The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
On May 1, 2013, the court held a hearing on defendants' January 29, 2013 motion to dismiss. Plaintiff William Bell appeared in pro per. David Burkett appeared for the moving defendants, Teresa Meagher and the Regents of the University of California ("the Regents") (sued as the University of California, Davis Medical Center ("UCDMC")). On review of the motion, the documents filed in support and opposition, upon hearing the arguments of plaintiff and counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND Plaintiff is an African-American man in his 40s who began working for Meagher at UCDMC in Rancho Cordova in May 2006 as a Diagnostic Radiology Technologist. Plaintiff claims that he suffers from a "type II serious medical condition"*fn1 and clinical depression. This medical condition caused rapid weight loss and abdominal irritation.
On June 23, 2009, plaintiff requested medical leave due to illness from Meagher. Second Amended Complaint ("SAC") at 9, ¶ 23. Plaintiff was granted leave. Id. at 6, ¶ 10.
On June 26, 2009, plaintiff sent a medical certificate issued by his treating physician to the UCDMC Human Resources department "indicating that plaintiff was unable to return to work due to a serious medical condition and that follow up care was necessary." SAC at 7, ¶ 11; 18, ¶ 54. Plaintiff claims his disability prevented him from "perform[ing] the essential functions of his position and other normal daily activities, such as cooking, cleaning or driving[.
T]his incapacity lasted until September 23rd, 2009." Id. at 8-9, ¶ 19.
On July 17, 2009, plaintiff again requested medical leave by informing Meagher
that he would be unable to work due to his health condition. SAC at 10, ¶ 25. Plaintiff does not state whether he was in fact granted leave.
On July 29, 2009, plaintiff claims that his "termination" was "approved" for unsatisfactory performance. See SAC at 19, ¶ 56; 20, ¶ 58. He does not specify whether he was actually terminated and if so, on that date or at a later date.
Also on July 29, 2009, plaintiff submitted a Charge of Discrimination with the EEOC on grounds of disability and retaliation. Second Amended Compl. ("SAC") at 27. The EEOC complaint is reproduced here in its entirety:
I was hired by Respondent in May, 2006. My position Diagnostic Radiology Technician. My immediate supervisor is Tina Meagher, Manager. For the past two years, I have been subjected to ongoing harassment regarding my disability, denied a reasonable accommodation, and denied equal terms and conditions of employment. For example, Managers and employees have continuously made jokes about my health. I have also been unjustly disciplined due to my disability. On June 23, 2009, I was place[d] on a two-week leave of absence and I complained t[o] my Manager about my treatment. On June 26, 2009, I provided Respondent's Human Resource Department with medical documentation of my disability and my restrictions. When I attempted to return to work, I was not permitted to do so. To date, I have not been permitted to work. No remedial action was taken in response to my complaints.
Respondent's stated reason for not allowing me to return to work is that I should await a letter from Respondent. However, although I have not received a letter, the union has informed me that Respondent has issued a Letter of Intent to Terminate me.
I believe I have been discriminated against because of my disability, in retaliation for my participation in protected activities, in violation of the Americans with Disabilities Act of 1990, as amended.
On August 5, 2009, after his termination was "approved" and after he filed his EEOC charge, plaintiff met with Meagher and others at UCDMC to discuss his medical condition and his need for accommodations. SAC at 19, ¶ 55. At this meeting, he was informed by Meagher and the others that "that was not why we were there." Id. Plaintiff provides no other details regarding this meeting.
Plaintiff initiated this action on April 1, 2011 and is proceeding on the SAC filed April 30, 2012. See ECF No. 18. As screened, plaintiff brings the following claims against the Regents: (1) violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., and California's Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code §§ 12900 et seq.; (2) violations of Title VII of the Civil Rights Act of 1964 ("Title VII"),
42 U.S.C. §§ 2000e et seq.; (3) intentional infliction of emotional distress; and (4) wrongful termination. Plaintiff also brings the following claim against both Meagher and the Regents: (5) violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. See ECF No. 21 at 3.
On January 29, 2013, the Regents and Meagher filed a motion to dismiss, which plaintiff opposes. In his opposition, plaintiff addresses only defendants' motion as related to his Title VII sex and race discrimination claims.
The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "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). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).
Defendants seek dismissal of plaintiff's Title VII claims for race or sex discrimination for failure to exhaust administrative remedies and for failure to state a claim. Defendants also seek dismissal of the ADA and FEHA claims as deficient because plaintiff has not alleged that he is a qualifying individual with a disability. As to plaintiff's common law claims of wrongful termination and intentional infliction of emotional distress, defendants argue that plaintiff may not maintain those claims under California law against public entities. And finally, defendants seek dismissal of plaintiff's FMLA claim pursuant to the doctrine of sovereign immunity and because plaintiff alleges he was actually given leave.
A. ADA Claim (against the Regents)
Plaintiff brings suit against the Regents for violating the ADA by discriminating against him due to disability, failing to engage in the interactive process, and failing to provide a reasonable accommodation.
Employees may invoke the protections of the ADA against discrimination by their employer in "hiring, advancement, or discharge," among other areas. See 42 U.S.C. § 12112(a). To state a prima facie case of employment discrimination under the ADA, a plaintiff must allege that: (1) she is "disabled" pursuant to the ADA; (2) she is a qualified individual, able to perform the essential functions of the job, with or without reasonable accommodation; and (3) she suffered an adverse employment action because of her disability. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1090 (9th Cir. 2002); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999); see also 42 U.S.C. § 12111(8)-(9) (defining "qualified individual" and "reasonable accommodation").
Initially, the court agrees with defendants that plaintiff has not sufficiently alleged that he had a disability. Not all individuals having what might commonly be perceived as physical or mental disabilities are protected by the ADA. Merely having an impairment does not make one disabled for purposes of the ADA. See Brody v. ITT Educational Services, Inc., 2011 WL 1239903, at *3-4 (D. Nev. 2011). "The ADA defines 'disability' with specificity as a term of art. Hence, a person may be 'disabled' in the ordinary usage sense, or even for purposes of receiving disability benefits from the government, yet still not be 'disabled' under the ADA." Sanders v. Arneson Prods., Inc., 91 F.3d 1351, 1354 n.2 (9th Cir. 1996) (temporary psychological impairment that lasted less than four months not a disability under the ADA).
The ADA defines "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). Plaintiff's ...