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Case 2:13-cv-01560-WBS-AC Document 8 Filed 09/19/13 Page 1 of 21









UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

----oo0oo----


CIV. NO. 2:13-01560 WBS AC
MEMORANDUM AND ORDER RE: MOTION
TO DISMISS

JACQUELINE KING,

Plaintiff,

v.

THE PERMANENTE MEDICAL GROUP,
INC., and Does 1 through 50,
inclusive,

Defendant.

----oo0oo----



Plaintiff Jacqueline King brought this action against
defendant Permanente Medical Group and fifty unnamed Permanente
Medical Group employees sued as Doe defendants arising out of the
termination of her employment by defendant for alleged attendance
issues. Defendant now moves to dismiss each of her claims for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6), and to dismiss her claims brought under California
Government Code Sections 12940(m) and 12940(n) for failure to
exhaust her administrative remedies.





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Case 2:13-cv-01560-WBS-AC Document 8 Filed 09/19/13 Page 2 of 21



Plaintiff has filed no opposition to the motion. The



Plaintiff alleges that she began work as a “tele[-]

Clerk left a phone message on the answering machine of
plaintiff’s attorney, inquiring whether he intends to file any
response to the motion, but has received no return call or other
reply from or on behalf of plaintiff’s attorney. Despite the
best efforts of the court and defendant’s attorneys to notify
plaintiff’s attorney of the pendency of this motion and to invite
his response, plaintiff’s attorney has not given the court or
counsel the courtesy of a response. Accordingly, pursuant to the
provisions of Local Rule 230(c), the motion is taken under
submission without oral argument.
I. Factual & Procedural History

service representative” for defendant in January 2003. (Compl. ¶
7 (Docket No. 1).) Plaintiff allegedly became ill with what she
believed to be the flu on December 30, 2011, was diagnosed with
severe dehydration on January 5, 2012, and gave her supervisor a
doctor’s note stating that she was ill and unable to work from
December 30, 2011 until January 6, 2012. (Compl. ¶ 8.) On
January 19, 2012, plaintiff allegedly left work about three hours
early to see a doctor and provided a note to her supervisor
documenting this visit. (Id. ¶ 9.) Plaintiff allegedly became
ill again on March 2, 2012, and was advised by her doctor not to
return to work until March 5, 2012. (Id. ¶ 10.) On March 9,
2012, defendant allegedly terminated plaintiff for “alleged
attendance issues.” (Id. ¶ 11.)

the California Department of Fair Employment and Housing (“DFEH”)


On January 7, 2013, plaintiff filed a complaint with






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Case 2:13-cv-01560-WBS-AC Document 8 Filed 09/19/13 Page 3 of 21

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In her DFEH complaint, plaintiff further alleged that

in which she alleged that she experienced discrimination on or
before March 9, 2012, because of a medical condition. (Def.’s
Req. for Judicial Notice, Ex. A (“DFEH Compl.”) at 6 (Docket No.
5-3).) Plaintiff alleged that she was warned by her supervisor
on “January 27, 2011” that she had excessive absences.1 (Id.)
Plaintiff alleged that defendant conducted an “investigation to
see what they were going to do with [her]” lasting more than two
months. (Id.) Plaintiff then alleged that she “kept asking
[and] asking then finally on March 9 2012 my supervisor . . .
tells [her] that they decided to terminate [her].” (Id.)

she filed a union grievance “to get [her] job back to full status
with no time lost,” and that she and her union representative
were not able to meet with defendant until July 25, 2012. (Id.)
Although defendant allegedly told plaintiff at that meeting that
“a decision would be made by August 31, 2012,” and then allegedly
revised that date to December 3, 2012, plaintiff alleged that
defendant did not contact her or her union representative
following the meeting. (Id.) After plaintiff filed her
complaint with DFEH, DFEH issued plaintiff a right-to-sue notice
on January 21, 2013, authorizing her to bring a claim against
defendant under the California Fair Employment and Housing Act

Plaintiff’s exact allegation is that “per [her] conversation
1
with [her] Supervisor on January 27, 2011, [her supervisor] came
to [plaintiff] and told [her] that . . . [plaintiff] [has] [too]
many occurrences for excessive absenteeism . . . .” (DFEH Compl.
at 6.) The chronology of plaintiff’s complaint to DFEH is not
entirely clear, but it appears that plaintiff alleges that she
was warned of excessive absenteeism after having taken sick leave
from December 30, 2011, to January 6, 2012, but before she was
terminated on March 9, 2012.





