Franklin v. Adams & Associates, Inc.

Filing 26

ORDER signed by District Judge Troy L. Nunley on 11/6/17 granting 19 Motion for Judgment as to all claims with leave to amend within 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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GLORIA FRANKLIN,

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No. 2:16-cv-00303-TLN-KJN

Plaintiff,
v.
ADAMS & ASSOCIATES, INC.,

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ORDER GRANTING DEFENDANT’S
MOTION FOR JUDGMENT ON THE
PLEADINGS

Defendant.

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This matter is before the Court pursuant to Defendant Adams & Associates, Inc.’s

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(“Defendant”) Motion for Judgment on the Pleadings. (ECF No. 19.) Plaintiff Gloria Franklin

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(“Plaintiff”) opposes the motion. (ECF No. 21.) Defendant has filed a reply. (ECF No. 22.) For

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the reasons discussed below, the Court hereby GRANTS Defendant’s Motion for Judgment on

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the Pleadings (ECF No. 19).

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff alleges she was hired in 2003 as a Residential Advisor for Sacramento Job Corps

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Center (“SJCC”), a career development facility that offers assistance to at-risk young adults.

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(ECF No. 19-1 ¶¶ 9, 10.) Plaintiff states she generally worked the graveyard shift and describes

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her duties as counseling students and maintaining clean and safe living conditions. (ECF No. 19-

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1 ¶ 11.) Plaintiff alleges during her tenure she had no disciplinary history and worked “with

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support and praise from her supervisors for many years.” (ECF No. 19-1 ¶ 12.) Plaintiff states
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she was an African American woman, over 40 years old, with a cancer related medical condition,

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and “an active member of her labor union, the California Federation of Teachers Union (“CFT”).”

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(ECF No. 19-1 ¶¶ 13, 31, 43–44, & 51.) Plaintiff alleges in December 2013, she underwent

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surgery for pancreatic cancer and was hospitalized for two weeks after the surgery. (ECF No. 19-

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1 ¶ 14.) Plaintiff alleges “she was forced to miss work for a period of time under disability leave

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provisions of the Family and Medical Leave Act (“FMLA”).” (ECF No. 19-1 ¶ 14.)

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In February 2014, Defendant became the new managing corporation of SJCC. (ECF No.

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19-1 ¶ 15.) Plaintiff alleges Defendant announced “it would evaluate and interview [SJCC]

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employees to continue in their positions.” (ECF No. 19-1 ¶ 16.) Plaintiff alleges she contacted

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Defendant while on medical leave and informed Defendant “she would be prepared to continue

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her career with [SJCC] in the next few weeks.” (ECF No. 19-1 ¶ 17.) Plaintiff alleges she filled

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out and submitted a job application to continue in the same position. (ECF No. 19-1 ¶ 18.)

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Plaintiff alleges she contacted Defendant after her release from the hospital to follow up

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on her application and request an interview, which she requested be conducted over the telephone

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because she had just been discharged from the hospital. (ECF No. 19-1 ¶ 20–21.) Plaintiff

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alleges that during the interview Defendant asked her several questions regarding the status of her

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medical condition and when she would be able to return to work. (ECF No. 19-1 ¶ 22.) Plaintiff

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alleges she informed Defendant she would be prepared to resume working about March 16, 2014.

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(ECF No. 19-1 ¶ 23.) Plaintiff alleges Defendant informed her that the “return date would not

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present a problem and thanked Plaintiff for the interview.” (ECF No. 19-1 ¶ 24.)
Plaintiff alleges Defendant sent her a letter “approximately 10 days before she was to

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return to work informing her that she would not be offered an opportunity to continue in her

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position.” (ECF No. 19-1 ¶ 25.) Plaintiff alleges the “letter further stated that Plaintiff’s

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application would be kept on file and that she would be contacted regarding any additional

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vacancies.” (ECF No. 19-1 ¶ 26.) Plaintiff alleges Defendant “never contacted [her] regarding

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another vacancy at [SJCC], and she was informed by other employees that Defendant [] had filled

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vacancies without any attempt to contact her.” (ECF No. 19-1 ¶ 27.)

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On November 18, 2015, Plaintiff filed a complaint in the Superior Court of Sacramento

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County. (ECF No. 19-1 at 4.) Defendant answered the complaint and then removed the case to

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this Court on the basis of diversity jurisdiction. (ECF No. 1 at 1; ECF No. 1-1 at 28–37.)

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Defendant moves for judgment on the pleadings for failure to state a claim. (ECF No. 19 at 7.)

