MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST CLAIM FOR RELIEF AND CLAIMS FOR PUNITIVE DAMAGES
This is an action in diversity for damages under California's Fair Employment and Housing Act ("FEHA") by plaintiff Teressa Kelley ("Plaintiff") against Defendant CCA of Tennessee, LLC ( "Defendant"). On September 30, 2010, the court filed a memorandum opinion and order dismissing Plaintiff's first claim for employment discrimination in violation of Cal. Gov't Code -§ 12940(a), and Plaintiff's fourth claim for retaliation in violation of Gov't Code -§ 1240(h). Both claims were dismissed with leave to amend. In addition, the court dismissed Plaintiff's prayer for punitive damages, which was alleged with respect to each claim for relief. On October 18, 2010, Plaintiff filed her First Amended Complaint ("FAC"). In the instant motion, Defendant seeks dismissal Plaintiff's first claim for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure and dismissal of Plaintiff's amended claims for punitive damages. Diversity jurisdiction exists pursuant to 28 U.S.C. -§ 1332. Venue is proper in this court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In its memorandum opinion and order filed September 30, 2010, (the "September 30 Order") the court set forth the factual background of Plaintiff's complaint. Plaintiff's FAC expands, but does not contradict, the allegations made in the original complaint. The general background facts alleged in the original complaint and recounted in the September 30 Order need not be repeated here. Because Defendant's instant motion seeks dismissal of only Plaintiff's first claim for relief for unlawful discrimination based on physical disability, the court will focus only on those factual allegations that relate to Plaintiff's first claim for relief, and in particular those facts that are alleged in the FAC that were not alleged in Plaintiff's original complaint. Plaintiff's allegations with regard to punitive damages will be set forth infra in the section of this order discussing that issue. All allegations set forth in the FAC are taken as true for purposes of this analysis.
There is no dispute that 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. It is also not disputed that, following carpal tunnel release surgery in 2007, Plaintiff experienced increasingly severe neurologic symptoms in her right and left hands that ultimately caused her to be taken off work by Dr. George Balfour on or about December 19, 2008. At the time of her carpal tunnel release surgery in 2007, Plaintiff's duties as Records Supervisor/Movement Coordinator included: communicating with inter-facility departments via email, preparing packets for incoming inmates, reviewing incoming inmates' criminal history, answering inmates' requests for information, supervising records clerks, providing training to records clerks, verifying timely release dates for inmates, preparing inmate transfer documentation, researching inmate jail credit, creating inmate jail credit time lines, generating computer data entry of records, placing telephone calls, reading, handwriting notes, typing and use of a mouse.
In 2008, as Plaintiff's symptoms were worsening, a Certified Ergonomic Specialist and Field Case Manager made several suggestions to mitigate Plaintiff's condition. The suggestions included an adjustable keyboard platform and an ergonomic mouse, both of which were provided by Defendant. The Ergonomic Specialist also recommended an ergonomic chair, a headset, and an in-line document holder. The latter items were not provided by Defendant although Plaintiff alleges Defendant had assured Plaintiff that those items would be provided.
About ten months after Plaintiff was removed from work by Dr. Balfour, Plaintiff submitted to a Qualified Medical Examination ("QME") by Dr. Vincent Gumbs, M.D. Dr. Gumbs concluded that Plaintiff's condition was "Permanent and Stationary," and that she could return to work subject to a number of work restrictions that included avoiding repetitive gripping, grasping, pushing, pulling and repetitive typing. Plaintiff was also advised to rest ten minutes every hour to relieve symptoms. Dr. Gumbs also opined that Plaintiff might require a number of medical interventions in the future including medications, braces and further surgeries.
Plaintiff alleges Defendant received Plaintiff's workers compensation notification, including a copy of Dr. Gumbs' QME, and that directly thereafter Plaintiff received notification of her termination. Plaintiff alleges that, at the time of her termination, she was: both "qualified and "otherwise qualified" and could have performed the essential functions of her job as Records Supervisor/Movement Coordinator with accommodation. [Plaintiff] successfully could have performed her job with the assistance of, without limitation, the ergonomic chair, head set, and in-line document holder that CCA promised but failed to provide and by being allowed to take hourly breaks, during which she could have read inmate files and performed other non-manual work while resting her hands. [Plaintiff] also would have benefitted from a rolling portable file holder to ease the burden of carrying heavy files.
On or about the date of [Plaintiff's] termination, the California City Correctional Center also had several other open positions for which [Plaintiff] was qualified and could have performed , with or without reasonable accommodations, and into which she could have been reassigned, including the positions of Unit Secretary, Education Secretary and Records Clerk. The positions of Unit Secretary, Education Secretary and Records Clerk involved lighter duties that [Plaintiff's] Records Supervisor/Movement Coordinator position.
At the time of her termination, [Plaintiff] also was qualified for and could have been reassigned to available Corrections Officer jobs, the essential functions of which she could have performed, with or without reasonable accommodation. Upon hire at CCA, [Plaintiff] completed the new hire academy training, which included Corrections Officers training. CCA secretaries, including [Plaintiff], often crossed over to assume work as Corrections Officers tr garner a higher pay grade. The Corrections Officers positions also involved lighter duties that [Plaintiff's] Records Supervisor/Movement Coordinator position.
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 ...