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Plaintiff brought this action in Sacramento County

(“FEHA”). (Compl. ¶ 5; Compl. Ex. A at 11.)

Superior Court on May 30, 2013. (See Compl. at 1.) Plaintiff
alleges that defendant (1) wrongfully denied her medical leave in
violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C.
§ 2612, and the California Family Rights Act (“CFRA”), Cal. Gov’t
Code § 12945, (2) wrongfully terminated her in violation of
public policy, and violated FEHA by (3) discriminating against
her on the basis of her disability in violation of Cal. Gov’t
Code § 12940(a), (4) failing to accommodate her disability in
violation of Cal. Gov’t Code § 12940(m), and (5) failing to
engage in the interactive process in violation of Cal. Gov’t Code
§ 12940(n). On July 30, 2013, defendant removed the case to this
court under its federal question jurisdiction pursuant to 28
U.S.C. § 1441(a). (See Docket No. 1.) Defendant now moves to
dismiss all claims for failure to state a claim on which relief
may be granted under Rule 12(b)(6), and to dismiss plaintiff’s
fourth and fifth claims for failure to exhaust administrative
remedies. Plaintiff does not oppose the motion.
II. Request for Judicial Notice

In general, a court may not consider items outside the
pleadings when deciding a motion to dismiss, but it may consider
items of which it can take judicial notice. Barron v. Reich, 13
F.3d 1370, 1377 (9th Cir. 1994). A court may take judicial
notice of facts “not subject to reasonable dispute” because they
are either “(1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot


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Defendant requests that the court take judicial notice

reasonably be questioned.” Fed. R. Evid. 201. Judicial notice
may properly be taken of matters of public record outside the
pleadings. See MGIC Indem. Corp v. Weisman, 803 F.2d 500, 504
(9th Cir. 1986).

of the Complaint of Discrimination filed by plaintiff with DFEH.2
Because this complaint is a public record of an administrative
agency, the court will judicially notice it. See Anderson v.
Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012). Although the
court will not take judicial notice of any disputed facts
contained in her administrative complaint for their truth, see
Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001), it
will take notice of plaintiff’s allegations contained therein
“for the limited purpose of showing [whether] [p]laintiff . . .
exhaust[ed] her administrative remedies.” Hellmann-Blumberg v.
Univ. of Pac., No. 2:12-cv-00286-GEB-DAD, 2013 WL 1326469, at *1
(E.D. Cal. Mar. 29, 2013).
III. Legal Standard

claim, a plaintiff must plead “only enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). This “plausibility standard,”
however, “asks for more than a sheer possibility that a defendant
has acted unlawfully,” Ashcroft v. Iqbal, 556 U.S. 662, 678

Defendant also requests that the court take judicial notice
2
of the Complaint for Damages filed by plaintiff in Sacramento
County Superior Court. (Def.’s Req. for Judicial Notice at 1.)
Because the case was removed to this court, the complaint filed
by plaintiff in state court is the operative complaint and we
need not take notice of it.




