Franklin v. Adams & Associates, Inc.

Filing 33

ORDER signed by District Judge Troy L. Nunley on 8/14/18 GRANTING Defendant's Motion to Dismiss, (ECF No. 28 ), with prejudice. The Clerk of the Court is directed to close the case. CASE CLOSED(Becknal, R)

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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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Plaintiff,

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

v.
ADAMS & ASSOCIATES, INC.,

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ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS PLAINTIFF’S
FIRST AMENDED COMPLAINT

Defendant.

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

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(“Defendant”) Motion to Dismiss Plaintiff’s First Amended Complaint. (ECF No. 28.) Plaintiff

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Gloria Franklin (“Plaintiff”) opposes the motion. (ECF No. 29.) Defendant has filed a reply.

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(ECF No. 30.) For the reasons discussed below, the Court hereby GRANTS Defendant’s Motion

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to Dismiss, (ECF No. 28), with prejudice.

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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. 27 ¶¶ 9, 10.) Plaintiff states she generally worked the graveyard shift and describes her

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duties as counseling students and maintaining clean and safe living conditions. (ECF No. 27 ¶

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

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and praise from her supervisors for many years.” (ECF No. 27 ¶ 12.) Plaintiff states she was an

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African American woman, over 40 years old, with a cancer related medical condition, and “an

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active member of her labor union, the California Federation of Teachers Union.” (ECF No. 27 ¶¶

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13, 14, 47, 56, & 69.) Plaintiff alleges in December 2013, she underwent surgery for pancreatic

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cancer and was hospitalized for two weeks after the surgery. (ECF No. 27 ¶ 14.) Plaintiff alleges

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“she was forced to miss work for a period of time under disability leave provisions of the Family

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and Medical Leave Act.” (ECF No. 27 ¶ 14.)

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

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27 ¶ 15.) Plaintiff alleges Defendant announced it would reorganize several job duties, reduce the

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number of Resident Advisor positions, and create a new Residential Coordinator position. (ECF

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No. 27 ¶ 22.) Plaintiff alleges Defendant announced “it would evaluate and interview [SJCC]

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employees to continue in their positions.” (ECF No. 27 ¶ 22.) 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. 27 ¶ 23.) Plaintiff alleges she filled

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out and submitted a job application to continue in the same position. (ECF No. 27 ¶ 24.)

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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. 27 ¶¶ 26–27.) Plaintiff alleges

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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. 27 ¶ 28.) 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. 27 ¶ 29.) 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. 27 ¶ 30.) Plaintiff states

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she believes Defendant had access to her personnel records and considered them during the

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interview. (ECF No. 27 ¶ 31.) Plaintiff alleges Defendant’s personnel who interviewed her and

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handled the transition “were predominantly younger and Caucasian.” (ECF No. 27 ¶ 32.)

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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. 27 ¶ 33.) 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. 27 ¶ 34.) 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. 27 ¶ 35.)

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Plaintiff alleges “she was treated differently than similarly situated employees who were

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younger, Caucasian, and had not disclosed health concerns during the employment transition.

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Those employees appeared to be provided with immediate employment, even if they had

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significantly less experience than Plaintiff or had no experience” at SJCC. (ECF No. 27 ¶ 36.)

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Plaintiff alleges “other employees who were similarly situated as members of protected classes

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faced similar treatment and discrimination in the terms of employment while working for

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Defendant” at SJCC. (ECF No. 27 ¶ 40.)

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Plaintiff alleges she “complained personally and through her union representation that the

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charge that she was sleeping on the job was false.” (ECF No. 27 ¶ 41.) Plaintiff alleges she

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“complained personally and through her union representation that her termination was motivated

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by targeted discrimination because of her protected status as a minority, an older woman, and due

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to her health issues.” (ECF No. 27 ¶ 42.)

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Defendant moved for judgment on the pleadings for failure to state a claim. (ECF No.

