Mohsin v. California Department of Water Resources et al

Filing 37

ORDER signed by District Judge Troy L. Nunley on 11/17/2015 DENYING 31 Motion to Dismiss as to Counts I, II and III; GRANTING 31 Motion to Dismiss with leave to amend as to Counts IV and V; GRANTING the plaintiff twenty-one (21) days to file an amended complaint if he elects to do so. (Michel, G.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

SYED MOHSIN,

12
13
14
15

No. 2:13-cv-01236-TLN-EFB
Plaintiff,

v.
CALIFORNIA DEPARTMENT OF
WATER RESOURCES, and DAVID
GUTIERREZ,

16

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
SECOND MOTION TO DISMISS

Defendants.

17
18

This matter is before the Court pursuant to Defendants’ California Department of Water

19

Resources (“DWR”) and David Gutierrez (collectively “Defendants”) second motion to dismiss

20

Plaintiff’s amended complaint (“Amended Complaint”). (ECF No. 31.) Plaintiff Syed Mohsin

21

(“Plaintiff”) filed an opposition to Defendants’ motion. (ECF No. 33.) Defendants also filed a

22

reply. (ECF No. 34.) The Court has carefully considered the arguments raised in Defendants’

23

motion and reply, as well as Plaintiff’s opposition. For the reasons set forth below, Defendants’

24

motion to dismiss is GRANTED IN PART and DENIED IN PART.

25
26

I.

Factual Background

Plaintiff was employed as an Assistant Engineering Specialist by DWR from August 2000

27

to April 13, 2012. (Amended Complaint, ECF No. 30 at ¶ 8.) He was diagnosed with right

28

temporal lobe epilepsy at the age of 10 and suffered from various types of seizures throughout his
1

1

life. (ECF No. 30 at ¶ 17.) Plaintiff alleges that at the time he was hired, his neurologist

2

completed a medical form that served the basis for DWR to accommodate certain restrictions on

3

Plaintiff’s duty statement as required by his condition. (ECF No. 30 at ¶¶ 22–25.) Plaintiff

4

states these accommodations remained in place until February 2002, when they were removed

5

from his duty statement over his protest. (ECF No. 30 at ¶¶ 35–36.)

6

On August 5, 2002, Plaintiff had brain surgery that lessened the degree of his seizures, but

7

negatively impacted his mental processing speed and the use of his executive functions. (ECF

8

No. 30 at ¶¶ 38–39.) Plaintiff alleges that he attempted to receive accommodations for his

9

condition following the surgery, but that Mr. Gutierrez “effectively refused” to provide those

10

accommodations. (ECF No. 30 at ¶¶ 45–46.) The Amended Complaint states that DWR sought

11

evaluations proposing accommodations for Plaintiff’s condition from multiple doctors, including

12

Plaintiff’s own doctor. (ECF No. 30 at ¶¶ 47–50.) Ultimately, DWR issued a “Notice of Medical

13

Action” pursuant to CAL. GOV’T CODE § 19991.10 on March 12, 2012. (ECF No. 30 at ¶ 61.)

14

Plaintiff states that his medical termination was preceded by ten years of harassment in an

15

effort to force Plaintiff to resign. (ECF No. 30 at ¶ 56.) Plaintiff also alleges that he was rejected

16

from approximately 20 other positions within DWR for which he applied and that those positions

17

were filled by individuals with lesser qualifications. (ECF No. 30 at ¶¶ 65–67.)

18
19

II.

Procedural Background

On June 6, 2013, Plaintiff filed a Complaint against Defendants DWR, David Gutierrez,

20

and Michael Waggoner, for violations of the Fourteenth Amendment of the U.S. Constitution,

21

Section 1983 (42 U.S.C. § 1983); Americans with Disabilities Act (“ADA”) (42 U.S.C. § 12101,

22

et seq.); Section 504 of the Rehabilitation Act (“Section 504”) (29 U.S.C. § 794); the California

23

Fair Employment and Housing Act (“FEHA”) (CAL. GOV’T CODE § 12900, et seq.); and for

24

Intentional Infliction of Emotional Distress, Negligence, and Wrongful Termination. (ECF No.

25

1.) On August 20, 2013, Defendants filed a Motion to Dismiss. (ECF No. 9.)