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Plaintiff alleges claims for violations of the California Fair Employment and Housing Act

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(“FEHA”) and common law, including: (i) age, race and disability discrimination in violation of

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California Government Code § 12940; (ii) failure to hire in violation of public policy; (iii)

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retaliation in violation of California Government Code § 12940(h); (iv) failure to prevent

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discrimination in violation of California Government Code §12940(k); (v) failure to

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accommodate in violation of California Government Code § 12940(m); (vi) failure to engage in

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the interactive process in violation of California Government Code § 12940(n); (vii) intentional

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infliction of emotional distress; and (viii) failure to provide copies of personnel files in violation

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of California Labor Code § 1198.5. (ECF No. 19-1 at 4, 7–18.)

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II.

STANDARD OF LAW

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Federal Rule of Civil Procedure 12(c) provides “[a]fter the pleadings are closed — but

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early enough not to delay trial — a party may move for judgment on the pleadings.” Fed. R. Civ.

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P. 12(c). The issue presented by a Rule 12(c) motion is substantially the same as that posed in a

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12(b) motion — whether the factual allegations of the complaint, together with all reasonable

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inferences, state a plausible claim for relief. See Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d

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1047, 1054–1055 (9th Cir. 2011). “A claim has facial plausibility when the plaintiff pleads

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

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for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 556 (2007)).

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In analyzing a 12(c) motion, the district court “must accept all factual allegations in the

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complaint as true and construe them in the light most favorable to the non-moving party.”

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Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). Nevertheless, a court “need not assume

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the truth of legal conclusions cast in the form of factual allegations.” United States ex rel. Chunie

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v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). “A judgment on the pleadings is properly
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granted when, taking all the allegations in the non-moving party’s pleadings as true, the moving

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party is entitled to judgment as a matter of law.” Ventress v. Japan Airlines, 603 F.3d 676, 681

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(9th Cir. 2010) (citations omitted).

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A judgment on the pleadings is not appropriate if the Court “goes beyond the pleadings to

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resolve an issue; such a proceeding must properly be treated as a motion for summary judgment.”

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Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989); Fed. R.

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Civ. P. 12(d). A district court may, however, “consider certain materials — documents attached

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to the complaint, documents incorporated by reference in the complaint, or matters of judicial

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notice — without converting the motion to dismiss [or motion for judgment on the pleadings] into

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a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
“While Rule 12(c) of the Federal Rules of Civil Procedure does not expressly provide for

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partial judgment on the pleadings, neither does it bar such a procedure; it is common to apply

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Rule 12(c) to individual causes of action.” Strigliabotti v. Franklin Res., Inc., 398 F. Supp. 2d

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1094, 1097 (N.D. Cal. 2005) (citing Moran v. Peralta Cmty. Coll. Dist., 825 F. Supp. 891, 893

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(N.D. Cal. 1993)). Courts have the discretion in appropriate cases to grant a Rule 12(c) motion

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with leave to amend, or to simply grant dismissal of the action instead of entry of judgment. See

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Lonberg v. City of Riverside, 300 F. Supp. 2d 942, 945 (C.D. Cal. 2004); Carmen v. S.F. Unified

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Sch. Dist., 982 F. Supp. 1396, 1401 (N.D. Cal. 1997).

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III.

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Defendant argues Plaintiff fails to plead sufficient facts to support any of her claims.

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ANALYSIS

(ECF No. 19 at 7.) The Court will discuss each claim in turn.
A.

Discrimination in Violation of California Government Code § 12940(a)

Plaintiff alleges Defendant discriminated against her because of her age, race, and

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disability. (ECF No. 19-1 ¶¶ 33, 44, 53.) Defendant argues Plaintiff makes only conclusory,

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boilerplate allegations, and does not allege facts sufficient to show grounds for relief or to

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demonstrate that any of the protected characteristics Plaintiff claims were factors in Defendants

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decisions. (ECF No. 19 at 10–11.) Plaintiff states generally that all of her claims are sufficiently

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stated and her factual allegations are sufficient. (ECF No. 21 at 6.)
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FEHA prohibits an employer from discriminating against an employee because of age,

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race, color, medical condition, disability, or religious creed. CAL. GOV’T CODE § 12940(a). To

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state a claim for discrimination under FEHA, a plaintiff must show: (i) she was a member of a

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protected class; (ii) she was qualified for the position she sought; (iii) she suffered an adverse

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employment action; and (iv) the employer acted with a discriminatory motive. Ayala v. Frito

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Lay, Inc., 2017 WL 2833401, at *7 (E.D. Cal. June 30, 2017) (citing Lawler v. Montblanc N. Am.,

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LLC, 704 F.3d 1235, 1242 (9th Cir. 2013); Guz v. Bechtel Nat’l., Inc., 24 Cal. 4th 317, 355

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(2000)). A plaintiff can demonstrate discriminatory motive by showing “other similarly situated

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employees outside of the protected class were treated more favorably, or other circumstances

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surrounding the adverse employment action give rise to an inference of discrimination.” Achal v.