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19.) The Court granted Defendant’s motion as to all claims and granted Plaintiff leave to amend

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her complaint. (ECF No. 26.) Plaintiff amended her complaint and asserts ten claims for

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violations of California’s Fair Employment and Housing Act (“FEHA”) and common law. (ECF

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No. 27.) Defendant moves to dismiss for failure to state a claim. (ECF No. 28.)
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II.

STANDARD OF LAW

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A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure

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12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 350 F.3d 729, 732 (9th Cir.

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2001). Federal Rule of Civil Procedure 8(a) requires that a pleading contain “a short and plain

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statement of the claim showing that the pleader is entitled to relief.” On a motion to dismiss, the

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factual allegations of the complaint are assumed to be true. Cruz v. Beto, 405 U.S. 319, 322

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(1972). A court is bound to give plaintiff the benefit of every reasonable inference to be drawn

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from the well-pleaded allegations of the complaint. Retail Clerks Int’l Ass’n v. Schermerhorn,

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373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege “‘specific facts’ beyond those necessary

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to state his claim and the grounds showing entitlement to relief.” Bell Atlantic v. Twombly, 550

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U.S. 544, 570 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2009)). “A claim

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has facial plausibility when the pleaded factual content allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

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662, 678–79 (citing Twombly, 550 U.S. at 556).

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

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

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

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

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

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

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

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

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

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have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of

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

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

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facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting

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Twombly, 550 U.S. at 570). While the plausibility requirement is not akin to a probability
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requirement, it demands more than “a sheer possibility that a defendant has acted unlawfully.”

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Id. at 678. This plausibility inquiry is “a context-specific task that requires the reviewing court to

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draw on its judicial experience and common sense.” Id. at 679.

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In deciding a motion to dismiss, the court may consider only the complaint, any exhibits

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thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201.

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

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Consumers Union of United States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998).

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

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

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could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130

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

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

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

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leave to amend when justice so requires under Federal Rule of Civil Procedure 15(a)(2), “the

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court’s discretion to deny such leave is ‘particularly broad’ where the plaintiff has previously

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amended its complaint[.]” Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520

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(9th Cir. 2013) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)).

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III.

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Defendant argues Plaintiff fails to plead sufficient facts. (ECF No. 28 at 7.)

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ANALYSIS

A.

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

Plaintiff alleges Defendant discriminated against her because of her age, medical

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condition, and race. (ECF No. 27 ¶¶ 48, 61, 71.) To state a claim for discrimination under

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FEHA, a plaintiff must allege facts sufficient to show she suffered an adverse employment action

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and the employer acted with a discriminatory motive. Ayala v. Frito Lay, Inc., 2017 WL

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2833401, at *7 (E.D. Cal. June 30, 2017) (citing Lawler v. Montblanc N. Am., LLC, 704 F.3d

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1235, 1242 (9th Cir. 2013)). A plaintiff can demonstrate discriminatory motive by showing

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“other similarly situated employees outside of the protected class were treated more favorably.”

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Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 800 (N.D. Cal. July 14, 2015).
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Plaintiff alleges Defendant declined to hire her for a Residential Advisor position and

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never contacted her about different vacancies at SJCC that Defendant filled. (ECF No. 27 ¶¶ 33–

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35.) Plaintiff alleges “she was treated differently” than employees who were “younger,

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Caucasian, and had not disclosed health concerns during the employment transition” and who

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“appeared to be provided with immediate employment, even if they had significantly less

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experience than Plaintiff or had no experience” at SJCC. (ECF No. 27 ¶ 36.) Plaintiff does not

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allege those employees were hired into the Resident Advisor position for which Plaintiff applied.

