Mohsin v. California Department of Water Resources et al

Filing 43

ORDER granting in part and denying in part 39 Motion to Dismiss, signed by District Judge Troy L. Nunley on 8/1/16. Plaintiff has no further leave to amend his complaint. (Kastilahn, A)

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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’ 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’s (collectively “Defendants”) motion to dismiss 20 Plaintiff’s second amended complaint (“SAC”). (ECF No. 38.) Plaintiff Syed Mohsin 21 (“Plaintiff”) filed an opposition to Defendants’ motion. (ECF No. 40.) Defendants also filed a 22 reply. (ECF No. 41.) 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 I. FACTUAL BACKGROUND 26 Plaintiff was employed as an Assistant Engineering Specialist by DWR from August 2000 27 to April 13, 2012. (ECF No. 38 at ¶ 8.) He was diagnosed with right temporal lobe epilepsy at 28 the age of ten and suffered from various types of seizures throughout his life. (ECF No. 38 at ¶ 1 1 17.) Plaintiff alleges that at the time he was hired, his neurologist completed a medical form that 2 served the basis for DWR to accommodate certain restrictions on Plaintiff’s duty statement as 3 required by his condition. (ECF No. 38 at ¶¶ 22–25.) Plaintiff states these accommodations 4 remained in place until February 2002, when he alleges they were removed from his duty 5 statement over his protest. (ECF No. 38 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. 38 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. 38 at ¶¶ 45–46.) The SAC states that DWR sought evaluations 11 proposing accommodations for Plaintiff’s condition from multiple doctors, including Plaintiff’s 12 own doctor. (ECF No. 38 at ¶¶ 47–50.) Ultimately, DWR issued a “Notice of Medical Action” 13 pursuant to California Government Code (“Cal. Gov’t Code”) Section 19991.10 on March 12, 14 2012. (ECF No. 38 at ¶ 61.) 15 Plaintiff states that his medical termination was preceded by ten years of harassment in an 16 effort to force Plaintiff to resign. (ECF No. 38 at ¶ 56.) Plaintiff also alleges that he was rejected 17 from approximately 20 other positions within DWR for which he applied and that those positions 18 were filled by individuals with lesser qualifications. (ECF No. 38 at ¶¶ 65–67.) Plaintiff states 19 that he has taken multiple tests for engineering positions and demonstrated that he is capable of 20 performing the essential functions of each position. (ECF No. 38 at ¶ 66.) However, Plaintiff 21 alleges Defendants refused to offer him a position in retaliation for Plaintiff’s complaints that 22 Defendants violated laws in their treatment of Plaintiff’s disability. (ECF No. 38 at ¶ 65.) 23 II. PROCEDURAL BACKGROUND 24 On June 6, 2013, Plaintiff filed a complaint against Defendants DWR, David Gutierrez, 25 and Michael Waggoner1, alleging violations of the Fourteenth Amendment of the U.S. 26 Constitution, Section 1983 (42 U.S.C. § 1983); Americans with Disabilities Act (“ADA”) (42 27 U.S.C. § 12101, et seq.); Section 504 of the Rehabilitation Act (“Section 504”) (29 U.S.C. § 794); 28 1 Plaintiff removed Defendant Waggoner entirely as a party in this case in his FAC. (ECF No. 30.) 2 1 the California Fair Employment and Housing Act (“FEHA”) (Cal. Gov’t Code § 12900, et seq.); 2 and Intentional Infliction of Emotional Distress, Negligence, and Wrongful Termination. (ECF 3 No. 1.) On August 20, 2013, Defendants filed a motion to dismiss. (ECF No. 9.) 4 On October 1, 2014, the Court issued an order granting in part and denying in part 5 Defendants’ motion to dismiss. (ECF No. 26.) Plaintiff was granted leave to amend on multiple 6 causes of action and filed his FAC on December 16, 2014. (ECF No. 30.) On December 29, 7 2014, Defendants filed a second motion to dismiss. (ECF No. 31.) The Court issued an order 8 granting in part and denying in part Defendants’ motion to dismiss. (ECF No. 37.) Plaintiff was 9 again granted leave to amend only Count IV (Violations of the FEHA), and filed his SAC on 10 11 December 9, 2015. (ECF No. 38.) Currently, under his SAC, Plaintiff brings three of the claims that survived Defendants’ 12 second motion to dismiss: Count I (Violation of the ADA), Count II (Violations of Section 504), 13 and Count III (Violations of Section 1983). (ECF No. 38.) Additionally, Plaintiff’s SAC 14 attempts to remedy the insufficiency of Count IV (Violations of the FEHA) and separates the 15 single claim into three causes of action against Defendants DWR and Gutierrez, for violations of: 16 Count IV-A (discrimination under FEHA) (Cal. Gov’t Code § 12940(a)); Count IV-B (retaliation 17 under FEHA) (Cal. Gov’t Code § 12940(h)); and Count IV-C (harassment under FEHA) (Cal. 18 Gov’t Code § 12940(j)). (ECF No. 38.) Finally, Plaintiff reasserts the previously dismissed 19 Count V (Wrongful Discharge). (ECF No. 38.) On December 17, 2015, Defendants filed a third 20 motion to dismiss (“Motion to Dismiss”). (ECF No. 39.) 