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Gate Gourmet, Inc., 114 F. Supp. 3d 781, 800 (N.D. Cal. 2015).

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Plaintiff alleges she was a member of several protected classes because she was over 40

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years old, African American, and had a cancer related medical condition. (ECF No. 19-1 ¶¶ 31,

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40, 51.) Plaintiff alleges Defendant discriminated against her because of her age, race, and

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disability, by failing to hire her, retaliating against her, and failing to prevent discrimination

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against her, all because of her protected characteristics. (ECF No. 19-1 ¶¶ 33, 44, 53.)

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i.

Age and Race Discrimination

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Plaintiff alleges she is over 40 years old and an African American, and Defendant

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discriminated against her because of her age and race. (ECF No. 19-1 ¶¶ 31–33, 51–53.)

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Plaintiff’s allegations Defendant acted because of her age or race, are recitations of an element.

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See Iqbal, 556 U.S. at 678. In her general factual allegations, Plaintiff alleges after she was

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terminated, Defendant filled vacancies without attempting to contact her although her termination

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letter stated her application would be kept on file for future vacancies. (ECF No. 19-1 ¶¶ 26–27.)

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Plaintiff does not allege these vacancies were filled by employees outside of Plaintiff’s protected

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classes or other circumstances suggesting discriminatory motive. Achal, 114 F. Supp. 3d at 800.

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Plaintiff has not alleged facts related to age or race, and so does not allege facts sufficient

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to support a reasonable inference Defendant acted because of her age or race. See Ravel v.

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Hewlett-Packard Enter., Inc., 228 F. Supp. 3d 1086, 1099 (E.D. Cal. 2017) (finding the plaintiff
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did not allege facts rising to a plausible inference of age discrimination, such as being replaced by

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a younger employee, overhearing negative comments about age, or her age being point of

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discussion); cf. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004) (finding the

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plaintiff, an African American, stated a case for failure to promote based on race by showing that

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rather than filling the position by promoting any of the interviewees, the employer transferred a

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white manager into the position).

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Plaintiff has not met the fourth element of her discrimination claims for age or race, so the

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Court need not analyze the other elements. Accordingly, the Court GRANTS Defendant’s motion

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for judgment on the pleadings as to Plaintiff’s claims for discrimination based on age and race.

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ii.

Disability Discrimination

FEHA prohibits an employer from discriminating against an employee because of the

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employee’s disability. CAL. GOV’T CODE § 12940(a). To state a claim for disability

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discrimination under FEHA, a plaintiff must show she (1) suffered from a disability, or was

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regarded as suffering from a disability; (2) could perform the essential duties of the job with or

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without reasonable accommodations, and (3) was subjected to an adverse employment action

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because of the disability or perceived disability.” Mohsin v. California Dep’t of Water Res., No.

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2:13-CV-01236-TLN-EFB, 2016 WL 4126721, at *4 (E.D. Cal. Aug. 3, 2016) (citing Alsup v.

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U.S. Bancorp, No. 2:14-CV-01515-KJM-DAD, 2015 WL 6163453, at *4 (E.D. Cal. Oct. 2015)).

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Plaintiff alleges she suffered from a cancer related medical condition and that Defendant

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knew she suffered from the condition and needed “accommodation as to her projected return to

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work.” (ECF No. 19-1 ¶¶ 40, 43.) Plaintiff alleges she “would have been able to perform the

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essential function of her position . . . had Defendant provided her with [] reasonable

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accommodations[.]” (ECF No. 19-1 ¶ 41.) Plaintiff alleges Defendant failed to hire her due to

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her medical condition and failed to engage in the interactive process. (ECF No. 19-1 ¶ 44.)

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Plaintiff states, but has not alleged facts to support a reasonable inference that, Defendant acted

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because of her medical condition or any disability. Cf. Achal, 114 F. Supp. 3d at 797–98.

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Plaintiff has not alleged facts sufficient to support a reasonable inference Defendant failed
to hire her because of her medical condition or disability to meet the third element of her claim,
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so the Court need not analyze the other elements. Accordingly, the Court GRANTS Defendant’s

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motion for judgment on the pleadings as to Plaintiff’s disability discrimination claim.

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B.

