Delgado v. United Facilities, Inc.

Filing 9

MEMORANDUM AND ORDER signed by Judge Morrison C. England, Jr. on 4/21/2011 ORDERING 5 Defendant's Motion for Judgment on the Pleadings is GRANTED. Plaintiff may file an amended complaint not later than 20 days following the date of this Memora ndum and Order should she choose to do so. If no amended complaint is filed within that period, those claims dismissed pursuant to this Memorandum and Order will be dismissed, with prejudice and without further notice to the parties herein. (Reader, L)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CLOVIA DELGADO

No. 2:11-cv-00485-MCE-DAD

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Plaintiff,
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MEMORANDUM AND ORDER

v.
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UNITED FACILITIES, INC., and
DOES 1 through 50, inclusive,

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Defendants.

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----oo0oo---17
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Plaintiff, Clovia Delgado (“Plaintiff”) alleges several

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claims against Defendant, United Facilities (“Defendant”),

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including disability discrimination, wrongful termination, and

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violations of the Fair Employment and Housing Act (“FEHA”) and

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the California Family Rights Act (“CFRA”).

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Motion for Judgment on the Pleadings pursuant to Federal Rule of

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Civil Procedure Rule 12(c).1

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opposition to this motion. (ECF No. 6.).

Defendant has filed a

(ECF No. 5.) Plaintiff has filed an

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All further references to “Rule” or “Rules” are to the
Federal Rules of Civil Procedure unless otherwise noted.
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For the reasons stated below, Defendants’ Motion will be

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granted.2

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BACKGROUND3

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Plaintiff began working for Defendant in July 2003.

On or

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about October 2008, Plaintiff took a medical leave of absence

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from her employment after she began experiencing problems with

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her back.

Plaintiff was released to return to work effective

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January 2009, but was instructed by her health care provider to

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stretch once every hour.

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Plaintiff return to work.

Defendant did not, at that point, have

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A letter to Plaintiff from Defendant’s human resources

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manager, Renna Bliss, dated April 20, 2009 referenced a previous

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conversation between the two in which Plaintiff said she was

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“hoping to have [her] doctor release [her] without restrictions

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as [she] believed she could do the job.”4

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Ex. B.)

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(Decl. of Renna Bliss

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Because oral argument will not be of material assistance,
the Court deemed this matter suitable for decision without oral
argument. E.D. Cal. Local Rule 230(g).
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The factual assertions in this section are based on the
allegations in Plaintiff’s complaint unless otherwise specified.
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Pursuant to U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir.
2003), this Court incorporates by reference within Plaintiff’s
complaint the April 20, 2009 letter from Defendant to Plaintiff
regarding her medical leave and return to work.
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Ms. Bliss noted in the letter that Defendant had not received any

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follow-up information from Plaintiff or her physician, and that

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she had used all of the time off work allotted to her under the

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Family and Medical Leave Act, as well as additional time

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permitted under the Americans with Disabilities Act.

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Ms. Bliss’ letter requested an update in writing from Plaintiff’s

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physician regarding her condition and whether she would be able

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to return to work without restrictions.

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Id.

Id.

On December 28, 2009, nearly a year after Plaintiff alleges

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her physician released her back to work with restrictions,

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Defendant permitted Plaintiff to return to work.

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alleges that Defendant refused to allow her to return to work

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until that time because her health care providers required her to

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stretch every hour.

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finally permitted to return to work was only because her health

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care providers determined she no longer had any work

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restrictions.

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as stated above, alleges physical disability discrimination,

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wrongful termination, and violations of California Government

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Code § 12940(m) and (n) and the California Family Rights Act.

Plaintiff

Plaintiff maintains that the reason she was

She subsequently filed the present lawsuit which,

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STANDARD

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A motion for judgment on the pleadings pursuant to Rule

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12(c) challenges the legal sufficiency of the opposing party’s

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pleadings.

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Reclamation, 805 F. Supp. 1503, 1506 (E.D. Cal. 1992).

See, e.g. Westlands Water Dist. v. Bureau of

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Any party may move for judgment on the pleadings under Rule 12(c)

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after the pleadings are closed but within such time as to not

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delay trial.

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be granted if, accepting as true all material allegations

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contained in the nonmoving party’s pleadings, the moving party

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“‘clearly establishes that no material issue of fact remains to

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be resolved and that he [or she] is entitled to judgment as a

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matter of law.’”

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1480, 1482 (9th Cir. 1984) (quoting Charles Alan Wright & Arthur

A motion for judgment on the pleadings should only

Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d

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R. Miller, Federal Practice and Procedure § 1368 (1969)); Hal

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Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,

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1550 (9th Cir. 1989)).

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when there is either a “lack of cognizable legal theory” or the

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“absence of sufficient facts alleged under a cognizable legal

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theory.”

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(9th Cir. 1988).

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Judgment on the pleadings is also proper

Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699

The standard for evaluating a motion for judgment on the

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pleadings is essentially the same as the standard applied to a

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Rule 12(b)(6) motion.

