Burch v. California Department of Motor Vehicles

Filing 27

ORDER denying 20 Motion to Strike and granting in part and denying in part 21 Motion to Dismiss signed by Judge Lawrence K. Karlton on 12/20/13: Plaintiff shall file his Second Amended Complaint to conform to this order within thirty (30) days of the date of this order. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRIAN BURCH,

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CIV. S-13-1283 LKK/DAD

Plaintiff,

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No.

v.

ORDER

CALIFORNIA DEPARTMENT OF
MOTOR VEHICLES and DOES 1-10,
inclusive,,

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Defendants.

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This is an employment discrimination case.

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Plaintiff claims

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racial discrimination and retaliation under Title VII and

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California law, as well as discrimination and retaliation based

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upon disability under state law.

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that after plaintiff filed a racial discrimination complaint with

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the California Department of Fair Employment and Housing (“DFEH”)

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in 2003, he was subjected to a hostile work environment from that

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time until June 24, 2011.

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constructively discharged in 2012 when his request for

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accommodation of his disability was denied.

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////

In brief, the Complaint alleges

He also alleges that he was

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I. ALLEGATIONS

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Plaintiff Brian Burch is an African-American man who was

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employed by the California Department of Motor Vehicles (“DMV”)

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from April 16, 2001 until January 12, 2012.

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Complaint (“Complaint”) (ECF No. 19) ¶¶ 5-6 & 52.1

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initially hired as a “Staff Information Systems Analyst” in the

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Executive Division of DMV.

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Information Technology (“IT”) projects and to work with outside

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vendors.

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Id.

Id., ¶ 7.

First Amended
Plaintiff was

He was assigned to manage

Plaintiff was the only African-American man in the

Executive Division.

Id.

The trouble started in “early 2003,” when plaintiff filed a

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Id., ¶¶ 10 & 12.2

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racial discrimination complaint with DFEH.

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Afterward, DMV created a hostile work environment for plaintiff,

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which continued until June 24, 2011.

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the adverse employment actions taken against him during that time

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were taken because of his race, or as retaliation for his

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complaining about racial discrimination.

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& 83.

Plaintiff asserts that all

See id., ¶¶ 56, 63, 76

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In 2003, plaintiff was “involuntarily assigned” to be a

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“Personal Computer Executive Administrator,” id., ¶ 9, and denied

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a “Merit Salary Adjustment,” id., ¶ 10.

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again denied a “Merit Salary Adjustment.”

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1, 2004, he was demoted to “Staff Service Manager I,” and placed

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on a one-year probation.

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period, DMV piled a disproportionate amount of work on plaintiff,

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Id. ¶¶ 17.

In 2004, plaintiff was
Id., ¶ 11.

On October

During the probationary

Plaintiff alleges both that he “is” a DMV employee (Complaint ¶ 5), and that
he was “constructively discharged.” Id. ¶ 52.

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The Complaint makes no further mention of this DFEH complaint.

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while withdrawing support and resources from him, in such a

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manner as to ensure that plaintiff would fail.

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Id., ¶ 21.

On October 27, 2005, DMV rejected plaintiff’s probation,

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after giving him an “unsatisfactory” performance report.

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¶¶ 18-22.

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moved into the basement, and involuntarily made a “Personal

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Computer Coordinator.”

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to withdraw the probation rejection, and to return plaintiff to

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the Executive Division.

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As a consequence, on November 10, 2005, plaintiff was

Id., ¶ 23.

Id., ¶ 25.

In February 2006, DMV agreed

However, he was not returned

to the Executive Division at that time.

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Id.,

Id., ¶ 26.

From the Complaint, it appears that no discrete adverse

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employment actions were taken against plaintiff in 2007 and

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2008.3

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rejection, and returned plaintiff to the Executive Division.

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Id., ¶ 25.

On June 13, 2008, DMV formally withdrew the probation

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Starting in October 2009, after plaintiff passed several

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specialist exams, DMV denied him a “promotion in place,” even

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while granting such promotions to others who were similarly

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situated.

Id., ¶ 30-32.

