Aref Rafieh v. Safeway Inc.

Filing 13

Order by Magistrate Judge Howard R. Lloyd granting 5 Motion to Dismiss. (hrllc3S, COURT STAFF) (Filed on 4/25/2017)

E-filed 4/25/2017

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AREF RAFIEH,
Plaintiff,

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United States District Court
Northern District of California

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v.
SAFEWAY INC.,

Case No.17-cv-01413-HRL
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS
Re: Dkt. No. 5

Defendant.
Pending before the court is Defendant Safeway, Inc.’s (“Safeway”) motion to dismiss three

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of the eleven claims brought by Plaintiff Aref Rabieh (“Rabieh”). Dkt. No. 5. Both parties have

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consented to magistrate judge jurisdiction. Dkt. Nos. 8, 9. For the reasons described below, the

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court grants the motion to dismiss.
BACKGROUND

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The following facts are alleged in Rabieh’s complaint. Dkt. No. 1, Ex. A. Rabieh started

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working as a food clerk at Safeway, a supermarket chain, in October 2010. Id., ¶ 1. He received

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positive performance reviews. Id., ¶ 10.

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Rabieh takes prescription medication for back pain. Id., ¶ 11. In 2016, he took several

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sick days to deal with this pain. Id., ¶ 12. His manager, however, called him and threatened to

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fire him if he took additional sick days, putting Rabieh in fear of losing his job. Id. As a result,

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Rabieh came into work “despite extreme pain” on December 19, 2016, having taken prescription

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medication earlier that day. Id., ¶ 13. Once Rabieh arrived at work, his manager accused him of

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being drowsy and “under the influence,” ordered him to take a drug test, and suspended his

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employment. Id., ¶ 13.

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Rabieh tested positive for his prescription pain medication—and for no other drugs. Id., ¶
14. Safeway did not work with Rabieh to find a reasonable accommodation for his pain. Id., ¶ 15.

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Instead, despite Rabieh showing his supervisors his prescription paperwork and doctor’s notes

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confirming that he had been prescribed the medicine for which he tested positive, Rabieh was

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terminated. Id., ¶¶ 14, 15. The official reason given for Rabieh’s termination was his violation of

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unspecified “company policies and rules.” Id., ¶ 15. As a result of his termination and the events

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leading up to it (including his manager’s threats and the imposed drug test), Rabieh experienced

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“mental distress, anguish, indignation, humiliation, depression, anxiety, fear, loss of sleep, loss of

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appetite, and body-aches.” Id., ¶ 70.

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Rabieh filed suit against Safeway in Santa Clara Superior Court less than one month after
his termination. Dkt. No. 1, ¶ 1. His complaint alleges eleven claims, including: unlawful

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retaliation in violation of public policy, wrongful termination in violation of public policy,

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United States District Court
Northern District of California

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discrimination and harassment, failure to prevent and investigate discrimination and harassment,

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failure to provide reasonable accommodation, violation of California Family Rights Act

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(“CFRA”) / Family Medical Leave Act (“FMLA”) rights, intentional infliction of emotional

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distress, negligent infliction of emotional distress, negligence, and invasion of privacy. Dkt. No.

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1, Ex. A. Safeway removed the action to federal court on the basis of federal question jurisdiction

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and filed the present motion to dismiss. Dkt. Nos. 1, 5.

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Safeway moves to dismiss only Rabieh’s claims for intentional infliction of emotional

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distress, negligent infliction of emotional distress, and negligence. Dkt. No. 5. Safeway asserts

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that each claim is barred by the exclusive remedy provisions of California’s Workers’

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Compensation Act (“WCA”)—and thus that leave to amend is not warranted. Id. Safeway also

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argues that dismissal of each claim is appropriate on the grounds that Rabieh fails to state a claim

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upon which relief may be granted. Id. For the intentional infliction of emotional distress claim,

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Safeway asserts that Rabieh does not allege extreme and outrageous conduct. Id. For the

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negligent infliction of emotional distress and negligence claims, Safeway argues that Rabieh

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alleges only intentional actions by Safeway and that he fails to sufficiently plead the essential

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elements of a negligence claim. Id.

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In response, Rabieh argues that his claims are not barred by the WCA’s exclusivity
provisions because Safeway’s discriminatory conduct both falls outside the normal course of
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employment and implicates substantial public policy considerations. Dkt. No. 7. Rabieh further

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asserts that Safeway’s conduct in threatening to fire him for taking sick leave, forcing him to take

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a drug test, and firing him for taking prescription drugs is “outrageous”—or at least that the

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question of whether this conduct is outrageous should go to a jury. Id. As for his negligence and

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negligent infliction of emotional distress claims, Rabieh argues that Safeway negligently handled

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his termination by breaching the standard of care of a reasonable employer who should not

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terminate employees for attempting to manage their pain. Id. If the court finds the negligence-

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related claims insufficiently plead, Rabieh requests leave to amend to allege additional facts as to

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the reasons Safeway provided Rabieh for his termination (namely, that the levels of the pain
medication in Rabieh’s system were above those typically found in the bodies of those taking that

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United States District Court
Northern District of California

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medication; Rabieh argues that his supervisors were neither doctors nor his doctor, and that their

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decision to terminate him on the basis of their own medical opinions was negligent). Id.