Failure to Hire in Violation of Public Policy

Plaintiff alleges Defendant failed to hire her in violation of public policy because of

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“Plaintiff’s protected characteristics, including her age, medical condition, race, and union

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affiliation.” (ECF No. 19-1 ¶¶ 62 ,65.) Defendant argues Plaintiff’s claim related to her union

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activity is preempted and the remainder of her claim is conclusory and fails to allege sufficient

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facts to state a claim for failure to hire related to her age, race, or medical condition. (ECF No. 19

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at 11–12.) Plaintiff states the facts alleged “are sufficient to support all of the causes of action.”

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(ECF No. 21 at 6.)
i.

National Labor Relations Act (“NLRA”) Preemption

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In cases which involve either an actual or an arguable violation of either Section 7 or 8 of

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the NLRA, both the states and the federal courts must defer to the “exclusive competence” of the

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National Labor Relations Board (“NLRB”). Commc’ns Workers of Am. v. Beck, 487 U.S. 735,

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742 (1988) (citing San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959)).

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NLRA Section 7 protects employees’ rights to join labor unions, collectively bargain, and engage

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in other activities for purposes of mutual aid. 29 U.S.C. § 157. NLRA Section 8 prevents

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employers from engaging in unfair labor practices or interfering with employees’ rights to join

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labor unions and bargain collectively. 29 U.S.C. § 158.

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Plaintiff’s claim for failure to hire based on Plaintiff’s active union affiliation, if proven,

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would constitute a violation of the NLRA and is subject to Garmon preemption. Clayton v. Pepsi

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Cola Bottling Grp., Civ. A. No. CV85-5957-WMB, 1987 WL 46230, at *7 n.1 (C.D. Cal. Mar. 3,

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1987). Plaintiff argues Defendant had multiple illegal reasons for failing to hire her, and Garmon

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preemption should not apply to her entire failure to hire claim, which includes allegations of

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public policy violations outside NLRB’s jurisdiction. (ECF No. 21 at 7–9) (citing Balog v. LRJV,

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Inc., 204 Cal. App. 3d 1295, 1308–09 (Ct. App. 1988), reh’g denied and opinion modified (Sept.

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20, 1988) (holding a court retains jurisdiction over wrongful termination claims based on mixed

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motives, if some motives were not even arguably unrelated to unfair labor practices).
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Plaintiff’s claims for failure to hire based on age, race, or medical condition, are not

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arguably related to violations of either Section 7 or 8 of NLRA, which protect union activities.

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The scheme of civil protection set out in FEHA is the type of interest “deeply rooted in local

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feeling and responsibility” that NLRA does not deprive the states of the power to act on. See

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Sears, Roebuck & Co. v. San Diego Cty. Dist. Council of Carpenters, 436 U.S. 180, 196 (1978);

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Carter v. Smith Food King, 765 F.2d 916, 921 n.6 (9th Cir. 1985).

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Accordingly, Plaintiff’s claim for failure to hire based on union affiliation is preempted by

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NLRA, but Plaintiff’s claim for failure to hire in violation of public policy based on Plaintiff’s

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age, race, or medical condition, is not preempted.

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ii.

Pleading Adequacy of Plaintiff’s Failure to Hire Claim

Defendant argues, to the extent Plaintiff’s failure to hire claim is not preempted, it fails

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because it is premised on deficient discrimination claims based on Plaintiff’s age, race, and

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medical condition. (ECF No. 19 at 11.) Plaintiff states the facts alleged “are sufficient to support

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all of the causes of action.” (ECF No. 21 at 6.)

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To state a claim for failure to hire based on disparate treatment, a plaintiff must show (1)

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she belongs to a protected class; (2) she applied for and was qualified for the position she was

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denied; (3) she was rejected despite her qualifications; and (4) the employer filled the position

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with an employee not of the plaintiff’s class, or continued to consider other applicants whose

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qualifications were comparable to the plaintiff’s after rejecting the plaintiff. Dominguez-Curry v.

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Nevada Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005).

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Plaintiff has not alleged Defendant filled any positions with employees who were not

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members of the same protected class as Plaintiff. Plaintiff has not alleged Defendant, after

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rejecting Plaintiff, continued to consider other applicants whose qualifications were comparable

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to Plaintiff’s qualifications. Plaintiff has not alleged facts sufficient to support the fourth element

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of a claim for failure to hire based on age, race, or medical condition, so the Court need not

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analyze the other three elements. Accordingly, the Court GRANTS Defendant’s motion for

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judgment on the pleadings as to Plaintiff’s claim for failure to hire in violation of public policy

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based on her age, race, medical condition, and union affiliation.
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C.

Retaliation in Violation of California Government Code § 12940(h)

Plaintiff alleges Defendant retaliated against her because she engaged in “such protected

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activities as being an African American woman over the age of 40 diagnosed with a medical

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condition” and “she was an active member of the CFT union representing other Resident

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Advisors at [SJCC], which also constitutes a protected activity.” (ECF No. 19-1 ¶¶ 74–75.)

