Erica Madrigal v. Senior Aerospace SSP et al

Filing 40

MINUTES (IN CHAMBERS) Defendant Aerotek, Inc Motion to Dismiss or for a More Define Statement 34 by Judge Christina A. Snyder: The Court GRANTS WITHOUT PREJUDICE defendants motion to dismiss plaintiff Fifth, Sixth, Seventh, Eighth, and Ninth Claim. Plaintiff is hereby granted thirty(30) days in which to file an amended complaint addressing the deficiencies identified herein. Failure to do so will result in dismissal of plaintiff claims with prejudice. (jp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

2:16-cv-01883-CAS(SSx)

Title

ERIKA MADRIGAL V. SENIOR AEROSPACE SSP, ET AL.

Present: The Honorable

Date

August 9, 2016

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Not Present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(IN CHAMBERS) - DEFENDANT AEROTEK, INC.’S MOTION
TO DISMISS OR FOR A MORE DEFINITE STATEMENT (Dkt.
34, filed July 8, 2016)

The Court finds this motion appropriate for decision without oral argument. See
Fed. R. Civ. P. 78; C.D. Cal. Local Rule 7-15. Accordingly, the hearing date of August
15, 2016, is vacated, and the matter is hereby taken under submission.
I.

INTRODUCTION & BACKGROUND

On May 27, 2016, plaintiff Erika Madrigal filed the operative Second Amended
Complaint (“SAC”) in this action against defendants Senior Aerospace SSP, Senior
Operations, LLC, Senior Operations, Inc., Senior PLC, Aerotek, Inc. (“Aerotek”), and
Does 1 through 100 (collectively, “defendants”). Dkt. 25. Plaintiff asserts claims against
defendants for: (1) pregnancy discrimination in violation of FEHA; (2) pregnancy
discrimination in violation of public policy; (3) retaliation for complaints of pregnancy
discrimination in violation of FEHA; (4) retaliation for complaints of pregnancy
discrimination in violation of public policy; (5) disability discrimination in violation of
FEHA; (6) disability discrimination in violation of public policy; (7) retaliation for
requests for accommodation, and/or complaint of disability discrimination in violation of
FEHA; (8) retaliation for requests for accommodation, and/or complaint of disability
discrimination in violation of public policy; (9) failure to accommodate in violation of
FEHA; (10) failure to engage in the interactive process in violation of FEHA; (11)
California pregnancy disability leave discrimination/interference in violation of FEHA;
(12) California pregnancy disability leave discrimination/ interference in violation of
public policy; (13) retaliation for requests for accommodation, and/or complaints of
California pregnancy disability leave discrimination in violation of FEHA; (14)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:16-cv-01883-CAS(SSx)

August 9, 2016

Title

ERIKA MADRIGAL V. SENIOR AEROSPACE SSP, ET AL.

retaliation for requests for accommodation, and/or complaints of California pregnancy
disability leave discrimination in violation of public policy; and (15) failure to do
everything reasonably necessary to prevent discrimination, and retaliation from occuring
in violation of FEHA. In brief, plaintiff alleges that she was employed by defendants and
that she was unlawfully discriminated against and ultimately terminated by defendants on
the basis of her pregnancy and pregnancy-related disabilities.
On July 8, 2016, defendant Aerotek filed a motion to dismiss portions of plaintiff’s
SAC pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for a
more definite statement. Dkt. 34. In particular, Aerotek moves to dismiss plaintiff’s
Fifth, Sixth, Seventh, Eighth, and Ninth Claims each of which asserts some form of
disability discrimination. Id. On July 13, 2016, the remaining defendants joined in
Aerotek’s motion to dismiss and for a more definite statement. Dkt. 35. On July 18,
2016, plaintiff filed an opposition, Dkt. 36, and on July 25, 2016, defendants filed a
reply, Dkt. 37. Having carefully considered the parties’ arguments, the Court finds and
concludes as follows.
II.

