The opinion of the court was delivered by: Patel, J.
MEMORANDUM AND ORDER Re: Defendant's Motion to Dismiss
Plaintiff Christina Mayfield filed this action against her former employer, defendant Trevors Store, Inc. ("Trevors") alleging causes of action related to harassment and discrimination based on pregnancy. Plaintiff alleges that actions and statements by her supervisor and Trevors violated the California Fair Employment and Housing Act ("FEHA"), California Government Code Sections 12900-12996, and common law. Now before the court is defendant's motion to dismiss seven of plaintiff's ten causes of action on the basis of insufficient facts to state a claim, lack of a cognizable legal theory under FEHA, and a statute of limitations bar to her common law claims. Having considered the parties' arguments and submission, and for the reasons set forth below, the court enters the following memorandum and order.
Plaintiff Christina Mayfield is a female who began working as a sales associate at defendant Trevors in September 2001. In April 2002, plaintiff informed her supervisor that she was pregnant. Plaintiff alleges that starting with that conversation and continuing until the termination of her employment, on May 2, 2002, her supervisor and the company subjected her to unlawful treatment based on her pregnancy.
Plaintiff's claims stem from the following factual allegations. When first told of the pregnancy, her supervisor responded, "How can you do this to me? You know I'm supposed to take my vacation in July." From this point forward, Medina had an "abrupt change in behavior," illustrated by Medina's comment that plaintiff's pregnancy "was making it ten times harder on everyone else." Thereafter, plaintiff met with Medina to discuss this change in attitude, a meeting which resulted in Medina claiming to have "written [plaintiff] up" (presumably lodging written criticisms of plaintiff's performance). After this meeting, Medina began assigning plaintiff "large amounts of extra work." Medina also made two statements which plaintiff found offensive. First, when plaintiff arrived at work carrying baby items, Medina saw the items and told plaintiff, "Why are you buying baby stuff? You don't even know what you're having yet-- that's what baby showers are for." Second, upon complaining that she was ill due to exhaustion, Medina responded, "It can't affect you that much. You're not that far along."
At some date after these incidents, plaintiff contacted a Trevors manager in Louisiana, Alan Hammett, "because the harassment was worsening." Believing that Hammett could remedy the situation with Medina, plaintiff informed Hammett of her pregnancy, that she had told Medina of the pregnancy, and that this had led to harassing behavior by Medina. Hammett agreed to address the situation. Subsequent to plaintiff's complaint to Hammett, plaintiff called Medina from home to inform her that she was ill due to the pregnancy and needed to take a sick day. Medina told plaintiff that "she had to come in and ... had no choice in the matter." Following this incident, plaintiff again contacted Hammett and informed him that she was not given leave when she needed it due to her pregnancy-related illness. Hammett did not provide any immediate solution or suggestions.
Finally, on May 2, 2002, Medina told plaintiff that they "needed to have a talk." At this meeting, Medina informed plaintiff that her employment was not "working out." Medina further said, "I just don't feel like we can work together." When plaintiff noted that she had no write-ups in her file, Medina said that she had "tons of write-ups." As these negative performance evaluations were never presented to plaintiff for her signature, as required by company policy, plaintiff alleges that Medina generated them as a pretext for terminating her employment. Medina also told plaintiff during this meeting of her awareness that plaintiff had contacted Hammett and that both he and the owner of Trevors, Don Williams, knew of "everything that was going on." At this meeting on May 2, 2002, Mayfield was terminated from her employment with Trevors.
Plaintiff filed this complaint on April 30, 2003 alleging ten causes of action based on defendant's conduct. Plaintiff's eleven claims are: 1) discrimination based upon pregnancy in violation of FEHA; 2) harassment based upon pregnancy in violation of FEHA; 3) discrimination based upon sex in violation of FEHA; 4) harassment based upon sex in violation of FEHA; 5) retaliation for protesting unlawful conduct in violation of FEHA; 6) failure to accommodate pregnancy; 7) failure to take reasonable steps to prevent harassment and discrimination in violation of FEHA; 8) failure to take appropriate corrective action in violation of FEHA; 9) wrongful termination in violation of public policy; and 10) intentional infliction of emotional distress.
On September 1, 2004, defendant filed this motion to dismiss seven of plaintiff's causes of action on five separate grounds. First, defendant argues that the facts supporting plaintiff's second and fourth claims for harassment based on sex and harassment do not rise to actionable harassment under FEHA. Second, defendant argues that plaintiff fails to allege sufficient facts to support her sixth cause of action for failure to accommodate pregnancy under FEHA. Third, defendant claims that FEHA does not permit separate causes of action against an employer for failure to take reasonable steps to prevent discrimination and harassment and failure to take appropriate corrective action, requiring dismissal of plaintiff's seventh and eighth causes of action. Fourth, defendant alleges that plaintiff's ninth and tenth causes of action, based on tort law, are barred by the applicable statute of limitations. Finally, defendant argues that plaintiff does not allege facts sufficient to state a claim under her tenth cause of action for intentional infliction of emotional distress.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted only if "it appears beyond doubt that plaintiff can prove no set of facts in support of her claim which would entitle her to relief." Strother v. Southern Cal. Permanente Medical Group, 79 F.3d 859, 865 (9th Cir.1996). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). Allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). The court need not, however, accept as true allegations that are conclusory, legal conclusions, unwarranted deductions of fact or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001); Clegg v. Cult Awareness Network, 18 F.3d 752, 754- 55 (9th Cir.1994).
I. Environmental Harassment
Defendant argues that plaintiff did not adequately plead her second and fourth causes of action for harassment based on sex and harassment based on pregnancy because she cannot establish an essential element of this cause of action, that "the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment." Fisher v. San Pedro Peninsula Hospital, 214 Cal.App.3d 590, 609, 262 Cal.Rptr. 842 (1989). Defendant understates the facts alleged here. When plaintiff's allegations are taken as true, she has adequately pled persistent harassment which created a harsh working environment.
FEHA makes it unlawful "[f]or an employer ... because of ... sex ... to harass an employee." Cal. Gov't Code § 12940(j)(1). "[H]arassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy." Cal. Gov't Code § 12940(j)(4)(C). California courts recognize two types of sexual harassment under section 12940(j): 1) quid pro quo harassment and 2) hostile work environment. Kohler v. Inter-tel Tech, 244 F.3d 1167, 1172 (9th Cir.2001). The elements required to establish a claim for environmental harassment based on sex by a supervisor are that the plaintiff is a member of a protected group, plaintiff faced unwelcome harassment based on sex, the harassment was ...