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Defendant argues Plaintiff failed to show causation between Plaintiff’s termination and any

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protected activity and any claim Defendant retaliated against her based on her union activity is

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preempted. (ECF No. 19 at 13.) Plaintiff states the facts alleged “are sufficient to support all of

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the causes of action.” (ECF No. 21 at 6.)

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To establish a claim for retaliation under FEHA Section 12940(h), a plaintiff must show

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“(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an

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adverse employment action, and (3) a causal link existed between the protected activity and the

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employer’s action.” Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005); Ayala, 2017

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WL 2833401, at *12. A “protected activity” under Section 12940(h) means an employee

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“opposed any practices forbidden under [FEHA] or . . . filed a complaint, testified, or assisted in

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any proceeding under [FEHA].” CAL. GOV’T CODE § 12940(h); Yanowitz, 36 Cal. 4th at 1042.

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Plaintiff does not allege she engaged in any protected activity, such as opposing practices

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forbidden under FEHA, filing a complaint, testifying, or assisting in any proceeding under FEHA.

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Plaintiff alleges that in 2014 she requested accommodation for her medical condition — to

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remain on medical leave until mid-March 2014. (ECF No. 19-1 ¶ 22–23.) In 2014, “a request for

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accommodation, without more, was insufficient to constitute ‘protected activity’ under section

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12940, subdivision (h), and such activity could not support a claim for retaliation under

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subdivision (h).” Moore v. Regents of the Univ. of Cal., 248 Cal. App. 4th 216, 247 (2016).

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As discussed above, any claim for retaliation based on union activities would be

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preempted by the NLRA and subject to the exclusive jurisdiction of NLRB. Plaintiff has not

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alleged facts sufficient to support the first element of her retaliation claim, so the Court need not

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analyze the other elements. Accordingly, the Court GRANTS Defendant’s motion for judgment

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on the pleadings as to Plaintiff’s retaliation claim.
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D.

Failure to Prevent Discrimination in Violation of California Government
Code § 12940(k)

Plaintiff alleges Defendant “failed to take ‘all reasonable steps necessary’ to prevent its

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employees from engaging in discrimination” and rejected her application, even though Defendant

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“knew of Plaintiff’s protected characteristics and also knew Plaintiff planned to continue in her

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career with [SJCC]” once she was able to resume working. (ECF No. 19-1 ¶¶ 84, 86–87.)

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Defendant argues FEHA’s Section 12940(k) does not give litigants a private cause of action for a

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stand-alone claim for failure to prevent discrimination. (ECF No. 19 at 13–15.) Defendant cites

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the Fair Employment and Housing Commission (“FEHC”) in In the Matter of the Accusation of

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the Dep’t Fair Empl. & Hous. v. Lyddan Law Group (Williams), FEHC Dec. No. 10-04-P, at *12

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(Oct. 19, 2010) (holding “there cannot be a claim [by a private litigant] for failure to prevent

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discrimination without a valid claim for discrimination”). (ECF No. 19 at 14–15.) Plaintiff states

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the facts alleged “are sufficient to support all of the causes of action.” (ECF No. 21 at 6.)

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FEHA forbids an employer failing “to take all reasonable steps necessary to prevent

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discrimination and harassment . . . from occurring.” CAL. GOV’T CODE § 12940(k). To state a

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claim for failure to prevent discrimination, a plaintiff must show (1) she was subjected to

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discrimination; (2) defendant failed to take all reasonable steps to prevent the discrimination; and

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(3) this failure caused plaintiff to suffer injury, damage, loss or harm. Achal, 114 F. Supp. 3d at

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804 (citing Lelaind v. City & Cnty. of San Fran., 576 F. Supp. 2d 1079, 1103 (N.D. Cal. 2008)).

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“No liability can arise for failing to take necessary steps to prevent discrimination, however,

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except where discriminatory conduct actually took place and was not prevented.” Id. (citing

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Trujillo v. N. Cnty. Transit Dist., 63 Cal. App. 4th 280, 289 (1998) (“[T]he statutory language

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[does not] support [] recovery on such a private right of action where there has been a specific

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factual finding that no such discrimination or harassment actually occurred.”)).

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As discussed, Plaintiff does not allege facts sufficient to state a claim for discrimination

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based on age, race, or medical condition, so Plaintiff’s derivative claim for failure to prevent

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discrimination fails in relation to those claims. Ayala, 2017 WL 2833401 at *8 (finding the

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plaintiff did not allege sufficient facts to support the existence of a discriminatory motive and so
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had not adequately pled her claims for discrimination and failure to prevent discrimination); see

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also Featherstone v. S. Cal. Permanente Med. Grp., 10 Cal. App. 5th 1150, 1166 (Ct. App. 2017),

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review denied (July 12, 2017) (stating if “a plaintiff cannot establish a claim for discrimination,

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the employer as a matter of law cannot be held responsible for failing to prevent same”).