To survive a motion to dismiss for failure to state a




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In deciding whether a plaintiff has stated a claim, the

(2009). “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the
line between possibility and plausibility of entitlement to
relief.’” Id. (quoting Twombly, 550 U.S. at 557).

court must accept the allegations in the complaint as true and
draw all reasonable inferences in favor of the plaintiff.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other
grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto,
405 U.S. 319, 322 (1972). However, “the court is not required to
accept legal conclusions cast in the form of factual allegations
if those allegations cannot reasonably be drawn from the facts
alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55
(9th Cir. 1994); see also Iqbal, 556 U.S. at 678 (“‘[L]abels and
conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do.’”) (quoting Twombly, 550 U.S. at
555).
IV. Discussion


FEHA provides that any person claiming to be aggrieved
by an alleged unlawful employment practice may file a complaint
with DFEH identifying the name and address of the party alleged
to have committed the complained-of practice and “set[ting] forth
the particulars thereof.” Cal. Gov’t Code § 12960(b). In order
to bring a civil action “[u]nder the FEHA, the employee must
exhaust the administrative remedy provided by the statute by
filing a complaint with [DFEH] and must obtain from the
Department a notice of right to sue . . . .” Romano v. Rockwell


A. Exhaustion of Administrative Remedies


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Int’l, Inc., 14 Cal. 4th 479, 492 (1996) (citations omitted);
Rodriguez v. Airborne Express, 265 F.3d 890, 896 (9th Cir. 2001).

Defendant does not dispute that plaintiff timely filed
a complaint with DFEH and obtained a right-to-sue letter. (See
Def.’s Mem. in Supp. of Def.’s Mot. to Dismiss (“Def.’s Mem. in
Supp.”) at 8 (Docket No. 5-1).) Rather, defendant contends that
plaintiff’s administrative complaint failed to specify a claim
for failure to accommodate plaintiff’s disability or for failure
to engage in the interactive process. (See id.) “To exhaust [a
plaintiff’s] administrative remedies as to a particular act made
unlawful by [FEHA], the claimant must specify that act in the
administrative complaint, even if the complaint does specify
other cognizable wrongful acts.” Martin v. Lockheed Missiles &
Space Co., 29 Cal. App. 4th 1718, 1724 (6th Dist. 1994).
“Allegations in the civil complaint that fall outside the scope
of the administrative charge are barred for failure to exhaust.”
Rodriguez, 265 F.3d at 897.

complaints may nonetheless be brought in subsequently when they
are ‘like or reasonably related to’ the initial allegations.”
Dep’t of Fair Emp’t & Hous. v. Law Sch. Admission Council, Inc.,
896 F. Supp. 2d 849, 862 (N.D. Cal. 2012) (quoting Rodriguez, 265
F.3d at 897). “This standard is met where the allegations in the
civil suit are within the scope of the administrative
investigation ‘which can reasonably be expected to grow out of
the charge of discrimination.’” Rodriguez, 265 F.3d 897 (quoting
Sandhu v. Lockheed Missiles & Space Co., 26 Cal. App. 4th 846,
859 (6th Dist. 1994)). In assessing whether a plaintiff has


However, “claims not originally brought in verified

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Plaintiff’s complaint filed with DFEH is labeled as one

raised her claim before DFEH, courts “construe the language of .
. . charges with utmost liberality since they are made by those
unschooled in the technicalities of formal pleading.” B.K.B. v.
Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002) (citations
omitted) (internal quotation marks omitted).

for “discrimination,” and does not explicitly state that
defendant failed to accommodate her disability or failed to
engage in the interactive process. (DFEH Compl. at 6.)
Plaintiff’s complaint specifically alleges, however, that “[i]t
took the employer more than 2 months to do an investigation”
after she was informed that she had excessive absences and that
“she kept asking [and] asking” about the status of this
investigation before she was ultimately terminated. (Id.)
Plaintiff’s complaint also alleges that defendant did not meet
with plaintiff and her union representative until July 25, 2012,
and that defendant took no further action to address her
grievance even though plaintiff was “told a decision would be
made on August 31, 2012 . . . .” (Id.)

allege that defendant failed to accommodate her disability or
engage in the interactive process, it is “the factual allegations
of the original complaint, rather than the legal theory, [that]
establish the proper boundaries of the charge.” Rodriguez, 265
F.3d at 899. For instance, several courts have held that a
complaint to DFEH alleging racial discrimination would not
encompass later claims based on different factual grounds that
were not raised before DFEH. See, e.g., id. at 898 (“reject[ing]