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In 2010 plaintiff was unable to get another job at DMV or

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elsewhere because of errors and discrepancies in his personnel

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file.

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under suspicion for a computer breach that plaintiff himself had

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reported a few days earlier.

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Id., ¶¶ 33-39.

On August 13, 2010, DMV placed plaintiff

Id., ¶¶ 40-41.

Plaintiff suffered

In 2007, plaintiff was moved to the “System Test” unit, where he was the
only African-American man in the unit. Id., ¶ 28-29. In addition,
plaintiff’s position designations “were changed several times without his
knowledge.” Complaint ¶ 28. However, the Complaint does not allege, nor is
there a reasonable inference, that these were adverse employment actions or
that they contributed to the hostile work environment.

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adverse employment actions as a result of the accusation, which

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continued until June 24, 2011, when he was finally told that he

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had been exonerated back on September 14, 2010.

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This appears to be the end of the allegations of racial

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discrimination and retaliation.

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appears to relate only to plaintiff’s claim that he was

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discriminated against because of a disability.

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Id., ¶¶ 42 & 43.

The conduct after this date

On June 24, 2011, plaintiff attended a meeting at which he
was advised that he had been exonerated in the computer breach

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matter back in September 2010.

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plaintiff to be “placed off work for two weeks by his doctor.”

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Id., ¶ 44.

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The meeting somehow caused

Plaintiff returned to work in July 2011 with a doctor’s

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restriction “that he was not to work under Casey Evan.”

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¶ 46.4

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taking more time off, apparently for medical reasons, his request

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was denied on September 14, 2011.

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Id.,

Plaintiff requested a reasonable accommodation and, after

Id., ¶¶ 48-50.

Plaintiff filed his complaints with the EEOC and DFEH on

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December 6, 2011.

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to be “subjected to hostile interrogation by his new manager,”

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and again denied reasonable accommodation.

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was constructively discharged on January 12, 2012 because DMV

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would not accommodate his disability.

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He returned to work on January 11, 2012, only

Id., ¶ 51.

Plaintiff

Id., ¶ 52.

Plaintiff received his right-to-sue letter from DFEH on

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November 5, 2012, and from the EEOC on April 3, 2013.

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this lawsuit on June 26, 2013.

Id., ¶¶ 54 & 55.

He filed

Plaintiff filed

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This is the paragraph mis-numbered “47,” appearing at ECF No. 19 lines
21-23.

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the First Amended Complaint on September 18, 2013.

ECF No. 19.

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DMV moves to dismiss the complaint in its entirety for

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failure to exhaust administrative remedies and failure to state a

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claim.

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relief, and to strike all allegations that involve conduct

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outside the limitations period.

Further, DMV moves to strike the request for injunctive

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II. STANDARDS
A dismissal motion under Fed. R. Civ. P. 12(b)(6) challenges
a complaint’s compliance with the federal pleading requirements.

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Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a “short
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and plain statement of the claim showing that the pleader is
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entitled to relief.”

The complaint must give the defendant

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“‘fair notice of what the ... claim is and the grounds upon which

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it rests.’”

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(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)

To meet this requirement, the complaint must be supported by
factual allegations.

Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009).

Moreover, this court “must accept as true all of the

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factual allegations contained in the complaint.”

Erickson v.

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Pardus, 551 U.S. 89, 94 (2007).5
“While legal conclusions can provide the framework of a
complaint,” neither legal conclusions nor conclusory statements

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Citing Twombly, 550 U.S. at 555-56, Neitzke v. Williams, 490 U.S. 319,
327 (1989) (“What Rule 12(b)(6) does not countenance are dismissals based on a
judge’s disbelief of a complaint’s factual allegations”), and Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974) (“[I]t may appear on the face of the
pleadings that a recovery is very remote and unlikely but that is not the
test” under Rule 12(b)(6)).

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are themselves sufficient, and such statements are not entitled

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to a presumption of truth.

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Iqbal, 556 U.S. at 679.

Iqbal and

Twombly therefore prescribe a two-step process for evaluation of

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motions to dismiss.