LEGAL STANDARD

A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the claims asserted in a complaint. Under this Rule, a district court
properly dismisses a claim if “there is a ‘lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.’ ” Conservation Force v.
Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balisteri v. Pacifica Police Dep’t,
901 F.2d 696, 699 (9th Cir. 1988)). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[F]actual allegations must
be enough to raise a right to relief above the speculative level.” Id.
In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all
material allegations in the complaint, as well as all reasonable inferences to be drawn
from them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be
read in the light most favorable to the nonmoving party. Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). However, “a court considering a motion to
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:16-cv-01883-CAS(SSx)

August 9, 2016

Title

ERIKA MADRIGAL V. SENIOR AEROSPACE SSP, ET AL.

dismiss can choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); see Moss v. United States Secret Service,
572 F.3d 962, 969 (9th Cir. 2009) (“[F]or a complaint to survive a motion to dismiss, the
non-conclusory ‘factual content,’ and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the plaintiff to relief.”). Ultimately,
“[d]etermining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679.
Unless a court converts a Rule 12(b)(6) motion into a motion for summary
judgment, a court cannot consider material outside of the complaint (e.g., facts presented
in briefs, affidavits, or discovery materials). In re American Cont’l Corp./Lincoln Sav. &
Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub nom
Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court
may, however, consider exhibits submitted with or alleged in the complaint and matters
that may be judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon
Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999); see Lee v. City of Los
Angeles, 250 F.3d 668, 689 (9th Cir. 2001).
As a general rule, leave to amend a complaint which has been dismissed should be
freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when “the
court determines that the allegation of other facts consistent with the challenged pleading
could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture
Co., 806 F.2d 1393, 1401 (9th Cir. 1986).
III.

ANALYSIS

Defendants’ move to dismiss plaintiffs Fifth Claim (disability discrimination in
violation of FEHA), Sixth Claim (disability discrimination in violation of public policy),
Seventh Claim (retaliation for requests for accommodation, and/or complaint of disability
discrimination in violation of FEHA), Eigth Claim (retaliation for requests for
accommodation, and/or complaint of disability discrimination in violation of public
policy), and Ninth Claim (failure to accommodate in violation of FEHA). As a
prerequisite for each of these claims, plaintiff must allege that she suffers from a
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:16-cv-01883-CAS(SSx)

August 9, 2016

Title

ERIKA MADRIGAL V. SENIOR AEROSPACE SSP, ET AL.

qualifying disability. See, e.g.,Faust v. California Portland Cement Co., 150 Cal. App.
4th 864, 886 (2007) (“A prima facie case for discrimination on grounds of physical
disability under the FEHA requires plaintiff to show: (1) he suffers from a disability; (2)
he is otherwise qualified to do his job; and, (3) he was subjected to adverse employment
action because of his disability.”) (emphasis added)(citations omitted); Scotch v. Art Inst.
of California-Orange Cnty., Inc., 173 Cal. App. th 986, 1009-10 (2009) (“The elements of
a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2)
the plaintiff is qualified to perform the essential functions of the position, and (3) the
employer failed to reasonably accommodate the plaintiff's disability.”) (emphasis added).
Here, defendants allege that plaintiff has failed to adequately allege that she suffers from
a qualifying disability. For the following reasons the Court agrees.
Under FEHA, “[n]ot every illness qualifies as [a] disability.” Avila v. Continental
Airlines, Inc., 163 Cal. App. 4th 1237, 1249 (Cal. Ct. App. 2008). The California Court
of Appeal has explained the test a plaintiff must satisfy to demonstrate a qualifying
disability under FEHA as follows:
Under the FEHA, “physical disability” includes having a
physiological disease, disorder, or condition that, by affecting the
neurological or musculoskeletal body systems, special sense organs or
skin, “limits” a “major life activity.” ([Cal. Gov’t. Code] § 12926,
subd. (k)(1)(A), (B).) “Limits” is synonymous with making the
achievement of a major life activity “difficult.” (Id., subd.
(k)(1)(B)(ii).) “Major life activity” is construed broadly and includes
physical, mental, and social activities, and working. (Id., subd.
(k)(1)(B)(iii).) “ ‘[W]orking’ is a major life activity, regardless of
whether the actual or perceived working limitation implicates a
particular employment or a class or broad range of employments.”
([Cal. Gov’t. Code] § 12926.1, subd. (c).) Whether a major life
activity is limited “shall be determined without regard to mitigating
measures such as medications, assistive devices, prosthetics, or
reasonable accommodations, unless the mitigating measure itself
limits a major life activity.” ([Cal. Gov’t. Code] § 12926, subd.
(k)(1)(B)(I).)
Arteaga v. Brink’s, Inc, 163 Cal. App. 4th 327, 345 (2008).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:16-cv-01883-CAS(SSx)