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LEGAL STANDARD
To survive a motion to dismiss, a complaint must allege sufficient facts to state a claim for

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relief that is facially plausible. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim

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has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009). Complaints that merely recite the elements of a cause of action are

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insufficient. Id. In considering a motion to dismiss, a court accepts all of the plaintiff’s factual

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allegations as true and construes the pleadings in the light most favorable to the plaintiff.

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Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “the court

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is not required to accept legal conclusions cast in the form of factual allegations if those

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conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness

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Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

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DISCUSSION
Safeway argues that each of the three claims it moves to dismiss are barred by the
exclusive remedy provisions of the WCA.
The WCA is the exclusive remedy for employees suffering physical or mental injuries
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arising out of the course of employment. Shoemaker v. Myers, 52 Cal. 3d 1, 7, 15. The WCA’s

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exclusive remedy provisions institute a “compensation bargain” between employers and

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employees governing claims for such injuries. Id., at 16. In this bargain, employees receive faster

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and more certain awards of compensation in exchange for giving up the more varied and

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substantial damages available at common law. Id. There are two relevant exceptions to WCA

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exclusivity. Claims may fall beyond the WCA’s exclusivity when either (1) the defendant’s

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conduct causing the injury is not “a normal part of the employment relationship” and/or has a

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“questionable” relationship to the employment, or (2) the conduct violates a “fundamental public

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policy of [the] state.” Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 24 Cal. 4th 800,

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United States District Court
Northern District of California

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812, 820, 823 (2001).
Safeway argues that neither exception applies. The conduct alleged by Rabieh, it asserts—

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specifically, termination and discipline related to a drug test—are well within a normal

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employment relationship. For this proposition, Safeway cites Cole v. Fair Oaks Fire Protection

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District, in which the court stated that “every employer must on occasion review, criticize,

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demote, transfer and discipline employees.” 43 Cal. 3d 148, 160 (1987). Additionally, Safeway

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argues that Rabieh’s claims do not fall under the public policy exception.

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Rabieh disagrees. Safeway’s conduct, he argues, included harassment, discrimination on

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the basis of disability, retaliation on the basis of a protected characteristic, and a failure to provide

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a reasonable accommodation—or even to engage in an interactive process discussing such an

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accommodation. Such discrimination and retaliation, he claims, move Safeway’s conduct beyond

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the typical bounds of an employment relationship and violate a public policy of the state.

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The court is persuaded that Safeway’s complained-of conduct falls within the normal

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bounds of employment. First, Rabieh’s assertions that Safeway’s motives were intentional do not

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seem to have a place in this part of the analysis. Cole, 43 Cal. 3d at 160 (“[W]hen the misconduct

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attributed to the employer is actions which are a normal part of the employment relationship, . . .

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an employee suffering emotional distress . . . may not avoid the exclusive remedy provisions of

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the Labor Code by characterizing the employer’s decisions as manifestly unfair, outrageous,

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harassment, or intended to cause emotional disturbance resulting in disability.”). Second, the
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conduct alleged by Rabieh is more similar to the conduct other courts have determined to be part

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of the normal employment relationship than it is to the conduct deemed beyond those bounds.

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Compare Semore v. Pool, 217 Cal. App. 3d 1087, 1092, 1104 (1990) (finding that an employee’s

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termination for refusing to take a random drug test was “a normal part of the work relationship”),

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and Cole, 43 Cal. 3d at 151-53, 160 (finding that harassment of an employee for union activities

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and unwarranted disciplinary hearings, demotions, and termination were part of the normal

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employment relationship), with Hart v. Nat’l Mortg. & Land Co., 189 Cal. App. 3d 1420, 1424,

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1430 (1987) (finding that a supervisor’s sexual harassment of the plaintiff had a questionable

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relationship to the employment); see also Shoemaker v. Myers, 52 Cal. 3d at 15 (“if the injuries
did arise out of . . . the course of the employment, the exclusive remedy provisions apply

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United States District Court
Northern District of California

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notwithstanding that the injury resulted from the intentional conduct of the employer, and even

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though the employer’s conduct might be characterized as egregious.”). Rabieh’s injuries resulted

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from his termination from a job with public-facing responsibilities following a drug test he was

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ordered to take after his manager “accused [him] of being drowsy and ‘under the influence.’” Dkt.

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No. 1, Ex. A, ¶¶ 10, 13. Even though Rabieh characterizes Safeway’s motivations for ordering the

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drug test and its interpretation of the results as egregious, these actions still fall within the normal

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course of the employment relationship.

