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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 BETTY RAVEL, Plaintiff, 13 14 15 16 17 18 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. 19 20 21 ----oo0oo---Plaintiff Betty Ravel filed this action against 22 defendant Hewlett-Packard Enterprise, alleging that defendant 23 discriminated against her on the basis of her disability in 24 violation of the American with Disabilities Act (“ADA”) and the 25 California Fair Employment and Housing Act (“FEHA”). 26 Removal Ex. A, First Am. Compl. (“FAC”) (Docket No. 1).) 27 the court is defendant’s Motion to Dismiss plaintiff’s Complaint. 28 (Def.’s Mot. (Docket No. 4).) 1 (Notice of Before 1 2 I. Factual and Procedural Background Plaintiff began working for defendant, a computer 3 technology company, in 2010. 4 was promoted to Sales Administration Manager, a position that 5 involves managing teams of Executive Assistants “located all over 6 the U.S. and internationally.” 7 plaintiff, she would “manage[] her team on a virtual basis from 8 her home office [in Folsom, CA], using Skype, e-mail and 9 collaborative software,” “with occasional trips to the company’s 10 11 [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 12 experiencing shooting pains in her left leg.” 13 doctor diagnosed her with sciatica and a herniated and two 14 bulging spine discs. 15 “attempted to work a few days in Roseville,” which she alleges is 16 a one hour commute from her home. 17 that “[a]fter the third day of commuting to Roseville,” the pain 18 in her left leg became “excruciating.” 19 “resumed working at home.” 20 (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- 21 site in Roseville. 22 this time in both legs.” 23 Roseville, according to plaintiff, was interfering with her 24 acupuncturist’s “orders [to] . . . alternate[] sitting, standing 25 and lying down in . . . 30-minute rotation[s],” and thus 26 “exacerbat[ing] her herniated and bulging discs” and putting her 27 at risk for “irreparable spinal damage.” 28 After three days, the severe pain returned-(Id. ¶ 28.) The one-hour commute to (Id. ¶ 29.) In April 2016, plaintiff requested that defendant allow 2 1 her to work exclusively from home going forward. 2 Defendant denied her request in July 2016 and told her that it 3 could “accommodate [her medical] restrictions in the [Roseville] 4 office.” 5 transfer her to its Folsom office, which she alleges “is only 6 fifteen minutes from her home.” 7 that request as well. 8 9 (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 10 until September 2016, at which time her pay was reduced to 70%. 11 (Id. ¶ 44.) 12 on leave, she has been “ready, willing and able to work from her 13 home.” 14 Plaintiff alleges that during the time she has been (Id. ¶ 45.) Plaintiff filed this action in the California Superior 15 Court on September 21, 2016. 16 asserts the following causes of action against defendant: (1) 17 disability discrimination in violation of the ADA, 42 U.S.C. §§ 18 12101 et seq., and FEHA, Cal. Gov. Code § 12940; (2) failure to 19 engage in an interactive process in violation of the ADA, 42 20 U.S.C. § 12112(b)(5)(A), and FEHA, Cal. Gov. Code § 12940(n); (3) 21 failure to provide reasonable accommodation in violation of the 22 ADA, 42 U.S.C. § 12112(b)(5)(A), and FEHA, Cal. Gov. Code § 23 12940(m); (4) failure to prevent discrimination and harassment in 24 violation of FEHA, Cal. Gov. Code § 12940(k); (5) age 25 discrimination in violation of FEHA, Cal. Gov. Code § 12940(a); 26 and (6) intentional infliction of emotional distress. 27 10-13.) 28 (Notice of Removal at 1.) She (FAC at Defendant removed plaintiff’s action to this court on 3 1 November 1, 2016. 2 dismiss plaintiff’s Complaint pursuant to Federal Rule of Civil 3 Procedure 12(b)(6). 4 II. (Notice of Removal.) Defendant now moves to (Def.’s Mot.) Legal Standard 5 On a motion to dismiss for failure to state a claim 6 under Rule 12(b)(6), the court must accept the allegations in the 7 pleadings as true and draw all reasonable inferences in favor of 8 the plaintiff. 9 overruled on other grounds by Davis v. Scherer, 468 U.S. 183 See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), 10 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). 