The court first identifies the non-

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conclusory factual allegations, and then determines whether these
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allegations, taken as true and construed in the light most

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favorable to the plaintiff, “plausibly give rise to an

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entitlement to relief.”

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Iqbal, 556 U.S. at 679.

“Plausibility,” as it is used in Twombly and Iqbal, does not
refer to the likelihood that a pleader will succeed in proving
the allegations.

Instead, it refers to whether the non-

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conclusory factual allegations, when assumed to be true,
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“allow[ ] the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S.

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at 678.

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requirement,’ but it asks for more than a sheer possibility that

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a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.

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at 557).6

“The plausibility standard is not akin to a ‘probability

A complaint may fail to show a right to relief either

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Twombly imposed an apparently new “plausibility” gloss on the
previously well-known Rule 8(a) standard, and retired the long-established “no
set of facts” standard of Conley v. Gibson, 355 U.S. 41 (1957), although it
did not overrule that case outright. See Moss v. U.S. Secret Service, 572
F.3d 962, 968 (9th Cir. 2009) (the Twombly Court “cautioned that it was not
outright overruling Conley ...,” although it was retiring the “no set of
facts” language from Conley). The Ninth Circuit has acknowledged the
difficulty of applying the resulting standard, given the “perplexing” mix of
standards the Supreme Court has applied in recent cases. See Starr v. Baca,
652 F.3d 1202, 1215 (9th Cir. 2011) (comparing the Court’s application of the
“original, more lenient version of Rule 8(a)” in Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002) and Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam),
with the seemingly “higher pleading standard” in Dura Pharmaceuticals, Inc. v.
Broudo, 544 U.S. 336 (2005), Twombly and Iqbal), cert. denied, 132 S. Ct. 2101

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by lacking a cognizable legal theory or by lacking sufficient

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facts alleged under a cognizable legal theory.

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Balistreri v.

Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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III. ANALYSIS – MOTION TO DISMISS
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A. Title VII – Racial Discrimination.

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1. Hostile work environment.

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When
the
workplace
is
permeated
with
“discriminatory intimidation, ridicule, and
insult” that is “sufficiently severe or
pervasive to alter the conditions of the
victim's employment and create an abusive
working environment,” Title VII is violated.

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Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)

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(citations omitted) (quoting Meritor Savings Bank, FSB v. Vinson,

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477 U.S. 57 (1986)).

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To demonstrate that an actionable hostile work environment

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exists, “the plaintiff must show that her work environment was

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both subjectively and objectively hostile; that is, she must show

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that she perceived her work environment to be hostile, and that a

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reasonable person in her position would perceive it to be so.”

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Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1034 (9th

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Cir. 2005).

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to “all the circumstances, ‘including the frequency of the

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discriminatory conduct; its severity; whether it is physically

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threatening or humiliating, or a mere offensive utterance; and

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whether it unreasonably interferes with an employee’s work

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performance.’” Id. (quoting Clark Cty. Sch. Dist. v. Breeden, 532

To assess objective hostility, the court must look

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(2012). See also Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011)
(applying the “no set of facts” standard to a Section 1983 case).

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U.S. 268, 270-71 (2001)).

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Finally, a hostile work environment can form the basis

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for a retaliation claim only if the harassment is “sufficiently

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severe or pervasive to alter the conditions of the victim’s

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employment and create an abusive working environment.”

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Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000) (quoting Harris,

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510 U.S. at 21).7

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Ray v.

Defendant argues that anything it did to plaintiff before
February 9, 2011 – 300 days before plaintiff filed his complaint

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with the EEOC and DFEH – is not actionable.

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§ 2000e-5(e)(1) (must file with EEOC within 300 days of the

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discriminatory practice if plaintiff has first filed with state

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agency).

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Morgan, 536 U.S. 101 (2002), for the proposition that each

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discrete discriminatory or retaliatory action occurs on the day

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it happened, and may not be linked together to create a

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“continuing violation.”

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See 42 U.S.C.

Defendant cites National R.R. Passenger Corp. v.

However, it is the second half of Morgan that addresses the

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claim that plaintiff makes here, namely, hostile work

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environment.

