United States District Court, E.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS
Troy
L. Nunley United States District Judge
This
matter is before the Court pursuant to Defendants California
Department of Water Resources (“DWR”) and David
Gutierrez’s (collectively “Defendants”)
motion to dismiss Plaintiff’s second amended complaint
(“SAC”). (ECF No. 38.) Plaintiff Syed Mohsin
(“Plaintiff”) filed an opposition to
Defendants’ motion. (ECF No. 40.) Defendants also filed
a reply. (ECF No. 41.) The Court has carefully considered the
arguments raised in Defendants’ motion and reply, as
well as Plaintiff’s opposition. For the reasons set
forth below, Defendants’ Motion to Dismiss is GRANTED
IN PART and DENIED IN PART.
I.
Factual Background
Plaintiff
was employed as an Assistant Engineering Specialist by DWR
from August 2000 to April 13, 2012. (ECF No. 38 at ¶ 8.)
He was diagnosed with right temporal lobe epilepsy at the age
of ten and suffered from various types of seizures throughout
his life. (ECF No. 38 at ¶ 17.) Plaintiff alleges that
at the time he was hired, his neurologist completed a medical
form that served the basis for DWR to accommodate certain
restrictions on Plaintiff’s duty statement as required
by his condition. (ECF No. 38 at ¶¶ 22-25.)
Plaintiff states these accommodations remained in place until
February 2002, when he alleges they were removed from his
duty statement over his protest. (ECF No. 38 at ¶¶
35-36.)
On
August 5, 2002, Plaintiff had brain surgery that lessened the
degree of his seizures, but negatively impacted his mental
processing speed and the use of his executive functions. (ECF
No. 38 at ¶¶ 38-39.) Plaintiff alleges that he
attempted to receive accommodations for his condition
following the surgery, but that Mr. Gutierrez
“effectively refused” to provide those
accommodations. (ECF No. 38 at ¶¶ 45-46.) The SAC
states that DWR sought evaluations proposing accommodations
for Plaintiff’s condition from multiple doctors,
including Plaintiff’s own doctor. (ECF No. 38 at
¶¶ 47-50.) Ultimately, DWR issued a “Notice
of Medical Action” pursuant to California Government
Code (“Cal. Gov’t Code”) Section 19991.10
on March 12, 2012. (ECF No. 38 at ¶ 61.)
Plaintiff
states that his medical termination was preceded by ten years
of harassment in an effort to force Plaintiff to resign. (ECF
No. 38 at ¶ 56.) Plaintiff also alleges that he was
rejected from approximately 20 other positions within DWR for
which he applied and that those positions were filled by
individuals with lesser qualifications. (ECF No. 38 at
¶¶ 65-67.) Plaintiff states that he has taken
multiple tests for engineering positions and demonstrated
that he is capable of performing the essential functions of
each position. (ECF No. 38 at ¶ 66.) However, Plaintiff
alleges Defendants refused to offer him a position in
retaliation for Plaintiff’s complaints that Defendants
violated laws in their treatment of Plaintiff’s
disability. (ECF No. 38 at ¶ 65.)
II.
Procedural Background
On June
6, 2013, Plaintiff filed a complaint against Defendants DWR,
David Gutierrez, and Michael Waggoner[1], alleging violations of the
Fourteenth Amendment of the U.S. Constitution, Section 1983
(42 U.S.C. § 1983); Americans with Disabilities Act
(“ADA”) (42 U.S.C. § 12101, et seq.);
Section 504 of the Rehabilitation Act (“Section
504”) (29 U.S.C. § 794); the California Fair
Employment and Housing Act (“FEHA”) (Cal.
Gov’t Code § 12900, et seq.); and Intentional
Infliction of Emotional Distress, Negligence, and Wrongful
Termination. (ECF No. 1.) On August 20, 2013, Defendants
filed a motion to dismiss. (ECF No. 9.)
On
October 1, 2014, the Court issued an order granting in part
and denying in part Defendants’ motion to dismiss. (ECF
No. 26.) Plaintiff was granted leave to amend on multiple
causes of action and filed his FAC on December 16, 2014. (ECF
No. 30.) On December 29, 2014, Defendants filed a second
motion to dismiss. (ECF No. 31.) The Court issued an order
granting in part and denying in part Defendants’ motion
to dismiss. (ECF No. 37.) Plaintiff was again granted leave
to amend only Count IV (Violations of the FEHA), and filed
his SAC on December 9, 2015. (ECF No. 38.)
Currently,
under his SAC, Plaintiff brings three of the claims that
survived Defendants’ second motion to dismiss: Count I
(Violation of the ADA), Count II (Violations of Section 504),
and Count III (Violations of Section 1983). (ECF No. 38.)
Additionally, Plaintiff’s SAC attempts to remedy the
insufficiency of Count IV (Violations of the FEHA) and
separates the single claim into three causes of action
against Defendants DWR and Gutierrez, for violations of:
Count IV-A (discrimination under FEHA) (Cal. Gov’t Code
§ 12940(a)); Count IV-B (retaliation under FEHA) (Cal.
Gov’t Code § 12940(h)); and Count IV-C (harassment
under FEHA) (Cal. Gov’t Code § 12940(j)). (ECF No.
