Ravel v. Hewlett-Packard Enterprises, Inc.

Filing 10

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 1/11/2017 GRANTING IN PART and DENYING IN PART 4 Defendant's Motion to Dismiss. Plaintiff has twenty days from the date this Order is signed to file an amended complaint, if she can do so consistent with this Order. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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BETTY RAVEL,
Plaintiff,

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CIV. NO. 2:16-cv-2610 WBS DB
MEMORANDUM AND ORDER RE: MOTION
TO DISMISS

v.
HEWLETT-PACKARD ENTERPRISE,
INC., a Delaware corporation,
and DOES 1 through 100,
inclusive,
Defendant.

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----oo0oo---Plaintiff Betty Ravel filed this action against

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defendant Hewlett-Packard Enterprise, alleging that defendant

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discriminated against her on the basis of her disability in

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violation of the American with Disabilities Act (“ADA”) and the

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California Fair Employment and Housing Act (“FEHA”).

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Removal Ex. A, First Am. Compl. (“FAC”) (Docket No. 1).)

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the court is defendant’s Motion to Dismiss plaintiff’s Complaint.

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(Def.’s Mot. (Docket No. 4).)
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(Notice of
Before

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I.

Factual and Procedural Background
Plaintiff began working for defendant, a computer

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technology company, in 2010.

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was promoted to Sales Administration Manager, a position that

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involves managing teams of Executive Assistants “located all over

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the U.S. and internationally.”

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plaintiff, she would “manage[] her team on a virtual basis from

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her home office [in Folsom, CA], using Skype, e-mail and

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collaborative software,” “with occasional trips to the company’s

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[office] in Roseville, CA.”

(FAC ¶¶ 2, 12.)

In March 2015, she

(Id. ¶¶ 15-16.)

According to

(Id.)

Plaintiff alleges that in May 2015, she “began

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experiencing shooting pains in her left leg.”

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doctor diagnosed her with sciatica and a herniated and two

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bulging spine discs.

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“attempted to work a few days in Roseville,” which she alleges is

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a one hour commute from her home.

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that “[a]fter the third day of commuting to Roseville,” the pain

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in her left leg became “excruciating.”

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“resumed working at home.”

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(Id. ¶ 19.)

(Id. ¶ 18.)

Her

After the diagnosis, plaintiff

(Id. ¶ 22.)

(Id.)

Plaintiff alleges

As a result, she

(Id. ¶ 23.)

“In March 2016, plaintiff attempted to resume work on-

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site in Roseville.

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this time in both legs.”

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Roseville, according to plaintiff, was interfering with her

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acupuncturist’s “orders [to] . . . alternate[] sitting, standing

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and lying down in . . . 30-minute rotation[s],” and thus

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“exacerbat[ing] her herniated and bulging discs” and putting her

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at risk for “irreparable spinal damage.”

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After three days, the severe pain returned-(Id. ¶ 28.)

The one-hour commute to

(Id. ¶ 29.)

In April 2016, plaintiff requested that defendant allow
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her to work exclusively from home going forward.

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Defendant denied her request in July 2016 and told her that it

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could “accommodate [her medical] restrictions in the [Roseville]

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office.”

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transfer her to its Folsom office, which she alleges “is only

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fifteen minutes from her home.”

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that request as well.

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(Id. ¶ 34.)

(See id. ¶ 30.)

Plaintiff then requested that defendant

(Id. ¶ 37.)

Defendant denied

(Id. ¶ 38.)

On July 22, 2016, plaintiff went on paid disability
leave.

(Id. ¶ 45.)

She was paid 100% of her regular salary

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until September 2016, at which time her pay was reduced to 70%.

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(Id. ¶ 44.)

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on leave, she has been “ready, willing and able to work from her

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home.”

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Plaintiff alleges that during the time she has been

(Id. ¶ 45.)
Plaintiff filed this action in the California Superior

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Court on September 21, 2016.

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asserts the following causes of action against defendant: (1)

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disability discrimination in violation of the ADA, 42 U.S.C. §§

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12101 et seq., and FEHA, Cal. Gov. Code § 12940; (2) failure to

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engage in an interactive process in violation of the ADA, 42

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U.S.C. § 12112(b)(5)(A), and FEHA, Cal. Gov. Code § 12940(n); (3)

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failure to provide reasonable accommodation in violation of the

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ADA, 42 U.S.C. § 12112(b)(5)(A), and FEHA, Cal. Gov. Code §

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12940(m); (4) failure to prevent discrimination and harassment in

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violation of FEHA, Cal. Gov. Code § 12940(k); (5) age

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discrimination in violation of FEHA, Cal. Gov. Code § 12940(a);

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and (6) intentional infliction of emotional distress.

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10-13.)

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(Notice of Removal at 1.)

She

(FAC at

Defendant removed plaintiff’s action to this court on
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November 1, 2016.

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dismiss plaintiff’s Complaint pursuant to Federal Rule of Civil

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Procedure 12(b)(6).

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II.

(Notice of Removal.)

Defendant now moves to

(Def.’s Mot.)