21 22 III. STANDARD OF LAW A. Motion to Dismiss 23 Federal Rule of Civil Procedure 8(a) requires that a pleading contain “a short and plain 24 statement of the claim showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556 25 U.S. 662, 678–79 (2009). Under notice pleading in federal court, the complaint must “give the 26 defendant fair notice of what the claim . . . is and the grounds upon which it rests.” Bell Atlantic 27 v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). “This simplified notice 28 pleading standard relies on liberal discovery rules and summary judgment motions to define 3 1 disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 2 534 U.S. 506, 512 (2002). 3 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 4 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give plaintiff the benefit of every 5 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 6 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 7 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 8 relief.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads 9 factual content that allows the court to draw the reasonable inference that the defendant is liable 10 for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 544, 556 (2007)). 11 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 12 factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 13 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an 14 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 15 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 16 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 17 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove 19 facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not 20 been alleged[.]” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 21 459 U.S. 519, 526 (1983). 22 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 23 facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting 24 Twombly, 550 U.S. at 570). Only where a plaintiff fails to “nudge[] [his or her] claims . . . across 25 the line from conceivable to plausible[,]” is the complaint properly dismissed. Id. at 680. While 26 the plausibility requirement is not akin to a probability requirement, it demands more than “a 27 sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility inquiry is “a 28 context-specific task that requires the reviewing court to draw on its judicial experience and 4 1 common sense.” Id. at 679. 2 3 B. Granting Leave to Amend If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 4 amend even if no request to amend the pleading was made, unless it determines that the pleading 5 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 6 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 484, 497 (9th Cir. 1995)); 7 see also Gardner v. Marino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in 8 denying leave to amend when amendment would be futile). Federal Rule of Civil Procedure 9 15(a) “declares that leave to amend shall be freely given when justice so requires.” Foman v. 10 11 Davis, 371 U.S. 178, 182 (1962) (internal citation omitted). “[T]he court’s discretion to deny such leave is ‘particularly broad’ where the plaintiff has 12 previously amended its complaint[.]” Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 13 F.3d 502, 520 (9th Cir. 2013) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th 14 Cir. 2004)). Repeated failure to cure deficiencies by amendment previously allowed is a reason 15 to deny leave to amend. Foman, 371 U.S. at 182. Granting or denying leave to amend is within 16 the sound discretion of the trial court, and will be reversed only for abuse of discretion. Swanson 17 v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). 18 IV. ANALYSIS 19 A. Count IV-A: Discrimination in Violation of FEHA by Defendant DWR 20 In its Order dismissing Plaintiff’s FAC, the Court dismissed Plaintiff’s FEHA claim with 21 leave to amend, holding that Plaintiff did not allege sufficient facts to support his claim and did 22 not specify under which subset of FEHA he intended to bring his cause of action. (ECF No. 37 at 23 13.) Plaintiff was instructed that, if he intended to bring multiple claims under FEHA, he must 24 individually identify each claim within his complaint. (ECF No. 37 at 13.) Thus, Plaintiff has 25 divided his previous single Count IV into three separate counts: Count IV-A; Count IV-B; and 26 Count IV-C. (ECF No. 38 at ¶¶ 100–5.) Despite this effort, Plaintiff’s Count IV-A appears to 27 bring multiple causes of action under Cal. Gov’t Code Section 12940(a), (m), and (n). (ECF No. 28 38 at ¶¶ 100–5.) 