Although plaintiff’s complaint did not explicitly




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By contrast, a plaintiff who raises different claims

Rodriguez’s contention that his original charge . . . that he was
discriminated against because he was Mexican-American[] should be
construed to include a claim of disability discrimination[]”);
Okoli v. Lockheed Technical Operations Co., 36 Cal. App. 4th
1607, 1613 (6th Dist. 1995) (holding that Okoli’s retaliation
claim was barred because it was “neither like nor reasonably
related to his DFEH claim” alleging race and national origin
discrimination.)

based on the same factual allegations contained in her complaint
to DFEH has not failed to exhaust her administrative remedies
with respect to those claims. Department of Fair Employment &
Housing v. Law School Admission Council, 896 F. Supp. 2d 849
(N.D. Cal. 2012), is instructive. There, DFEH had received
numerous complaints alleging that the Law School Admission
Council had violated FEHA and the Unruh Act by failing to provide
disabled test-takers with reasonable accommodations and
“flagging” the score reports of those who requested
accommodations. Id. at 853-54. Based on those complaints, DFEH
filed a civil complaint alleging several violations of the
Americans with Disabilities Act. Id. Although LSAC argued that
these claims had not been exhausted because they were not
initially raised to DFEH, the court disagreed, and held that “all
five claims advanced by DFEH involve the same kind of improper
conduct – the denial of reasonable accommodations on a
standardized test on account of disability.” Id. at 864.

plaintiff’s claims that defendant failed to accommodate her




Like DFEH’s claims in Law School Admission Council,




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Case 2:13-cv-01560-WBS-AC Document 8 Filed 09/19/13 Page 10 of 21



In addition, an investigation of plaintiff’s claim that

disability and failed to engage in the interactive process “have
not markedly shifted from one type of discriminatory behavior . .
. to another . . . .” Id. Plaintiff’s DFEH complaint, construed
liberally, see Maui Police Dept., 276 F.3d at 1100, includes
factual allegations that defendant initiated an “investigation”
of her absenteeism, failed to respond to her inquiries about the
status of this investigation, terminated her, and refused to
address her union grievance or negotiate with her union
representative in good faith. (See DFEH Compl. at 6.)

she was terminated because of her disability necessarily
implicates the question of whether defendant had engaged in an
interactive process to find a reasonable accommodation for her
disability prior to terminating her. Cf. E.E.O.C. v. Farmer
Bros., 31 F.3d 891, 899 (9th Cir. 1994) (noting that failure to
raise a discriminatory layoff claim before the EEOC would not bar
plaintiff’s claim because her charge alleging discriminatory
failure to rehire made it “necessary for the EEOC to investigate
the circumstances of [plaintiff’s] layoff”).

her disability and engage in the interactive process are
therefore “like or reasonably related to” the allegations in her
DFEH complaint that defendant discriminated against her because
of her disability. See Rodriguez, 265 F.3d at 898. Accordingly,
plaintiff has exhausted her administrative remedies with respect
to each of her claims brought pursuant to FEHA.

Plaintiff’s claims that defendant failed to accommodate








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Both statutes provide that a “serious health condition”

Both the FMLA and CFRA provide, in pertinent part, that

B. Unlawful Denial of Medical Leave Under FMLA and CFRA




an eligible employee is entitled to a total of twelve workweeks
of leave during any twelve-month period because of a “serious
health condition” that makes the employee unable to perform the
functions of his or her job. 29 U.S.C. § 2612(a)(1)(D); Cal.
Gov’t Code § 12945.2(c)(3)(C). The Ninth Circuit has clarified
that the FMLA protects not only an employee’s “right to use a
certain amount of leave for protected reasons,” but also the
“right to return to his or her job or an equivalent job after
using protected leave.” Bachelder v. Am. W. Airlines, Inc., 259
F.3d 1112, 1122 (9th Cir. 2001).

requires either an “illness” involving “inpatient care in a
hospital, hospice, or residential medical facility” or
“continuing treatment by a health care provider.” 29 U.S.C. §
2611; 2 C.C.R. § 7297.0(o). “Continuing treatment” entails a
period of incapacity of more than three consecutive, full
calendar days, and any subsequent treatment or period of
incapacity relating to the same condition that also involves
either (a) treatment two or more times by a health care provider
within thirty days of the first day of incapacity or (b)
treatment by a health care provider on at least one occasion
resulting in a regimen of continuing treatment under that
provider’s supervision. 29 C.F.R. § 825.115; 2 C.C.R. §
7297.0(o) (adopting the definition of continuing treatment “as
detailed in FMLA and its implementing regulations”).