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F.2d 1188, 1192 (9th Cir. 1989).

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short and plain statement of the claim showing that the pleader

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is entitled to relief,” to “give the defendant fair notice of

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what the ... claim is and the grounds upon which it rests.”

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

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citations and quotations omitted).

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Dworkin v. Hustler Magazine, Inc., 867
Rule 8(a)(2) requires only “a

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Bell

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Although “a complaint attacked by a Rule 12(b)(6) motion” need

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not contain “detailed factual allegations, a plaintiff’s

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obligation to provide the ‘grounds’ of his ‘entitlement to

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relief’ requires more than labels and conclusions, and a

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formulaic recitation of the elements of a cause of action will

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not do.”

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2869 (1986)).

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to raise a right to relief above the speculative level.”

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(citing 5 C. Wright & A. Miller, Federal Practice and Procedure

Id. at 555 (quoting Papasan v. Allain, 478 U.S. 265,
A plaintiff’s “factual allegations must be enough
Id.

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§ 1216 (3d ed. 2004) (“[T]he pleading must contain something more

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... than ... a statement of facts that merely creates a suspicion

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[of] a legally cognizable right of action.”)).

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Further, “Rule 8(a)(2) ... requires a ‘showing,’ rather than

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a blanket assertion, of entitlement to relief.

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factual allegation in the complaint, it is hard to see how a

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claimant could satisfy the requirements of providing ... grounds

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on which the claim rests.”

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(internal citations omitted).

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enough facts to state a claim to relief that is plausible on its

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face.”

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claims across the line from conceivable to plausible, their

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complaint must be dismissed.”

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Id. at 570.

Without some

Twombly, 550 U.S. at 555 n.3
A pleading must then contain “only

If the “plaintiffs ... have not nudged their

Id.

Courts have discretion to grant leave to amend in

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conjunction with motions made pursuant to Rule 12(c).

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Peralta Cmty. Coll. Dist., 825 F. Supp. 891, 893 (N.D. Cal. 1993)

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(citing Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th

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Cir. 1979).

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Moran v.

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Generally, leave to amend a complaint is denied only if it is

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clear that the deficiencies of the complaint cannot be cured by

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amendment.

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658 (9th Cir. 1992).

DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655,

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ANALYSIS

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A.

Disability Discrimination

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Plaintiff alleges that Defendant discriminated against, and

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decided not to employ, Plaintiff due to her physical disability.

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Defendant maintains that Plaintiff has failed to establish a

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prima facie case for disparate treatment discrimination arguing

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that Plaintiff does not identify what discrimination she

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experienced, and that she has pled no adverse employment action

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taken against her.

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FEHA unambiguously permits an adverse employment action on

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the basis of disability if the disability renders the employee

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unable to perform the essential duties of the job even with

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reasonable accommodation.

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254, 264 (2007).

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complaint need not contain specific facts establishing a prima

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facie case of discrimination.

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(aff’g Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 (2002)).

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However, the complaint must plead some minimal factual basis to

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support a conclusion that plaintiff can perform the essential

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functions of the job with or without accommodation.

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Corr. Corp. of Am., No. 10-1294, 2010 WL 3853182, at *5

Green v. State of Cal., 42 Cal. 4th

For employment discrimination claims, the

Twombly, 550 U.S. 544, 569-70

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Kelley v.

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(E.D. Cal. Sept. 30, 2010) (internal citations omitted).

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Plaintiff has an obligation to provide the ‘grounds’ of his or

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her ‘entitlement to relief,’ which requires more than labels and

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conclusions, and a formulaic recitation of the elements of a

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cause of action.

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omitted).

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raise a right to relief above the speculative level.”

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Twombly, 550 U.S. at 555 (internal citations

A plaintiff’s “factual allegations must be enough to
Id.

Plaintiff’s first claim for disability discrimination is
inartfully pled.

Aside from alleging that she suffered from a

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disability, Plaintiff has not pled any clear facts that

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establish, or even necessarily infer, a claim for disability

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discrimination.

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facie case at this stage in the pleadings, the complaint must

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contain more detailed factual allegations to raise her claim

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above a level of mere speculation.

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Though Plaintiff need not establish a prima

Plaintiff is unclear as to what adverse employment effects

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she suffered.

Paragraphs 8-9 of Plaintiff’s complaint allege

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that she was only on medical leave until January 2009, and not

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through December 2009 when Defendant invited her to return to

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work.

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been incorporated into the pleadings, indicates that she was

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still on medical leave as of April 20, 2009.

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inconsistent and do not on their face reasonably lead to a

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conclusion of discriminatory action on the part of Defendant.

However, the letter from Ms. Bliss to Plaintiff, which has

These facts are

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Regardless of which action Defendant took in regards to

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Plaintiff’s employment, the complaint as pled does not provide a

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right to relief for disability discrimination.

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If Plaintiff was on extended medical leave through December 2009,

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then it does not appear from the facts that she suffered any

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discrimination.