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See Ravel v. Hewlett-Packard Enter., Inc., 228 F. Supp. 3d 1086, 1099 (E.D. Cal. Jan. 11, 2017)

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(finding the plaintiff did not allege facts rising to a plausible inference of age discrimination, such

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as being replaced by a younger employee, overhearing negative comments about age, or her age

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

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(finding African American plaintiff stated a case for failure to promote by showing the employer

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transferred a white manager into a position rather than promoting any of the interviewees);

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Achal, 114 F. Supp. 3d at 801–02 (finding the plaintiff pleaded specific non-conclusory facts

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sufficient to give rise to a plausible inference religion was a significant motivating factor in his

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termination and defendant’s proffered reason was pretextual, where the plaintiff alleged his

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supervisor complained about his time off for religious practice and called one of the practices of

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the plaintiff’s Hindu faith “ridiculous,” the defendant claimed it fired him for benefits fraud but

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never investigated, and there was no question as to his job performance during his employment).
Plaintiff alleges “other employees who were similarly situated as members of protected

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classes faced similar treatment and discrimination in the terms of employment while working for

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Defendant” at SJCC. (ECF No. 27 ¶ 40.) Plaintiff does not provide factual support for these

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conclusions nor explain whether and how any differences in treatment among other employees

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relate to her claims.

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Plaintiff’s allegations are insufficient to plausibly suggest Defendant acted because of her

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age, medical condition, or race. Accordingly, the Court GRANTS Defendant’s motion to dismiss

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Plaintiff’s claims for age, disability, and race discrimination.

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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. 27 ¶¶ 81–82.) Plaintiff’s claim for failure to hire based on Plaintiff’s

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active union affiliation would constitute a violation of Section 7 or 8 of the NLRA, which protect

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union activities, and would be subject to Garmon preemption and preempted by the NLRA.

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Clayton v. Pepsi Cola Bottling Grp., 1987 WL 46230, at *7 n.1 (C.D. Cal. Mar. 3, 1987).

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Plaintiff also alleges failure to hire based on her age, medical condition, and race. To state

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a claim for failure to hire based on disparate treatment, a plaintiff must show the employer filled

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

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applicants of comparable qualifications after rejecting the plaintiff. Dominguez-Curry v. Nevada

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Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005). Plaintiff has not alleged Defendant filled the

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Resident Advisor positions with employees who were not members of the same protected class as

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Plaintiff. Plaintiff has not alleged Defendant considered other applicants whose qualifications

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were comparable to Plaintiff’s who were not members of the same protected class as Plaintiff

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after rejecting Plaintiff for that position. Accordingly, the Court GRANTS Defendant’s motion to

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dismiss Plaintiff’s claim for failure to hire in violation of public policy.

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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.” (ECF No. 27 ¶ 94.) To state a claim for retaliation under FEHA Section 12940(h), a

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plaintiff must show “(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected

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the employee to an adverse employment action, and (3) a causal link existed between the

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protected activity and the employer’s action.” Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028,

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1042 (2005); Ayala, 2017 WL 2833401, at *12. A “protected activity” under Section 12940(h)

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means an employee “opposed any practices forbidden under [FEHA] or . . . filed a complaint,

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testified, or assisted in any proceeding under [FEHA].” CAL. GOV’T CODE § 12940(h); Yanowitz,

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36 Cal. 4th at 1042.
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Plaintiff does not allege Defendant retaliated against her for any protected activity, such as

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opposing practices forbidden under FEHA, filing a complaint, testifying, or assisting in any

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proceeding under FEHA. The “activities” Plaintiff labels as protected activities, “being an

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African American woman over the age of 40 diagnosed with a medical condition,” are not

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protected activities under FEHA. CAL. GOV’T CODE § 12940(h).

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Plaintiff claims that after Defendant declined to hire her, she and her union representative

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“complained” that “the charge that she was sleeping on the job was false” and “that her

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termination was motivated by targeted discrimination because of her protected status as a

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minority, an older woman, and due to her health issues.” (ECF No. 27 ¶¶ 41–42.) Plaintiff has

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not alleged she engaged in any protected activity before Defendant declined to hire her, and she

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has not cited any authority to support a retaliation claim when the claimed retaliation took place

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prior to the protected activity. Accordingly, the Court GRANTS Defendant’s motion to dismiss

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Plaintiff’s claim for retaliation.

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D.

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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. 27 ¶¶ 105, 107–08.)