Plaintiff’s allegations that she was terminated because




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she took sick leave to recuperate from the flu and severe
dehydration, (Compl. ¶¶ 9, 14), fail to establish a claim under
either the FMLA or CFRA.3 Plaintiff does not allege at any point
in the Complaint that she was under inpatient care. Nor does
plaintiff allege sufficient facts to make out a claim that she
was under “continuing treatment.” Plaintiff alleges that she was
unable to return to work from December 30, 2011 to January 6,
2012 and that she was diagnosed with severe dehydration on
January 5, 2012. (Id. ¶ 8.) Plaintiff does not allege that she
was placed on a regimen of continuing treatment by her doctor on
January 5, 2012, or that she received two treatments by a health
care provider during the period between December 30, 2011, and
January 6, 2012, in which she was allegedly unable to work. (See

3
Defendant asserts “the flu does not qualify as a serious
health condition” under either FMLA or CFRA. (Def.’s Mem. in
Supp. at 2:20-21.) The regulation implementing the FMLA, which
has in turn been adopted by the CFRA, see 2 C.C.R. § 7297.0(o),
states that “[o]rdinarily, unless complications arise, the common
cold, the flu, ear aches, upset stomach, minor ulcers, headaches
other than migraine, routine dental or orthodontia problems,
periodontal disease, etc., are examples of conditions that do not
meet the definition of a serious health condition and do not
qualify for FMLA leave.” 29 C.F.R. § 825.113(d) (emphasis
added). At least one court in California has held that this
regulation “expressly excludes” the flu from coverage under the
FMLA or CFRA. Gibbs v. Am. Airlines, Inc., 74 Cal. App. 4th 1,
8-9 (1st Dist. 1999).
However, several courts have rejected this categorical
reading, and have held that the flu can qualify as a serious
health condition if the plaintiff otherwise satisfies the
relevant statutory and regulatory criteria for a serious health
condition. See, e.g., Miller v. AT&T Corp., 250 F.3d 820, 832
(4th Cir. 2001). Which way a particular panel decides this
question may depend upon whether any of the judges on that panel
have had the flu. This court need not decide whether the flu
qualifies as a serious health condition because plaintiff
ultimately fails to allege facts that satisfy the requirements
for “continuing treatment” set forth by 29 C.F.R. § 825.115.


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Moreover, even if plaintiff’s visit to the doctor on

Plaintiff alleges that she left work about three hours

id.)


early on January 19, 2012, twenty days after she was initially
incapacitated, to see a doctor. (Compl. ¶ 9.) Although this
visit occurred within thirty days of when plaintiff was allegedly
first incapacitated, plaintiff’s allegations still do not satisfy
the requirements of continuing treatment because she does not
allege that her doctor’s visit on January 19 was related to her
earlier bout of the flu and dehydration. (See id.)

January 19 were related to her earlier illness, it would not
satisfy the requirements of continuing treatment because it did
not take place within the period in which she was incapacitated.
Although the Ninth Circuit has not addressed this question,
numerous courts have agreed that the second treatment must occur
within the same period of incapacity as the first treatment in
order to satisfy the requirements of “continuing treatment.”
See, e.g., Branham v. Gannett Satellite Info. Network, 619 F.3d
563, 571 (6th Cir. 2010) (“[T]he second treatment must occur
during the same period of incapacity as the first[.]”); Jones v.
Denver Pub. Sch., 427 F.3d 1315, 1321 (10th Cir. 2005) (“[T]o
qualify for FMLA protection, the health condition must . . .
entail[] an absence of more than three consecutive calendar days
during which the employee obtained treatment by a health care
provider at least two times . . . .” (emphasis added)); Thorson
v. Gemini, Inc., 205 F.3d 370, 377 (8th Cir. 2001) (noting that a
“serious health condition” requires both a period of incapacity
exceeding three calendar days and “`continuing treatment’ . . .