5 1 Although Plaintiff did not individually label these three unique claims, a court is bound to 2 give a plaintiff the benefit of every reasonable inference to be drawn from the “well-pleaded” 3 allegations of the complaint. Retail Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 4 (1963). Therefore, the Court has discerned that Plaintiff intended to bring three individual claims 5 and finds that Plaintiff has alleged sufficient facts to bring the following claims: (1) 6 Discrimination (Cal. Gov’t Code § 12940(a)); (2) Failure to make reasonable accommodations 7 (Cal. Gov’t Code § 12940(m)); and (3) Failure to engage in the interactive process (Cal. Gov’t 8 Code § 12940(n)). 9 i. 10 Cal. Gov’t Code Section 12940(a): Discrimination The Court interprets Plaintiff’s first claim to arise under FEHA in Cal. Gov’t Code 11 Section 12940(a) which provides, in relevant part, that “[i]t shall be an unlawful employment 12 practice … : [¶] (a) For an employer, because of the ... physical disability [or] medical condition 13 ... of any person, to refuse to hire or employ the person ... or to bar or to discharge the person 14 from employment ....” Avila v. Cont'l Airlines, Inc., 165 Cal. App. 4th 1237, 1246 (2008) (citing 15 Cal. Gov’t Code § 12940(a) (West 2016)). In order to bring a prima facie claim for 16 discrimination under FEHA, Plaintiff must show he “(1) suffered from a disability, or was 17 regarded as suffering from a disability; (2) could perform the essential duties of the job with or 18 without reasonable accommodations, and (3) was subjected to an adverse employment action 19 because of the disability or perceived disability.” Alsup v. U.S. Bancorp, No. 2:14-CV-01515 20 KJM DAD, 2015 WL 6163453, at *4 (E.D. Cal. Oct. 2015) (citing Wills v. Superior Court, 195 21 Cal. App. 4th 143, 159 (2011)). 22 Defendants argue that Plaintiff’s SAC only states conclusory allegations and fails to state 23 facts supporting his Section 12940(a) cause of action. (ECF No. 39-1 at 6.) The Court disagrees 24 and finds that Plaintiff alleges sufficient facts to support the elements of his prima facie case of 25 discrimination. 26 Plaintiff alleges he suffered from right temporal lobe epilepsy and that he entered into his 27 job for Defendants with a disability, thus satisfying the requirement that he allege a disability. 28 (ECF No. 38 at ¶ 17, ¶¶ 20–24.) He also alleges that he was otherwise qualified to perform the 6 1 essential functions of the job with reasonable accommodations because the accommodations he 2 was given had “minimal impact on his job … eliminating only the job duty that occasionally 3 required [him] to conduct some field inspections.” (ECF No. 38 at ¶ 26.) Additionally, Plaintiff 4 asserts that all three evaluations of him within his first six months determined he “could perform 5 the essential functions of the position.” (ECF No. 38 at ¶ 31.) Therefore, Plaintiff properly 6 alleged facts supporting the second element of his prima facie case. 7 The Court also finds that Plaintiff sufficiently alleges that he was subject to adverse 8 treatment because of his disability. “[A]dverse treatment that is reasonably likely to impair a 9 reasonable employee’s job performance or prospects for advancement or promotion falls within 10 the reach of the antidiscrimination provisions of [the FEHA].” Horsford v. Bd. of Trustees of Cal. 11 State Univ., 132 Cal. App. 4th 359, 373 (2005). Plaintiff states that DWR removed his 12 accommodations without consulting his treating physician, as well as held him to the same 13 standards of performance as engineers who received higher salaries and more benefits than he 14 had. (ECF No. 38 at ¶ 101 (b) & (c).) He alleges that “DWR separated [him] from the 15 Department by way of a medical termination that it knew or should have known would result in 16 Plaintiff’s being denied the opportunity to work for any California Agency or Department without 17 clearance from—consequently the approval of—Defendant DWR.” (ECF No. 38 at ¶ 101 (d).) 18 Thus, Plaintiff alleged sufficient facts to satisfy the requirement that he allege adverse treatment 19 by Defendants. 20 Accordingly, the Court finds that Plaintiff adequately stated his specific cause of action 21 for discrimination in violation of the FEHA. Additionally, Plaintiff has suitably supported his 22 claim with factual allegations. For these reasons, Defendants’ Motion to Dismiss Plaintiff’s 23 FEHA discrimination claim is DENIED. 24 25 ii. Cal. Gov’t Code Section 12940(m): Failure to Make Reasonable Accommodations 26 The Court interprets Plaintiff’s second claim under Count IV-A to arise under Cal. Gov’t 27 Code Section 12940(m), which provides that “[i]t shall be an unlawful employment practice … : 28 [¶] (m) [f]or an employer or other entity … to fail to make reasonable accommodation for the 7 1 known physical or mental disability of an applicant or employee.” Cal. Gov’t Code § 12940(m) 2 (West 2016). “To establish a prima facie case for failure to accommodate, a plaintiff must show: 3 (1) that he suffers from a disability covered by FEHA; (2) that he is otherwise qualified to do his 4 job; and (3) that defendant failed to reasonably accommodate his disability.” Gardner v. Fed. 5 Express Corp., 114 F. Supp. 3d 889, 901 (N.D. Cal. 2015); see also Jensen v. Wells Fargo Bank, 6 85 Cal. App. 4th 245, 256 (2000). An employer’s failure to provide reasonable accommodation is 7 a violation of the statute even in the absence of an adverse employment action. King v. United 8 Parcel Serv., Inc., 152 Cal. App. 4th 426, 442 (2007). Despite a pattern of successful 9 accommodation, a single failure to accommodate an employee’s disability may be actionable in 10 some cases. See A.M. v. Albertsons, LLC, 178 Cal. App. 4th 455, 465 (2009). 