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Accordingly, the Court GRANTS Defendant’s motion for judgment on the pleadings as to
Plaintiff’s claim for failure to prevent discrimination
E.

Failure to Accommodate in Violation of California Government Code §
12940(m)

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Plaintiff alleges Defendant was “aware of Plaintiff’s medical condition involving

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pancreatic cancer and knew that Plaintiff had requested accommodation as to both her interview

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and return date.” (ECF No. 19-1 ¶ 95.) Plaintiff alleges Defendant “unreasonably denied

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Plaintiff’s request and refused to allow Plaintiff the opportunity to return to work in her prior

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position.” (ECF No. 19-1 ¶ 96.) Defendant argues Plaintiff does not allege sufficient facts to

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support this claim, such as details of Plaintiff’s “alleged request for accommodation and

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[Defendant’s] knowledge of her alleged disability.” (ECF No. 19 at 15.) Defendant adds

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Plaintiff alleges Defendant “provided her with a telephone interview as she requested.” (ECF No.

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19 at 15.) Plaintiff states the facts alleged are sufficient. (ECF No. 21 at 6.)

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To state a claim for failure to accommodate, a plaintiff must show: (1) she suffered from a

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disability covered by FEHA; (2) she was a qualified individual; and (3) the defendant failed to

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reasonably accommodate her disability. Mohsin, 2016 WL 4126721, at *4; see also Jensen v.

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Wells Fargo Bank, 85 Cal. App. 4th 245, 256 (2000).

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In her general factual allegations, Plaintiff alleges facts which, taken as true and drawing

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all inferences in her favor, adequately plead Plaintiff informed Defendant she had a medical

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condition which impacted her ability to perform the Residential Advisor role prior to March 16,

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2014. (ECF No. 19-1 ¶¶ 17, 20–24.) Plaintiff alleges while on medical leave she informed

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Defendant “she would be prepared to continue . . . in the next few weeks.” (ECF No. 19-1 ¶ 17.)

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Plaintiff alleges she contacted Defendant again about her application and asked Defendant to

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conduct her interview by telephone because she had just been discharged from the hospital. (ECF
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No. 19-1 ¶¶ 20–21.) Plaintiff also alleges Defendant interviewed her and during the interview

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Defendant asked her several questions about the status of her medical condition and asked when

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she would be able to resume working. (ECF No. 19-1 ¶ 22) (emphasis added). Plaintiff alleges

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she informed Defendant she would be able to resume work about March 16, 2014, and Defendant

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responded by thanking her and stating that date should not present a problem. (ECF No. 19-1 ¶¶

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23–24.)

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Plaintiff has adequately alleged she informed Defendant before and during her interview

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she had a medical condition which impacted her ability to perform the Residential Advisor role at

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that time, and her requested accommodation — to be interviewed by telephone and for a start date

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for resuming work on or after March 16, 2014. Steiner v. Verizon Wireless, No. 2:13-CV-1457-

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JAM-KJN, 2014 WL 202741, at *5 (E.D. Cal. Jan. 17, 2014). Plaintiff has not alleged Defendant

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failed to accommodate her request for a telephone interview or that she was disadvantaged in the

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conduct of her interview. cf. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089–90 (9th Cir.

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2002) (finding a job applicant triggered the interactive process by informing the employer he was

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hearing impaired and stating in his interview he would have done better with a sign language

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interpreter and was disadvantaged when the employer failed to suggest any accommodation).

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Plaintiff alleges Defendant agreed during Plaintiff’s interview that her requested start date would

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not present a problem. (ECF No. 19-1 ¶ 24.)

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The only way in which Plaintiff alleges Defendant failed to accommodate her was in

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deciding not to hire her for a Residential Advisor position. (ECF No. 19-1 ¶ 96.) Plaintiff,

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however, has not alleged that she requested Defendant hire her as an accommodation. Plaintiff

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has not alleged she required accommodation after her proposed start date. Plaintiff alleges she

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informed Defendant she was unable to work as a Residential Advisor prior to March 16, 2014 and

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the accommodation she requested was not to be given a start date before that. (ECF No. 19-1 ¶

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23.) Plaintiff does not allege she indicated she would have any limitations after that date.