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conduct that is a part of the hostile work environment is

In such cases, all discriminatory or retaliatory

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Since the parties have not addressed the issue, the court will assume that
the types of conduct plaintiff alleges are cognizable as hostile work
environment. But see Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th
Cir. 2003) (one element of a hostile work environment claim is that plaintiff
“was subjected to verbal or physical conduct of a racial … nature”). It
certainly would appear that subjecting plaintiff to humiliating treatment
because of his race, such as a humiliating demotion, giving him make-shift
furniture, moving him around from location to location and the like, would
qualify as the type of humiliating treatment that is actionable under a
hostile work environment theory. See Pennsylvania State Police v. Suders, 542
U.S. 129, 134 (2004) (indicating that a “humiliating demotion” or “extreme cut
in pay” could be part of a hostile work environment claim in which the
plaintiff was constructively discharged).

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included for liability purposes, so long as the last act occurs

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within the limitations period:

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It does not matter, for purposes of the
statute, that some of the component acts of
the hostile work environment fall outside the
statutory time period. Provided that an act
contributing to the claim occurs within the
filing period, the entire time period of the
hostile environment may be considered by a
court
for
the
purposes
of
determining
liability.

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5
6
7
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Morgan, 536 U.S. at 117.

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discriminatory or retaliatory acts continued until June 24, 2011.

Plaintiff alleges that racially

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Specifically, up until that date, plaintiff was moved from work

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location to work location, denied work assignments, given make-

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shift work stations, denied raises, excluded from strategic

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meetings, worked under the cloud of a computer-hacking

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investigation, and was denied needed software.

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¶ 42.

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See Complaint

The alleged discriminatory or retaliatory conduct occurring

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outside the limitations period therefore will not be excluded, as

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it falls within the claim for hostile work environment.

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2. Protected class.
Defendant argues that plaintiff, an African-American man, is

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not a member of a protected class.

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the only actionable conduct is plaintiff’s constructive

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discharge, which allegedly occurred because DMV refused to

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accommodate plaintiff, not because of his race.

Defendant is assuming that

Motion at 13.

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However, DMV ignores the rest of the complaint, which

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alleges that all the discriminatory and retaliatory conduct from

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2003 until June 24, 2011 occurred because of his race.

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protected category.

Race is a

See McDonnell Douglas Corp. v. Green, 411
9

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U.S. 792, 801 (1973) (membership in a “racial minority” is the

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first element of a prima facie showing of discrimination under

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Title VII).

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The court rejects this argument, as plaintiff, an African-

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American man, is a member of a protected class under Title VII.

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3. Prima facie case under McDonnell Douglas.

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Defendant argues that the Complaint should be dismissed

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because it fails to allege the prima facie case required by

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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

The

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argument is frivolous in light of Swierkiewicz v. Sorema N. A.,

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534 U.S. 506, 515 (2002), which defendants do not cite, but which

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specifically holds that such allegations are not required:

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This case presents the question whether a
complaint in an employment discrimination
lawsuit
must
contain
specific
facts
establishing
a
prima
facie
case
of
discrimination under the framework set forth
by this Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). We hold that an
employment discrimination complaint need not
include such facts and instead must contain
only “a short and plain statement of the
claim showing that the pleader is entitled to
relief.” Fed. Rule Civ. P. 8(a)(2).

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Swierkiewicz, 534 U.S. at 508.

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Court repeated, “we hold that an employment discrimination

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plaintiff need not plead a prima facie case of discrimination.”

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Id., at 515.

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complaint “easily satisfies the requirements of Rule 8(a)” where

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“it gives respondent fair notice of the basis for petitioner's

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claims.”

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Lest the point be missed, the

Rather, applying the relevant standard, a Title VII

Specifically in that case,
Petitioner
alleged
that
he
had
been
terminated on account of his national origin
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in violation of Title VII and on account of
his age in violation of the ADEA.
His
complaint detailed the events leading to his
termination, provided relevant dates, and
included the ages and nationalities of at
least some of the relevant persons involved
with his termination. These allegations give
respondent fair notice of what petitioner's
claims are and the grounds upon which they
rest. In addition, they state claims upon
which relief could be granted under Title VII
and the ADEA.