11 Defendants’ argument for dismissal remains the same: they assert Plaintiff failed to 12 sufficiently allege factual support for his claims generally under the FEHA. (ECF No. 39-1 at 6.) 13 Defendants focus their argument on the assertion that Plaintiff failed to comply with the Court’s 14 directives to individually identify each FEHA claim. (ECF No. 39-1 at 6.) Having found that 15 Plaintiff sufficiently specified the subsections under which he brings his FEHA causes of action, 16 the Court now looks to whether Plaintiff sufficiently alleged facts to support his prima facie claim 17 for failure to accommodate. 18 The Court has already determined that Plaintiff has plead sufficient facts to support his 19 allegations that he suffered from a disability and that he is otherwise qualified to do his job under 20 the FEHA. See, Section A.i., supra. As for the third element of Plaintiff’s prima facie case, 21 Plaintiff clearly alleges that, in January 2002, he was notified that his supervisor was removing 22 the portion of his duty statement that mentions his reasonable accommodations. (ECF No. 38 at ¶ 23 35.) Plaintiff states that, even though Defendants had not consulted Plaintiff’s treating physician 24 or neurologist, Plaintiff was still directed to sign the revised duty statement, despite his 25 objections. (ECF No. 38 at ¶ 35.) Plaintiff asserts that, though he was told the accommodations 26 would remain in effect, they disappeared when his supervisor was transferred. (ECF No. 38 at ¶ 27 36.) Finally, Plaintiff alleges that he met with Defendant Gutierrez and other Senior Engineers to 28 discuss his request for accommodations. (ECF No. 38 at ¶ 44.) However, after that meeting, 8 1 Plaintiff asserts that Gutierrez refused to provide any reasonable accommodations and none were 2 put into effect to accommodate Plaintiff’s brain surgery. (ECF No. 38 at ¶ 46.) 3 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 4 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 5 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic v. Twombly, 550 U.S. 544, 556 6 (2007)). In light of the fact that Plaintiff alleged factual support for his claim of failure to provide 7 reasonable accommodations, the Court finds that Plaintiff sufficiently stated a cause of action for 8 violation of Section 12940(m). For these reasons, Defendants’ Motion to Dismiss Plaintiff’s 9 FEHA claim for failure to provide reasonable accommodations is DENIED. 10 11 12 iii. Cal. Gov’t Code Section 12940(n): Failure to Engage in the Interactive Process The Court interprets Plaintiff’s last claim under Count IV-A to arise under Cal. Gov’t 13 Code Section 12940(n), which provides that “[i]t shall be an unlawful employment practice … : 14 [¶] (n) [f]or an employer … to fail to engage in a timely, good faith, interactive process with the 15 employee or applicant to determine effective reasonable accommodations.” Cal. Gov’t Code § 16 12940(n) (West 2016). “Although it is the employee’s burden to initiate the process, no magic 17 words are necessary, and the obligation arises once the employer becomes aware of the need to 18 consider an accommodation.” Rubadeau v. M.A. Mortenson Co., No. 1:13–CV–339 AWI JLT, 19 2013 WL 3356883, at *12 (E.D. Cal. July 3, 2013) (quoting Scotch v. Art Inst. of California– 20 Orange Cnty., Inc., 173 Cal. App. 4th 986, 1018, 93 Cal. Rptr. 3d 338 (2009)). “'[T]he 21 employer’s obligation to engage in the interactive process extends beyond the first attempt at 22 accommodation and continues when the employee asks for a different accommodation or where 23 the employer is aware that the initial accommodation is failing and further accommodation is 24 needed.” Scotch v. Art Inst. of California-Orange Cty., Inc., 173 Cal. App. 4th 986, 1013 (2009) 25 (quoting Humphrey v. Memorial Hospitals Assn., 239 F. 3d 1128, 1138 (9th Cir. 2001)). 