11 motion to dismiss, a plaintiff must plead “only enough facts to 12 state a claim to relief that is plausible on its face.” 13 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 14 To survive a Bell The “plausibility” standard, “asks for more than a 15 sheer possibility that a defendant has acted unlawfully,” and 16 where a plaintiff pleads facts that are “merely consistent with a 17 defendant’s liability,” the facts “stop[] short of the line 18 between possibility and plausibility.” 19 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). 20 Ashcroft v. Iqbal, 556 “While a complaint attacked by a Rule 12(b)(6) motion 21 to dismiss does not need detailed factual allegations, a 22 plaintiff’s obligation to provide the ‘grounds’ of his 23 ‘entitle[ment] to relief’ requires more than labels and 24 conclusions . . . .” 25 omitted). 26 action, supported by mere conclusory statements, do not suffice,” 27 and “the tenet that a court must accept as true all of the 28 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 4 1 conclusions.” 2 III. Discussion 3 A. Iqbal, 556 U.S. at 678. Disability Discrimination and Reasonable Accommodation 4 Plaintiff’s first cause of action alleges that 5 defendant discriminated against her on account of her disability. 6 (FAC at 10.) 7 failed to provide her a reasonable accommodation. 8 Each claim is brought under both the ADA and FEHA. 9 Her third cause of action alleges that defendant (Id. at 12.) The ADA and FEHA each provide protections to disabled 10 employees. 11 While courts in this circuit have often analyzed claims brought 12 under the ADA and FEHA together, see, e.g., Humphrey v. Mem’l 13 Hosps. Ass’n, 239 F.3d 1128, 1140 (9th Cir. 2001) (“We analyze 14 [plaintiff’s] state and federal disability claims together . . . 15 .”), they have also noted that “in a number of instances[,] 16 FEHA’s anti-discrimination provisions provide even greater 17 protection to employees than does the ADA,” Diaz v. Fed. Express 18 Corp., 373 F. Supp. 2d 1034, 1053 (C.D. Cal. 2005). 19 provides greater protection than the ADA in some instances, “a 20 judgment for a defendant as to an ADA claim will not necessarily 21 lead to a similar judgment with respect to a FEHA claim.” 22 v. City of San Jose, 261 F.3d 877, 895 (9th Cir. 2001). 23 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 24 is whether defendant satisfied its obligation to provide her a 25 lawful accommodation by placing her on paid disability leave, 26 instead of allowing her to work from her home or at its Folsom 27 office. 28 question, the court will address plaintiff’s disability Because the ADA and FEHA differ with respect to this 5 1 discrimination and reasonable accommodation claims under the two 2 legislations separately. 3 1. 4 5 Disability Discrimination and Reasonable Accommodation Under the ADA “The ADA prohibits an employer from discriminating 6 against a qualified individual with a disability ‘because of the 7 disability.’” 8 1246 (9th Cir. 1999) (quoting 42 U.S.C. § 12112(a)). 9 prima facie claim of disability discrimination under the ADA, Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, To state a 10 plaintiff must allege facts that plausibly show: “(1) [she] is a 11 disabled person within the meaning of the [ADA]; (2) [she] is a 12 qualified individual with a disability; and (3) [she] suffered an 13 adverse employment action because of [her] disability.” 14 v. Elf Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001). 15 Hutton With respect to the first prong, the ADA defines a 16 “disabled person” as an individual who has “a physical or mental 17 impairment that substantially limits one or more of the 18 individual’s major life activities.” 19 Dep’t of Treasury, 383 F.3d 879, 884 (9th Cir. 2004). 20 impairment covered under the ADA includes any physiological 21 disorder,” id., and “major life activities” includes “standing,” 22 “sitting,” and “lifting,” 29 C.F.R. § 1630.2. 23 limited” means that a person is “significantly restricted as to 24 condition, manner or duration under which [she] can perform [the] 25 particular major life activity as compared to . . . [an] average 26 person in the general population.” 27 “Temporary, non-chronic impairments of short duration, with 28 little or no long term or permanent impact, are usually not 6 Coons v. Sec’y of U.S. “An “Substantially Coons, 383 F.3d at 885. 1 disabilities.” 2 1271, 1276 (N.D. Cal. 1996) Wilmarth v. City of Santa Rosa, 945 F. Supp. 3 Defendant’s only challenge with respect to the first 4 prong is that plaintiff cannot base her argument for “disabled 5 person” status on mere “recommendations” from her physician 6 alone. 7 plaintiff alleges that her acupuncturist’s advice that she not 8 sit or stand for more than thirty minutes was in fact a “strict 9 order[].” 10 (Def.’s Mot. at 15.) That argument fails because (FAC ¶ 29.) Plaintiff alleges that her sciatica and disc condition 11 prevent her from sitting or standing for more than thirty 12 minutes, or lifting anything “more than ten pounds.” 13 29.) 14 time “with proper treatment and care,” (id. ¶ 36), she also 15 alleges that the effects of the condition and her need for 16 accommodation are “permanent,” (id. ¶¶ 32, 36). 17 reasonable inferences in plaintiff’s favor, the court finds that 18 these allegations are sufficient to plausibly suggest that 19 plaintiff is a “disabled person” within the meaning of the ADA. 20 (See FAC ¶ While she indicates that her condition would improve over Drawing With respect to the second prong, the ADA defines 21 “qualified individuals” as those “with a disability who, with or 22 without reasonable accommodation, can perform the essential 23 functions of the employment position that such individual holds.” 24 42 U.S.C. § 12111(8). 25 current position since March 2015, (FAC ¶ 15), alleges that since 26 being diagnosed with back problems, she has been able to work 27 from home without “miss[ing] a beat,” and that she is “ready, 28 willing and able” to continue working if allowed to work from Plaintiff, who has been employed in her 7 1 home or at defendant’s Folsom office, (FAC ¶¶ 27, 30, 37). 2 Defendant did not dispute the “qualified” prong in its Motion. 3 Thus, the court finds that plaintiff has plausibly alleged that 4 she is a “qualified individual” under the ADA. 5 With respect to the third prong, defendant notes that 6 the only adverse employment action plaintiff claims she was 7 subject to was defendant’s decision to deny her request to work 8 from home or at Folsom. 9 that its decision to deny her request does not constitute an (Def.’s Mot. at 11.) Defendant argues 10 adverse employment action because it offered her two “reasonable” 11 alternatives to what she requested: (1) working at defendant’s 12 Roseville office with leave to lie down in the conference room as 13 needed, and (2) taking a paid leave of absence to recover from 14 her back condition. 15 (See id.; FAC ¶¶ 42, 45.) Defendant correctly notes that under the ADA, “[a]n 16 employer is not obligated to provide an employee the 17 accommodation [she] requests or prefers, the employer need only 18 provide some reasonable accommodation.” 19 California Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) 20 (citing E.E.O.C. v. Yellow Freight Sys. Inc., 253 F.3d 943, 951 21 (7th Cir. 2001)). 22 accommodations, therefore, is not an “adverse employment action” 23 within the meaning of the ADA if either of the alternatives it 24 offered her is a “reasonable accommodation.”1 25 26 27 28 1 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 8 1 The ADA does not define the term “reasonable 2 accommodation” with much precision. See 42 U.S.C. § 12111(9). 3 The Equal Employment Opportunity Commission, however, has 4 promulgated regulations that define “reasonable accommodation” to 5 include “[m]odifications or adjustments to the work environment, 6 or to the manner or circumstances under which the position held 7 or desired is customarily performed, that enable an individual 8 with a disability who is qualified to perform the essential 9 functions of that position.” 29 C.F.R. § 1630.2(o)(1)(ii). The 10 Ninth Circuit has similarly held that a “reasonable accommodation 11 must be effective, in enabling the employee to perform the duties 12 of [her] position.” 13 Humphrey, 239 F.3d at 1137. The first alternative offered by defendant--working at 14 its Roseville office with permission to lie down in the 15 conference room as needed--does not “enabl[e plaintiff] to 16 perform the duties of [her] position” because it does not address 17 plaintiff’s alleged inability to commute to Roseville. 18 ¶¶ 29, 36 (noting that hour-long commute to Roseville was 19 “exacerbate[ing]” back condition).) 20 ADA does not require employers to accommodate employees’ commutes 21 because commutes are not considered part of their job duties. 22 (See Def.’s Mot. at 10-11.) 23 that an employer has an obligation “to accommodate an employee’s 24 limitations in getting to and from work” under the ADA.2 25 [disability] discrimination.”). 26 27 28 2 (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. 9 1 Livingston v. Fred Meyer Stores, Inc., 388 F. App’x 738, 740 (9th 2 Cir. 2010); see also Humphrey, 239 F.3d at 1135 (holding that 3 employer had obligation to accommodate employee’s inability to 4 get to work on time or at all due to obsessive compulsive 5 disorder). 6 alleged inability to commute to the Roseville office, defendant’s 7 offer to have plaintiff continue working at the Roseville office 8 does not constitute a reasonable accommodation. 9 239 F.3d at 1137. 10 In light of this holding and in light of plaintiff’s See Humphrey, Defendant’s second alternative, however, has been 11 recognized by the Ninth Circuit to be “reasonable.” 12 the Ninth Circuit held that a “leave of absence for medical 13 treatment may be a reasonable accommodation under the ADA” where 14 it would “permit [an employee], upon [her] return, to perform the 15 essential functions of [her] job.” 16 36. 17 Nunes, 164 F.3d at 1247 (“Unpaid medical leave may be a 18 reasonable accommodation under the ADA.”); Dark v. Curry Cty., 19 451 F.3d 1078, 1090 (9th Cir. 2006) (same). 20 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 21 22 23 24 25 26 27 28 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.) 10 1 [leave] as of July 22, 2016” and paid at least 70% of her monthly 2 salary since then. 3 problems, while “permanent” and requiring “ongoing care,” (id. ¶¶ 4 32, 36), would improve over time as she remained on leave, (id. ¶ 5 36 (noting that plaintiff was making “progress” when not being 6 forced to commute to Roseville)). 7 effects that plaintiff’s Roseville commute was having on her 8 back, plaintiff’s acupuncturist recommended that plaintiff “work 9 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 10 could recover, (id. ¶ 36), which suggests that after that period, 11 plaintiff would be able to resume working at Roseville. 12 these allegations suggest that a disability leave would allow 13 plaintiff to gain at least a partial recovery and, after a period 14 of a few months, resume working at Roseville, the court finds 15 that defendant’s offer of a paid medical leave constitutes a 16 “reasonable accommodation” within the meaning of the ADA. 17 Humphrey, 239 F.3d at 1135-36; Nunes, 164 F.3d at 1247. 18 Because See Because plaintiff’s Complaint indicates that defendant 19 offered her two accommodations--one of which was “reasonable”-- 20 she has failed to state a claim that defendant’s denial of her 21 preferred accommodations constitutes an “adverse employment 22 action” within the meaning of the ADA. 23 1089. 24 See Zivkovic, 302 F.3d at To the extent plaintiff might argue that her disability 25 leave, which involves a 30% pay cut, is nevertheless itself an 26 “adverse employment action,” district courts in this circuit and 27 several courts outside of this circuit have held that “a 28 reasonable accommodation cannot be a materially adverse 11 1 employment action.” 2 757 F. Supp. 2d 1065, 1121 (D. N.M. 2010); see also Bultemeyer v. 3 Fort Wayne Cmty. Sch., 100 F.3d 1281, 1283 (7th Cir. 1996) (“A 4 reasonable accommodation . . . should not be construed as an 5 adverse employment action.”); Selenke v. Med. Imaging of 6 Colorado, 248 F.3d 1249, 1265 (10th Cir. 2001) (where plaintiff 7 alleges ADA discrimination and reasonable accommodation claims, 8 the analyses for the two merge); Capote v. CSK Auto, Inc., No. 9 12-CV-02958 JST, 2014 WL 1614340, at *7 (N.D. Cal. Apr. 22, 2014) West v. New Mexico Taxation & Revenue Dep’t, 10 (same); Lafever v. Acosta, Inc., No. C10-01782 BZ, 2011 WL 11 1935888, at *4-5 (N.D. Cal. May 20, 2011) (same). 12 While the Ninth Circuit does not appear to have 13 addressed the question, the court finds the reasoning of the 14 above-cited cases to be instructive. 15 beyond what is required under the ADA when it placed plaintiff on 16 paid disability leave. 17 F.3d at 1090. 18 accommodation” in this case, while not the accommodation 19 plaintiff wanted, should not be construed to be an “adverse 20 employment action.” Defendant already went See Nunes, 164 F.3d at 1247; Dark, 451 Defendant’s provision of a “reasonable 21 Because plaintiff has failed to allege that defendant 22 carried out an “adverse employment action” against her, she has 23 failed to state a plausible claim of disability discrimination 24 under the ADA. 25 establish disability discrimination “by presenting evidence of 26 disparate treatment.” 27 256 F.3d 568, 572 (7th Cir. 2001). 28 disparate impact argument in her Opposition, noting that “many Some courts have held that plaintiffs may also See, e.g., Hoffman v. Caterpillar, Inc., 12 Plaintiff appears to raise a 1 other [Hewlett-Packard] employees . . . are permitted to work 2 from home.” 3 correctly notes, however, that plaintiff did not allege in her 4 Complaint that she was “treated differently than other similarly 5 situated individuals.” 6 (Pl.’s Opp’n at 5 (Docket No. 7).) Defendant (Def.’s Mot. at 17.) Having determined that defendant’s offer of paid 7 disability leave is a “reasonable accommodation” under the ADA, 8 the court also finds that plaintiff has failed to state a 9 plausible claim of failure to provide reasonable accommodation 10 under the ADA. 11 third causes of action, to the extent they are brought under the 12 ADA. 13 2. 14 15 Accordingly, the court will dismiss her first and Disability Discrimination and Reasonable Accommodation Under FEHA Plaintiff cites FEHA as a second statutory basis for 16 her disability discrimination and failure to provide reasonable 17 accommodation claims. 18 ADA, prohibits employers from discriminating against employees 19 “because of . . . [a] physical disability [or] mental 20 disability.” 21 provisions relating to disability discrimination are based on the 22 ADA, decisions interpreting federal anti-discrimination laws are 23 relevant in interpreting the FEHA’s similar provisions.” 24 Humphrey, 239 F.3d at 1133 n.6. 25 “analyze[d] . . . [FEHA] and federal disability claims together, 26 relying on federal authority in the absence of contrary or 27 differing state law.” 28 (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 13 1 allege the following in order to state a prima facie claim of 2 disability discrimination: “(1) plaintiff suffers from a 3 disability; (2) plaintiff is a qualified individual; and (3) 4 plaintiff was subjected to an adverse employment action because 5 of the disability.” 6 245, 254 (2d Dist. 2000). 7 findings with respect to prongs (1) and (2) in the above ADA 8 analysis resolve the same questions under FEHA. 9 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. 10 broadly than does the ADA”); Bates v. United Parcel Serv., Inc., 11 511 F.3d 974, 999 (9th Cir. 2007) (applying “qualified 12 individual” analysis under ADA to same inquiry under FEHA). 13 court is also satisfied that its findings with respect to the 14 reasonableness of the two accommodations defendant offered 15 plaintiff in the above ADA analysis resolve the same questions 16 under FEHA. 17 Cal. App. 4th 952, 973 (1st Dist. 2008) (noting that FEHA’s 18 definition of “reasonable accommodation” “is virtually identical 19 to the ADA’s statutory definition of the term”); Humphrey, 239 20 F.3d at 1133 (applying “reasonable accommodation” analysis under 21 ADA to same inquiry under FEHA). The See Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 22 Unlike the ADA, however, FEHA does not provide 23 employers complete autonomy in choosing which reasonable 24 accommodation, when there are more than one, to offer an 25 employee. 26 Regulations (“section 11068(c)”), which implements FEHA’s 27 “reasonable accommodation” provision, states: “When an employee 28 can work with a reasonable accommodation other than a leave of Section 11068(c) of title 2 of the California Code of 14 1 absence, an employer may not require that the employee take a 2 leave of absence.” 3 Wallace v. Cty. of Stanislaus, 245 Cal. App. 4th 109, 134 (5th 4 Dist. 2016) (applying section 11068(c) in FEHA case). 5 to this regulation, an employer’s decision to place an employee 6 on leave when she is able to work with another reasonable 7 accommodation “cannot be described as a lawful accommodation of a 8 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 9 10 despite her asking to be allowed to work from home or at 11 defendant’s Folsom office. 12 accommodation requested by plaintiff is a “reasonable” within the 13 meaning of FEHA, defendant will have failed to comply with 14 section 11068(c). 15 (FAC ¶¶ 30, 37, 45.) If either Under FEHA, a “reasonable accommodation is a 16 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 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24

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