Legal Standard

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On a motion to dismiss for failure to state a claim

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under Rule 12(b)(6), the court must accept the allegations in the

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pleadings as true and draw all reasonable inferences in favor of

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the plaintiff.

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overruled on other grounds by Davis v. Scherer, 468 U.S. 183

See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),

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(1984); Cruz v. Beto, 405 U.S. 319, 322 (1972).

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motion to dismiss, a plaintiff must plead “only enough facts to

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state a claim to relief that is plausible on its face.”

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Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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To survive a

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The “plausibility” standard, “asks for more than a

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sheer possibility that a defendant has acted unlawfully,” and

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where a plaintiff pleads facts that are “merely consistent with a

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defendant’s liability,” the facts “stop[] short of the line

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between possibility and plausibility.”

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U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557).

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Ashcroft v. Iqbal, 556

“While a complaint attacked by a Rule 12(b)(6) motion

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to dismiss does not need detailed factual allegations, a

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plaintiff’s obligation to provide the ‘grounds’ of his

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‘entitle[ment] to relief’ requires more than labels and

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conclusions . . . .”

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omitted).

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action, supported by mere conclusory statements, do not suffice,”

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and “the tenet that a court must accept as true all of the

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allegations contained in a complaint is inapplicable to legal

Twombly, 550 U.S. at 555 (citation

“Threadbare recitals of the elements of a cause of

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conclusions.”

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III. Discussion

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A.

Iqbal, 556 U.S. at 678.

Disability Discrimination and Reasonable Accommodation

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Plaintiff’s first cause of action alleges that

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defendant discriminated against her on account of her disability.

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(FAC at 10.)

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failed to provide her a reasonable accommodation.

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Each claim is brought under both the ADA and FEHA.

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Her third cause of action alleges that defendant
(Id. at 12.)

The ADA and FEHA each provide protections to disabled

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employees.

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While courts in this circuit have often analyzed claims brought

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under the ADA and FEHA together, see, e.g., Humphrey v. Mem’l

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Hosps. Ass’n, 239 F.3d 1128, 1140 (9th Cir. 2001) (“We analyze

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[plaintiff’s] state and federal disability claims together . . .

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.”), they have also noted that “in a number of instances[,]

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FEHA’s anti-discrimination provisions provide even greater

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protection to employees than does the ADA,” Diaz v. Fed. Express

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Corp., 373 F. Supp. 2d 1034, 1053 (C.D. Cal. 2005).

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provides greater protection than the ADA in some instances, “a

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judgment for a defendant as to an ADA claim will not necessarily

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lead to a similar judgment with respect to a FEHA claim.”

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v. City of San Jose, 261 F.3d 877, 895 (9th Cir. 2001).

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See 42 U.S.C. § 12112(a); Cal. Gov’t Code § 12940.

Because FEHA

Cripe

A key issue raised in plaintiff’s ADA and FEHA claims

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is whether defendant satisfied its obligation to provide her a

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lawful accommodation by placing her on paid disability leave,

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instead of allowing her to work from her home or at its Folsom

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office.

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question, the court will address plaintiff’s disability

Because the ADA and FEHA differ with respect to this

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discrimination and reasonable accommodation claims under the two

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legislations separately.

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1.

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Disability Discrimination and Reasonable
Accommodation Under the ADA

“The ADA prohibits an employer from discriminating

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against a qualified individual with a disability ‘because of the

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disability.’”

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1246 (9th Cir. 1999) (quoting 42 U.S.C. § 12112(a)).

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prima facie claim of disability discrimination under the ADA,

Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243,
To state a

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plaintiff must allege facts that plausibly show: “(1) [she] is a

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disabled person within the meaning of the [ADA]; (2) [she] is a

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qualified individual with a disability; and (3) [she] suffered an

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adverse employment action because of [her] disability.”

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v. Elf Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001).

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Hutton

With respect to the first prong, the ADA defines a

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“disabled person” as an individual who has “a physical or mental

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impairment that substantially limits one or more of the

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individual’s major life activities.”

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Dep’t of Treasury, 383 F.3d 879, 884 (9th Cir. 2004).

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impairment covered under the ADA includes any physiological

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disorder,” id., and “major life activities” includes “standing,”

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“sitting,” and “lifting,” 29 C.F.R. § 1630.2.

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limited” means that a person is “significantly restricted as to

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condition, manner or duration under which [she] can perform [the]

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particular major life activity as compared to . . . [an] average

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person in the general population.”

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“Temporary, non-chronic impairments of short duration, with

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little or no long term or permanent impact, are usually not
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Coons v. Sec’y of U.S.
“An

“Substantially

Coons, 383 F.3d at 885.

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disabilities.”

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1271, 1276 (N.D. Cal. 1996)

Wilmarth v. City of Santa Rosa, 945 F. Supp.

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Defendant’s only challenge with respect to the first

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prong is that plaintiff cannot base her argument for “disabled

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person” status on mere “recommendations” from her physician

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alone.

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plaintiff alleges that her acupuncturist’s advice that she not

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sit or stand for more than thirty minutes was in fact a “strict

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order[].”