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Swierkiewicz, 534 U.S. at 514 (record citations omitted) (citing

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Conley v. Gibson, 355 U.S. 41, 47 (1957)).8

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Another reason for this result, other than the liberal

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pleading requirement, is that McDonnell Douglas does not describe

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the only route to Title VII liability.

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plaintiff is able to produce direct evidence of discrimination,

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he may prevail without proving all the elements of a prima facie

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case.”

Specifically, “if a

Swierkiewicz, 534 U.S. at 511 (emphasis added).

Plaintiff’s complaint easily meets the Rule 8 standard for

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notice pleading.9

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argument fails, as plaintiff has alleged everything that

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defendant asserts is missing, as discussed below.

However, even on its own terms, defendant’s

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a. Competent performance of duties by plaintiff.

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Defendant argues that plaintiff has not cited enough facts

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to establish that he was competently performing his job.

That is

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not correct, as plaintiff alleges that “[a]t all times herein

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See also, Morgan v. Napolitano, 2011 WL 2462968 at *11 (E.D. Cal. 2011)
(Karlton, J.) (“In employment discrimination cases, ‘under a notice pleading
system, it is not appropriate to require a plaintiff to plead facts
establishing a prima facie case ...’ under the McDonnell Douglas framework.
Twombly explicitly did not overturn this holding”).
9

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Defendant does not cite Swierkiewicz, and all of its Title VII cases on this
point (all from the Third, Fourth and Sixth Circuits), precede Swierkiewicz.

11

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alleged Plaintiff performed his duties competently.”

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¶ 57.

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4

Complaint

b. Adverse employment actions.
Defendant argues that there are no allegations of adverse

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employment actions within 300 days of December 7, 20112.

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not correct.

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occurs up until June 24, 2011.

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plaintiff was moved from work location to work location, denied

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work assignments, given make-shift work stations, denied raises,

That is

Plaintiff alleges discriminatory conduct that
Specifically, as noted above,

10

excluded from strategic meetings, worked under the cloud of a

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computer-hacking investigation, and was denied software he needed

12

to do his job.

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See Complaint ¶ 42.
c. Discriminatory motive.

Defendant argues that plaintiff fails to “allege facts

15

sufficient to ‘plausibly suggest (defendant’s) discriminatory

16

state of mind.’”

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Iqbal, 556 U.S. at 683.

18

African-American man and that the hostile work environment he

19

endured, and the adverse employment actions he suffered, occurred

20

because of his race.

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of plaintiff’s claim.

ECF No. 21-1 at 14, quoting and relying upon
Plaintiff has alleged that he was an

That it enough to put defendant on notice

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B. Title VII – Retaliation.

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The Complaint alleges that plaintiff’s filing of a racial

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discrimination complaint with DFEH in 2003 caused DMV to create a

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hostile work environment that lasted until June 24, 2011.

26

forth above, plaintiff describes the adverse employment decisions

27

that were taken against him during that period, and he alleges

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12

As set

1

that they were taken in retaliation for his protected activity.10

2

Defendant moves to dismiss, once again arguing that the

3

Complaint fails to allege a prima facie case, and citing cases

4

decided on summary judgment or after trial.

5

Swierkiewicz somehow does not apply to retaliation claims, the

6

Complaint in fact alleges everything defendant says is missing.11

7

Even assuming that

10

Under Title VII, a plaintiff may establish a
prima facie case of retaliation by showing
that (1) she engaged in activity protected
under Title VII, (2) the employer subjected
her to an adverse employment decision, and
(3) there was a causal link between the
protected activity and the employer's action.

11

Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d

12

493, 506 (9th Cir. 2000) (appeal from a jury verdict).

8
9

13

Plaintiff has alleged each element.

He engaged in protected

14

activity in 2003 by filing a racial discrimination complaint with

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DFEH.

16

discussed above.

17

work environment was created in retaliation for his filing the

18

DFEH complaint in 2003.