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FEHA’s § 12940(k) does not give private litigants a private cause of action for a stand-

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alone claim for failure to prevent discrimination as an independent statutory violation. In the

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Matter of the Accusation of the Dep’t Fair Empl. & Hous. v. Lyddan Law Group (Williams),

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FEHC Dec. No. 10-04-P, at *12 (Oct. 19, 2010) (holding there cannot be a claim by a private

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litigant for failure to prevent discrimination without a valid claim for discrimination). As

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discussed above, Plaintiff has not alleged facts sufficient to state a claim for discrimination based

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

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discrimination fails. Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s

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claim for failure to prevent discrimination.
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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. 27 ¶ 118.) Plaintiff alleges Defendant “further knew that Plaintiff

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would require additional treatment upon her return to work and refused to hire her based on her

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need for accommodation regarding that care.” (ECF No. 27 ¶ 119.) Plaintiff alleges Defendant

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“unreasonably denied Plaintiff’s request and refused to allow Plaintiff the opportunity to return to

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work in her prior position.” (ECF No. 27 ¶ 120.) To state a claim for failure to accommodate, a

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plaintiff must show: (1) she suffered from a disability covered by FEHA; (2) she was a qualified

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individual; and (3) the defendant failed to reasonably accommodate her disability. Mohsin, 2016

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WL 4126721, at *4; see also Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 256 (2000).

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Plaintiff states she requested accommodation in two ways, that Defendant conduct her

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interview by telephone and limit any start date to March 16, 2014, or later. (ECF No. 27 ¶¶ 27,

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29.) Plaintiff alleges Defendant interviewed her, (ECF No. 27 ¶ 28), but she does not allege

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Defendant failed to accommodate her request for a telephone interview. Plaintiff alleges

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Defendant told her the start date should not present a problem. (ECF No. 27 ¶ 30.) Plaintiff

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alleges Defendant knew she would require additional treatment after her return to work, but

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Plaintiff does not allege she informed Defendant, or that she requested post-return

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accommodation, or allege any facts showing how Defendant knew this.

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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. 27 ¶ 118.) Plaintiff,

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however, alleges the only accommodation she requested in this regard was not to be given a start

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date before March 16, 2014. (ECF No. 27 ¶ 29.) Plaintiff has not alleged she would have any

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limitations or require accommodation after her proposed start date. Plaintiff alleges Defendant

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immediately agreed to Plaintiff’s only requested accommodation and she did not indicate any

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other limitation. (ECF No. 27 ¶ 30.) Accordingly, the Court GRANTS Defendant’s motion to

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dismiss Plaintiff’s claim for failure to accommodate.
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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. 27 ¶ 129.) “Once an employer becomes aware of the need for

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accommodation, that employer has a mandatory obligation under the ADA to engage in an

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interactive process with the employee to identify and implement appropriate reasonable

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accommodations.” Humphrey v. Mem’l Hosps. Ass’n., 239 F.3d 1128, 1137 (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. 27 ¶¶ 27, 29.) Plaintiff does not allege

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Defendant failed to accommodate her request for a telephone interview. Plaintiff alleges

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Defendant agreed her proposed start date would “not present a problem.” (ECF No. 27 ¶ 30.)

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Plaintiff alleges Defendant failed to work with Plaintiff “to determine effective reasonable

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accommodations for her to fill” the Residential Advisor position. (ECF No. 27 ¶ 129.) Plaintiff

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does not allege in what way she would have required accommodation, how she would have been

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limited or able to perform the essential job functions, how Defendant knew she would have

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required accommodation, that she requested accommodation, or that Defendant denied the request

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or failed to accommodate any request. Steiner v. Verizon Wireless, No., 2014 WL 202741, at *5

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(E.D. Cal. Jan. 17, 2014) (granting the defendant’s motion to dismiss the plaintiff’s ADA claim

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for failure to accommodate where the plaintiff alleged her employment was terminated because of

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her disability but did not plead facts to support each required element, such as whether, when, and

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what accommodations she needed and requested, and whether and why the requests were denied).

