MEMORANDUM AND ORDER RE: MOTION TO DISMISS
WILLIAM B. SHUBB, District Judge.
Plaintiff Crochen Rivers brought this suit against Columbia Sussex Corporation ("Columbia Sussex") and later amended its pleadings to include WHG LLC and Westmont Hospitality Group (together, the "Westmont defendants"), in connection with the termination of his employment as a security guard at a hotel owned by defendants. Currently before the court is the Westmont defendants' motion to dismiss for failure to exhaust administrative remedies under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under Rule 12(b)(6). (Docket No. 25.)
I. Relevant Facts and Procedural Background
Plaintiff originally brought this action against Columbia Sussex in the Superior Court of California for the County of Sacramento on March 3, 2012. (Notice of Removal Ex. A ("Compl.") (Docket No. 1).) Columbia Sussex removed the case to this court on April 25, 2012. While plaintiff originally brought suit only against Columbia Sussex, upon stipulation between plaintiff and Columbia Sussex the court granted plaintiff leave to file the First Amended Complaint ("FAC"), which included allegations against the Westmont defendants. (Docket No. 15.)
In the FAC, plaintiff, who is sixty-two years old, alleges that he was hired as a security guard at the Hilton Sacramento Arden West ("HSAW") located at 2200 Harvard Street, Sacramento, California, on or about June 15, 2007. (FAC ¶¶ 8-9.) At the time, HSAW was allegedly owned by Columbia Sussex. (Id.)
On or about March 26, 2010, plaintiff alleges that he took medical leave in order to seek medical treatment for a severely injured left foot. (Id. ¶ 10.) He alleges that he was entitled to leave under the Family and Medical Leave Act ("FMLA") until June 18, 2010, but that a Columbia Sussex employee, Melissa Bass, informed him that he would be "separated from employment" if he did not return to work by June 18, 2010. (Id. ¶¶ 10-11.) Plaintiff allegedly requested modified duty until he was authorized by his treating physician to return to work without restrictions, but Ms. Bass failed and refused to respond. (Id. ¶ 12.) Plaintiff was allegedly terminated on June 19, 2010. (Id.)
Plaintiff's counsel allegedly sent Ms. Bass a letter informing her that plaintiff believed he had been wrongfully terminated by Columbia Sussex on the basis of physical disability, that Columbia Sussex failed to engage in the interactive process to grant reasonable accommodation, and that plaintiff had been the subject of retaliation, all in violation of the California Fair Employment and Housing Act ("FEHA"). (Id. ¶ 13.) Plaintiff's counsel was allegedly contacted by a Columbia Sussex representative and the parties discussed plaintiff's concerns. (Id. ¶ 14.) On or around August 11, 2010, plaintiff alleges that he received a letter from Howard Harris, the general manager of HSAW, which stated that plaintiff was still employed by Columbia Sussex, but contained no information as to why the June 19, 2010 termination notice had not ended the employment relationship. (Id. ¶ 15.)
On or around September 29, 2010, plaintiff alleges that his counsel sent a letter to Mr. Harris informing him that plaintiff had been cleared for work by his physician, and requested that plaintiff be given a pay increase and an assistant on an as-needed basis. (Id. ¶ 16.) Mr. Harris allegedly responded by denying both the request for an assistant and the request for a salary increase. (Id.) Plaintiff's counsel allegedly sent Mr. Harris a letter accepting reinstatement and also informed him of plaintiff's intent to file a complaint with the California Department of Fair Employment and Housing ("DFEH") for discrimination due to physical disability and failure to engage in the interactive process to grant reasonable accommodation. (Id. ¶ 17.) Plaintiff allegedly returned to work at HSAW in late October 2010. (Id.)
When returning to work, plaintiff was allegedly scheduled for twenty-four hours per week, when before his alleged termination in June 2010, he worked approximately forty hours per week. (Id. ¶ 18.) On or about December 28, 2010, plaintiff allegedly received a written warning from a supervisor, Melissa Dunson, for ignoring instruction from another supervisor. (Id. ¶ 19.) Plaintiff alleges that he did not ignore any instructions. (Id.) On or around the same date, December 28, 2010, plaintiff's counsel allegedly sent Mr. Harris a letter informing him that plaintiff believed the December 28, 2010 warning and reduction in hours was retaliatory under FEHA. (Id.)
On or about March 9, 2011, WHG allegedly purchased HSAW from Columbia Sussex. (Id. ¶ 9.) Plaintiff alleges that on or about March 31, 2011, he reported to work in expectation of attending an orientation meeting with WHG for HSAW's employees. (Id. ¶ 20.) Ms. Dunson allegedly told plaintiff that his services were no longer needed, and he was not allowed to attend the orientation. (Id.) Plaintiff alleges that WHG took over day-to-day operations of HSAW on or about April 1, 2011. (Id. ¶ 9.) WHG allegedly hired HSAW's employees en masse, with the exception of plaintiff. (Id. ¶¶ 9, 21.) On or about April 7, 2011, April 14, 2011, and March 8, 2012, plaintiff filed administrative complaints against Columbia Sussex with the DFEH. (Id. ¶ 29, Ex. A.) He received letters from DFEH closing his case and issuing right-to-sue notices on or about the same dates, as plaintiff apparently requested the immediate right to sue. (See id. ¶ 30, Ex. B.)
Plaintiff brought claims under FEHA against all defendants for: (1) retaliation; (2) discrimination due to age and physical disability; (3) failure to engage in the interactive process and make reasonable accommodation; and (4) termination in violation of public policy. (Id. ¶¶ 31-68.)
Plaintiff and Columbia Sussex have filed a notice of settlement and stipulation of dismissal. (Docket Nos. 16 & 20.) The court dismissed the action against Columbia Sussex with prejudice on February 15, 2013. (Docket No. 21.)
A. Exhaustion of ...