The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S DISMISSAL MOTION
Defendant HD Supply, Inc. ("HD Supply") moves under Federal Rule of Civil Procedure ("Rule") 12(b)(6) for dismissal of Plaintiff's complaint. Plaintiff Kris Robinson ("Robinson") filed an opposition brief.
Decision on HD Supply's Rule 12(b)(6) dismissal motion requires determination of "whether the complaint's factual allegations, together with all reasonable inferences, state a plausible claim for relief." Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054 (9th Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
When determining the sufficiency of a claim, "[w]e accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the non-moving party[; however, this tenet does not apply to] . . . legal conclusions . . . cast in the form of factual allegations." Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (citation and internal quotation marks omitted). "Therefore, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Id. (citation and internal quotation marks omitted); see also Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555) (stating "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do'").
II. REQUEST FOR JUDICIAL NOTICE
HD Supply requests that judicial notice be taken of the administrative complaint Robinson filed with the California Department of Fair Employment and Housing ("DFEH"). (Def.'s Request for Judicial Notice ("RJN") Ex. A.) However, "a court may consider a writing referenced in a complaint but not explicitly incorporated therein if the complaint relies on the document and its authenticity is unquestioned." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). Since Robinson alleges in his civil complaint that he exhausted administrative remedies applicable to his California Fair Employment and Housing Act ("FEHA") claims and does not dispute the authenticity of the document of which HD Supply seeks judicial notice, this document is considered under the incorporation by reference principle.
HD Supply also requests that judicial notice be taken of "[t]he driving distance between the city centers of Sacramento and Salinas, California, and the time it would take to drive that distance." (Def.'s RJN 2:8-9.) However, in light of the issues decided in this motion, this request is denied because these facts have no bearing on the decision. See Ventura Mobilehome Communities Owners Ass'n v. City of San Buenaventura, 371 F.3d 1046, 1052 n.5 (9th Cir. 2004) (denying judicial notice request where the facts "d[id] not alter . . . determination of the case").
III. ROBINSON'S ALLEGATIONS
This case concerns Robinson's termination from employment with HD Supply. Robinson alleges he was employed as an Assistant Transportation Manager with HD Supply from March 2008 to February 2010, and that "his job duties included . . . scheduling truck drivers and coordinating pick-ups and deliveries throughout Northern California." (Pl.'s Compl. ("Compl.") ¶¶ 7-8.)
Robinson alleges that "[o]n or about January 11, 2010, [he] informed Mary Sullivan [('Sullivan')], [HD Supply's] Distribution Center Manager and [his] immediate supervisor, that he had recently been diagnosed with Post Traumatic Stress Disorder ('PTSD') as a result of events that occurred during his overseas service in the United States Marine Corps." Id. ¶ 10. Robinson alleges that "on or about January 20, 2010, [Sullivan] instructed [him] to locate a driver who would be able to make a delivery from Sacramento to Salinas on short notice." Id. ¶ 12. "[Robinson] was concerned about this instruction . . . because he knew that, based on the distance between these locations, this delivery route would necessitate a violation of the U.S. Department of Transportation Hours-of-Service Regulations[,] . . . [which] require, inter alia, that employers . . . only permit their drivers to drive for a maximum of 11 hours after 10 consecutive hours off duty." Id.
Robinson alleges he "shared his concern with [Sullivan], who refused to rescind her order." Id. ¶ 13. "Thereafter, [Robinson] consulted with [HD Supply's] Regional Transportation Manager, Bruce Gagon [('Gagon')], and informed him of the situation." Id. "When making this complaint, [Robinson] also suggested an alternative method of accomplishing the delivery without violating any Department of Transportation Regulations." Id.
Robinson alleges "[Gagon] advised [him] that if he was uncomfortable with the instruction, he should ask [Sullivan] to issue the order herself." Id. ¶ 14. Robinson further alleges he "complied with this direction from [Gagon] and refused to issue the non-compliant order." Id. Robinson alleges "[Sullivan] . . . told [him] that he would be disciplined for insubordination if he maintained his refusal to execute the order." Id. ¶ 15. Robinson alleges "[Sullivan's] . . . threat to discipline [him] unless he participated in a practice that he knew violated Federal law caused [him] extreme stress and anxiety[,] . . . [which] exacerbated [his] pre-existing PTSD[.]" Id. ¶ 16. Robinson alleges that "[i]n an attempt to defuse the volatile situation [Sullivan] created, [Robinson] decided to take a walk in the warehouse in order to calm down." Id. ¶ 17. Robinson alleges that "[b]ased on [this] incident, [he] was suspended indefinitely." Id. ¶ 18.
Robinson alleges that "[b]ecause of the stress the suspension caused him, [he] visited his physician's office and received a note from [a] Nurse Practitioner . . . prescribing he take a 10-working-day leave of absence." Id. ¶ 19. Robinson alleges that "[i]mmediately upon his return [to work on February 9, 2010], [Sullivan] continued to discipline [him] for his alleged pre-suspension insubordination." Id. ¶ 21. Robinson alleges "[HD Supply] summarily terminated [his] employment the next day, February 10, 2010[.]" Id. ¶ 22.
Robinson alleges that "[o]n or about March 22, 2010, [he] duly presented a discrimination and harassment Complaint against [HD Supply] to the [DFEH] . . . in compliance with the requirements of [FEHA.]" Id. ¶ 6. Robinson alleges the following in the administrative complaint he submitted to the DFEH:
I believe I was suspended and my employment was terminated because of my disability (post traumatic stress disorder). My ...