26

On October 1, 2014, this Court issued an order granting and denying in parts Defendants’

27

Motion to Dismiss. (ECF No. 26.) Plaintiff was granted leave to amend and filed an Amended

28

Complaint on December 16, 2014. (ECF No. 30.)
2

1

In the Amended Complaint, Plaintiff brings five causes of action against Defendants

2

DWR and Gutierrez, alleging the following violations: violation of the ADA (42 U.S.C. § 12101,

3

et seq.); violation of Section 504 (29 U.S.C. § 794); violation of Section 1983 under the Fourteen

4

Amendment; violation of the FEHA (CAL. GOV’T CODE § 12940, et seq.); and Wrongful

5

Termination. (ECF No. 30.) Also, in his Amended Complaint, Plaintiff removes Defendant

6

Waggoner entirely. (ECF No. 30.) On December 12, 2014, Defendants filed a Motion to Dismiss

7

the Amended Complaint. (ECF No. 31.)

8
9

III.

Standard of Law
A. Motion to Dismiss

10

Federal Rule of Civil Procedure 8(a) requires that a pleading contain “a short and plain

11

statement of the claim showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556

12

U.S. 662, 678–79 (2009). Under notice pleading in federal court, the complaint must “give the

13

defendant fair notice of what the claim . . . is and the grounds upon which it rests.” Bell Atlantic

14

v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). “This simplified notice

15

pleading standard relies on liberal discovery rules and summary judgment motions to define

16

disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A.,

17

534 U.S. 506, 512 (2002).

18

On a motion to dismiss, the factual allegations of the complaint must be accepted as true.

19

Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give plaintiff the benefit of every

20

reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail

21

Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege

22

“‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to

23

relief.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads

24

factual content that allows the court to draw the reasonable inference that the defendant is liable

25

for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 544, 556 (2007)).

26

Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of

27

factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir.

28

1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an
3

1

unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A

2

pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the

3

elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678

4

(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

5

statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove

6

facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not

7

been alleged[.]” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters,

8

459 U.S. 519, 526 (1983).

9

Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough

10

facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting

11

Twombly, 550 U.S. at 570). Only where a plaintiff fails to “nudge[] [his or her] claims . . . across

12

the line from conceivable to plausible[,]” is the complaint properly dismissed. Id. at 680. While

13

the plausibility requirement is not akin to a probability requirement, it demands more than “a

14

sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility inquiry is “a

15

context-specific task that requires the reviewing court to draw on its judicial experience and

16

common sense.” Id. at 679.
In ruling upon a motion to dismiss, the court may consider only the complaint, any

17
18

exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of

19

Evidence 201. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu

20

Motors Ltd. v. Consumers Union of United States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal.

21

1998).

22

If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to

23

amend even if no request to amend the pleading was made, unless it determines that the pleading

24

could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122,

25

1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 484, 497 (9th Cir. 1995));

26

see also Gardner v. Marino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in

27

denying leave to amend when amendment would be futile). Although a district court should

28

freely give leave to amend when justice so requires under Federal Rule of Civil Procedure
4

1

15(a)(2), “the court’s discretion to deny such leave is ‘particularly broad’ where the plaintiff has

2

previously amended its complaint[.]” Ecological Rights Found. v. Pac. Gas & Elec. Co., 713

3

F.3d 502, 520 (9th Cir. 2013) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th

4

Cir. 2004)).

5

B. Granting Leave to Amend

6

Federal Rule of Civil Procedure 15(a) “declares that leave to amend shall be freely given

7

when justice so requires.” Foman v. Davis, 371 U.S. 178, 182 (internal citation omitted). In the

8

absence of (1) undue delay, (2) bad faith or dilatory motive, (3) futility of amendment, and (4)

9

prejudice to the opposing party, leave to amend should be granted freely. Id. However, each

10

factor is not given equal weight. United States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981)

11

(finding that where prejudice or bad faith is present, denial of leave to amend a pleading protects

12

the judicial system and other litigants). Furthermore, repeated failure to cure deficiencies by

13

amendments previously allowed is a reason to deny leave to amend. Foman, 371 U.S. at 182.

14

The policy of granting leave to amend should be applied with “extreme liberality.” DCD

15

Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). Granting or denying leave to

16

amend is within the sound discretion of the trial court, and will be reversed only for abuse of

17

discretion. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). In using its

18

discretion, the district court “must be guided by the underlying purpose of Rule 15 to facilitate

19

decision on the merits, rather than on the pleadings or technicalities.” Webb, 655 F.2d at 979.

20
21
22

IV.

Analysis

A. Count I: Violation of the ADA by Defendant Gutierrez
Plaintiff initially brought his ADA claim against Defendant DWR. (ECF No. 1 at ¶¶ 76–

23

91.) This Court dismissed Plaintiff’s claim based on the state’s immunity from suit. (ECF No. 26

24

at 7.) In so ruling, this Court noted that a claim against the state under Title I of the ADA is

25

permissible only when the plaintiff brings suit against state officials for prospective injunctive

26

and declaratory relief. (ECF No. 26 at 6.)

