Allison v. E Center

Filing 22

MEMORANDUM AND ORDER denying 16 Motion to Amend the Complaint signed by Chief Judge Morrison C. England, Jr on 8/5/13. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARY ALLISON,

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No. 2:12-cv-00455-MCE-CMK

Plaintiff,
v.

MEMORANDUM AND ORDER

E CENTER,

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Defendant.

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Plaintiff Mary Allison (“Plaintiff”) seeks relief from Defendant E Center

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(“Defendant”) for violations of state and federal law arising from Defendant’s termination

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of Plaintiff’s employment. Specifically, Plaintiff contends that Defendant unlawfully

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refused to provide the reasonable accommodation which Plaintiff requested. Presently

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before the Court is Plaintiff’s Motion for Leave to File First Amended Complaint pursuant

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to Federal Rule of Civil Procedure 15(a)(2).1 (Pl.’s Mot., June 21, 2013, ECF No. 16.)

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Defendant timely opposed the Motion. (Def.’s Opp’n, July 10, 2013, ECF No. 19.) For

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the reasons described below, Plaintiff’s Motion for Leave to File First Amended

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Complaint is DENIED.2

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All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless
otherwise stated.
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Because oral argument will not be of material assistance, the Court orders this matter submitted
on the briefs. E.D. Cal. Local R. 230(g).

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BACKGROUND3

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Plaintiff, the Center Director at the Sierra Del Oro Center, was diagnosed with

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stage IV non-Hodgkin’s lymphoma in August 2011 and received chemotherapy

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treatments from September 2011 through December 5, 2011. Plaintiff requested a

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medical leave of absence for the period of September 13, 2011, to March 13, 2012, and

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received approval from Defendant’s Regional Manager for a medical leave of absence

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through March 9, 2012.

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Plaintiff also requested leave under the Family Medical Leave Act (“FMLA”), and

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received approval for FMLA leave from September 13, 2011, through December 6,

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2011. In late November or early December of 2011, Plaintiff was informed that if she

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was unable to return to work by the expiration of her approved FMLA leave, she would

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need to request an extension of her medical leave by December 9, 2011. On December

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8, 2011, Defendant’s Director of Human Resources denied Plaintiff’s request because

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extending Plaintiff’s leave would place an undue hardship on Defendant.

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STANDARD

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Federal Rule of Civil Procedure 15(a)(2) states that courts should “freely give

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leave when justice so requires,” Fed. R. Civ. P. 15(a)(2), and the Ninth Circuit has noted

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that the policy is one “to be applied with extreme liberality.” Morongo Band of Mission

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Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). A motion for leave to amend

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should be determined by examining four factors: (1) undue delay; (2) bad faith; (3) futility

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of amendment; and (4) prejudice to the opposing party. Hurn v. Ret. Fund Trust of

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Plumbing, Heating & Piping Indus. of S. Cal., 648 F.2d 1252, 1254 (9th Cir. 1981) (citing

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Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973)).

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The following recitation of facts is taken, sometimes verbatim, from Plaintiff’s Complaint.
(Compl., Feb. 22, 2012, ECF No. 1.)

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“[L]eave is properly denied when the amendment is ‘futile’ or legally insufficient to

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support the requested relief.” Letizia v. Prudential Bache Sec., Inc., 802 F.2d 1185,

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1189 (9th Cir. 1986) (quoting Jones v. Cmty. Redevel. Agency of City of L.A., 733 F.2d

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646, 650 (9th Cir. 1984)).

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ANALYSIS

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Plaintiff seeks to amend her cause of action for Wrongful Termination in Violation
of Public Policy (“WTPP”) to include a claim that her termination was in violation of the

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Improving Head Start for School Readiness Act of 2007 (Amended Head Start Act

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(“AHSA”)), 42 U.S.C. § 9801, et. seq.; 45 C.F.R. 1304.50(d)(1)(xi). (Adelman Decl.,

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June 21, 2013, ECF No. 18 at 26.) To this end, Plaintiff seeks to add allegations that

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she was wrongfully terminated in violation of public policy when Defendant terminated

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Plaintiff without the approval of Defendant’s Policy Council. The Court will discuss each

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factor of the Rule 15 analysis in turn.

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A.