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(Def.’s Mot. at 15.)

That argument fails because

(FAC ¶ 29.)
Plaintiff alleges that her sciatica and disc condition

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prevent her from sitting or standing for more than thirty

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minutes, or lifting anything “more than ten pounds.”

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29.)

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time “with proper treatment and care,” (id. ¶ 36), she also

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alleges that the effects of the condition and her need for

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accommodation are “permanent,” (id. ¶¶ 32, 36).

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reasonable inferences in plaintiff’s favor, the court finds that

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these allegations are sufficient to plausibly suggest that

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plaintiff is a “disabled person” within the meaning of the ADA.

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(See FAC ¶

While she indicates that her condition would improve over

Drawing

With respect to the second prong, the ADA defines

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“qualified individuals” as those “with a disability who, with or

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without reasonable accommodation, can perform the essential

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functions of the employment position that such individual holds.”

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42 U.S.C. § 12111(8).

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current position since March 2015, (FAC ¶ 15), alleges that since

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being diagnosed with back problems, she has been able to work

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from home without “miss[ing] a beat,” and that she is “ready,

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willing and able” to continue working if allowed to work from

Plaintiff, who has been employed in her

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home or at defendant’s Folsom office, (FAC ¶¶ 27, 30, 37).

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Defendant did not dispute the “qualified” prong in its Motion.

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Thus, the court finds that plaintiff has plausibly alleged that

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she is a “qualified individual” under the ADA.

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With respect to the third prong, defendant notes that

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the only adverse employment action plaintiff claims she was

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subject to was defendant’s decision to deny her request to work

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from home or at Folsom.

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that its decision to deny her request does not constitute an

(Def.’s Mot. at 11.)

Defendant argues

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adverse employment action because it offered her two “reasonable”

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alternatives to what she requested: (1) working at defendant’s

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Roseville office with leave to lie down in the conference room as

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needed, and (2) taking a paid leave of absence to recover from

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her back condition.

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(See id.; FAC ¶¶ 42, 45.)

Defendant correctly notes that under the ADA, “[a]n

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employer is not obligated to provide an employee the

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accommodation [she] requests or prefers, the employer need only

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provide some reasonable accommodation.”

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California Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002)

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(citing E.E.O.C. v. Yellow Freight Sys. Inc., 253 F.3d 943, 951

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(7th Cir. 2001)).

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accommodations, therefore, is not an “adverse employment action”

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within the meaning of the ADA if either of the alternatives it

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offered her is a “reasonable accommodation.”1

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Zivkovic v. S.

Defendant’s denial of plaintiff’s requested

Conversely, if neither alternative offered by defendant
is “reasonable,” defendant’s denial of plaintiff’s request would
constitute an “adverse employment action.” See Kaplan v. City of
N. Las Vegas, 323 F.3d 1226, 1232 (9th Cir. 2003) (“On the face
of the ADA, failure to provide reasonable accommodation to an
otherwise qualified individual with a disability constitutes
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The ADA does not define the term “reasonable

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accommodation” with much precision.

See 42 U.S.C. § 12111(9).

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The Equal Employment Opportunity Commission, however, has

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promulgated regulations that define “reasonable accommodation” to

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include “[m]odifications or adjustments to the work environment,

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or to the manner or circumstances under which the position held

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or desired is customarily performed, that enable an individual

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with a disability who is qualified to perform the essential

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functions of that position.”

29 C.F.R. § 1630.2(o)(1)(ii).

The

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Ninth Circuit has similarly held that a “reasonable accommodation

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must be effective, in enabling the employee to perform the duties

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of [her] position.”

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Humphrey, 239 F.3d at 1137.

The first alternative offered by defendant--working at

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its Roseville office with permission to lie down in the

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conference room as needed--does not “enabl[e plaintiff] to

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perform the duties of [her] position” because it does not address

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plaintiff’s alleged inability to commute to Roseville.

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¶¶ 29, 36 (noting that hour-long commute to Roseville was

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“exacerbate[ing]” back condition).)

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ADA does not require employers to accommodate employees’ commutes

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because commutes are not considered part of their job duties.

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(See Def.’s Mot. at 10-11.)

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that an employer has an obligation “to accommodate an employee’s

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limitations in getting to and from work” under the ADA.2

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[disability] discrimination.”).

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(See FAC

Defendant argues that the

The Ninth Circuit has held, however,

Defendant cites three district court cases and a
California appellate court case that held otherwise: (1) LaResca
v. Am. Tel. & Tel., 161 F. Supp. 2d 323 (D. N.J. 2001); (2)
Salmon v. Dade Cty. Sch. Bd., 4 F. Supp. 2d 1157 (S.D. Fla.
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Livingston v. Fred Meyer Stores, Inc., 388 F. App’x 738, 740 (9th

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Cir. 2010); see also Humphrey, 239 F.3d at 1135 (holding that

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employer had obligation to accommodate employee’s inability to

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get to work on time or at all due to obsessive compulsive

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disorder).

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alleged inability to commute to the Roseville office, defendant’s

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offer to have plaintiff continue working at the Roseville office

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does not constitute a reasonable accommodation.

