MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION TO DISMISS AND MOTION TO STRIKE
This is an action in diversity for damages under California's Fair Employment and Housing Act ("FEHA") by plaintiff Terressa Kelley ("Plaintiff") against Defendant Corrections Corporation of America ( "Defendant"). In her complaint, Plaintiff alleges four claims under FEHA; unlawful discrimination based on physical disability, failure to accommodate physical disability, failure to engage in the interactive process and retaliation. Plaintiff also alleges a common law claim for wrongful termination in violation of public policy. With regard to each of the five claims for relief, Plaintiff also seeks punitive damages. In the instant motion, Defendant seeks dismissal of each of Plaintiffs claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant also moves to strike each of Plaintiff's claims for punitive damages pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. Diversity jurisdiction exists pursuant to 28 U.S.C. § 1332. Venue is proper in this court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The following facts are alleged in Plaintiff's complaint and are presumed true for purposes of this motion.
Plaintiff was employed by Defendant in 2002 as a Count Clerk at the California City Correctional Center, a California correctional institution owned and operated by Defendant. In 2003 Plaintiff was promoted to Records/Sentence Clerk. In 2004 she was promoted to Records Supervisor/Movement Coordinator, a position she held until her termination in 2009. In or about June 2007, Plaintiff had carpal tunnel release surgery on her right hand following which she returned to work. In or about March 2008, she started experiencing pain in her right wrist as well as numbness in her left hand. The pain in her hands became worse and, in or about September 2008, she filed a workers' compensation claim with Defendant's human resources department.
Plaintiff continued to work despite increasing pain in both hands until about December 19, 2008, at which time she was taken off work by Dr. George Balfour, M.S. Plaintiff had surgery on her left hand in or about February 2009 and surgery on her right hand in or about May 2009. Plaintiff remained on workers' compensation leave of absence (temporary total disability) pursuant to the directions of Dr. Balfour. She kept Defendant's human resources department apprised of her condition by means of faxed status reports by Dr. Balfour.
In or about October 2009, Plaintiff submitted to a Qualified Medical Examination ("QME") by Dr. Vincent Gumbs, M.D. In his QME report, Dr. Gumbs concluded that Plaintiff had reached "maximal medical improvement" and could be regarded as "Permanent and Stationary." Doc. #2 at ¶ 10. Dr. Gumbs concluded Plaintiff could return to work subject to an number of "work restrictions." Plaintiff was restricted from performing work involving repetitive gripping, grasping, pushing, pulling, and typing. Dr. Gumbs ordered that Plaintiff was restricted from performing work that involved manipulation for longer than one hour at a time and was ordered to rest ten minutes every hour to relieve symptoms. Plaintiff was also restricted from repetitive flexion or extension of the left elbow and from any forceful pushing or pulling with the left elbow. Dr. Gumbs report also opined that Plaintiff might require any of a number of medical interventions in the future.
Defendant received workers' compensation notification of Plaintiff's condition, including Dr. Gumbs QME report in or about November 2009. Plaintiff thereafter received a letter from Barbara Wagner, Warden of the California City Correctional Center, dated November 16, 2009, advising Plaintiff that her QME had been reviewed and that:
Based on your restrictions we have determined that your are not able to perform all of the essential functions of your job, as listed in your job description for records supervisor. Therefore, effective November 16, 2009, we are terminating your employment with the California City Correctional Center . . . ."
Plaintiff alleges that at no time did Defendant attempt to reasonably accommodate Plaintiff's known disability, or contact Plaintiff in order to determine possible accommodations that would allow Plaintiff's return to work or contact Plaintiff for any reason at all before terminating her employment.
It is not disputed that Plaintiff exhausted administrative remedies prior to filing this action by filing a complaint with the California Department of Fair Housing and Employment and receiving a "Right-to-Sue Notice."
Plaintiff's complaint was originally filed in the Superior Court of Kern County on March 25, 2010, and was removed to this court on July 20, 2010. Defendant's motions to dismiss and to strike were filed on July 26, 2010. Plaintiff filed her oppositions on August 23, 2010, and Defendant filed its replies on September 3, 2010. The hearing on Defendant's motions to dismiss and strike was vacated and the matter was taken under submission as of September 13, 2010.
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly"). While a court considering a motion to dismiss must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the pleading in the light most favorable to the party opposing the motion, and resolve factual disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ("a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Iqbal").
The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:
"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."
Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1950).
Rule 12(f) of the Federal Rules of Civil Procedure allows the court to strike from "any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." The purpose of a Rule 12(f) motion is to avoid the costs that arise from litigating spurious issues by dispensing with those issues prior to trial. Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir.1983). Immaterial matter is defined as matter that "has no essential or important relationship to the claim for relief or the defenses being pleaded." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir 1993) (quoting 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382, at 706-07 (1990)), rev'd on other grounds, 510 U.S. 517 (1994). Impertinent matter is defined as "statements that do not pertain, and are not necessary, to the issues in question." Fantasy, Inc. 984 F.2d at 1527. Granting a motion to strike may be proper if it will make the trial less complicated or if allegations being challenged are so unrelated to plaintiff's claims as to be unworthy of any consideration as a defense and that their presence in the pleading will be prejudicial to the moving party. Id.
"If a complaint is dismissed for failure to state a claim, leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 1986).
I. Defendant's Motion to Dismiss Pursuant to Rule 12(b)(6)
A. Plaintiff's First Claim for Relief for Unlawful Discrimination
Plaintiff' first claim for relief somewhat ambiguously alleges Defendant unlawfully discriminated against Plaintiff on the basis of her disability in violation of Cal. Gov't Code § 12940 et seq. Because plaintiff's complaint alleges a separate claim pursuant to section 12940(m), the court presumes Plaintiff's first claim for relief is alleged pursuant to section 12940(a). Defendant moves to dismiss Plaintiff's first claim for relief on the ground that Plaintiff has failed to allege she is a "qualified individual" within the meaning of Green v. State of California, 42 Cal.4th 254 (2007).
To state a prima facie claim for unlawful discrimination on account of disability, a plaintiff must allege; (1) that she is disabled within the statutory definition; (2) that she is qualified to perform the essential functions of the job with or without reasonable accommodations*fn1 ; and (3) that she has suffered a discriminatory employment action on account of the disability. Le Bourgeois v. Fireplace Manufacturers, Inc., 68Cal.app.4th 1049, 1058 (1988). Defendant alleges that Plaintiff has failed to allege that she was a "qualified individual" who was able to perform the essential functions of the job with or without accommodations. Plaintiff contends the allegations set forth in the complaint sufficiently set forth facts to support the elements of a claim for discrimination such ...