26 Defendants argue generally that Plaintiff has not detailed sufficient factual allegations 27 supporting his claim for violations of the FEHA. (ECF No. 39-1 at 6.) The Court looks to 28 whether Plaintiff has adequately supported his claim of Defendants’ failure to engage in the 9 1 2 interactive process. Plaintiff alleges that “Defendants asserted that [he] worked too slowly” and that they 3 “used this rationale to terminate Plaintiff.” (ECF No. 38 at ¶ 103(c).) Plaintiff states that “[e]ven 4 when [he] was able to obtain a job coach through DOR … at no cost to DWR, to help organize 5 [his] time and work space, DWR refused to allow this reasonable accommodation.” (ECF No. 38 6 at ¶ 103(c).) Additionally, Plaintiff alleges that after his brain surgery, Defendant Gutierrez 7 denied knowledge of Plaintiff’s epilepsy and directed Plaintiff to conduct on site dam inspections, 8 “over Plaintiff’s objection and his anxiety about his safety and that of others.” (ECF No. 38 at ¶ 9 57.) Finally, Plaintiff asserts that when he attempted to engage in the interactive process with 10 DWR’s Employee Health and Safety Office about his accommodations, he was notified that his 11 request was denied, thus nullifying the process. (ECF No. 38 at ¶¶ 52–53.) 12 The Court finds that Plaintiff has alleged sufficient factual support to demonstrate his need 13 for accommodations as well as his initial steps to engage Defendants in the interactive process. 14 Additionally, in interpreting the facts in light most favorable to Plaintiff, the Court can draw a 15 reasonable inference that Defendants refused to engage in the interactive process. Therefore, the 16 Court finds that Plaintiff has adequately asserted his claim of violation of Section 12940(n). For 17 these reasons, Defendants’ Motion to Dismiss Plaintiff’s claim of failure to engage in the 18 interactive process under the FEHA is DENIED. 19 B. Count IV-B: Retaliation in Violation of FEHA by Defendant DWR 20 Following direction from the Court, Plaintiff amended his complaint to specify a single 21 claim of retaliation in violation of Cal. Gov’t Code Section 12940(h) in Count IV-B. In his SAC, 22 Plaintiff provides additional facts to support his cause of action, including identifying against 23 which Defendant he brings his claim. (ECF No. 38 at ¶ 106(a)–(e).) Defendants again move to 24 dismiss Plaintiff’s cause of action, arguing that Plaintiff failed to allege sufficient facts to support 25 a retaliation claim. (ECF No. 39-1 at 7.) 26 Employers may not discharge, expel or otherwise discriminate against individuals 27 because they oppose conduct forbidden by the FEHA, file a complaint, or testify or assist in a 28 proceeding regarding a claim of disability discrimination. Cal. Gov’t Code § 12940(h) (West 10 1 2016). To establish a prima facie case of retaliation, a Plaintiff must show: (1) involvement in [a] 2 protected activity opposing an unlawful employment practice, (2) an adverse employment action, 3 and (3) a causal link between the protected activity and the adverse action. Freitag v. Ayers, 468 4 F. 3d 528, 541 (9th Cir. 2006). Protected activity may include when “an employee … has 5 complained of or opposed conduct that the employee reasonably believes to be discriminatory, 6 even when a court later determines the conduct was not actually prohibited by the FEHA.” 7 Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1043 (2005). There must be some evidence that 8 the employer knew that the employee was engaged in activities in opposition to the employer at 9 the time of the claimed retaliatory action. Kelley v. Corr. Corp. of Am., 750 F. Supp. 2d 1132, 10 1144 (E.D. Cal. 2010). 11 Plaintiff alleges that he complained about adverse treatment by DWR that led to 12 retaliation actions being taken against him after he made his complaints. (ECF No. 38 at ¶ 13 106(e).) Plaintiff asserts he complained about “DWR: refusing to participate in the interactive 14 process, refusing to provide Plaintiff with reasonable accommodations, [and] refusing to hire 15 Plaintiff for a position for which he was otherwise qualified.” (ECF No. 38 at ¶ 106(e).) Plaintiff 16 alleges he was terminated due to these complaints and that his termination “reeked of retaliation 17 as it deprived Plaintiff of the right to work for any other California Agency or Department.” 18 (ECF No. 38 at ¶ 106(e).) Defendants argue that Plaintiff failed to clearly identify a protected 19 activity. (ECF No. 39-1 at 7.) Additionally, Defendants assert that, though Plaintiff “vaguely 20 references” seeking reasonable accommodations, that conduct “does not constitute opposing an 21 employment practice forbidden under the FEHA.” (ECF No. 39-1 at 7.) The Court agrees. 22 A request for accommodation does not constitute a protected activity and is insufficient to 23 state a claim for retaliation. 