August 9, 2016

Title

ERIKA MADRIGAL V. SENIOR AEROSPACE SSP, ET AL.
Here, plaintiff’s allegations regarding her disability are as follows:
PLAINTIFF MADRIGAL’s protected status under the FEHA is
PLAINTIFF MADRIGAL's disabilities, including but not limited to
PREGNANCY which (1) limited major physical, mental, social and/or
working life activities and made the achievement of major physical,
mental, social and/or working life activities difficult; (2) required
special education and/or related services; (3) PLAINTIFF
MADRIGAL had a record and/or history of, which was known to the
defendant EMPLOYER; (4) defendant EMPLOYER regarded and/or
treated PLAINTIFF MADRIGAL as having and/or having had, a
condition that makes achievement of life activity difficult and; (5)
defendant EMPLOYER regarded and/or treated PLAINTIFF
MADRIGAL as having and/or having had, a disease, disorder,
condition, and/or health impairment that has no present disabling
effect but that may become a disability in the future.

SAC ¶ 79. These allegations are insufficient to state claims for disability discrimination.
Plaintiff has merely parroted the definition of a qualifying disability in conclusory
fashion without providing any details regarding how she is disabled. Most significantly,
while plaintiff states that her disability makes the achievement of major life activities
difficult, she fails to identify what those major life activities are. See also Cassista v.
Community Foods, Inc., 5 Cal. th 1050, 1061 (1993) (“the touchstone of a qualifying
handicap or disability is an actual or perceived physiological disorder which affects a
major body system and limits the individual’s ability to participate in one or more major
life activities.”). When a plaintiff claims that she is disabled, courts have generally
required the plaintiff to plead that disability with some factual specificity. See, e.g.,
Olson v. Mono Cnty. Sup. Ct., 2014 WL 1671586, at *4 (E.D. Cal. Apr. 28, 2014)
(dismissing FEHA disability discrimination claim with leave to amend and noting “[a]t
the very least, plaintiff should plead facts describing the nature of her disability.”);
Klamut v. California Highway Patrol, 2015 WL 9024479, at *7 (N.D. Cal. Dec. 16, 2015)
(noting under analogous claim for disability discrimination in violation of the Americans
With Disabilities Act that “courts have generally required the plaintiff to plead the
disability with some factual specificity”); Bresaz v. Cnty. of Santa Clara, 2015 WL
1230316, at *6 (N.D. Cal. Mar. 17, 2015) (same).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:16-cv-01883-CAS(SSx)

August 9, 2016

Title

ERIKA MADRIGAL V. SENIOR AEROSPACE SSP, ET AL.

Accordingly, the Court finds that plaintiff has failed to sufficiently allege that she
suffers from a qualifying disability. The Court, therefore, GRANTS defendant’s motion
to dismiss plaintiff’s disability-based claims.
IV.

CONCLUSION

In accordance with the foregoing the Court GRANTS WITHOUT PREJUDICE
defendants’ motion to dismiss plaintiff’s Fifth, Sixth, Seventh, Eighth, and Ninth Claim.
Plaintiff is hereby granted thirty(30) days in which to file an amended complaint
addressing the deficiencies identified herein. Failure to do so will result in dismissal of
plaintiff’s claims with prejudice.
IT IS SO ORDERED.
00
Initials of Preparer

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CMJ

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