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Plaintiff alleges Defendant immediately agreed to Plaintiff’s only requested accommodation and

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she did not indicate any other limitation. (ECF No. 19-1 ¶ 24.) Accordingly, the Court GRANTS

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Defendant’s motion for judgment on the pleadings as to Plaintiff’s failure to accommodate claim.
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F.

Failure to Engage in the Interactive Process in Violation of California
Government Code § 12940(n)

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Plaintiff alleges Defendant was aware of Plaintiff’s “medical condition involving

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pancreatic cancer but failed to engage in a timely, good-faith, interactive process with Plaintiff to

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determine effective reasonable accommodations for her to fill her previous position as Resident

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Advisor.” (ECF No. 19-1 ¶ 104.) Defendant argues Plaintiff does not allege sufficient facts to

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support her claim, such as with whom she discussed her disability or request for accommodation,

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or the specific accommodation requested. (ECF No. 19 at 16.) Plaintiff states the facts alleged

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“are sufficient to support all of the causes of action.” (ECF No. 21 at 6.)

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“FEHA imposes on employers a mandatory obligation to engage in the interactive process

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once an employee requests an accommodation for his or her disability, or when the employer

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itself recognizes the need for one.” Achal, 114 F. Supp. 3d at 800. “Ordinarily, an employee is

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responsible for requesting accommodation for his or her disability, unless the employer itself

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recognizes that an employee has a need for such accommodation.” Id. at 799 (citing Brown v.

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Lucky Stores, 246 F.3d 1182, 1188 (9th Cir. 2001)).

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Plaintiff states she requested Defendant conduct her interview by telephone and limit any

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start date to March 16, 2014, or later. (ECF No. 19-1 ¶¶ 21, 23.) Plaintiff alleges Defendant

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interviewed her, (ECF No. 19-1 ¶ 22), but she does not allege Defendant failed to accommodate

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her request for a telephone interview. Plaintiff does allege Defendant failed to work with Plaintiff

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“to determine effective reasonable accommodations for her to fill” the Residential Advisor

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position. (ECF No. 19-1 ¶ 104.) The only accommodation Plaintiff alleges she requested with

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regard to the Residential Advisor position was to delay any start date until March 16, 2014. (ECF

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No. 19-1 ¶ 23.) Plaintiff alleges Defendant immediately agreed that the start date would “not

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present a problem.” (ECF No. 19-1 ¶ 23.) Plaintiff does not allege any facts to support her claim

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that Defendant failed to engage in the interactive process. Rather, Plaintiff alleges Defendant

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agreed to Plaintiff’s only requested accommodation at the time Plaintiff made the request.

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Accordingly, the Court GRANTS Defendant’s motion for judgment on the pleadings as to
Plaintiff’s claim for failure to engage in the interactive process.
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G.

Intentional Infliction of Emotional Distress

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Plaintiff alleges Defendant knew of Plaintiff’s protected characteristics, but denied her

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application in favor of less qualified applicants “with the intent to cause emotional distress or

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with reckless disregard of the probability” of doing so. (ECF No. 19-1 ¶¶ 110–11.) Defendant

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argues Plaintiff’s claim fails because her allegations relate to personnel management activities,

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which cannot constitute “extreme and outrageous conduct.” (ECF No. 19 at 16–17.)

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To state a claim for intentional infliction of emotional distress, a plaintiff must show,

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among other things, “extreme and outrageous conduct by the defendant with the intention of

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causing, or reckless disregard of the probability of causing, emotional distress.” Hughes v. Pair,

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46 Cal. 4th 1035, 1050 (2009). Extreme and outrageous conduct must “exceed all bounds of that

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usually tolerated in a civilized community.” Id. at 1050–51. “Whether a defendant’s conduct can

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reasonably be found to be [extreme and] outrageous is a question of law that must initially be

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determined by the court.” Berkley v. Dowds, 152 Cal. App. 4th 518, 534 (2007).

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“A simple pleading of personnel management activity is insufficient to support a claim of

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intentional infliction of emotional distress, even if improper motivation is alleged.” Janken v.

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GM Hughes Electrs., 46 Cal. App. 4th 55, 80 (1996). “Managing personnel is not outrageous

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conduct beyond the bounds of human decency, but rather conduct essential to the welfare and

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prosperity of society.” Id. Personnel management activity includes, “hiring and firing, job or

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project assignments, office or work station assignment, promotion or demotion, performance

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evaluations, the provision of support, the assignment or non-assignment of supervisory functions,

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deciding who will and who will not attend meetings, deciding who will be laid off.” Id. at 64–65.