27
28

Plaintiff alleges in his Amended Complaint that Defendant Gutierrez, in his official
capacity within the meaning of the ADA, has treated Plaintiff less favorably than other DWR
5

1

employees because of Plaintiff’s disability. (ECF No. 30 at ¶ 71.) Plaintiff claims he was not

2

provided with the accommodations necessary for his disability. (ECF No. 30 at ¶ 75.) Plaintiff

3

also alleges that Gutierrez retaliated against him when Plaintiff was not hired for a position he

4

was otherwise qualified for because of his request for accommodations. (ECF No. 30 at ¶ 85.)

5

Plaintiff, at the conclusion of his Amended Complaint, makes a variety of prayers for relief, but

6

does not specify what damages are attributable to which claim. (Prayer for Relief, ECF No. 30 at

7

¶¶ 1–11.)

8
9

Defendant moves to dismiss Plaintiff’s claim on three grounds: (1) the injunctive relief
requested is improper; (2) Plaintiff does not have standing to sue; and (3) Plaintiff has other

10

adequate monetary remedies by suing under the Civil Service Act. (Mem. in Supp. of Def.’s Mot.

11

to Dismiss, ECF No. 31-1 at 10–13.)

12

i. Prospective Injunctive Relief

13

A claim against the state under Title I of the ADA is permissible only when the plaintiff

14

brings suit against state officials for prospective injunctive and declaratory relief—the Ex parte

15

Young doctrine. Walsh v. Nevada Dep’t of Human Res., 471 F.3d 1033, 1036 (9th Cir. 2006).

16

“[U]nder the Ex parte Young doctrine, the Eleventh Amendment does not bar a suit against a state

17

official when that suit seeks prospective injunctive relief.” Douglas, 271 F.3d at 817–18 (internal

18

citations omitted). Title I of the ADA itself authorizes private injunctive suits against state

19

officials. 42 U.S.C. §§ 2000e(n), 2000e–5(f)–(g). An Ex parte Young suit is available where a

20

plaintiff alleges ongoing violation of federal law, and where the relief sought is prospective rather

21

than retrospective. Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1047 (9th

22

Cir. 2000).

23

Defendant Gutierrez argues that Plaintiff’s claim is impermissible under the Ex parte

24

Young doctrine because Plaintiff seeks retrospective relief. (ECF No. 31-1 at 10.) The Court

25

agrees that, to the extent Plaintiff requests retrospective relief under his ADA claim, his request

26

for relief is improper. However, Plaintiff clearly states in his Prayer for Relief that he requests

27

prospective injunctive relief. (Prayer for Relief, ECF No. 30 at ¶¶ 2–4.) If successful in this case,

28

Plaintiff requests that he be offered the position of Engineer Water Resource with an opportunity
6

1

for promotion and no pay cut, that all DWR staff be trained for reasonable accommodations and

2

requirements of the interactive process and first aid for individuals with epilepsy, and that

3

Defendant Gutierrez engage in a meaningful interactive process to develop reasonable

4

accommodations that Plaintiff needs to perform his job. (Prayer for Relief, ECF No. 30 at ¶¶ 2–

5

4.) Plaintiff also alleges other damages for retrospective relief in his Prayer for Relief (Prayer for

6

Relief, ECF No. 30 at ¶¶ 5–11); however the Court assumes these damages to be attributed to

7

Plaintiff’s other causes of action. Defendant Gutierrez’s retrospective relief argument improperly

8

rests on the belief that if the discrimination occurred in the past, then the relief also relates to the

9

past. Defendant Gutierrez’s argument is misplaced. Plaintiff requests reinstatement and

10

accommodations for his disability when he continues to work at DWR. Only to the extent that

11

Plaintiff requests prospective injunctive relief under the ADA does Plaintiff properly bring his

12

claims under the Ex parte Young Doctrine. Therefore, Defendants’ motion to dismiss on these

13

grounds is denied.

14

ii. Plaintiff’s Standing to Seek Prospective Injunctive Relief

15

Defendant argues that because Plaintiff is not currently employed with DWR, he has no

16

standing to seek prospective injunctive relief. (ECF No. 31-1 at 11.) “To have standing to bring

17

a claim for relief, a plaintiff must show that he has: (1) suffered an injury that (2) was caused by

18

the defendant and (3) is likely to be redressed by the relief he seeks.” Walsh v. Nevada Dept. of

19

Human Resources, 471 F. 3d 1033, 1036–37 (9th Cir. 2006), (following Thinket Ink Info. Res.,

20

Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1057 (9th Cir. 2004)). Plaintiff meets these

21

requirements. He alleges the injury he suffered was being unemployed after losing his job and he

22

continues to suffer by not having a job. (ECF No. 30 at ¶ 61). Plaintiff further alleges his injury

23

was caused by Defendant Gutierrez. (ECF No. 30 at ¶ 61). Plaintiff now requests the position of

24

Engineer Water Resource as part of his prospective injunctive relief. (Prayer for Relief, ECF No.