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As for Rabieh’s argument that the WCA exclusivity provision does not apply because the

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conduct alleged violates a fundamental public policy, Rabieh’s argument is accurate for his

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wrongful termination and discrimination claims, but not for the claims that are the subject of the

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motion to dismiss. Rabieh’s argument relies on Cabesuela v. Browning-Ferris Industries of

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California, Inc., and similar cases which held that “where . . . a plaintiff’s emotional distress claim

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is premised upon his employer’s violation of a fundamental public policy of this state, such

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misconduct lies outside of the exclusive remedy provisions of the Labor Code.” 68 Cal. App. 4th

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101, 113. Cabesuela, however, does not survive a more recent California Supreme Court case,

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Miklosy v. Regents of the University of California. 44 Cal. 4th 876 (2008). In that case, the court

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distinguished Tameny claims for wrongful discharge (see Tameny v. Atl. Richfield Co., 27 Cal. 3d

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167 (1980)) from claims for intentional infliction of emotional distress. Id., at 902-03. The court
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determined that the “exception for conduct that ‘contravenes fundamental public policy’ is aimed

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at permitting a Tameny action to proceed despite the workers’ compensation exclusivity rule.” Id.

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But though the Tameny action could go forward, the court held that the emotional distress claim—

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even though it incorporated the wrongful termination allegations—was nevertheless barred. Id.

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The court relied on its prior holding in Shoemaker, which it quoted:

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To the extent plaintiff purports to allege any distinct cause of
action, not dependent upon the violation of an express statute or
violation of public policy, but rather directed at the intentional,
malicious aspects of defendants’ conduct . . . , then plaintiff has
alleged no more than the plaintiff in Cole v. Fair Oaks Fire
Protection District, . . . . The kinds of conduct at issue (e.g.,
discipline or criticism) are a normal part of the employment
relationship. Even if such conduct may be characterized as
intentional, unfair or outrageous, it is nevertheless covered by the
workers’ compensation exclusivity provisions.

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United States District Court
Northern District of California

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Id. at 902 (quoting Shoemaker, 52 Cal. 3d at 25) (emphasis added). Other courts in the Northern
District, interpreting California law, have acknowledged Miklosy’s effect on intentional infliction
of emotional distress claims asserting the public policy exception. Saba v. Unisys Corp., 114 F.
Supp. 3d 974, 984 (N.D. Cal. 2015) (holding that, after Miklosy, the public policy exception
permitted the plaintiff’s Tameny claims but barred his claim for intentional infliction of emotional
distress).
Here, Rabieh’s Tameny claims may go forward despite the WCA. But as his claim for

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intentional infliction of emotional distress is “directed at the intentional, malicious aspects of

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defendant[’s] conduct” and not dependent on the violation of an express statute or public policy, it

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is barred.
For the remaining two claims, Rabieh attempts to distinguish Dunlap v. Association of Bay

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Area Governments, a Northern District case in which the court determined that a plaintiff’s

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negligence-based claims fell under the exclusive jurisdiction of the Workers’ Compensation

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Appeals Board. 996 F. Supp. 962, 967 (N.D. Cal. 1998). In Dunlap, the plaintiff claimed that he
was discriminated against on the basis of his disability and brought claims for violation of the
ADA and Rehabilitation Act, as well as a claim for negligent infliction of emotional distress. Id.,

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at 963. As in Miklosy, the court held that the plaintiff’s argument that the public policy exception

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to WCA exclusivity should apply “would be persuasive” as to his ADA and Rehabilitation Act

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claims, but that his claim for negligent infliction of emotional distress was “based not on

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allegations of discrimination, but rather on allegations of negligence.” Id., at 967. The court

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continued: “Plaintiff asserts that defendants were negligent in the administration of his workers’

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compensation claim. Such a claim falls squarely within the exclusive jurisdiction of the Workers’

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Compensation Appeals Board” and is preempted. Id.

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Rabieh attempts to distinguish Dunlap by arguing that the claim in that case did not

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implicate substantial public policy considerations, but that his claims for negligence and negligent
infliction of emotional distress—based as they are on discriminatory conduct (albeit negligent

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United States District Court
Northern District of California

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conduct, as Rabieh asserts)1—rely on the violation of such policies. In light of Miklosy, Rabieh

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incorrectly applies the law to his claims. Rabieh’s claims for wrongful discharge and

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discrimination rely on these public policies. His claims for negligence and negligent infliction of

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emotional distress, like those in Dunlap, are based on allegations of negligence, and fall under the

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exclusive jurisdiction of the Workers’ Compensation Appeals Board.

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CONCLUSION

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As the claims for intentional infliction of emotional distress, negligent infliction of

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emotional distress, and negligence are barred by the exclusivity provisions of the WCA, the court

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grants Safeway’s motion to dismiss these three claims. As amendment could not bring these

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claims out from under the reach of the WCA, the court denies leave to amend.
IT IS SO ORDERED.

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Dated: 4/25/2017

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HOWARD R. LLOYD
United States Magistrate Judge

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It is worth noting that the ADA is intended to reach such negligent discrimination.
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