19

DMV subjected him to a hostile work environment, as
Finally, plaintiff alleges that the hostile

Defendant argues that the DFEH filing is too distant in time

20

for there to be a causal link.

21

again viewing the Complaint as one for discrete acts of

22

discrimination or retaliation.

That is because defendant is once

In fact, the Complaint is for

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24
25
26
27

10

At trial, plaintiff will have the burden of proving that “the desire to
retaliate [for protected activity] was the but-for cause of the challenged
employment action.” University of Texas Southwestern Medical Center v.
Nassar, 570 U.S. ___, 133 S. Ct. 2517, 2528 (2013).
11

However, the reasoning of Swierkiewicz “applies to any claim to which the
McDonnell Douglas framework is applicable.” Maduka v. Sunrise Hosp., 375 F.3d
909, 912 (9th Cir. 2004) (involving an employment discrimination claim under
42 U.S.C. § 1981).

28
13

1

hostile work environment, which was created immediately after the

2

filing of the complaint, not years later.12

3

The remainder of defendant’s motion is a quibble over

4

whether the adverse employment actions were adverse enough.

5

were.

6

demotion, flunking probation, having resources taken away so that

7

he could not work, and isolating him from other workers.

8

sufficient.

9

1061 (2005) (alleging a retaliatory course of conduct is

They

Plaintiff asserts that among the retaliatory acts were

This is

See Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028,

10

sufficient to allege adverse employment action, even if no

11

individual action would suffice).

12

acts of retaliation were arguably not as severe as those alleged

13

here, yet they were sufficient, if true, to avoid summary

14

judgment.

In Yanowitz, the individual

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C. State Claim: Disability Discrimination.

16

California bars employment discrimination based upon

17

disability, and bars retaliation for complaining about such

18

discrimination.

19

Braemar Country Club, Inc., 29 Cal. 4th 1019, 1022 (2003) (“The

20

Fair Employment and Housing Act (FEHA) prohibits employment

21

discrimination based on a physical disability”).13

22

Complaint is extremely thin on this claim, it is sufficient to

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24
25
26

Cal. Govt. Code § 12940(a) & (h); Colmenares v.

12

Defendant repeats all the same arguments for the parallel claims under
California law. They are also rejected. Federal pleading rules govern here.
Aguilar v. Corral, 2007 WL 2947557 at *3 (E.D. Cal. 2007) (Karlton, J.)
(regarding pleading requirements, “this court applies federal procedural law
to even state law claims”). Plaintiff’s allegations are sufficient to state a
claim for employment discrimination and retaliation and under state law.
13

27

Although the

Colmenares addressed physical disability, but the FEHA defines both mental
disability and physical disability as a condition “that limits a major life
activity.” Cal. Govt. Code § 12926(j)(1) & (l)(1)(B).

28
14

1

withstand defendant’s dismissal motion.

2

he filed a Workmen’s Compensation claim based upon stress, from

3

which the court can infer that his disability was stress.

4

However, the Complaint also indicates that the only accommodation

5

needed was to not work under a particular supervisor, or a

6

particular chain of command.

7

Plaintiff asserts that

Defendant’s principal argument here is that plaintiff has

8

not sufficiently alleged that he has a “disability,” because he

9

has not alleged that he has a condition precluding him from

10

working “a class of jobs,” and that not being able to work for a

11

particular supervisor is not a disability.

12

Defendant relies upon Real v. City of Compton, 73 Cal. App. 4th

13

1407, 1419 (2nd Dist. 1999), and Hobson v. Raychem Corp., 73 Cal.

14

App. 4th 614, 628 (1st Dist. 1999) (the “ability to … perform

15

under a particular supervisor, does not constitute a qualified

16

disability”), disapproved by Colmenares, 29 Cal. 4th at 1031 n.6

17

(disapproving Hobson to the extent it holds or suggests that “the

18

federal law’s substantial limitation test applies to claims of

19

physical disability brought under the FEHA”).14

20

ECF No. 21-1 at 18.