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Plaintiff does not allege any facts to support her claim Defendant was required to engage

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in the interactive process and failed to do so. Rather, Plaintiff alleges Defendant agreed to

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Plaintiff’s only requested accommodation at the time Plaintiff made the request. Accordingly, the

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Court GRANTS Defendant’s motion to dismiss Plaintiff’s claim for failure to engage in the

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interactive process.
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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. 27 ¶¶ 136–37.) To state a

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claim for intentional infliction of emotional distress, a plaintiff must show, among other things,

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“extreme and outrageous conduct by the defendant with the intention of causing, or reckless

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disregard of the probability of causing, emotional distress.” Hughes v. Pair, 46 Cal. 4th 1035,

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1050 (2009). “A simple pleading of personnel management activity is insufficient to support a

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

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Janken v. GM Hughes Electrs., 46 Cal. App. 4th 55, 80 (1996). Plaintiff has not alleged conduct

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other than making a hiring decision, and California courts have found this constitutes personnel

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management activity. Id. at 64–65. Accordingly, the Court GRANTS Defendant’s motion to

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dismiss Plaintiff’s claim for intentional infliction of emotional distress.

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H.

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

Plaintiff alleges her counsel asked Defendant for her “application records and any

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documents considered in rejecting her application,” but “Defendant failed to provide these

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documents within 30-day time period required by law.” (ECF No. 27 ¶¶ 146–47.) California

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Labor Code § 1198.5 provides “[e]very current and former employee,” or her representative, with

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the right to inspect and receive a copy of the personnel records” “not later than 30 calendar days

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

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Plaintiff has not alleged she was employed by Defendant, but rather that Defendant

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declined to hire her. The plain language of § 1198.5 limits its applicability to current and former

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employees, but omits any reference to applicants. Other parts of the California Labor Code

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expressly apply to applicants. See CAL. LAB. CODE § 432 (“If an employee or applicant signs any

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instrument relating to the obtaining or holding of employment, he shall be given a copy of the

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instrument upon request.”). “Where different words or phrases are used in the same connection in

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different parts of a statute, it is presumed the Legislature intended a different meaning.” Briggs v.
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Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1117 (1999); see Covington v. S.F.

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Unified Sch. Dist., 2007 WL 1563510 at *5 (Cal. Ct. App. May 31, 2007) (interpreting Education

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Code § 44031, which gave employees “the right to inspect personnel records pursuant to Labor

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Code section 1198.5,” and finding the plaintiff job applicant, whose job offer had been rescinded,

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had not provided evidence he was employed by the defendant at the time of application.)

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Plaintiff has not alleged she was ever employed by Defendant, so § 1198.5 does not apply

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

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maintained regarding Plaintiff’s application. Accordingly, the Court GRANTS Defendant’s

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motion to dismiss Plaintiff’s claim for failure to provide copies of personnel files.

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IV.

LEAVE TO AMEND

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“A district court may deny a plaintiff leave to amend if it determines that allegations of

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other facts consistent with the challenged pleading could not possibility cure the deficiency, or if

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the plaintiff had several opportunities to amend its complaint and repeatedly failed to cure

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deficiencies.” Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). Although a

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court should freely give leave to amend when justice so requires, “the court’s discretion to deny

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such leave is ‘particularly broad’ where the plaintiff has previously amended its complaint[.]”

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Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (quoting

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Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004).

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Plaintiff has had two opportunities to allege facts sufficient to support her claims and did

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not do so. This Court provided detailed analysis in its order on Defendant’s motion for judgment

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on the pleadings about the deficiencies of the original complaint as to each claim and granted

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leave to amend. (ECF No. 26.) Those deficiencies have not been cured and it would be futile to

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allow further opportunities to amend. Accordingly, the Court will not grant leave to amend.

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V.

CONCLUSION

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For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss, (ECF No.

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28), with prejudice. The Clerk of the Court is directed to close the case.

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IT IS SO ORDERED.
Dated: August 14, 2018

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Troy L. Nunley
United States District Judge

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