38.) Finally, Plaintiff reasserts the previously dismissed
Count V (Wrongful Discharge). (ECF No. 38.) On December 17,
2015, Defendants filed a third motion to dismiss
(“Motion to Dismiss”). (ECF No. 39.)
III.
Standard of Law
A.
Motion to Dismiss
Federal
Rule of Civil Procedure 8(a) requires that a pleading contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” See Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). Under notice
pleading in federal court, the complaint must “give the
defendant fair notice of what the claim . . . is and the
grounds upon which it rests.” Bell Atlantic v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotations
omitted). “This simplified notice pleading standard
relies on liberal discovery rules and summary judgment
motions to define disputed facts and issues and to dispose of
unmeritorious claims.” Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 512 (2002).
On a
motion to dismiss, the factual allegations of the complaint
must be accepted as true. Cruz v. Beto, 405 U.S.
319, 322 (1972). A court is bound to give plaintiff the
benefit of every reasonable inference to be drawn from the
“well-pleaded” allegations of the complaint.
Retail Clerks Int’l Ass’n v.
Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff
need not allege “‘specific facts’ beyond
those necessary to state his claim and the grounds showing
entitlement to relief.” Twombly, 550 U.S. at
570. “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 Twombly, 550 U.S. 544, 556 (2007)).
Nevertheless,
a court “need not assume the truth of legal conclusions
cast in the form of factual allegations.” United
States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2
(9th Cir. 1986). While Rule 8(a) does not require detailed
factual allegations, “it demands more than an
unadorned, the defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. A
pleading is insufficient if it offers mere “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Twombly, 550
U.S. at 555; see also Iqbal, 556 U.S. at 678
(“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.”). Moreover, it is inappropriate to assume
that the plaintiff “can prove facts that it has not
alleged or that the defendants have violated the . . . laws
in ways that have not been alleged[.]” Associated
Gen. Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983).
Ultimately,
a court may not dismiss a complaint in which the plaintiff
has alleged “enough facts to state a claim to relief
that is plausible on its face.” Iqbal, 556
U.S. at 697 (quoting Twombly, 550 U.S. at 570). Only
where a plaintiff fails to “nudge[] [his or her] claims
. . . across the line from conceivable to plausible[,
]” is the complaint properly dismissed. Id. at
680. While the plausibility requirement is not akin to a
probability requirement, it demands more than “a sheer
possibility that a defendant has acted unlawfully.”
Id. at 678. This plausibility inquiry is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 679.
B.
Granting Leave to Amend
If a
complaint fails to state a plausible claim, “‘[a]
district court should grant leave to amend even if no request
to amend the pleading was made, unless it determines that the
pleading could not possibly be cured by the allegation of
other facts.’” Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000) (en banc) (quoting Doe v.
United States, 58 F.3d 484, 497 (9th Cir. 1995));
see also Gardner v. Marino, 563 F.3d 981, 990 (9th
Cir. 2009) (finding no abuse of discretion in denying leave
to amend when amendment would be futile). Federal Rule of
Civil Procedure 15(a) “declares that leave to amend
shall be freely given when justice so requires.”
Foman v. Davis, 371 U.S. 178, 182 (1962) (internal
citation omitted).
“[T]he
court’s discretion to deny such leave is
‘particularly broad’ where the plaintiff has
previously amended its complaint[.]” Ecological
Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502,
520 (9th Cir. 2013) (quoting Miller v. Yokohama Tire
Corp., 358 F.3d 616, 622 (9th Cir. 2004)). Repeated
failure to cure deficiencies by amendment previously allowed
is a reason to deny leave to amend. Foman, 371 U.S.
at 182. Granting or denying leave to amend is within the
sound discretion of the trial court, and will be reversed
only for abuse of discretion. Swanson v. U.S. Forest
Serv., 87 F.3d 339, 343 (9th Cir. 1996).
IV.
Analysis
A.
Count IV-A: Discrimination in Violation of FEHA by
Defendant DWR
In its
Order dismissing Plaintiff’s FAC, the Court dismissed
Plaintiff’s FEHA claim with leave to amend, holding
that Plaintiff did not allege sufficient facts to support his
claim and did not specify under which subset of FEHA he
intended to bring his cause of action. (ECF No. 37 at 13.)
Plaintiff was instructed that, if he intended to bring
multiple claims under FEHA, he must individually identify
each claim within his complaint. (ECF No. 37 at 13.) Thus,
Plaintiff has divided his previous single Count IV into three
separate counts: Count IV-A; Count IV-B; and Count IV-C. (ECF
No. 38 at ¶¶ 100-5.) Despite this effort,
Plaintiff’s Count IV-A appears to bring multiple causes
of action under Cal. Gov’t Code Section 12940(a), (m),
and (n). (ECF No. 38 at ¶¶ 100-5.)
Although
Plaintiff did not individually label these three unique
claims, a court is bound to give a plaintiff the benefit of
every reasonable inference to be drawn from the
“well-pleaded” allegations of the complaint.
Retail Clerks Int’l Ass’n v.
Schermerhorn, 373 U.S. 746, 753 n.6 (1963). Therefore,
the Court has discerned that Plaintiff intended to bring
three individual claims and finds that Plaintiff has alleged
sufficient facts to bring the following claims: (1)
Discrimination (Cal. Gov’t Code § 12940(a)); (2)
Failure to make ...