Defendant misstates the law, and his reliance on Hobson is

21

misplaced.15

22

precluded from working “a class of jobs” derives from the

23

mistaken view that a person is disabled under California’s FEHA

24

14

25
26

The notion that plaintiff is only disabled if he is

Defendant states that Hobson was overruled by Colmenares “on other grounds.”
As discussed below, Hobson was overruled by Colmenares on the issue for which
defendant cites it – whether plaintiff must be “substantially limited” by his
disability, and therefore unable to work in “a class of jobs.”
15

27

Defendant’s reliance on Real is particularly puzzling, since Real was
brought under the federal Americans with Disabilities act, and never mentions
FEHA.

28
15

1

only if his condition “substantially limits” his ability to work.

2

This view was specifically rejected by the California Supreme

3

Court in Colmenares, which held that for a plaintiff to establish

4

disability under the FEHA, he must show that “the disease or

5

condition limited (as opposed to substantially limited, as

6

required under federal law) the plaintiff's ability to

7

participate in major life activities.”

8

at 1031-32 (emphasis added).

9

Colmenares, 29 Cal. 4th

In addition to the California Supreme Court’s express

10

disapproval of Hobson’s reliance on the “substantial limitation”

11

standard, the California legislature has expressly voided the

12

conclusion Hobson and similar cases drew from that standard,16

13

namely, that plaintiff therefore had to show that he was unable

14

to work in “a class of jobs.”17

In 2000, the legislature enacted

15
16

16

The “class of jobs” conclusion these cases drew derived from language
formerly included in federal regulations:

The
term
substantially
limits
means
significantly restricted in the ability to
perform either a class of jobs or a broad
range of jobs in various classes as compared
to the average person having comparable
training, skills and abilities. The inability
to perform a single, particular job does not
constitute a substantial limitation in the
major life activity of working.

17
18
19
20
21
22
23
24
25
26
27
28

56 Fed. Reg. 35726 (July 26, 1991) (emphasis added) (former 29
C.F.R. § 1630.2(j)(3)(ii)). That language has since been removed
from the regulation, and replaced with language clarifying that
under federal law, “substantly limits” is to be interpreted
broadly.
See 29 C.F.R. § 1630.2(j)(3)(i).
17

The proposition for which defendant cites Hobson is that “the inability to
perform one particular job, or to work under a particular supervisor, does not
constitute a qualified disability.” Hobson, 73 Cal. App. 4th at 628.
However, Hobson relies on Thompson v. Holy Family Hosp., 121 F.3d 537 (9th
Cir. 1997), for this proposition. Thompson, in turn, relies upon the no

16

1

an amendment to FEHA which states:

2

under the law of this state, “working” is a
major life activity, regardless of whether
the actual or perceived working limitation
implicates a particular employment or a class
or broad range of employments.

3
4
5

Cal. Gov. Code § 12926.1(c).18

6

argument that plaintiff has failed to allege that he has a

7

disability.

8

The court rejects defendant’s

D. State Claim: Failure To Engage in the Interactive
Process.

9
As a separate cause of action, California makes it an
10
unlawful employment practice:
11
For an employer … to fail to engage in a
timely, good faith, interactive process with
the
employee
…
to
determine
effective
reasonable
accommodations,
if
any,
in
response
to
a
request
for
reasonable
accommodation by an employee … with a known
physical or mental disability or known
medical condition.

12
13
14
15
16

Cal. Govt. Code § 12940(n).

17

Defendant here moves for dismissal solely based upon its

18

assertion that plaintiff has not alleged a disability.

19

has alleged a disability, as discussed above, so the court

20

rejects this argument.

Plaintiff

21

E. State Claim: Retaliation for Failure To Accommodate.

22

The Complaint alleges that DMV retaliated against plaintiff

23
24
25
26
27

longer extant regulation that interpreted the federal ADA’s “substantially
limits” language to require that the condition prevent the plaintiff from
working in “a class of jobs.” Thompson, 121 F.3d at 540 (citing former 29
C.F.R. § 1630.2(j)(3)(i) (using the “class of jobs” language)). None of that
applies in the FEHA context, and it never did, according to Colmenares.
18

Federal regulations under the federal Americans with Disabilities Act define
“disability” to mean, with respect to an individual, “[a] physical or mental
impairment that substantially limits one or more of the major life activities
of such individual.” 29 C.F.R. § 1630.2(g)(1)(i) (emphasis added).