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239 F.3d at 1137.

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In light of this holding and in light of plaintiff’s

See Humphrey,

Defendant’s second alternative, however, has been

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recognized by the Ninth Circuit to be “reasonable.”

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the Ninth Circuit held that a “leave of absence for medical

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treatment may be a reasonable accommodation under the ADA” where

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it would “permit [an employee], upon [her] return, to perform the

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essential functions of [her] job.”

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36.

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Nunes, 164 F.3d at 1247 (“Unpaid medical leave may be a

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reasonable accommodation under the ADA.”); Dark v. Curry Cty.,

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451 F.3d 1078, 1090 (9th Cir. 2006) (same).

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In Humphrey,

Humphrey, 239 F.3d at 1135-

Leave need not be paid to be reasonable under the ADA.

Plaintiff alleges that she “has been on full disability

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1998); (3) Schneider v. Cont’l Cas. Co., No. 95 C 1820, 1996 WL
944721 (N.D. Ill. Dec. 16, 1996); and (4) Gonzalez-Malik v.
Superior Court of California, Cty. of San Francisco, No. A117113,
2008 WL 4329416 (Cal. Ct. App. Sept. 23, 2008). None of those
cases, however, supersede Ninth Circuit precedent.
Defendant also argues that Humphrey is distinguishable
because the plaintiff in Humphrey “attempted to try her
employer’s initial accommodation” before concluding it was
ineffective. (Def.’s Mot. at 14.) That argument fails, however,
because plaintiff has alleged that she tried to commute to
Roseville several times before concluding that the commute was
not feasible. (See FAC ¶¶ 22, 28.)
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[leave] as of July 22, 2016” and paid at least 70% of her monthly

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salary since then.

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problems, while “permanent” and requiring “ongoing care,” (id. ¶¶

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32, 36), would improve over time as she remained on leave, (id. ¶

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36 (noting that plaintiff was making “progress” when not being

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forced to commute to Roseville)).

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effects that plaintiff’s Roseville commute was having on her

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back, plaintiff’s acupuncturist recommended that plaintiff “work

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from home for a period of no less than 3 months” so that she

(FAC ¶¶ 44-45.)

She indicates that her back

In discussing the negative

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could recover, (id. ¶ 36), which suggests that after that period,

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plaintiff would be able to resume working at Roseville.

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these allegations suggest that a disability leave would allow

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plaintiff to gain at least a partial recovery and, after a period

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of a few months, resume working at Roseville, the court finds

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that defendant’s offer of a paid medical leave constitutes a

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“reasonable accommodation” within the meaning of the ADA.

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Humphrey, 239 F.3d at 1135-36; Nunes, 164 F.3d at 1247.

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Because

See

Because plaintiff’s Complaint indicates that defendant

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offered her two accommodations--one of which was “reasonable”--

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she has failed to state a claim that defendant’s denial of her

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preferred accommodations constitutes an “adverse employment

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action” within the meaning of the ADA.

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1089.

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See Zivkovic, 302 F.3d at

To the extent plaintiff might argue that her disability

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leave, which involves a 30% pay cut, is nevertheless itself an

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“adverse employment action,” district courts in this circuit and

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several courts outside of this circuit have held that “a

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reasonable accommodation cannot be a materially adverse
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employment action.”

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757 F. Supp. 2d 1065, 1121 (D. N.M. 2010); see also Bultemeyer v.

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Fort Wayne Cmty. Sch., 100 F.3d 1281, 1283 (7th Cir. 1996) (“A

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reasonable accommodation . . . should not be construed as an

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adverse employment action.”); Selenke v. Med. Imaging of

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Colorado, 248 F.3d 1249, 1265 (10th Cir. 2001) (where plaintiff

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alleges ADA discrimination and reasonable accommodation claims,

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the analyses for the two merge); Capote v. CSK Auto, Inc., No.

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12-CV-02958 JST, 2014 WL 1614340, at *7 (N.D. Cal. Apr. 22, 2014)

West v. New Mexico Taxation & Revenue Dep’t,

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(same); Lafever v. Acosta, Inc., No. C10-01782 BZ, 2011 WL

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1935888, at *4-5 (N.D. Cal. May 20, 2011) (same).

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While the Ninth Circuit does not appear to have

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addressed the question, the court finds the reasoning of the

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above-cited cases to be instructive.

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beyond what is required under the ADA when it placed plaintiff on

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paid disability leave.

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F.3d at 1090.

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accommodation” in this case, while not the accommodation

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plaintiff wanted, should not be construed to be an “adverse

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employment action.”

Defendant already went

See Nunes, 164 F.3d at 1247; Dark, 451

Defendant’s provision of a “reasonable

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Because plaintiff has failed to allege that defendant

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carried out an “adverse employment action” against her, she has

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failed to state a plausible claim of disability discrimination

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under the ADA.

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establish disability discrimination “by presenting evidence of

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disparate treatment.”

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256 F.3d 568, 572 (7th Cir. 2001).