25

30 at ¶¶ 2–4.) Based on the foregoing, the Court finds Plaintiff does have standing to seek

26

prospective injunctive relief and Defendants’ motion to dismiss this claim is denied.

27

//

28

//
7

1

iii. Adequate Alternative Remedies

2

Defendant asserts that because Plaintiff alleged that he was terminated in violation of the

3

law, monetary damages under the Civil Service Act are an adequate remedy, and Plaintiff’s claim

4

for equitable relief under Title I of the ADA should be dismissed. (ECF No. 31-1 at 12.) Plaintiff

5

argues in his opposition that Title I of the ADA allows him to bring an action alleging prospective

6

injunctive relief under the Ex parte Young doctrine. (ECF No. 33 at 7–8.) Plaintiff is correct that

7

he has brought a proper claim.1 Therefore, the Court need not assess whether Plaintiff should

8

have brought a claim under the Civil Service Act. The Court finds no legal basis, and Defendants

9

offer none, to find that Plaintiff must bring a claim under the Civil Service Act rather than under

10

Title I of the ADA. Therefore, Defendants’ motion to dismiss as to Count I is denied.

11

B. Count II: Violations of Section 504 by Defendant DWR

12

Plaintiff originally brought a claim under Section 504 against Defendant DWR. The

13

Court dismissed Plaintiff’s claim for failing to state a claim under Federal Rule of Civil Procedure

14

12(b)(6) with leave to amend. (ECF No. 26 at 8.) Plaintiff failed to plead facts that would allow

15

the Court to draw the reasonable inference that the Defendant DWR is liable for the misconduct

16

alleged. (ECF No. 26 at 8.) Plaintiff resubmitted this claim in his Amended Complaint as Count

17

II. (ECF No. 30 at ¶¶ 87–90.) Defendant DWR renews its objection alleging that Plaintiff’s

18

Amended Complaint fails to state a claim under Section 504. (ECF No. 31-1 at 14.)

19

Defendants’ motion to dismiss is with respect to three separate claims Plaintiff alleges

20

under Section 504. Plaintiff alleges that by medically terminating him, DWR: (1) failed to

21

provide Plaintiff with reasonable accommodation of a job coach; (2) refused to engage in the

22

interactive process; and (3) retaliated against him and subsequently did not hire him for other

23

positions. (ECF No. 30 at ¶¶ 87–90.)

24

Plaintiff’s Amended Complaint includes more factual support for his allegations. (ECF

25

No. 30 at ¶¶ 87–90.) Specifically, Plaintiff attaches two additional documents, Exhibit A (ECF

26

No. 30-1) and Exhibit B (ECF No. 30-2), to his Amended Complaint. Exhibit A is a declaration

27
28

1

Plaintiff has filed with the Equal Opportunity Commission (EEOC) and received a right-to-sue letter, and has
therefore, exhausted his administrative remedies. (ECF No. 33 at 8.)

8

1

in support of the Amended Complaint made by Plaintiff and the attachment to Exhibit A is a

2

spreadsheet of jobs he applied to after his termination. (ECF No. 30-1.) Exhibit B is a

3

declaration in support of the Amended Complaint made by Plaintiff’s professor, Hubert Morel-

4

Sextoux, PH.D. (ECF No. 30-2.) The Court typically does not take into consideration documents

5

that are not part of the complaint.2 Exhibits A and B are not the type of documents that may be

6

considered in a motion to dismiss. However, the Court notes that Plaintiff’s aforementioned

7

Exhibit A is a declaration which contains factual allegations that Plaintiff included in his

8

Amended Complaint. Because Plaintiff’s declaration in Exhibit A is similar to a pleading of facts

9

in support of his claims, the Court will consider Plaintiff’s declaration in Exhibit A in its

10

determination. However, Exhibit B, the witness declaration, and the attachment to Exhibit A, the

11

spreadsheet, are facts that are not alleged by Plaintiff, rather, they are evidentiary exhibits in

12

support of Plaintiff’s allegations. (ECF No. 30-1 attachment at 5; ECF No. 30-2.) Because these

13

are both evidentiary attachments, they may not be considered. Therefore, the Court will not

14

consider the attachment to Exhibit A or Exhibit B.