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Therefore, even if plaintiff’s allegations were

within that period” (emphasis added)).

sufficient to establish that her visit to her doctor on January
19, 2012 was related to her earlier illness, this would not
establish that plaintiff suffered from an illness requiring
continuing treatment. See, e.g., Jones, 427 F.3d at 1322 (noting
that “one treatment, with a follow-up check-up weeks after the
employee has returned to work” is insufficient to make out a
claim under the FMLA); Doughtie v. Ashland, Inc., No. 03-2073
ML/AN, 2005 WL 1239286, at *4 (W.D. Tenn. May 24, 2005) (holding
that plaintiff who was incapacitated due to surgery for more than
three days did not suffer from a “serious health condition”
because his first follow-up appointment did not occur until
eleven days after he had returned to work).

because she took sick leave from March 2, 2012 to March 5, 2012.
(Compl. ¶ 10.) This allegation is also insufficient to make out
a claim that plaintiff suffered from a serious health condition
under the FMLA or CFRA. Plaintiff does not allege that she
received inpatient care during this period. (See id.) Nor does
plaintiff allege any facts that indicate that she sought
treatment from a health care provider two or more times during
this period or that any visit with a health care provider
resulted in a regimen of continuing treatment under the
supervision of that health care provider. (See id.) Accordingly,
the court must grant defendant’s motion to dismiss plaintiff’s
claim that she was unlawfully denied medical leave.



Finally, plaintiff alleges that she was terminated

C. Wrongful Termination




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California law recognizes a cause of action for an

employee who is wrongfully terminated in violation of public
policy. Tameny v. Atl. Richfield Co., 27 Cal. 3d 167, 170
(1980). Although the precise contours of this rule are not well-
defined, courts have held that wrongful termination in violation
of either the FMLA or CFRA contravenes public policy. See, e.g.,
Xin Liu v. Amway Corp., 347 F.3d 1125, 1138 (9th Cir. 2003)
(“[V]iolation of the FMLA must . . . constitute a violation of
public policy.”); Nelson v. United Techs., 74 Cal. App. 4th 597,
607 (6th Dist. 1999) (“[A] claim for tortious wrongful discharge
based upon the CFRA . . . may be stated under California law.”).

Here, plaintiff’s wrongful termination claim is
premised on a violation of the FMLA and/or CFRA. Because
plaintiff has failed to state a claim that defendant violated
either the FMLA or CFRA, plaintiff’s wrongful termination claim
also fails. Accordingly, the court must grant defendant’s motion
to dismiss plaintiff’s wrongful termination claim.



D. Disability Discrimination Under FEHA


FEHA makes it an unlawful employment practice to

discharge a person from employment or discriminate against a
person because of a physical or mental disability or medical
condition. Cal. Gov’t Code § 12940(a). In order to state a
claim of disability discrimination, a plaintiff must allege that
he or she (1) suffers from a disability, (2) could perform the
essential duties of the job with or without reasonable
accommodations, and (3) was subjected to an adverse employment
action because of his or her disability. McCarthy v. R.J.
Reynolds Tobacco Co., 819 F. Supp. 2d 923, 934 (E.D. Cal. 2011)


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(Shubb, J.); Faust v. Cal. Portland Cement Co., 150 Cal. App. 4th
864, 886 (2d Dist. 2007).