Futility of Amendment

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Generally speaking, “[a]bsent prejudice, or a strong showing of any of the

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remaining Foman factors, there exists a presumption under Rule 15(a) in favor of

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granting leave to amend.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052

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(9th Cir. 2003). However, “[f]utility alone is a sufficient basis to deny a motion to amend.”

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Ibarra v. Hedgpeth, 2013 WL 3233608 (E.D. Cal. June 25, 2013) (citing Bonin v.

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Calderon, 59 F.3d 815, 845 (9th Cir. 1995)).

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Plaintiff argues that her wrongful termination violated certain provisions of the

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AHSA, and thus violated public policy. The AHSA promotes school-readiness for low-

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income children and requires Policy Council approval before an employee of a Head

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Start Agency, such as Defendant, is terminated. 45 C.F.R. 1304.50(d)(1)(xi).
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The Policy Council is a group “comprised of two types of representatives: parents of

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currently enrolled children and community representatives.” 45 C.F.R. 1304.50(b)(2).

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Citing Green v. Ralee Eng’g Co., 19 Cal. 4th 66, 82 (1998), Plaintiff states that “[w]hen

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an administrative agency adopts regulations within the scope of its statutory authority,

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the public policy embodied in those regulations can support a wrongful termination

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claim.” (Pl.’s Reply, July 18, 2013, ECF No. 20 at 2.) Plaintiff argues that because the

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AHSA requires that the Policy Council be consulted before hiring or firing occurs, and

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because the AHSA is a statute intended to have the public benefit of helping low-income

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children, the Policy Council consultation policy supports a WTPP claim.

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The rule regarding employer liability for a WTPP claim is essentially that “[a]n

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employer may not discharge an at will employee for a reason that violates fundamental

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public policy.” Stevenson v. Super. Ct., 16 Cal. 4th 880, 887 (1997). This rule ensures

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that employers do not abuse California’s at-will employment laws by “discharging

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employees for reasons contrary to public policy as expressed in statutory or

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constitutional mandates.” Id. at 887. Providing a cause of action for WTPP thus serves

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as a check on employers and protects the public’s interest.

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Generally speaking, there are four broad categories of employee termination that

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may violate public policy: where “’the employee (1) refused to violate a statute;

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(2) performed a statutory obligation; (3) exercised a constitutional or statutory right or

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privilege; or (4) reported a statutory violation for the public's benefit.’” Scheu v. Charter

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Commc'ns, LLC, 2011 WL 3204672 (C.D. Cal. July 27, 2011) (quoting Green,

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19 Cal. 4th at 76, 78). Thus, not all statutory violations support a WTPP claim. Statutes

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that “simply regulate conduct between private individuals, or impose requirements

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whose fulfillment does not implicate fundamental public policy concerns” are insufficient

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to state a claim. Foley v. Interactive Data Corp., 47 Cal. 3d 654, 669 (1988).

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“A tortious discharge claim requires that the employee be discharged in violation

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of a policy that is: (1) delineated in either constitutional or statutory provisions; (2) public

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in the sense that it inures to the benefit of the public rather than serving merely the

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interests of the individual; (3) well established at the time of discharge; and

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(4) substantial and fundamental.” Lamke v. Sunstate Equip. Co., LLC, 387 F. Supp. 2d

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1044, 1051 (N.D. Cal. 2004) (quoting Sullivan v. Delta Air Lines, Inc., 58 Cal. App. 4th

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938, 942 (1997)). Examples of such public policies that sufficiently support WTPP

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claims are sex discrimination in employment, see Rojo v. Kliger, 52 Cal. 3d 65, 70-71

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(1990), and age discrimination, see Stevenson, 16 Cal. 4th at 897. While “fundamental

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and substantial” has not been clearly defined, the court in Sullivan noted that the primary

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reason for the fundamental and substantial requirement is “to ensure that employers

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have adequate notice of the conduct that will subject them to tort liability to the

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employees they discharge.” Sullivan, 58 Cal. App. 4th at 943 (quoting Stevenson,

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16 Cal. 4th. at 889).

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Plaintiff cites to Green, 19 Cal. 4th 82 (1998) for the proposition that the regulation

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was adopted within the scope of the AHSA’s statutory authority. (ECF No. 20 at 2.)

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However, Plaintiff fails to note that the court in Green discussed statutorily authorized

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regulations that furthered the Legislature’s purpose of airline safety. 19 Cal. 4th at 72.