15

i. Retaliation Against Plaintiff and Failure to Hire Him for Other Positions
For the sake of clarity, the Court first addresses Plaintiff’s claim that he was retaliated

16
17

against and subsequently not hired for other positions. In order to bring a prima facie claim for

18

termination or failure to hire under Section 504, Plaintiff must show he is: (1) a handicapped

19

person under the Act; (2) otherwise qualified for the position sought; (3) being excluded from the

20

position solely by reason of that handicap; and (4) seeking a position that exists as part of a

21

program or activity receiving federal financial assistance. Smith v. Barton, 914 F.2d 1330, 1338

22

(9th Cir. 1990).

23
24

Defendants argue that Plaintiff has failed to plead sufficient facts to meet the second,
third, and fourth elements of this claim. (ECF No. 31-1 at 14.) A plaintiff need not allege

25
26
27
28

2

A court may consider documents external to the pleadings in a motion to dismiss under the incorporation by
reference doctrine where the contents of the documents are alleged in the complaint and neither party questions the
authenticity of the documents. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). The types of instruments that
qualify for incorporation under Federal Rule of Civil Procedure 10(c) are written instruments that are documentary
evidence. Montgomery v. Buege, No. CIV. 08-385 WBS KJM, 2009 WL 1034518, at *3 (E.D. Cal. April 16, 2009).
Witness affidavits and other exhibits containing evidentiary material do not fall within Rule 10(c). Id.

9

1

‘“specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to

2

relief.” Twombly, 550 U.S. at 570. Federal Rule of Civil Procedure 8(a) does not require detailed

3

factual allegations, but demands more than an accusation that the defendant unlawfully harmed

4

plaintiff. Iqbal, 556 U.S. at 678.

5

The parties appear to agree that Plaintiff qualifies as a handicapped person under the Act.

6

The Court finds that Plaintiff alleges sufficient facts to support the second element—that he was

7

otherwise qualified for the position he sought. In Plaintiff’s Amended Complaint, he references

8

Exhibit A, which alleges his qualifications for the positions to which he applied. (ECF No 30-1 at

9

¶¶ 2–7, ¶¶ 9–11.) Plaintiff had over eleven years’ experience working for DWR, received review

10

scores of 95%, and ranked second for the positions he sought. (ECF No. 30-1 at ¶¶ 3–7.)

11

Plaintiff also compares himself to other applicants, alleging that he had more experience than the

12

less qualified individuals who were hired. (ECF No. 30-1 at ¶¶ 10–11.) Because these factual

13

allegations are accepted as true, Cruz, 405 U.S. at 322, it can be assumed that Plaintiff was

14

qualified for the positions he sought. Iqbal, 556 U.S. at 678. Therefore, Plaintiff alleged

15

sufficient facts to meet the second element for proving a prima facie case of failure to hire under

16

Section 504.

17

The Court further finds that Plaintiff meets the pleading requirements for the third

18

element—that Plaintiff was excluded from those positions because of his handicap. Plaintiff’s

19

Amended Complaint argues he was not given the position to which he applied because of his

20

disability. (ECF No. 30-1 at ¶¶ 2-7; ¶¶ 12-14.) After Plaintiff’s medical termination he applied

21

to eight positions for Engineer Water Resources with DWR. (ECF No. 30-1 at ¶ 12.) Plaintiff

22

was never called for an interview and discovered that his previous supervisor was the hiring

23

supervisor for the position. (ECF No. 30-1 at ¶ 13.) Furthermore, the individual selected for the

24

position was less qualified for the position because she was previously a student intern when

25

Plaintiff worked at DWR. (ECF No. 30-1 at ¶ 13.) Therefore, Plaintiff had more experience and

26

had a longer work history than the candidate chosen for the position. (ECF No. 30-1 at ¶¶ 12–

27

14.) Based on these facts, the Court can reasonably infer that there were no other reasons to not

28

hire Plaintiff other than his disability. Therefore, Plaintiff has alleged sufficient facts to meet the
10

1
2

third element.
Finally, Defendants argue that Plaintiff did not establish that the specific position he

3

applied to was part of a program that received federal financial assistance, as required by the

4

fourth element of his claim. (ECF No. 31-1 at 15.) However, Plaintiff alleges that DWR receives

5

federal financial assistance. (ECF No. 30 at ¶ 9.) From this fact, it can be reasonably inferred

6

that, if the company receives federal aid, its programs would obtain some benefit from that aid.

