Zambrano v. Cellco Partnership

Filing 10

ORDER signed by District Judge Kimberly J. Mueller on 5/4/11 ORDERING that Defendants' MOTION TO DISMISS 5 is GRANTED and defendants Pearson and Salazar are DISMISSED from this action. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDUWIGES ZAMBRANO,
Plaintiff,

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No. CIV S-11-507 KJM KJN

vs.
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CELLCO PARTNERSHIP, dba VERIZON
WIRELESS, BRIAN PEARSON, ALBERT
SALAZAR, and DOES 1 TO 40,

ORDER

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Defendants.
/

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On February 23, 2011, defendants Pearson and Salazar filed a motion to dismiss.

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Plaintiff did not file an opposition or statement of non opposition, as required by Local Rule

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230(c). The court vacated the hearing date and submitted the motion on the papers. Local Rule

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230(g).

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The underlying complaint was filed in Sacramento County Superior Court,

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alleging that defendant Cellco and defendants Pearson and Salazar, Cellco supervisors and

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managers, refused to accommodate plaintiff’s request to return to a less stressful position within

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Cellco after she became pregnant, and ultimately fired her. Plaintiff asserts causes of action

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under California’s Fair Employment and Housing Act (FEHA), Cal. Gov’t Code §§ 12920 and

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12940, et seq.; failure to provide a reasonable accommodation for her pregnancy under the

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FEHA, Cal. Gov’t Code § 12945(c)(1)1; and wrongful termination in violation of public policy

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against defendant Cellco only. Compl. (ECF No. 1-1) at 1-8.

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Defendants removed the action to this court on February 23, 2011, identifying

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Cellco as a Delaware corporation with headquarters in New Jersey and invoking this court’s

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diversity jurisdiction. ECF No. 1 at 2-3. They argue that defendants Pearson and Salazar are

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fraudulently joined, as there is no colorable claim for relief against them, and thus their presence

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does not defeat diversity. As noted below, this position is correct.

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In Reno v. Baird, 18 Cal.4th 640, 643, 663-64 (1998), the California Supreme

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Court held that “the FEHA, like similar federal statutes, allows persons to sue and hold liable

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their employers, but not individuals. Our conclusion also applies to common law actions for

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wrongful discharge.” Thus, supervisors or managers are not proper defendants in suits based on

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employment discrimination.

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The individual defendants rely solely on Reno as substantive support for their

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motion to dismiss. They have not cited any authority applying Reno to failure-to-accommodate

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claims, but argue generally that it covers the second cause of action as well. In Ball v. Los Rios

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Community College, 2007 WL 1791689, at *2 (E.D. Cal. 2007), the district court found that

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Reno controlled claims that an employer failed to accommodate an employee’s disability; it

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reached this result by examining the language of California Government Code § 12940(m) and

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(n), which are limited to employers, and comparing them to the similarly limited provisions

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relied upon by the court in Reno.

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In this case, as well, the operative provision requiring accommodation for

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pregnancy provides that it shall be generally unlawful “[f]or an employer to refuse to provide

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reasonable accommodation for an employee with conditions related to pregnancy . . . if she so

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Plaintiff cites California Government Code § 12945(c)(1). The statute was amended,
effective January 1, 2005; the provisions concerning accommodation for pregnancy are now in
subsection (b)(1).
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requests, with the advice of her health care provider.” Cal. Gov’t Code § 12945(b)(1). And, as

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in Reno, an employer is “any person regularly employing five or more persons . . . .” Cal. Gov’t

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Code § 12926(d); Reno, 18 Cal. 4th at 644-45. Based on these authorities, the court finds that a

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failure to accommodate claim under California Government Code § 12945(b)(1) may not be

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maintained against an individual. Because plaintiff has no viable causes of action against the

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individual defendants, the court will not grant her leave to amend. See Manzarek v. St. Paul Fire

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& Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (dismissal without leave to amend

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proper when complaint cannot be saved by amendment).

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IT IS THEREFORE ORDERED that defendants’ motion to dismiss (ECF No. 5)

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is granted and defendants Pearson and Salazar are dismissed from this action.

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DATED: May 4, 2011.

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UNITED STATES DISTRICT JUDGE

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zamb0507.mtd

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