The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM [DKT. NOS. 88, 100, 102]
For the reasons below, the Court hereby GRANTS in part and DENIES in part Defendants' motions to dismiss.
Plaintiff Lance Lillis ("Plaintiff"), proceeding in pro per, filed the instant action on January 6, 2012. Plaintiff filed the first amended complaint on October 15, 2012 alleging claims for age discrimination, disability discrimination, violation of the Fair Labor Standards Act, violation of civil rights, negligent infliction of emotional distress and violation of the Occupational Safety and Health Act., all of which allegedly arose during his employment with Defendant Apria Healthcare, Inc. Plaintiff named Blackstone Group L.P., which "acquired 100% control of April in 2008," as a Defendant, in addition to numerous individuals who serve as executives of Apria Healthcare, Inc. and Blackstone Group, L.P.
Plaintiff is a 53 year old former Marine who worked as a delivery technician for Apria Healthcare to service patients with critical diseases. Plaintiff was hired by Apria Healthcare on October 1, 2007 and, as "HAZ-MAT" certified specialist, he was given supervisory authority. Plaintiff alleges that over an extended period of time, he was the only certified specialist to deal with particular types of cases, which resulted in numerous, excessive shift changes without proper recording of overtime and also in unpaid wages. Plaintiff alleges that Blackstone Group, L.P. acquired Apria in 2008 and during that period, employee tension increased, and older employees were singled out and targeted with verbal abuse and personal derogatory insults. Plaintiff alleges that he and other employees were harassed by supervisory personnel and given unsubstantiated write-ups that they were not allowed to contest. Plaintiff alleges that on one occasion, while Plaintiff was attending his father's funeral in New York, a supervisor called and threatened to fire the Plaintiff. Plaintiff states that he overheard supervisory personnel discussing "getting rid of" the disabled and "old guys." Plaintiff also alleges that there were problems concerning the safety equipment utilized during the evening patient delivery routes. Although Plaintiff raised these issues with supervisors, he alleges that he was ignored.
Plaintiff states that he was terminated on the basis of willfully and deliberately falsifying data. Plaintiff also contends that his supervisor was terminated for the same reasons three months after Plaintiff's termination. Following his termination, Plaintiff applied for unemployment benefits, which were initially denied but reinstated following an appeal. Plaintiff alleges that subsequent to his termination, he suffered "deep bouts of depression, loss of sleep, and panic attacks." Plaintiff on one occasion visited the Department of Veteran Affairs Psychiatric Department, but has not returned due to fear that a negative evaluation would render him unemployable. Plaintiff states that his current symptoms include "uncontrollable outbursts and violent anger."
Plaintiff alleges six causes of action. First, Plaintiff alleges age discrimination "as defendant fired plaintiff under an unsubstantiated and false reason...which was actually done because of his age." Second, Plaintiff alleges disability discrimination and asserts that Defendant Apria Healthcare terminated Plaintiff for a work-related injury. Third, Plaintiff alleges wrongful termination, and cites the reversal of his unemployment benefits as proof of wrongful termination. Plaintiff further alleges violations of his individual and civil rights and negligent infliction of emotional distress. Finally, Plaintiff alleges violations of the Occupational Safety & Health Act. Plaintiff alleges these causes of action under applicable federal law and also pursuant to California state law.
On October 30, 2012, Defendant Apria Healthcare filed a motion to dismiss for failure to state a claim upon which relief can be granted. (Dkt. No. 88.) On December 21, 2012, Defendant Blackstone Group, LP filed a motion to dismiss for lack of personal jurisdiction, failure to effectuate proper service, and failure to state claim. (Dkt. No. 100.) On January 2, 2013, Defendants Howard Derman, Lisa Getson, and Chris Karkenny filed a motion to dismiss based on failure to state a claim. (Dkt. No. 102.)
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). While a plaintiff need not give "detailed factual allegations," a plaintiff must plead sufficient facts that, if true, "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal,129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially plausible when the factual allegations permit "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In other words, "the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S. Ct. at 1950.
Defendants contend that Plaintiff has also failed to exhaust his administrative remedies for his claim of age discrimination. (Dkt. No. 88 at 3-4.) However, the Ninth Circuit has interpreted 29 U.S.C. § 633(a) as not requiring an exhaustion of administrative remedies with regard to an age discrimination claim. "We hold that a claimant is no longer required to exhaust his administrative remedies with regard to an age discrimination claim prior to filing a civil suit. We emphasize that our holding is limited to age discrimination claims governed by EEOC regulations." Bak v. Postal Serv., (U.S.), 52 F.3d 241, 244 (9th Cir. 1995)(distinguishing from EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir.1994) (holding claimant must exhaust administrative remedies before litigating discriminatory lay off claim). From the face of ...