A FEHA claim requires that “the employer had knowledge
of the employee’s disability when the adverse employment decision
was made.” Foster v. City of Oakland, 649 F. Supp. 2d 1008, 1018
(N.D. Cal. 2009) (citing Brundage v. Hahn, 57 Cal. App. 4th 228,
236-37 (2d Dist. 1997)); accord Raytheon Co. v. Hernandez, 540
U.S. 44, 54 n.7 (2003) (“If [defendant] were truly unaware that
such a disability existed, it would be impossible for her hiring
decision to be based, even in part, on [plaintiff’s] disability .
. . [Plaintiff] cannot, ipso facto, be subject to disparate
treatment.”). An employee’s “vague or conclusory statements
revealing an unspecified incapacity are not sufficient to put an
employer on notice of its obligations under the FEHA.” Brundage,
57 Cal. App. 4th at 237. And “[w]hile knowledge of the
disability can be inferred from the circumstances, knowledge will
only be imputed to the employer when the fact of disability is
the only reasonable interpretation of the known facts.” Id.



Plaintiff has not sufficiently alleged that defendant

was aware of her disability. Plaintiff alleges that she took
sick leave on three occasions in January and March. (Compl. ¶¶ 8-
10.) These allegations establish that defendant was aware that
plaintiff took sick leave for an illness, but are insufficient to
impute knowledge of her alleged disability to defendant. See
Dirks v. Permanente Med. Grp., No. 2:09-CV-03399-JAM-EFB, 2010 WL
1779932, at *4 (E.D. Cal. Apr. 29, 2010) (“Although Plaintiff’s
allegations demonstrate that Defendant knew about plaintiff’s
health problems, these allegations are not sufficient to state a


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claim that Defendant knew about Plaintiff’s disability.”
(emphasis added)).



Nor does it follow that defendant knew of plaintiff’s
alleged disability because she submitted notes from her doctor
stating that she was unable to work. (See Compl. ¶¶ 8, 9.) Even
taking this allegation as true, plaintiff has alleged no facts
suggesting that these notes “contain[ed] sufficient information
to put [defendant] on notice that plaintiff suffered from a
disability.” Avila v. Continental Airlines, Inc., 165 Cal. App.
4th 1237, 1249 (2d Dist. 2008). Other than noting that her
doctor stated she was unable to work between December 30, 2011
and January 6, 2012, plaintiff makes no other allegations about
the contents of these notes. (See Compl. ¶¶ 8, 9.)



Moreover, plaintiff did not allege any facts about her

return to work that suggest defendant’s “awareness of h[er]
condition.” Vermillion v. Corrections Corp. of Am., No. CV F 08-
1069 LJO SMS, 2008 WL 4755329, at *6 (E.D. Cal. Oct. 29, 2008)
(finding that plaintiff’s alleged “requests to sit and need to
file a worker’s compensation claim” were sufficient to make out a
claim that his employer knew of his disability upon returning to
work). Plaintiff concedes that she returned to work on January
9, 2012, and fails to identify specific work restrictions that
she requested upon returning.4 See Avila, 165 Cal. App. 4th at

4
requested an accommodation upon her return to work – the right to
“take certain days off due to her medical condition.” (Compl. ¶
34.) But this is a distinction without a difference: although
plaintiff characterizes her request for sick leave as an
“accommodation,” plaintiff has not alleged that her “medical
condition” imposed any limitations upon her, and has not stated


In contrast to Avila, plaintiff does allege that she

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1249 (“From [defendant’s] point of view, the fact that plaintiff
. . . returned to work days later without restrictions or
accommodations is consistent with the conclusion that plaintiff
did not suffer from a condition that qualifies as a disability.”)
Plaintiff’s alleged disability is far from “the only reasonable
interpretation of the known facts,” and her factual allegations
are therefore insufficient to impute knowledge of her alleged
disability onto defendant. Brundage, 57 Cal. App. 4th at 237.
Leaving aside these factual allegations, plaintiff is



left with the bare allegation that “[d]efendant knew that
[p]laintiff had a physical disability.” (Compl. ¶ 25.) But such
a “legal conclusion[] cast in the form of a factual allegation[]”
is insufficient to state a claim for relief. See Clegg v. Cult
Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Absent
“at least some minimal factual basis,” her allegation that
defendant knew of her alleged disability cannot serve as the
predicate to her claim that she was terminated because of her
disability. Kelley v. Corrections Corp. of Am., 750 F. Supp. 2d
1132, 1139 (E.D. Cal. 2010) (Ishii, J.) (dismissing plaintiff’s
claim under FEHA because she failed to allege a factual basis for
a potential accommodation of her disability).