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disparate impact argument in her Opposition, noting that “many

Some courts have held that plaintiffs may also

See, e.g., Hoffman v. Caterpillar, Inc.,

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Plaintiff appears to raise a

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other [Hewlett-Packard] employees . . . are permitted to work

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from home.”

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correctly notes, however, that plaintiff did not allege in her

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Complaint that she was “treated differently than other similarly

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situated individuals.”

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(Pl.’s Opp’n at 5 (Docket No. 7).)

Defendant

(Def.’s Mot. at 17.)

Having determined that defendant’s offer of paid

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disability leave is a “reasonable accommodation” under the ADA,

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the court also finds that plaintiff has failed to state a

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plausible claim of failure to provide reasonable accommodation

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under the ADA.

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third causes of action, to the extent they are brought under the

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ADA.

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2.

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Accordingly, the court will dismiss her first and

Disability Discrimination and Reasonable
Accommodation Under FEHA

Plaintiff cites FEHA as a second statutory basis for

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her disability discrimination and failure to provide reasonable

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accommodation claims.

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ADA, prohibits employers from discriminating against employees

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“because of . . . [a] physical disability [or] mental

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disability.”

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provisions relating to disability discrimination are based on the

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ADA, decisions interpreting federal anti-discrimination laws are

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relevant in interpreting the FEHA’s similar provisions.”

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Humphrey, 239 F.3d at 1133 n.6.

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“analyze[d] . . . [FEHA] and federal disability claims together,

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relying on federal authority in the absence of contrary or

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differing state law.”

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(See FAC at 10-11.)

Cal. Gov. Code § 12940(a).

FEHA, similar to the

“Because the FEHA

Indeed, courts have often

Id.

FEHA, like the ADA, requires a plaintiff to plausibly
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allege the following in order to state a prima facie claim of

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disability discrimination: “(1) plaintiff suffers from a

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disability; (2) plaintiff is a qualified individual; and (3)

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plaintiff was subjected to an adverse employment action because

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of the disability.”

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245, 254 (2d Dist. 2000).

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findings with respect to prongs (1) and (2) in the above ADA

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analysis resolve the same questions under FEHA.

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Supp. 2d at 1054 (noting that “FEHA defines ‘disability’ more

Jensen v. Wells Fargo Bank, 85 Cal. App. 4th
The court is satisfied that its

See Diaz, 373 F.

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broadly than does the ADA”); Bates v. United Parcel Serv., Inc.,

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511 F.3d 974, 999 (9th Cir. 2007) (applying “qualified

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individual” analysis under ADA to same inquiry under FEHA).

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court is also satisfied that its findings with respect to the

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reasonableness of the two accommodations defendant offered

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plaintiff in the above ADA analysis resolve the same questions

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under FEHA.

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Cal. App. 4th 952, 973 (1st Dist. 2008) (noting that FEHA’s

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definition of “reasonable accommodation” “is virtually identical

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to the ADA’s statutory definition of the term”); Humphrey, 239

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F.3d at 1133 (applying “reasonable accommodation” analysis under

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ADA to same inquiry under FEHA).

The

See Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166

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Unlike the ADA, however, FEHA does not provide

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employers complete autonomy in choosing which reasonable

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accommodation, when there are more than one, to offer an

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employee.

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Regulations (“section 11068(c)”), which implements FEHA’s

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“reasonable accommodation” provision, states: “When an employee

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can work with a reasonable accommodation other than a leave of

Section 11068(c) of title 2 of the California Code of

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absence, an employer may not require that the employee take a

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leave of absence.”

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Wallace v. Cty. of Stanislaus, 245 Cal. App. 4th 109, 134 (5th

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Dist. 2016) (applying section 11068(c) in FEHA case).

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to this regulation, an employer’s decision to place an employee

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on leave when she is able to work with another reasonable

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accommodation “cannot be described as a lawful accommodation of a

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physical disability.”

Cal. Code Regs. tit. 2, § 11068(c); see also

Pursuant

Wallace, 245 Cal. App. 4th at 134.

Here, defendant placed3 plaintiff on medical leave

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10

despite her asking to be allowed to work from home or at

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defendant’s Folsom office.

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accommodation requested by plaintiff is a “reasonable” within the

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meaning of FEHA, defendant will have failed to comply with

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section 11068(c).

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(FAC ¶¶ 30, 37, 45.)

If either

Under FEHA, a “reasonable accommodation is a

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modification or adjustment to the work environment that enables

17

the employee to perform the essential functions of the job . . .

18

she holds.”

19

181 F. Supp. 3d 767, 776 (E.D. Cal. 2016).

20

Canupp v. Children’s Receiving Home of Sacramento,

Based on the facts alleged in plaintiff’s Complaint,

21

either accommodation proposed by plaintiff--work from home or

22

work at Folsom--appears to be “reasonable”: plaintiff alleges

23

that when at home, she is able to work on her bed, “propped up

24

with pillows, and conduct business with a laptop” without

25

“miss[ing] a beat,” and if allowed to work at Folsom, she would

26
27
28

3

Though the Complaint does not specify, it appears that
defendant offered and plaintiff accepted disability leave as a
last resort after the parties were unable to agree upon a work
accommodation. (See Def.’s Reply at 9 (Docket No. 8); FAC ¶ 45.)
15

1

be able to perform her job as usual so long as she could lie down

2

in the conference room when she needs to.