28
17

1

after he requested reasonable accommodation.

2

to be correct that requesting reasonable accommodation is not the

3

type of protected activity that can lead to a claim of

4

retaliation.

5

Supp. 2d 1132, 1144 (E.D. Cal. 2010) (Ishi, J.).

6

not respond to defendant’s argument, and the court will

7

accordingly dismiss this part of plaintiff’s state retaliation

8

claim.

9
10

Defendant appears

See Kelley v. Corrections Corp. of America, 750 F.
Plaintiff does

F. State Claims: Miscellaneous.
Claim Four’s title asserts that the claim is for employment

11

discrimination under Cal. Govt. Code § 12940(a).

12

text of the claim asserts only a claim for retaliation, which is

13

also the claim asserted in Claim Five.

14

dismiss Claim Four with leave to amend, if in fact plaintiff

15

meant to assert a state employment discrimination claim there.

However, the

The court will therefore

16

Claim Five includes a reference to Cal. Govt. Code

17

§ 12940(i), which is a claim for “aiding and abetting.”

18

Plaintiff concedes that it should not be there.

19

The court will accordingly dismiss Claim Five to the degree it

20

asserts any claim under Section 12940(i).

21
22

ECF No. 22 at 1.

IV. ANALYSIS – MOTION TO STRIKE
Defendant moves to strike the request for injunctive relief.

23

It asserts that injunctive relief is not available under Title

24

VII because plaintiff fails to allege “‘the inadequacy of legal

25

remedies,’” quoting Weinberger v. Romero-Barcelo, 456 U.S. 305,

26

312 (1982).

27
28

Defendant has made no showing that the request for
injunctive relief – which Title VII specifically provides as a
18

1

remedy – is “redundant, immaterial, impertinent, or scandalous,”

2

as required by Fed. R. Civ. P. 12(f).

3

that plaintiff has not properly alleged elements necessary to

4

obtain such relief, then injunctive relief will not be granted.

5

However, that is not a basis for striking the request from the

6

Complaint.

7

the motion to dismiss, and is rejected for the reasons given

8

above.

If defendant is correct

The remainder of the motion to strike is a re-hash of

V. CONCLUSION
9
10
11
12
13
14
15
16

For the reasons set forth above, the court orders as
follows:
1.

Defendant’s motion to dismiss the First Claim

(federal employment discrimination claim) is DENIED;
2.

Defendant’s motion to dismiss the Second Claim

(federal anti-retaliation claim) is DENIED;
3.

Defendant’s motion to dismiss the Third Claim

17

(state “disability discrimination and retaliation” and failure to

18

engage in the interactive process) is GRANTED to the degree it

19

asserts a state disability claim for retaliation, and is

20

otherwise DENIED;

21
22
23

4.

Defendant’s motion to dismiss the Fourth Claim is

GRANTED with leave to amend;
5.

Defendant’s motion to dismiss the Fifth Claim

24

(state anti-retaliation claim) is GRANTED to the degree it

25

asserts a claim under Cal. Govt. Code § 12940(i) (aiding and

26

abetting), and is otherwise DENIED;

27

6.

Defendant’s motion to strike is DENIED; and

28

7.

Plaintiff shall file his Second Amended Complaint
19

1

to conform to this order within thirty (30) days of the date of

2

this order.

3

counsel, shall ensure that the Second Amended Complaint (1) is

4

free of the grammatical and usage errors that made the original

5

and First Amended Complaints, and his legal memoranda, so

6

difficult to read and understand, and (2) complies with the

7

“short and plain statement” requirements of Fed. R. Civ. P. 8.

8

Failure to comply with this order may result in dismissal of the

9

case, with prejudice, for failure to prosecute.

Plaintiff, whom the court notes is represented by

10

IT IS SO ORDERED.

11

DATED:

December 20, 2013.

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