In short, Plaintiff’s generalized and conclusory
assertion that defendant knew of her disability is without
factual support, and plaintiff has not stated a claim that
defendant knew of her alleged disability or terminated her
because of it. See Cal. Gov’t Code § 12940(a). Accordingly, the

sufficient facts to support her allegation that defendant knew
she had a disability requiring accommodation.


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FEHA prohibits an employer from “fail[ing] to make

E. Failure to Accommodate Under FEHA


court must grant defendant’s motion to dismiss plaintiff’s
disability discrimination claim.


reasonable accommodation for the known physical or mental
disability of an applicant or employee.” Cal. Gov’t Code §
12940(m) (emphasis added). In other words, an employer is not
“liable for failing to accommodate a disability of which it had
no knowledge.” Prilliman v. United Air Lines, Inc., 53 Cal. App.
4th 935, 954 (2d Dist. 1997). Under the reasonable accommodation
provisions of FEHA, it is not enough to show that the employer
was aware that “the employee had some impairment such as a
medical or physical condition;” rather, “[t]he employer must have
been aware that the impairment limited the employee in a major
life activity.” Jadwin v. County of Kern, 610 F. Supp. 2d 1129,
1178 (E.D. Cal. 2009) (Wanger, J.) (emphasis added).



Plaintiff alleges only that she “requested that

Defendant accommodate her disabilities by allowing her to take
certain days off due to her medical condition.” (Compl. ¶ 34
(emphasis added).) This allegation is insufficient to plead a
claim for failure to accommodate because plaintiff has not
identified any limitations that this alleged condition imposed.
See Avila, 165 Cal. App. 4th at 1252 (“[T]he duty of an employer
reasonably to accommodate an employee’s handicap does not arise
until the employer is aware of respondent’s . . . physical
limitations.”) (emphasis added).



In addition to her failure to identify any limitations,
plaintiff’s failure to accommodate claim also fails for the same


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reason as her disability discrimination claim: she has alleged no
facts to support her ultimate allegation that defendant failed to
accommodate a “known disability,” as required by Section
12940(m). See Dirks, 2010 WL 1779932 at *4. Accordingly,
because plaintiff does not state a claim that defendant failed to
accommodate a known disability, see Cal. Gov’t Code § 12940(m),
the court must grant defendant’s motion to dismiss her claim that
defendant failed to accommodate her disability.

F. Failure to Engage in the Interactive Process Under FEHA

FEHA requires “an employer . . . to engage in a timely,

good faith interactive process with the employee or applicant to
determine effective reasonable accommodations, if any, in
response to a request for a reasonable accommodation by an
employee or applicant with a known physical or mental disability
or known medical condition.” Cal. Gov’t Code § 12940(n). With
narrow exceptions not relevant here, “[t]he employee generally
bears the burden of initiating the informal, interactive
process.” Stoll v. The Hartford, No. 05-CV-1907 IEG, 2006 WL
3955826, at *5 (S.D. Cal. Nov 7, 2006) (citing Brown v. Lucky
Stores, Inc., 246 F.3d 1182, 1188 (9th Cir. 2001)). Like
plaintiff’s other FEHA claims, a failure to interact claim
requires a showing that the defendant was “aware of the need to
consider an accommodation.” Gelfo v. Lockheed Martin Corp., 140
Cal. App. 4th 34, 62 n.22 (2d Dist. 2006); Ellis v. City of
Reedley, No. CV F 05-1474 AWI SMS, 2007 WL 1098571, at *13 (E.D.
Cal. Apr. 12, 2007) (“[T]he claim requires a showing that
[d]efendant[] had subjective knowledge of [p]laintiff’s
disability, or, at a minimum, constructive knowledge.”).


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