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Plaintiff alleges Defendant rejected her application despite Defendant’s knowledge of

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Plaintiff’s protected characteristics. (ECF No. 19-1 ¶ 111.) Plaintiff has not alleged any facts

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that are outside Defendant’s employment and supervisory duties. The action Plaintiff does allege

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— making a hiring decision — is an activity California courts have expressly found constitutes

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personnel management activity. Janken, 46 Cal. App. 4th at 64–65.

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Accordingly, the Court GRANTS Defendant’s motion for judgment on the pleadings as to
Plaintiff’s intentional infliction of emotional distress claim.
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H.

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Failure to Provide Copies of Personnel Files in Violation of California
Labor Code § 1198.5

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Plaintiff alleges that on October 13, 2015, her counsel asked Defendant for Plaintiff’s

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“application records and any documents considered in rejecting her application,” but “Defendant

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failed to provide these documents within 30-day time period required by law.” (ECF No. 19-1 ¶

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118–19.) Defendant argues Plaintiff was never an employee of Defendant and Plaintiff’s

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allegation Defendant failed to hire her confirms this. (ECF No. 19 at 17.) Defendant argues

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Plaintiff is neither a current nor former employee of Defendant, so she is “not entitled to inspect

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any personnel records pursuant to Section 1198.5, and her claim fails.” (ECF No. 19 at 17.)
California Labor Code § 1198.5 provides “[e]very current and former employee, or his or

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her representative, has the right to inspect and receive a copy of the personnel records that the

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employer maintains relating to the employee’s performance or to any grievance concerning the

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employee.” CAL. LAB. CODE § 1198.5(a). The employer must “make the contents of those

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personnel records available for inspection to the current or former employee, or his or her

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representative, at reasonable intervals and at reasonable times, but not later than 30 calendar days

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from the date the employer receives a written request . . . [.]” CAL. LAB. CODE § 1198.5(b)(1).

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Plaintiff has not alleged she was ever employed by Defendant. Rather, Plaintiff alleges

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Defendant refused to hire her. The plain language of § 1198.5 limits its applicability to current

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and former employees, but omits any reference to applicants. The Court notes that other parts of

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the California Labor Code expressly apply to applicants. See CAL. LAB. CODE § 432 (“If an

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employee or applicant signs any instrument relating to the obtaining or holding of employment,

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he shall be given a copy of the instrument upon request.”). “Where different words or phrases are

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used in the same connection in different parts of a statute, it is presumed the Legislature intended

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a different meaning.” Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1117

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(1999); see also Arizona Elec. Power Co-op., Inc. v. United States, 816 F.2d 1366, 1375 (9th Cir.

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1987) (stating “[w]hen Congress includes a specific term in one section of a statute but omits it in

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another section of the same Act, it should not be implied where it is excluded”).

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///
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1

In Covington v. San Fran. Unified Sch. Dist., No. A112388, 2007 WL 1563510 (Cal. Ct.

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App. May 31, 2007), the court interpreted Education Code § 44031, which gave employees “the

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right to inspect personnel records pursuant to Labor Code section 1198.5.” Id. at *5. The court

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stated “section 44031 by its terms applies only to ‘employees,’ which is defined by the Labor

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Commissioner to mean persons currently employed, laid off with re-employment rights, or on

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leave of absence.” Id. (citations omitted). The Covington court found the plaintiff job applicant,

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whose job offer had been rescinded, had not provided evidence he was employed by the school

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district at the time of his application. Id. The court decided that even if the school district

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maintained a personnel file for the plaintiff, the regulation did not require it to place documents

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regarding his candidacy in the file or give him the opportunity to respond to them. Id. Plaintiff

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has not alleged she was ever employed by Defendant. Section 1198.5, therefore, does not require

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Defendant to allow Plaintiff to inspect or receive a copy of any personnel file Defendant may

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have maintained regarding Plaintiff’s candidacy.

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Accordingly, the Court GRANTS Defendant’s motion for judgment on the pleadings as to
Plaintiff’s failure to provide copies of personnel files claim.

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IV.

LEAVE TO AMEND

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Courts have the discretion in appropriate cases to grant a Rule 12(c) motion with leave to

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amend, or to simply grant dismissal of the action instead of entry of judgment. See Lonberg, 300

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F. Supp. 2d at 945; Carmen, 982 F. Supp. at 1401. The Court cannot say that the pleading could

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not possibly be cured by the allegation of other facts. Accordingly, the Court GRANTS Plaintiff

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leave to amend the complaint within 30 days of the date of this Order.

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V.

CONCLUSION

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For the foregoing reasons, Defendant’s Motion for Judgment on the Pleadings (ECF No.

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19) is hereby GRANTED as to all claims with leave to amend within 30 days of the date of this

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Order.

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IT IS SO ORDERED.
Dated: November 6, 2017

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Troy L. Nunley
United States District Judge

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