2 Keshe v. CVS Pharmacy Inc., No. 2:14-CV-08418-CAS (MANx), 24 2 25 26 27 28 The Court recognizes that effective January 1, 2016, AB No. 987 modified the FEHA such that requests for accommodation can constitute protected activity. “Generally, statutes operate prospectively only.” Myers v. Philip Morris Companies, Inc., 28 Cal. 4th 828, 840 (2002). “[A] statute may be applied retroactively only if it contains express language of retroactivity or if other sources provide a clear and unavoidable implication that the Legislature intended retroactive application.” McClung v. Employment Dev. Dep't, 34 Cal. 4th 467, 475 (2004) (citing Myers, 28 Cal. 4th 828, 844 (2002)); see also Cal. Civ. Code § 3 (“No part of [the California Code of Civil Procedure] is retroactive, unless expressly so declared”). “The 2016 amendment to the FEHA does not state that it is retroactive.” Keshe v. CVS Pharmacy Inc., No. 2:14-CV-08418-CAS (MANx), 2016 WL 1367702, at *10 (C.D. Cal. Apr. 5, 2016). In this case, A.B. 987 does not contain an express retroactivity provision, and there is nothing else that this 11 1 2016 WL 1367702, at *10 (C.D. Cal. Apr. 5, 2016); see Nealy v. City of Santa Monica, 234 Cal. 2 App. 4th 359, 381 (2015) (“[P]rotected activity does not include a mere request for reasonable 3 accommodation. Without more, exercising one’s rights under FEHA to request reasonable 4 accommodation or engage in the interactive process does not demonstrate some degree of 5 opposition to or protest of unlawful conduct by the employer”); Rope v. Auto-Chlor Sys. of Wash., 6 Inc., 220 Cal.App. 4th 635, 652-53 (2013) (“[W]e find no support in the regulations or case law 7 for the proposition that a mere request-or even repeated requests-for an accommodation, without 8 more, constitutes a protected activity sufficient to support a claim for retaliation in violation of 9 FEHA”). 10 Plaintiff has failed to allege facts showing he made a complaint to any particular 11 defendant about violations of the FEHA or even when that complaint was made. Instead, 12 Plaintiff’s complaint indicates only that he made repeated requests for accommodation. (ECF No. 13 38 at ¶¶ 44 & 83.) Making repeated requests for accommodations, alone, is not sufficient to 14 constitute a protected activity within the FEHA. Rope, 220 Cal.App. 4th 635 at 652–53. Further, 15 to constitute retaliation, there must also be evidence the employer knew the employee was 16 engaged in activities in opposition to the employer at the time of the alleged retaliation. Id. at 17 653; see Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028, 1046 (2005) (“Standing alone, an 18 employee’s unarticulated belief that an employer is engaging in discrimination will not suffice to 19 establish protected conduct … where there is no evidence the employer knew that the employee’s 20 opposition was based upon a reasonable belief that the employer was engaging in 21 discrimination.”) Plaintiff has failed to meet his burden to show that he filed a complaint 22 regarding Defendants’ alleged failure to accommodate his disability. Without such a showing, 23 the Court finds that Plaintiff has not demonstrated that he engaged in a protected activity. 24 25 26 27 28 Court has found that would make it very clear that the Legislature intended for the change to apply retroactively. The Court concludes that this amendment does not apply retroactively to Plaintiff’s claim. In light of the fact that the amendment only applies prospectively, at the time Plaintiff alleges Defendant engaged in the asserted retaliation, the law was consistent with the holdings of Nealy and Rope. Therefore, the Court finds that Plaintiff’s requests for reasonable accommodations and engagement in the interactive process do not constitute protected activity. Additionally, Plaintiff fails to specifically enumerate any other protected activity that would satisfy the first element of his retaliation claim. 12 1 Therefore, Plaintiff has not satisfied the first requirement of stating a claim for retaliation under 2 Section 12940(h). 3 In the Court’s second order dismissing Plaintiff’s FEHA claims, the Court instructed 4 Plaintiff to allege sufficient facts to withstand a motion to dismiss. (ECF No. 37 at 13.) The 5 Court also warned Plaintiff that he would have one last opportunity to amend his complaint. 6 (ECF No. 37 at 13.) Repeated failure to cure deficiencies by amendment is a reason to deny leave 7 to amend. Foman v. Davis, 371 U.S. 178, 182 (1962). Plaintiff has again failed to allege 8 sufficient facts to survive a motion to dismiss, which suggests that Plaintiff is unable to cure this 9 deficiency. Accordingly, the Court finds that Plaintiff does not have a cause of action for 10 retaliation under the FEHA. For these reasons, Defendants’ Motion to Dismiss Plaintiff’s 11 retaliation claim under Section 12940(h) is GRANTED. 12 13 14 C. Count IV-C: Harassment in Violation of FEHA by Defendants DWR and Gutierrez Plaintiff’s final claim under Count IV of his SAC again combines multiple causes of 15 action for violations of the FEHA. (ECF No. 38 at ¶¶ 107–14.) Plaintiff first states a claim under 16 Cal. Gov’t Code Section 12940(a), alleging a discrimination violation, and Section 12940(g), 17 alleging a retaliation violation against hospital employees. (ECF No. 38 at ¶ 110.) Count IV-C 18 also references Section 12940(k), alleging failure to prevent discrimination and harassment, 19 although Plaintiff does not specifically allege a claim on these grounds. 