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The court noted that while “alleged violations of internal practices that affect only the

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employer's or employee's interest, and not the general public's interest, will not give rise

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to tort damages,” id. at 75, the public policy of airline safety affects the public interest.

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The court found that allowing the employer to discharge the plaintiff for reporting unsafe

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inspection practices “would only undermine the important and fundamental public policy

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of safe air travel.” Id. at 90.

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In this case, while the policy of gaining Policy Council approval prior to employee

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termination is clearly articulated in a statute, it is not a policy that benefits society at large

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and is not fundamental and substantial.

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Because Plaintiff fails to show that these two elements are present, Plaintiff fails to

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demonstrate how her termination is a violation of a public policy contained within AHSA.

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Simply put, Defendant firing Plaintiff in this particular case does not affect the general

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public’s interest in promoting the school readiness of low-income children. Accordingly,

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terminating Plaintiff’s employment without Policy Council approval constitutes no more

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than a violation of a policy that “regulate[s] conduct between private individuals, or

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impose[s] requirements whose fulfillment does not implicate fundamental public policy

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concerns.” Foley, 47 Cal. 3d at 669.

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Furthermore, Plaintiff cites to no case, and the Court is aware of none, providing

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that a termination in violation of the AHSA’s Policy Council requirement is a termination

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in violation of public policy under California law. Thus, Plaintiff is attempting to create a

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new cause of action. AHSA was not intended as a route to sue for a claim of disability

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discrimination, and the Court will not create such a cause of action here. As such, the

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Court finds that amendment would be futile. This factor alone is sufficient to deny

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Plaintiff’s Motion.

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B.

Remaining Factors

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Plaintiff argues that she did not unduly delay in seeking the proposed

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amendment. Plaintiff informed Defendant of her intention to seek such amendment on

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June 12, 2013, during the course of the deposition where Plaintiff secured testimony

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substantiating that Defendant terminated Plaintiff without the approval of Defendant’s

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Policy Council. (ECF No. 17 at 5.) Then, on June 20, 2013, Plaintiff received

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Defendant’s responses to Plaintiff’s interrogatories. (Id. at 2-3.) Plaintiff contends that

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the proposed public policy violation “was not known with certainty until Defendant

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admitted the underlying conduct in its discovery responses.” (Id. at 3.) Plaintiff filed this

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Motion the next day, on June 21, 2013. (Id.)

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Thus, there is no evidence that Plaintiff unduly delayed in seeking leave to

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amend, given that Plaintiff sought leave to amend the Complaint immediately after

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learning about the relevant information.

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Plaintiff also alleges that she has no bad faith in seeking the amendment, and that

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her sole reason for seeking this amendment is to enable her to enforce her rights against

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Defendant. (ECF No. 17 at 5.) According to Plaintiff, Defendant’s counsel stated that

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Plaintiff’s motive in seeking the amendment was to delay the litigation. (ECF No. 18 at

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2.) However, there is no evidence of Plaintiff demonstrating bad faith. Indeed, Plaintiff

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filed her Motion without undue delay, thus negating Defendant’s alleged accusation of

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Plaintiff’s bad faith.

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Finally, Plaintiff argues that Defendant will not be prejudiced by the amendment

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for several reasons: Plaintiff is not seeking to add any new parties (ECF No. 18 at 3); the

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facts surrounding the claim are the same as those which are already being litigated

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within Plaintiff’s claims of unlawful termination (and thus Defendant will not need to

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compel any discovery uniquely associated with Plaintiff’s proposed amendment); and the

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deadline for hearing dispositive motions is not until February 6, 2014 (ECF No. 17 at 4).

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Defendant makes no argument that it will be prejudiced.

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While each of these factors weighs in favor of allowing Plaintiff to amend her

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Complaint, these factors are insufficient to outweigh the problem of futility of

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amendment. Additionally, allowing Plaintiff to use Defendant’s failure to obtain Policy

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Council approval as the basis for a WTPP claim would create a new cause of action,

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which this Court declines to do at this time.

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CONCLUSION

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For the reasons stated above, Plaintiff’s Motion for Leave to File First Amended
Complaint is DENIED.
IT IS SO ORDERED.
Dated: August 5, 2013

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