7

Schermerhorn, 373 U.S. at 753 n.6. Plaintiff need not allege “‘specific facts’ beyond those

8

necessary to state his claim and the grounds showing entitlement to relief.” Twombly, 550 U.S. at

9

570. Consequently, Plaintiff pleaded sufficient facts to show DWR received federal financial

10
11

assistance.
ii. Remaining Claims under Section 504

12

Because Defendants’ motion to dismiss conflates the arguments with respect to the first

13

and second claims under Count II, the Court will address both together. Defendants allege that

14

Plaintiff provides no specific factual support that DWR refused to engage in the interactive

15

process or refused to provide reasonable accommodation, such as by providing a job coach. (ECF

16

No. 31-1 at 15.) However, the Court finds that Plaintiff has met the applicable pleading standard

17

under Rule 12(b)(6).

18

Plaintiff does not need to allege ‘“specific facts’ beyond those necessary to state his claim

19

and the grounds showing entitlement to relief.” Twombly, 550 U.S. at 570. Plaintiff alleges that

20

DWR refused to provide Plaintiff with reasonable accommodations and terminated him when he

21

requested accommodations. (ECF No. 30 at ¶ 89.) Specifically, Plaintiff alleges that he was

22

diagnosed with epilepsy and provided a list of employment restrictions by his doctor. (ECF No.

23

30 at ¶¶ 22–23.) Plaintiff states that DWR was made aware of Plaintiff’s medical condition and

24

employment restrictions and initially agreed upon accommodations, but that Plaintiff was

25

subsequently forced to sign a revised duty statement that required him to perform work that was

26

not permitted by his employment restrictions. (ECF No. 30 at ¶¶ 23, 32–35, 42.) Furthermore,

27

Plaintiff alleges that Defendant DWR rejected, without discussion, the Department of

28

Rehabilitation’s offer of a job coach for Plaintiff as reasonable accommodations to assist him.
11

1

(ECF No. 30 at ¶ 89.) From these facts, the Court can draw a reasonable inference that DWR

2

refused to engage in the interactive process and failed to provide reasonable accommodation to

3

which they originally agreed. Therefore, Defendants’ motion to dismiss is denied with respect to

4

Count II.

5

C. Count III: Section 1983 Claims Against Defendant Gutierrez

6

In Plaintiff’s initial complaint, he brought a § 1983 claim against Defendant Gutierrez

7

based on the Fourteenth Amendment. (ECF No. 1 at ¶¶ 98–106.) The Court held that, to the

8

extent this claim was brought against Defendant Gutierrez in his individual capacity, it was

9

dismissed without leave to amend, but further stated that Plaintiff was permitted to bring a § 1983

10

claim against Defendant Gutierrez in his official capacity on Fourteenth Amendment grounds.

11

(ECF No. 26 at 8.) Plaintiff, in his Amended Complaint, brings his § 1983 claim against

12

Defendant Gutierrez, acting in his official capacity, for the denial of equal protection and due

13

process rights under the Fourteenth Amendment. (ECF No. 30 at ¶¶ 92–93.)

14

Defendants in their second Motion to Dismiss argue that Defendant Gutierrez is immune

15

from Plaintiff’s § 1983 claim, while using the same arguments from Count I. Defendants allege

16

as follows: (1) Plaintiff does not request prospective relief; and (2) Plaintiff has adequate

17

remedies at law. (ECF No. 31-1 at 16.)

18

The United States Supreme Court has carved out “an important exception to this general

19

rule [of Eleventh Amendment immunity]: a suit challenging the constitutionality of a state

20

official’s action is not one against the State.” Pennhurst State School & Hospital v. Halderman,

21

465 U.S. 89, 102. Under the Ex parte Young exception, the Supreme Court has determined that

22

actions seeking injunctive relief may stand against state officials. Id. See also Doe v. Lawrence

23

Livermore Nat. Lab., 131 F.3d 836, 839 (9th Cir. 1997) (“However, there is one exception to this

24

general rule: When sued for prospective injunctive relief, a state official in his official capacity is

25

considered a “person” for § 1983 purposes. In what has become known as part of the Ex parte

26

Young doctrine, a suit for prospective injunctive relief provides a narrow, but well-established,

27

exception to Eleventh Amendment immunity”) (internal citations omitted). Similar to the Court’s

28

rationale as to Count I, Plaintiff properly requested prospective injunctive relief for this claim and
12

1

does not need to exhaust other remedies before bringing this claim. Therefore, Defendants’

2

Motion to Dismiss Count III is denied.