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substantial amount of medical leave for her disability.

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Additionally, even iff Defendant in fact terminated Plaintiff, or

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unreasonably delayed her reinstatement, neither of these actions

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is necessarily “adverse” under FEHA if Plaintiff was not able to

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perform the essential duties of her job due to her restrictions.

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An employer is not required under FEHA to re-employ an individual

To the contrary, it would appear she received a

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incapable of performing essential duties, and Plaintiff’s

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complaint should provide information describing the essential

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elements of her position with or without reasonable

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accommodations.

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Plaintiff has not pled sufficient facts to establish that she

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suffered an adverse employment action due to her disability.

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Plaintiff alleges that her health care provider released her to

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work with restrictions in January 2009, but has not alleged that

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she was able to perform the essential duties of the job with

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reasonable accommodations.

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See Kelley, No. 10-1294, 2010 WL 3853182, at *5.

Plaintiff argues in her opposition that the April 20, 2009

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letter confirmed Defendant’s intent to discriminate by

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prohibiting her reinstatement until she was able to return to

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work without restrictions.

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Defendant’s policy requiring an employee to be 100 percent healed

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before reinstatement is a per se violation of FEHA.

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Plaintiff further argues that

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While such a policy would indeed be a per se violation of FEHA

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(See McGregor v. Nat’l R.R. Passenger Corp., 187 F. 3d 1113, 1116

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(9th Cir. 1999)), the rule does not apply in this case.

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Plaintiff has pled no facts to support her contention that

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Defendant has such a policy.

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reinstate Plaintiff until she was 100 percent healed, nothing in

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the complaint shows that this action was part of a broader

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policy.

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percent healed in order to perform the essential functions of her

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Assuming Defendant did refuse to

Nor does the complaint allege that she need not be 100

position.
Plaintiff has not pled sufficient facts to demonstrate that

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she suffered an adverse employment action due to her physical

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disability.

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to Plaintiff’s claim for disability discrimination is accordingly

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granted, with leave to amend.

Defendant’s Motion for Judgment on the Pleadings as

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B.

Violation of California Family Rights Act

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Plaintiff alleges in her fourth cause of action that

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Defendant violated the CFRA, which requires an employer to allow

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an employee medical leave and refrain from terminating plaintiff

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during the time period of that medical leave.

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that “Defendant failed to provide Plaintiff with said medical

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leave and/or Defendant terminated Plaintiff during the time

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period of said medical leave.” (Compl. at ¶ 29.)

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argues that Plaintiff has pled no facts to support her allegation

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that Defendant failed to provide Plaintiff with medical leave.

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Plaintiff alleges

Defendant

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According to Defendant, the complaint appears to allege, to the

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contrary, that Plaintiff was provided with “too much medical

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leave” in that the gravamen of her complaint is that she wished

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to return to work sooner. (Def.’s Mot. for J. on the Pld.’s at

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6.)

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complaint explicitly references the fact that she was on medical

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leave as of that date and that she had used up all her allotted

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medical leave.

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Indeed, the April 20, 2009 letter Plaintiff refers to in her

Nothing in Plaintiff’s complaint supports her contention

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that she was not given medical leave due under CFRA.

As to

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Plaintiff’s contention that she was terminated while on medical

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leave, Plaintiff has pled no facts to demonstrate that she was

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terminated at all.

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complaint that she was permitted to return to work on December

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28, 2009 belies any contention that she was terminated.

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more facts to illustrate the circumstances which led Plaintiff to

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believe she had been terminated sometime between January and

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December of 2009, this claim cannot stand.

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for Judgment on the Pleadings as to Plaintiff’s fourth claim for

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violations of CFRA is granted with leave to amend.

The very fact that Plaintiff states in her

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Defendant’s Motion

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C.

Wrongful Termination in Violation of Public Policy

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Plaintiff’s fifth cause of action alleges that Defendant

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wrongfully terminated her in violation of clearly stated public

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policy which prohibits an employer from terminating employment

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due to an employee’s physical condition.

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Defendant argues once again that this claim fails to plead

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sufficient facts to support her contention that Defendant

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terminated her employment.

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can proceed no further on this claim until Plaintiff pleads

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specific facts that demonstrate she was in fact terminated.

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Defendant’s Motion for Judgment on the Pleadings as to

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Plaintiff’s fifth claim for wrongful termination in violation of

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public policy is granted with leave to amend.

As noted above, this Court agrees and

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CONCLUSION

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For the reasons stated above, Defendant’s Motion for

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Judgment on the Pleadings (ECF No. 5) is GRANTED.

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file an amended complaint not later than twenty (20) days

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following the date of this Memorandum and Order should she choose

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to do so.

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those claims dismissed pursuant to this Memorandum and Order will

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be dismissed, with prejudice and without further notice to the

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parties herein.

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Plaintiff may

If no amended complaint is filed within that period,

IT IS SO ORDERED.
Dated: April 21, 2011

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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