20 With respect to Section 12940(a), the Court has already determined that Plaintiff has pled 21 sufficient facts to support a claim of discrimination against Defendants. See, Section IV.A.i., 22 supra. However, with respect to Section 12940(g), the Court finds that the cited subsection is not 23 applicable in this instance. Section 12940(g) states that is unlawful “[f]or an employer … [to] 24 discriminate against any person because the person has made a report pursuant to … retaliation 25 against hospital employees who report suspected patient abuse by health facilities or community 26 care facilities.” Cal. Gov’t Code § 12940(g) (West 2016). Because Plaintiff has not alleged that 27 he is a healthcare worker, the Court finds that this statute is inapplicable and any claims related to 28 this subsection are dismissed. 13 1 As to Plaintiff’s claim under Section 12940(k), the Court finds that Plaintiff does not 2 sufficiently enumerate this claim and therefore it is dismissed. Within his SAC, Plaintiff does not 3 specifically cite to Section 12940(k). (ECF No. 38 at ¶¶ 107–114.) Furthermore, the only point 4 at which Section 12940(k) is addressed is in Defendants’ motion to dismiss, which alleges that 5 Plaintiff is bringing a claim under that section. (ECF No. 39-1 at 7.) Therefore, the Court will 6 not address Section 12940(k). 7 Finally, Plaintiff also indicates that he intends to bring a claim under Section 12940(j), 8 alleging harassment. (ECF No. 38 at ¶¶ 107 & 108.) With respect to this claim, Plaintiff alleges 9 that Mr. Waggoner began harassing Plaintiff when he “removed Plaintiff’s agreed-upon 10 reasonable accommodations.” (ECF No. 38 at ¶ 56.) Plaintiff states that Mr. Waggoner then 11 ordered “Plaintiff to conduct an on sight dam inspection that would have put Plaintiff and another 12 engineer in harm because of Plaintiff’s uncontrolled seizures.” (ECF No. 38 at ¶ 57.) Plaintiff 13 also alleges that Defendant Gutierrez denied any knowledge of Plaintiff’s epilepsy and again 14 directed him to conduct the inspections “over Plaintiff’s objection and his anxiety about his safety 15 and that of others.” (ECF No. 38 at ¶ 57.) Plaintiff alleges that he was criticized for not knowing 16 information that was never provided to him; for not having skills for which Defendants never 17 provided the required training; for following directions from his assigned supervisor; for using 18 reporting formats that were used by his colleagues; and for asking for clarification and assistance 19 with unfamiliar tasks. (ECF No. 38 at ¶ 63.) Plaintiff also asserts that he was closely monitored 20 “down to the time he arrived at the office” and that he was “forbidden to confer with colleagues 21 on job assignments.” (ECF No. 38 at ¶ 63.) 22 Defendants argue that Plaintiff “ignores the Court’s directive to clearly set forth the causes 23 of action he wishes to include and under what sub-section of the FEHA he brings those claims.” 24 (ECF No. 39-1 at 7.) However, Defendants do not address Plaintiff’s claim under subdivision (j), 25 nor do they lay additional arguments for why that cause of action should be dismissed. 26 Therefore, the Court looks only to Plaintiff’s allegations in this matter. 27 28 The FEHA makes it unlawful “[f]or an employer ... or any other person, because of ... physical disability, mental disability, [or] medical condition ... to harass an employee ....” Cal. 14 1 Gov’t Code § 12940(j)(1). An employee claiming harassment based upon a hostile work 2 environment must demonstrate that the conduct complained of was severe enough or sufficiently 3 pervasive to alter the conditions of employment and create a work environment that qualifies as 4 hostile or abusive to employees. Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264, 279 5 (2006); see Thompson v. City of Monrovia, 186 Cal. App. 4th 860, 877 (2010) (explaining that a 6 plaintiff “must prove that the defendant’s conduct would have interfered with a reasonable 7 employee’s work performance and would have seriously affected the psychological well-being of 8 a reasonable employee”). Harassing conduct takes place “outside the scope of necessary job 9 performance, conduct presumably engaged in for personal gratification, because of meanness or 10 bigotry, or for other personal motives.” Rehmani v. Superior Court, 204 Cal. App. 4th 945, 951 11 (2012) (citing Reno v. Baird, 18 Cal.4th 640, 646 (1998)). 12 “In determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held 13 that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must 14 show a concerted pattern of harassment of a repeated, routine or a generalized nature.” Muller v. 15 Auto. Club of So. California, 61 Cal. App. 4th 431, 446 (1998) (quoting Fisher v. San Pedro 16 Peninsula Hospital, 214 Cal. App. 3d 590, 610 (1989)). Factors constituting harassment “may 17 include the frequency of the discriminatory conduct; its severity; whether it is physically 18 threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes 19 with an employee’s work performance.” Miller v. Dept. of Corrections, 36 Cal.4th 446, 462 20 (2005). 