3

D. Count IV: Violations of FEHA by all Defendants

4

Plaintiff originally alleged a number of causes of action under FEHA against all

5

Defendants. (ECF No. 1 at ¶¶ 107–19.) The Court did not dismiss those claims, but advised

6

Plaintiff to amend the issues under this claim and indicated that the Court would look favorably

7

on a future motion to dismiss the claims under Federal Rule of Civil Procedure 12(b)(6) as they

8

were written. (ECF No. 26 at 12.) In Plaintiff’s Amended Complaint, he again brings his FEHA

9

claims, this time including slightly more facts. (ECF No. 30 at ¶¶ 100–11.) Defendants again

10

move to dismiss Plaintiff’s FEHA claims alleging that: (1) Plaintiff has not alleged sufficient

11

facts for its claims; and (2) Defendant Gutierrez cannot be sued individually for discrimination

12

under FEHA. (ECF No. 31-1 at 16–17.)

13

Plaintiff has already been told by the Court to address his factual insufficiencies in his

14

Amended Complaint as to the instant claim, and has failed to adequately do so. Plaintiff appears

15

to include a myriad of claims under FEHA, but does not bother to specifically enumerate them,

16

leaving the Court and Defendants to infer the specific statutes under FEHA on which Plaintiff

17

relies for each argument. Moreover, Plaintiff fails to indicate not only which claims he is

18

bringing, but also which Defendant he brings the claim against and why.

19

First, Plaintiff must clearly set forth the causes of actions he wishes to include and under

20

what sub-section of FEHA he brings those claims. Second, Plaintiff must also clearly indicate

21

against which Defendants he wishes to bring each claim. Finally, Plaintiff must allege sufficient

22

facts to withstand a motion to dismiss. Plaintiff was strongly advised by this Court that failing to

23

adequately enumerate the specific causes of action he brings under FEHA and the factual

24

allegations that support them would result in the Court granting a motion to dismiss. The Court

25

will grant Plaintiff one final opportunity to amend his claims under FEHA. For these reasons,

26

Defendants’ Motion to Dismiss Plaintiff’s FEHA claims is granted with leave to amend.

27

//

28

//
13

1
2

E. Count V: Wrongful Termination
Plaintiff originally alleged a common law tort claim of wrongful termination against all

3

Defendants. (ECF No. 1 at ¶¶ 120-24.) The Court dismissed his claim because Plaintiff failed to

4

comply with the California Government Claims Act (“CGCA”) by not asserting he met the

5

requirements of the Act. (ECF No. 26 at 13.) Furthermore, Plaintiff did not indicate he complied

6

with California Government Code § 945.6. (ECF No. 26 at 13.) Plaintiff was granted leave to

7

amend, in order to indicate he complied with the CGCA and Government Code § 945.6.

8

i. Compliance with the CGCA

9

The CGCA instructs that no suit for money or damages may be brought against a public

10

entity until the claims have been presented for review and the state issues notice rejecting those

11

claims. CAL. GOV’T CODE § 900 et seq. (2003), see also, Klein v. City of Laguna Beach, 533 F.

12

App’x 772, 774 (9th Cir. 2013) (dismissing plaintiff’s claims for failure to comply with the

13

California Government Claims Act). “Compliance with the claims statute is mandatory, and

14

failure to file a claim is fatal to the cause of action.” Pac. Tel. & Tel. Co. v. Cnty. of Riverside,

15

106 Cal. App. 3d 183, 188 (Ct. App. 1980). After a claim is rejected, an individual has six

16

months from the date the notice is deposited in the mail to file a court action. CAL. GOV’T CODE

17

§ 945.6.

18

Numerous federal and state courts within California have found that this “claim

19

presentation requirement” constitutes an element of any cause of action arising under the CGCA.

20

See, e.g., Perez v. Golden Empire Transit Dist., 209 Cal. App. 4th 1228, 1236 (2012) (“The court

21

stated that the requirement is not merely procedural, but is a condition precedent to maintaining a

22

cause of action and, thus, is an element of the plaintiff’s cause of action.”); Ramos v. Marcisz, No.

23

06-CV-2282-W(CAB), 2008 WL 257292, at *6 (S.D. Cal. Jan. 28, 2008). Failure to meet this

24

requirement subjects a claim to dismissal for failure to state a cause of action. Yearby v.

25

California Dep’t of Corr., No. 2:07-CV-02800–JAM KJN P, 2010 WL 2880180, at *4 (E.D. Cal.