3

42.)

4

to defendant, as plaintiff’s position appears to involve work

5

that is primarily done on a “virtual basis,” via “Skype, e-mail

6

and collaborative software,” (id. ¶ 16; see also id. ¶ 25 (noting

7

that plaintiff’s manager “works from his home[,] near Chicago”)),

8

and thus not dependent on where she works.

9

has allegedly allowed Plaintiff to work from home on and off

10

(See FAC ¶¶ 27, 37,

Neither accommodation would appear to pose an undue burden

since 2011.

11

Moreover, defendant

(Id. ¶ 14).

The court concludes that plaintiff has plausibly

12

alleged that either of the accommodations she requested would

13

constitute a “reasonable accommodation” under FEHA.

14

defendant denied her both accommodations and left her with only

15

one other “reasonable” alternative--going on medical leave--it

16

has, under the facts alleged, failed to comply with section

17

11068(c).

18

defendant’s Motion to dismiss plaintiff’s third cause of action

19

to the extent it is brought under FEHA.4

20
21
22
23
24
25
26
27
28

4

Because

This failure is sufficient for the court to deny

It is also sufficient

Plaintiff’s third cause of action is styled as a
reasonable accommodation claim. (FAC at 11.) While failure to
comply with section 11068(c) is not technically failure to
provide reasonable accommodation, the court construes plaintiff’s
third cause of action, which argues that defendant should have
allowed plaintiff to continue working as opposed to forcing her
to go on leave, to encompass a claim brought pursuant to section
11068(c). See White v. WMC Mortg. Corp., No. CIV. A. 01-1427,
2001 WL 1175121, at *1 (E.D. Pa. July 31, 2001) (“A plaintiff’s
complaint need not cite the correct statute in order to survive a
motion to dismiss.”). Because the court reads plaintiff’s third
cause of action to encompass a claim brought pursuant to section
11068(c), and because plaintiff has alleged facts sufficient to
state a claim under section 11068(c), the court will not dismiss
plaintiff’s third cause of action.
16

1

for the court to deny defendant’s Motion to dismiss plaintiff’s

2

first cause of action to the extent it is brought under FEHA, as

3

failure to comply with section 11068(c) constitutes “adverse

4

employment action” when it leads to loss of income.

5

245 Cal. App. 4th at 134-37 (granting judgment for plaintiff on

6

FEHA disability discrimination claim where adverse action alleged

7

was placement on unpaid disability leave in violation of section

8

11068(c)).

9

B.

10

See Wallace,

Failure to Engage in an Interactive Process
Plaintiff’s second cause of action alleges that

11

defendant “failed to engage [in] a timely, good faith,

12

interactive process with Plaintiff to determine effective

13

reasonable accommodations for Plaintiff’s . . . disabilities.”

14

(FAC ¶ 54.)

15

The claim is brought under both the ADA and FEHA.

“Once an employer becomes aware of the need for

16

accommodation, that employer has a mandatory obligation under the

17

ADA [and FEHA] to engage in an interactive process with the

18

employee to identify and implement appropriate reasonable

19

accommodations.”

20

process requires communication and good-faith exploration of

21

possible accommodations between employers and individual

22

employees, and neither side can delay or obstruct the process.”

23

Id.

24

good faith, face liability for the remedies imposed by the

25

statute if a reasonable accommodation would have been possible.”

26

Id. at 1137–38.

27
28

Humphrey, 239 F.3d at 1137.

“The interactive

“Employers, who fail to engage in the interactive process in

Plaintiff’s “interactive process” claim fails under the
ADA because she has not alleged that defendant failed to provide
17

1

her a reasonable accommodation under the ADA.

2

City of Chicago, 207 F.3d 1009, 1016 (7th Cir. 2000) (holding

3

that there is no stand-alone claim for “failure to engage in an

4

interactive process” under the ADA; plaintiff must also allege

5

that defendant failed to provide a reasonable accommodation);

6

Wilson v. Dollar Gen. Corp., 717 F.3d 337, 347 (4th Cir. 2013)

7

(same); Lowe v. Indep. Sch. Dist. No. 1 of Logan Cty., 363 F.

8

App’x 548, 552 (10th Cir. 2010) (same).

9

See Rehling v.

To the extent she brings the same claim under FEHA,

10

however, her claim is not dismissible on the same grounds because

11

she has plausibly alleged that defendant failed to provide her a

12

lawful accommodation under FEHA.

13

11068(c).

14

See Cal. Code Regs. tit. 2, §

Defendant nevertheless contends that it did not fail to

15

satisfy its obligation to interact with plaintiff under FEHA

16

because it responded to her requests to work from home or at

17

Folsom with emails that stated along the lines of the following:

18

“We have reviewed [your] work restrictions and have concluded

19

that we can accommodate these restrictions in the [Roseville]

20

office.”