21 Plaintiff’s SAC states facts that show sufficient support for his harassment claim. Plaintiff 22 does not need to allege ‘“specific facts’ beyond those necessary to state his claim and the grounds 23 showing entitlement to relief.” Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). Though 24 Plaintiff has not clearly enumerated all specific instances of harassment, he offers facts that 25 sufficiently allege that Defendants have engaged in a repeated pattern of misconduct. From these 26 allegations, the Court could draw a reasonable inference that Defendants have harassed Plaintiff 27 in his work environment. Therefore, Defendants’ Motion to Dismiss is DENIED with respect to 28 the harassment claim under Section 12940(j)(1). Defendants’ motion is GRANTED with respect 15 1 to any other claims Plaintiff intended to assert under Count IV-C and these claims are dismissed 2 without leave to amend.3 3 D. Count V: Wrongful Discharge in Violation of FEHA by Defendant DWR 4 In Plaintiff’s original complaint he alleged a common law tort claim of wrongful 5 termination against all Defendants. (ECF No. 1 at ¶¶ 120-24.) The Court dismissed that claim 6 because Plaintiff failed to comply with the California Government Claims Act (“CGCA”) by not 7 asserting he met the requirements of the act. (ECF No. 26 at 13.) Though Plaintiff was granted 8 leave to amend, his FAC still made no reference to the requirements of the act and the Court 9 concluded that Plaintiff lacked any facts to support his ability to bring his claim. (ECF No. 37 at 10 16.) Thus, the Court dismissed Plaintiff’s wrongful termination cause of action without leave to 11 amend. (ECF No. 37 at 16.) Plaintiff now attempts to bring a wrongful discharge claim in 12 violation of the FEHA claim in his SAC. (ECF No. 38 at 27.) However, similar to Plaintiff’s 13 wrongful termination cause of action, Plaintiff’s wrongful discharge claim is dismissed without 14 leave to amend. 15 Plaintiff attempts to allege a new cause of action by slightly altering the title of his claim 16 from “wrongful termination” to “wrongful discharge” and adding one additional set of facts 17 regarding his notice of termination. (ECF No. 38 at ¶ 120.) Defendants assert that Plaintiff was 18 already given leave to amend his complaint multiple times in order to cure his pleading 19 deficiencies regarding California Government Code Section 945.6. (ECF No. 39-1 at 8–9.) 20 Defendants argue that due to Plaintiff’s failure to allege any facts demonstrating he has complied 21 with the requirements of Section 945.6, the Court should dismiss Plaintiff’s claim without leave 22 to amend. (ECF No. 39-1 at 9.) Additionally, Defendants argue that the Court did not grant 23 Plaintiff permission to allege a new cause of action. (ECF No. 39-1 at 8.) The Court agrees. 24 Despite the Court’s dismissal of Plaintiff’s claim without leave to amend, Plaintiff 25 attempts to again bring his cause of action, ignoring this Court’s previous Order. Further, 26 Plaintiff again fails to allege any new information regarding this “new” cause of action. 27 3 28 Plaintiff’s claim under Count IV-A, discrimination under Section 12940(a) remains as a cause of action. See Section IV.A.i., supra. 16 1 Plaintiff’s attempt to simply change the name of a claim that has previously been dismissed is 2 unavailing. The Court has been more than lenient regarding Plaintiff’s inability to separate out 3 his own claims, and Plaintiff was not directed to amend this claim. For the reasons stated above, 4 Defendants’ Motion to Dismiss Plaintiff’s wrongful discharge claim is GRANTED. 5 V. 6 For the reasons set forth above, the Court hereby GRANTS IN PART and DENIES IN 7 8 9 10 11 12 13 14 15 CONCLUSION PART Defendants’ Motion to Dismiss. (ECF No. 39-1.) The Court orders as follow: 1. Defendants’ Motion to Dismiss as to Count I (Violation of the ADA) is DENIED; 2. Defendants’ Motion to Dismiss as to Count II (Violations of Section 504) is DENIED; 3. Defendants’ Motion to Dismiss as to Count III (Violations of Section 1983) is DENIED; 4. Defendants’ Motion to Dismiss as to COUNT IV-A is DENIED with respect to Section 12940 subsections (a), (m), and (n); 16 5. Defendants’ Motion to Dismiss as to COUNT IV-B is GRANTED; 17 6. Defendants’ Motion to Dismiss as to COUNT IV-C is DENIED with respect to 18 Section 12940(j) and GRANTED with respect to all other subsections; and 19 7. Defendants’ Motion to Dismiss as to COUNT V is GRANTED. 20 Plaintiff has no further leave to amend his complaint. 21 IT IS SO ORDERED 22 23 Dated: August 1, 2016 24 25 Troy L. Nunley United States District Judge 26 27 28 17

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