26

July 21, 2010). Because the parties are at the pleading stage, Plaintiff is only required to

27

affirmatively allege compliance with CGCA. Mock v. California Dept. of Corrections and

28

Rehabilitation, No. 15-CV-1104-MJS, 2015 WL 5604394, at *6 (E.D. Cal. Sept. 23, 2015).
14

1

Plaintiff’s Amended Complaint makes no reference to this requirement and presents no

2

facts to indicate that the requirement was met. Within the entire Amended Complaint there is no

3

affirmative allegation that Plaintiff complied with the CGCA. Plaintiff has not shown that filing a

4

claim with the EEOC supplants the need to file with the CGCA, and the Court is not aware that

5

such a rule exists. The Court previously dismissed Plaintiff’s wrongful termination claim for

6

failure to state a claim and granted Plaintiff leave to amend. However, Plaintiff, again, did not

7

allege any additional facts relating to his compliance with CGCA. This repeat failure requires

8

dismissal of the claim.

9
10

ii. Compliance with Government Code § 945.6
In addition to Plaintiff’s failure to plead the CGCA requirement, Plaintiff also does not

11

demonstrate in his pleadings that he is exempt from the statute of limitations imposed by

12

California Government Code § 945.6.

13

Under California Government Code § 945.6, an individual has six months from the date

14

the state mails written notice of the rejection of his claims to file suit. Defendants’ in their initial

15

Motion to Dismiss asked the Court to take judicial notice of documents obtained from the

16

Victim’s Compensation and Government Claims Board (“VCGCB”) related to Plaintiff’s claim.

17

(ECF No. 9-2.) The Court declined to take judicial notice of these documents and denied

18

Defendants’ request to dismiss these claims as time-barred. (ECF No. 26 at 15.)

19

Defendants are correct that failure to file a claim within the statute of limitations provided

20

by the CGCA is grounds for dismissal with prejudice. Gov’t. Code § 945.6. The statutory time

21

period begins to run when the written notice of rejection is deposited in the mail. CAL. GOV’T

22

CODE §§ 913, 945.6. Courts have consistently found claims filed beyond the six-month period to

23

be time-barred, even when the plaintiff never received the written notice. Dowell v. Cnty. of

24

Contra Costa, 173 Cal. App. 3d 896, 901 (1985) (A claimant who fails to receive a written notice

25

of the public entity’s action on the claim within a reasonable time after the end of the 45-day

26

period for its consideration, should make inquiry to determine whether, and if so, when, the notice

27

was in fact served. [T]he six-month rule applies if notice was served, even though not actually

28

received by the claimant.) (emphasis in original) (internal citations omitted); Perryman v. Los
15

1

Angeles Cnty. Metro. Transp. Auth., No. B168177, 2004 WL 1638105 (Cal. Ct. App. July 23,

2

2004) (“[CAL. GOV’T CODE § 945.6] makes clear that ... any notice, is deemed to have been

3

presented and received at the time of deposit in the mail…Thus, the Legislature made a choice

4

that any risk of a postal delivery problem falls on the recipient of the notice.”) (internal citations

5

omitted).

6

In their Motion to Dismiss, Defendants offered multiple documents for judicial notice to

7

demonstrate that the claims are time-barred, but none clearly state the date the notice of rejection

8

was deposited in the mail. (Req. for Judicial Notice in Supp. of Mot. to Dismiss, ECF No. 9-2.)

9

The Court declined to take judicial notice of these documents, but instructed Plaintiff to provide

10

facts to correct this deficiency. (ECF No. 26 at 15.) Because Plaintiff failed to correct this issue,

11

the Court now assumes there are no facts supporting Plaintiff’s ability to bring this claim. The

12

burden remains with the Plaintiff to demonstrate in his Amended Complaint that his claim meets

13

the requirements of the CGCA, including the statute of limitations. Because Plaintiff failed to

14

prove he complied with the CGCA, the Court dismisses Plaintiff’s Count V wrongful termination

15

claim with leave to amend.

16
17
18

V.

Conclusion

For the reasons set forth above, the Court hereby GRANTS IN PART and DENIES IN
PART Defendants’ Motion to Dismiss. (ECF No. 31.) The Court orders as follow:

19

1.

Defendants’ Motion to Dismiss Count I is DENIED.

20

2.

Defendants’ Motion to Dismiss Count II is DENIED.

21

3.

Defendants’ Motion to Dismiss Count III is DENIED.

22

4.

Defendants’ Motion to Dismiss Count IV is GRANTED WITH LEAVE TO

23
24
25
26

AMEND.
5.

Defendants’ Motion to Dismiss Count V GRANTED WITH LEAVE TO
AMEND.

The Court shall allow Plaintiff to file a second Amended Complaint with respect to Counts

27

IVand V only. Should Plaintiff elect to do so, the amended complaint must be filed with this Court

28

within twenty-one (21) days from the entry of this Order.
16

1

Dated: November 17, 2015

2
3
4
5

Troy L. Nunley
United States District Judge

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17