United States District Court, S.D. California
ORDER GRANTING MOTION TO DISMISS; GRANTING LEAVE TO AMEND IN PART
JEFFREY T. MILLER, District Judge.
Defendant The Roman Catholic Bishop of San Diego ("RCBSD"), erroneously sued as Roman Catholic Archdiocese of San Diego, Roman Catholic Archdiocese of San Diego dba Cathedral Catholic High School and Cathedral Catholic High School, moves to dismiss all claims alleged in Plaintiff Michele Baker's disability, retaliation, and age discrimination complaint. Plaintiff opposes the motion. Pursuant to Local Rule 7.1(d)(1), the court finds the matters presented appropriate for decision without oral argument. For the reasons set forth below, the court grants the motion to dismiss the FEHA claims with prejudice, grants the motion to dismiss all other claims without prejudice, and grants Plaintiff 15 days leave to amend the complaint from the date of entry of this order.
On April 4, 2014, RCBSD removed this action from the Superior Court for the State of California, County of San Diego, based upon federal question jurisdiction under 28 U.S.C. §§1331, 1441, and 1446. The Complaint alleges six claims for relief: (1) disability discrimination in violation of Gov. Code §12940 et seq., Fair Employment and Housing Act (FEHA); (2) disability discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12112 et seq.; (3) violation of California Family Rights Act ("CFRA"), Gov. Code §12945.2 et seq., FEHA; (4) age discrimination in violation of Gov. Code §12940 et seq., FEHA; (5) wrongful termination in violation of public policy; and (6) declaratory and injunctive relief. (Ct. Dkt. 1). All of Plaintiff's claims arise from the following generally described conduct.
Plaintiff, a 67 year old teacher, was employed by RCBSD for over 13 years at Cathedral Catholic High School ("CCHS"). (Compl. ¶¶4, 7, 8). On August 23, 2012, Plaintiff "sustained and/or aggravated and/or developed perceived and/or physical disability(s) including, but not limited to, concussions, vision problems, associated conditions and others from work activity." (Compl. 9). After sustaining the condition, Plaintiff requested, and received, a one week leave of absence under the CFRA. (Compl. ¶12). Plaintiff filed a workers compensation claim. After this incident, RCBSD allegedly began "harassing, discriminating against and retaliating against Plaintiff in terms and conditions of her employment." (Compl. ¶14).
In January 2013, RCBSD conducted a performance review of Plaintiff, the first review since 2009. The principal at CCHS "informed Plaintiff that various categories of work performance and work behavior were areas for growth' and that her contract was not being renewed." (Compl. ¶16). On August 8, 2013, Plaintiff alleges that she was "wrongfully terminated  for no stated reason and/or the false and/or exaggerated and/or pretextual reason(s) that Plaintiff had performance problems." (Compl. ¶17). The court notes that Plaintiff characterizes the non-renewal of the employment contract as a wrongful termination.
Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City , 640 F.2d 963, 966 (9th Cir. 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept. , 901 F.2d 696, 699 (9th Cir. 1990). Courts should dismiss a complaint for failure to state a claim when the factual allegations are insufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp v. Twombly , 550 U.S. 544, 555 (2007) (the complaint's allegations must "plausibly suggest" that the pleader is entitled to relief); Ashcroft v. Iqbal , 556 U.S. 662 (2009) (under Rule 8(a), well-pleaded facts must do more than permit the court to infer the mere possibility of misconduct). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 678. Thus, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id . The defect must appear on the face of the complaint itself. Thus, courts may not consider extraneous material in testing its legal adequacy. Levine v. Diamanthuset, Inc. , 950 F.2d 1478, 1482 (9th Cir. 1991). The courts may, however, consider material properly submitted as part of the complaint. Hal Roach Studios, Inc. v. Richard Feiner and Co. , 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).
Finally, courts must construe the complaint in the light most favorable to the plaintiff. Concha v. London , 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S.Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. Holden v. Hagopian , 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a Rule 12(b)(6) motion. In Re Syntex Corp. Sec. Litig. , 95 F.3d 922, 926 (9th Cir. 1996).
The FEHA Claims (Claims 1, 3, and 4)
In broad brush, Plaintiff alleges that RCBSD violated FEHA by discriminating against her due to her disability, CFRA leave, and age. While FEHA prohibits discrimination by employers, religious associations or corporations are excluded from the definition of employer. Gov't Code §12926(d) ("Employer' does not include a religious association or corporation not organized for private profit."); see Silo v. CHW Med. Found. , 27 Cal.4th 1097, 1100 (2002) (Catholic hospital exempt from FEHA); Henry v. Red Hill Evangelical Church of Tustin , 201 Cal.App.4th 1041, 1049-50 (2011) (school operated by Church is religious non-profit corporation and therefore not an employer for purposes of FEHA).
Plaintiff argues that the statutory scheme permits her claims to move forward. Cal. Gov't Code §12926.2(f) provides:
(1) Notwithstanding any other provision of law, a nonprofit public benefit corporation formed by, or affiliated with, a particular religion and that operates an educational institution as its sole or primary activity, may restrict employment, including promotion, in any ...