Ellis v. City of Reedley, No. CV F 05-1474 AWI SMS, 2007 WL 1098571, at *13 (E.D. Cal. Apr. 12, 2007) ("[T]he claim requires a showing that [d]efendant[] had subjective knowledge of [p]laintiff's disability, or, at a minimum, constructive knowledge.").
As with her other FEHA claims, plaintiff's allegation that she "requested that [d]efendant accommodate her disability by allowing her to take certain days off due to her medical condition," (Compl. ¶ 34), is insufficient, even taken alongside her other factual allegations, to show that defendant was aware that plaintiff had a disability requiring accommodation. See Dirks, 2010 WL 1779932 at *4. Because plaintiff does not sufficiently allege that defendant had knowledge of her disability, she has not stated a claim that defendant failed to engage in an interactive process to accommodate a known disability. See Cal. Gov't Code § 12940(n). Accordingly, the court must grant defendant's motion to dismiss plaintiff's failure to interact claim.
IT IS THEREFORE ORDERED that defendant's motion to dismiss for failure to state a claim be, and the same hereby is, GRANTED.
Plaintiff has twenty days from the date of this Order to file an amended complaint, if she can do so consistent with this Order.
________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE