Phomthevy v. WinCo Holdings, Inc.

Filing 41

ORDER signed by Chief District Judge Kimberly J. Mueller on 10/13/2020 GRANTING in full 27 Motion to Dismiss, with leave to amend, and DENYING 32 Motion for Sanctions. Plaintiff shall file a third amended complaint, if any, no later than 21 days from the issuance of this order. (Huang, H)

Case 2:19-cv-00041-KJM-CKD Document 41 Filed 10/13/20 Page 1 of 6
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SIBOU PHOMTHEVY,

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Plaintiff,

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No. 2:19-cv-00041-KJM-CKD

v.

ORDER

WINCO HOLDINGS, INC. d/b/a WINCO
FOODS,
Defendant.

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Defendant Winco Foods (“Winco”) moves to dismiss (“MTD”) plaintiff’s second

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amended complaint (“SAC”), MTD, ECF No. 27, and also for sanctions, Mot. Sanctions, ECF

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No. 32. Plaintiff Sibou Phomthevy opposes both motions. Opp’n to MTD, ECF No. 28; Opp’n to

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Mot. Sanctions, ECF No. 34. Winco replied to both oppositions. MTD Reply, ECF No. 31;

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Sanctions Reply, ECF No. 35. The court grants the motion to dismiss and denies the motion for

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sanctions, as explained below.

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I.

BACKGROUND
This is defendant’s second motion to dismiss. The court reviewed the relevant

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facts in its order on the first motion, and references them generally here. See generally Order on

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MTD at 1–2, ECF No. 22. Plaintiff’s claims for disability discrimination, failure to accommodate

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disability, failure to engage in interactive process and retaliation under the California Fair
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Employment and Housing Act (“FEHA”) all rely on the allegation that he has a statutorily

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defined disability. See SAC ¶¶ 24, 39, 52, 63. Plaintiff’s claim for violation of the California

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Family Rights Act (“CFRA”) relies on the allegation he suffered a “serious health condition”

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under the statute. Id. ¶ 77. Plaintiff’s final claim for relief is a common-law claim for

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termination in violation of public policy, in this case his termination in violation of FEHA and

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CFRA. Id. ¶ 89. As a result, it too rests on the allegations that plaintiff is disabled in the

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meaning of FEHA and suffers a serious health condition in the meaning of CFRA.

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In its prior order, the court found the first amended complaint insufficiently
alleged facts supporting the existence of a disability. Order on MTD at 3. Specifically, the court

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found the allegation that plaintiff “suffered and continues to suffer from a disability which

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requires ongoing treatment,” causing him to experience “severe back pain as a result of his

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disability,” was insufficient to state a claim. Order on MTD at 4, quoting First Am. Compl. ¶ 7,

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11. Plaintiff’s second amended complaint now states, “[s]pecifically, Plaintiff suffered from an

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acute back injury, and continues to suffer from chronic and severe back pain that limited major

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life activities including but not limited to: sleeping, getting out of bed, walking, sitting, lifting,

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bending and moving.” SAC ¶ 8.

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II.

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LEGAL STANDARD
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to

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dismiss a complaint for “failure to state a claim upon which relief can be granted.” A court may

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dismiss “based on the lack of cognizable legal theory or the absence of sufficient facts alleged

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under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

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1990).

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Although a complaint need contain only “a short and plain statement of the claim

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showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), in order to survive a motion

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to dismiss this short and plain statement “must contain sufficient factual matter . . . to ‘state a

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claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something

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more than “an unadorned, the-defendant-unlawfully-harmed-me accusation” or “‘labels and
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conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Id. (quoting

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Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss

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for failure to state a claim is a “context-specific task that requires the reviewing court to draw on

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its judicial experience and common sense.” Id. at 679. Ultimately, the inquiry focuses on the

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interplay between the factual allegations of the complaint and the dispositive issues of law in the

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action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

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In making this context-specific evaluation, this court must construe the complaint

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in the light most favorable to the plaintiff and accept as true the factual allegations of the

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complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). This rule does not apply to “‘a legal

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conclusion couched as a factual allegation,’” Papasan v. Allain, 478 U.S. 265, 286 (1986) quoted

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in Twombly, 550 U.S. at 555, nor to “allegations that contradict matters properly subject to

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judicial notice” or to material attached to or incorporated by reference into the complaint.

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III.

DISCUSSION
Defendant contends plaintiff still fails to allege facts sufficient to support his claim

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of a FEHA-protected disability. The court agrees. At hearing on the earlier motion, the court

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stated, “So just one example, the allegation of severe back pain as a result of the disability but no

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identification of the disability, that would need to be cured.” May 17, 2019 Hr’g Tr., ECF No. 26

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at 3:2–5. In other words, the court directed plaintiff to specify the source of his pain, which

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plaintiff described as resulting from his disability, rather than relying on the pain as the disability

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itself. Plaintiff now alleges the disability causing his pain is a generalized “acute back injury.”

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SAC ¶ 8. This allegation addresses the court’s observation at hearing quoted above, but as the

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court noted that recommendation was not exclusive. Defendants are correct that the new

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allegation, standing alone, is insufficient to show the plausibility of plaintiff’s claims as required.

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To show he is disabled by a physical condition under FEHA, plaintiff must show

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he has a condition that affects one or more bodily systems and limits a major life activity,

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including working. Cal. Gov’t Code § 12926(m)(1). Pain may constitute a disability if there is a

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“corresponding limitation on activity.” Arteaga v. Brink’s Inc., 163 Cal. App. 4th 327, 348

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(2008). Here, plaintiff alleges his back pain resulting from an acute back injury limits his
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sleeping, getting out of bed, walking, sitting, lifting, bending and moving. SAC ¶ 8. This is the

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full extent of his explanation of how his disability limits him. Plaintiff need not provide a

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detailed description of how his disability limits each activity; however, “[t]hreadbare recitals of

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the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). It is

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impossible to discern from the complaint how and in what way the acute back injury limits

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plaintiff’s activities.

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Likewise, the complaint lacks factual detail about plaintiff’s job. Several types of
FEHA claims require plaintiff to prove he could perform the essential duties of his job with

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reasonable accommodation. See Wills v. Sup. Ct., 195 Cal. App. 4th 143, 159–60 (2011)

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(disability discrimination requires ability to perform job with or without accommodation); Scotch

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v. Art Inst. of Cal., 173 Cal. App. 4th 986, 1010 (2009) (failure to accommodate requires ability

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to perform job with reasonable accommodation); Wilson v. Cty. Of Orange, 169 Cal. App. 4th

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1185, 1193 (2009) (failure to engage interactive process relies on reasonable accommodation).

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While plaintiff need not identify specific reasonable accommodations at the pleading stage, Nealy

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v. City of Santa Monica, 234 Cal. App. 4th 359, 379 (2015), he must provide more than vague

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notice of his “acute back injury” limiting a selection of major life activities, many of them

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unrelated to the workplace. The complaint does not identify the title of plaintiff’s position with

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defendants, much less provide a broad sketch of his essential duties, leading defendants and the

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court to speculate as to how his limitations would have necessitated accommodation.

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The same defect renders plaintiff’s CFRA claim insufficiently pled as well. To

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state a right to leave work under CFRA, the plaintiff must show his health condition “makes the

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employee unable to perform the functions of the position of that employee.” Lonicki v. Sutter

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Health Cent., 43 Cal. 4th 201, 213 (2008) (citing Cal. Gov’t Code § 12945.2(c)(3)(C)). The court

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cannot discern plaintiff’s job functions at this point.

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Lastly, because plaintiff does not plead facts that plausibly make out his protection

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under FEHA, his wrongful termination in violation of public policy claim must fail as well. That

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cause of action requires that plaintiff’s termination be substantially motivated by a violation of
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public policy. Yau v. Santa Margarita Ford, Inc., 229 Cal. App. 4th 144, 154 (2014). Here, the

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nonconclusory facts alleged are too threadbare to plausibly support that there was a violation of

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public policy.

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To state claims, plaintiff must plead facts, not just conclusory statements of law. If

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taken as true, those factual allegations must establish a plausible connection from his injury, to his

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limitations on life activities, to his need for accommodation at his job. The complaint still is

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simply too threadbare in numerous respects to establish the required connections at present.

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Therefore, defendant’s motion to dismiss is GRANTED.

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IV.

LEAVE TO AMEND AND SANCTIONS
Under Federal Rule of Civil Procedure 15(a)(2), “[t]he court should freely give

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leave [to amend pleadings] when justice so requires.” Fed. R. Civ. P. 15(a)(2). The court is

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“guided by the underlying purpose of Rule 15–to facilitate decision on the merits rather than on

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the pleadings or technicalities.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.

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1987) (citation and internal quotation marks omitted).

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Despite defendant’s assertion that the court admonished plaintiff his complaint

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would be dismissed with prejudice for failure to comply, the court can find no record of that

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admonishment in either the hearing transcript or the prior order. Defendants also argue the

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medical records they received in discovery demonstrate plaintiff did not have a disabling back

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injury at all, rendering amendment futile and the complaint sanctionable. See Decl. of

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Christopher Truxler, ECF No. 32–2, ¶ 4. The parties dispute whether these medical records

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present an exhaustive picture of plaintiff’s health. Plaintiff’s counsel represents she served a

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supplemental response to interrogatories identifying several more health providers than initially

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disclosed, and that defendant’s subpoena of records to those providers remained pending as of the

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opposition to the motion for sanctions. Decl. of Christina Begakis, ECF No. 34–1, ¶¶ 15–16;

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Opp’n to Mot. Sanctions Ex. 3, ECF No. 34–4.

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At present, it appears plaintiff’s lack of support for a disability may be due to an

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incomplete picture of his medical history, rather than a total absence of factual support.

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Ultimately, without more, whether plaintiff’s medical records support the existence of an acute
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back injury constituting a protected disability is essentially a factual dispute not suited for

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resolution on a motion to dismiss. See Dahlia v. Rodriguez, 735 F.3d 1060, 1076 (9th Cir. 2013)

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(“Our task is not to resolve any factual dispute” on a 12(b)(6) motion). Because it is possible

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plaintiff’s medical records could support the existence of the unspecified acute back injury, the

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court will grant leave to amend consistent with the reasoning above. For the same reasons,

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sanctions for failure to bring a claim based on factual contentions with evidentiary support are

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denied.

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All of the above said, should plaintiff bring a third amended complaint that cannot
remedy the deficiencies identified here, the court anticipates dismissing this action with prejudice.

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If plaintiff’s amended complaint lacks evidentiary support in light of a more complete picture of

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his health, defendant may renew its motion for sanctions.

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V.

CONCLUSION

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For the foregoing reasons, defendant’s motion to dismiss is GRANTED in full,

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with leave to amend. Defendant’s motion for sanctions is DENIED. Plaintiff shall file a third

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amended complaint, if any, no later than twenty-one (21) days from the issuance of this order.

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This order resolves the filings at ECF Nos. 27 and 32.

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IT IS SO ORDERED
DATED: October 13, 2020.

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