21

40 (“The note from your doctor does not identify any work

22

restrictions because travel is not an essential function of your

23

role and as a result, is not something the Company is required to

24

accommodate.”).)

25

without “a modicum of explanation or interactive discussion,” and

26

thus lacking in “good faith” and deficient under FEHA.

27

Opp’n at 8, 14 (Docket No. 7).)

28

(Def.’s Mot. at 12 (quoting FAC ¶ 34); see also FAC ¶

Plaintiff contends that such responses are

(Pl.’s

It is for the trier of fact to determine whether
18

1

defendant’s responses to plaintiff were sufficiently

2

“interactive” under FEHA.

3

dismiss plaintiff’s second claim to the extent it is brought

4

under FEHA.

5

720 F.3d 33, 45 (1st Cir. 2013) (“It is not for the court to

6

decide, at the pleading stage . . . the meaning of documents that

7

are subject to divergent reasonable interpretations.” (quoting

8

Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 766 n.11

9

(1984))).

10

C.

11

The court will accordingly decline to

See Evergreen Partnering Grp., Inc. v. Pactiv Corp.,

Failure to Prevent Discrimination and Harassment
Plaintiff’s fourth cause of action alleges that

12

defendant “failed to take all reasonable steps to prevent . . .

13

harassment, discrimination or retaliation” in violation of FEHA.

14

(FAC at 12.)

15

section 12940(k) of the California Government Code, provides that

16

“[i]t is an unlawful employment practice . . . [f]or an employer

17

. . . to fail to take all reasonable steps necessary to prevent

18

discrimination and harassment from occurring.”

19

12940(k).

20

‘discrimination’ for purposes of § 12940(k).”

21

Mortenson Co., No. 1:13-CV-339 AWI JLT, 2013 WL 3356883, at *13

22

(E.D. Cal. July 3, 2013).

23

The statute she cites in support of that claim,

Cal. Gov’t Code §

“Retaliation is included within the meaning of
Rubadeau v. M.A.

“A plaintiff seeking to recover on a failure to prevent

24

discrimination claim under FEHA must show that (1) [she] was

25

subjected to discrimination; (2) defendant failed to take all

26

reasonable steps to prevent discrimination; and (3) this failure

27

caused plaintiff to suffer injury, damage, loss or harm.”

28

v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 804 (N.D. Cal. 2015).
19

Achal

1

Courts have interpreted “a failure to prevent discrimination

2

claim [to be] essentially derivative of a [FEHA] discrimination

3

claim.”

4

App. 4th 280, 289 (4th Dist. 1998)); see also Rux v. Starbucks

5

Corp., No. 2:05-CV-02299 MCE EFB, 2007 WL 1470134, at *9 (E.D.

6

Cal. May 18, 2007) (denying defendant summary judgment on failure

7

to prevent discrimination claim “[g]iven that” plaintiff’s FEHA

8

discrimination claim survived summary judgment); Juell v. Forest

9

Pharm., Inc., 456 F. Supp. 2d 1141, 1160 (E.D. Cal. 2006)

10

Id. (citing Trujillo v. N. Cty. Transit Dist., 63 Cal.

(Damrell, J.) (same).

11

As discussed above, plaintiff has sufficiently alleged

12

that defendant discriminated against her in violation of FEHA by

13

placing her on disability leave instead of granting her a

14

reasonable accommodation that would allow her to work.

15

alleged violation caused plaintiff economic loss by requiring her

16

to take a 30% pay cut while on leave.

17

disability discrimination claim survives defendant’s motion to

18

dismiss, her failure to prevent discrimination claim survives the

19

motion as well.

20

1470134, at *9; Juell, 456 F. Supp. 2d at 1160.

21
22

D.

This

Because plaintiff’s FEHA

See Achal, 114 F. Supp. 3d at 804; Rux, 2007 WL

Age Discrimination
Plaintiff’s fifth cause of action alleges that

23

defendant discriminated against her based on her age in violation

24

of FEHA, Cal. Gov. Code § 12940(a).

25

make out a prima facie case of age discrimination under FEHA, a

26

plaintiff must present evidence that the plaintiff (1) is over

27

the age of 40; (2) suffered an adverse employment action; (3) was

28

performing satisfactorily at the time of the adverse action; and
20

(FAC at 13.)

“In order to

1

(4) suffered the adverse action under circumstances that give

2

rise to an inference of unlawful discrimination, i.e., evidence

3

that the plaintiff was replaced by someone significantly younger

4

than the plaintiff.”

5

App. 4th 297, 321 (4th Dist. 2010).

6

Sandell v. Taylor-Listug, Inc., 188 Cal.

Plaintiff, who is fifty-four, (see FAC ¶ 12), has not

7

alleged facts giving rise to a plausible inference of age

8

discrimination.

9

disability leave with 70% pay qualifies as an “adverse employment

Even assuming that plaintiff’s being placed on

10

action” for purposes of a FEHA age discrimination claim, there

11

are no facts indicating that defendant’s decision to place her on

12

leave was because of her age.

13

has been replaced by a younger employee, that she overheard any

14

negative comments about her age, or that age was ever a point of

15

discussion at any time during her communications with defendant

16

about an accommodation for her back problems.

17

counsel

18

alleges is allowed to work from home, is younger than plaintiff.

19

That fact, however, is not alleged in the Complaint.

20

Plaintiff does not allege that she

Plaintiff’s

stated at oral argument that plaintiff’s boss, who she

Plaintiff does allege that defendant’s CEO, Meg

21

Whitman, issued a company-wide memo stating that the company

22

should “amp[] up . . . college hiring” and “return to a labor

23

pyramid that really looks like a triangle where you have a lot of

24

early career people” before she was placed on leave.

25

At worst, the memo suggests that defendant may seek to hire more

26

young applicants at the expense of older ones.

27

a job applicant, and there is no suggestion in the memo, as

28

alleged in plaintiff’s Complaint, that defendant was seeking to
21

(Id. ¶ 71.)

Plaintiff is not

1

get rid of current employees who are not young.

2

Because plaintiff has not alleged facts that plausibly

3

suggest she was placed on disability leave because of age

4

discrimination, she has failed to state a plausible claim of age

5

discrimination under FEHA.

6
7

E.

Intentional Infliction of Emotional Distress
Plaintiff’s sixth and final cause of action alleges

8

that defendant intentionally inflicted emotional distress upon

9

her during the course of its interactions with her concerning her

10

medical condition.

11

cause of action for intentional infliction of emotional distress

12

exists when there is (1) extreme and outrageous conduct by the

13

defendant with the intention of causing, or reckless disregard of

14

the probability of causing, emotional distress; (2) the

15

plaintiff’s suffering severe or extreme emotional distress; and

16

(3) actual and proximate causation of the emotional distress by

17

the defendant’s outrageous conduct.”

18

1035, 1050 (2009).

19

(Id. at 13.)

Under California law, “[a]

Hughes v. Pair, 46 Cal. 4th

Plaintiff states, in her Opposition, that an email from

20

one of her supervisors rejecting her request to work at Folsom

21

was particularly “brusque,” (Pl.’s Opp’n at 7), and that she was

22

“shocked by [its] threatening tone,” (FAC ¶ 41).

23

states, in relevant part:

24
25
26
27
28

The email

The note from your doctor does not identify any work
restrictions because travel is not an essential
function of your role and as a result, is not
something the Company is required to accommodate. . .
. . Please be advised that you are expected to return
to the office immediately. Failure to do so may result
in disciplinary action.
22

1

(Id. ¶ 40.)

2

choose between 1) ignoring her treating doctor’s strict

3

instructions and risking permanent damage to her back and spine

4

by commuting to Roseville, or 2) incur[ing] ‘disciplinary action’

5

that could result in her getting fired from her job.”

6

41.)

7

[defendant] to engage in good faith dialogue,” defendant’s

8

decision to place her on leave and cut her pay, and “uncertainty

9

about her job” resulting from defendant’s conduct were all

This email, according to plaintiff, required her “to

(Id. ¶

Plaintiff alleges that the email, “the refusal of

10

“substantial factor[s] in causing [her] severe emotional

11

distress.”

12

(Id. ¶ 77; Pl.’s Opp’n at 17.)

Again, it will be for the trier of fact to determine

13

whether defendant’s treatment of plaintiff rose to the level of

14

“extreme and outrageous” conduct.

15

decline to dismiss plaintiff’s sixth claim at this time.

16

Evergreen, 720 F.3d at 45.

17

The court will accordingly
See

IT IS THEREFORE ORDERED that defendant’s Motion to

18

Dismiss plaintiff’s Complaint be, and the same hereby is, GRANTED

19

IN PART and DENIED IN PART, as follows:

20

The following causes of action alleged by plaintiff are

21

DISMISSED WITHOUT PREJUDICE: (1) disability discrimination in

22

violation of the ADA, 42 U.S.C. §§ 12101 et seq.; (2) failure to

23

engage in an interactive process in violation of the ADA, 42

24

U.S.C. § 12112(b)(5)(A); (3) failure to provide reasonable

25

accommodation in violation of the ADA, 42 U.S.C. §

26

12112(b)(5)(A); and (4) age discrimination in violation of FEHA,

27

Cal. Gov. Code § 12940(a).

28

Defendant’s Motion to dismiss the following causes of
23

1

action is DENIED: (1) disability discrimination in violation of

2

FEHA, Cal. Gov. Code § 12940; (2) failure to engage in an

3

interactive process in violation of FEHA, Cal. Gov. Code §

4

12940(n); (3) failure to provide reasonable accommodation in

5

violation of FEHA, Cal. Gov. Code § 12940(m); (4) failure to

6

prevent discrimination and harassment in violation of FEHA, Cal.

7

Gov. Code § 12940(k); and (5) intentional infliction of emotional

8

distress.

9

Plaintiff has twenty days from the date this Order is

10

signed to file an amended complaint, if she can do so consistent

11

with this Order.

12

Dated:

January 11, 2017

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