United States District Court, C.D. California
Present: The Honorable CHRISTINA A. SNYDER Judge.
PROCEEDINGS: (IN CHAMBERS) - DEFENDANT AEROTEK,
INC.’S MOTION TO DISMISS OR FOR A MORE DEFINITE
STATEMENT (DKT. 34, FILED JULY 8, 2016)
HONORABLE CHRISTINA A. SNYDER JUDGE.
The
Court finds this motion appropriate for decision without oral
argument. See Fed. R. Civ. P. 78; C.D. Cal. Local
Rule 7-15. Accordingly, the hearing date of August 15, 2016,
is vacated, and the matter is hereby taken under submission.
I.
INTRODUCTION & BACKGROUND
On May
27, 2016, plaintiff Erika Madrigal filed the operative Second
Amended Complaint (“SAC”) in this action against
defendants Senior Aerospace SSP, Senior Operations, LLC,
Senior Operations, Inc., Senior PLC, Aerotek, Inc.
(“Aerotek”), and Does 1 through 100
(collectively, “defendants”). Dkt. 25. Plaintiff
asserts claims against defendants for: (1) pregnancy
discrimination in violation of FEHA; (2) pregnancy
discrimination in violation of public policy; (3) retaliation
for complaints of pregnancy discrimination in violation of
FEHA; (4) retaliation for complaints of pregnancy
discrimination in violation of public policy; (5) disability
discrimination in violation of FEHA; (6) disability
discrimination in violation of public policy; (7) retaliation
for requests for accommodation, and/or complaint of
disability discrimination in violation of FEHA; (8)
retaliation for requests for accommodation, and/or complaint
of disability discrimination in violation of public policy;
(9) failure to accommodate in violation of FEHA; (10) failure
to engage in the interactive process in violation of FEHA;
(11) California pregnancy disability leave
discrimination/interference in violation of FEHA; (12)
California pregnancy disability leave discrimination/
interference in violation of public policy; (13) retaliation
for requests for accommodation, and/or complaints of
California pregnancy disability leave discrimination in
violation of FEHA; (14) retaliation for requests for
accommodation, and/or complaints of California pregnancy
disability leave discrimination in violation of public
policy; and (15) failure to do everything reasonably
necessary to prevent discrimination, and retaliation from
occuring in violation of FEHA. In brief, plaintiff alleges
that she was employed by defendants and that she was
unlawfully discriminated against and ultimately terminated by
defendants on the basis of her pregnancy and
pregnancy-related disabilities.
On July
8, 2016, defendant Aerotek filed a motion to dismiss portions
of plaintiff’s SAC pursuant to Federal Rule of Civil
Procedure 12(b)(6) or, in the alternative, for a more
definite statement. Dkt. 34. In particular, Aerotek moves to
dismiss plaintiff’s Fifth, Sixth, Seventh, Eighth, and
Ninth Claims each of which asserts some form of disability
discrimination. Id. On July 13, 2016, the remaining
defendants joined in Aerotek’s motion to dismiss and
for a more definite statement. Dkt. 35. On July 18, 2016,
plaintiff filed an opposition, Dkt. 36, and on July 25, 2016,
defendants filed a reply, Dkt. 37. Having carefully
considered the parties’ arguments, the Court finds and
concludes as follows.
II.
LEGAL STANDARD
A
motion pursuant to Federal Rule of Civil Procedure 12(b)(6)
tests the legal sufficiency of the claims asserted in a
complaint. Under this Rule, a district court properly
dismisses a claim if “there is a ‘lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory.’ ”
Conservation Force v. Salazar, 646 F.3d 1240, 1242
(9th Cir. 2011) (quoting Balisteri v. Pacifica Police
Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)).
“While a complaint attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). “[F]actual allegations must
be enough to raise a right to relief above the speculative
level.” Id.
In
considering a motion pursuant to Rule 12(b)(6), a court must
accept as true all material allegations in the complaint, as
well as all reasonable inferences to be drawn from them.
Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).
The complaint must be read in the light most favorable to the
nonmoving party. Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001). However, “a court
considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a
complaint, they must be supported by factual
allegations.” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009); see Moss v. United States Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009) (“[F]or
a complaint to survive a motion to dismiss, the
non-conclusory ‘factual content, ’ and reasonable
inferences from that content, must be plausibly suggestive of
a claim entitling the plaintiff to relief.”).
Ultimately, “[d]etermining 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,
556 U.S. at 679.
Unless
a court converts a Rule 12(b)(6) motion into a motion for
summary judgment, a court cannot consider material outside of
the complaint (e.g., facts presented in briefs,
affidavits, or discovery materials). In re American
Cont’l Corp./Lincoln Sav. & Loan Sec. Litig.,
102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other
grounds sub nom Lexecon, Inc. v. Milberg Weiss Bershad Hynes
& Lerach, 523 U.S. 26 (1998). A court may, however,
consider exhibits submitted with or alleged in the complaint
and matters that may be judicially noticed pursuant to
Federal Rule of Evidence 201. In re Silicon Graphics Inc.
Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999); see
Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir.
2001).
As a
general rule, leave to amend a complaint which has been
dismissed should be freely granted. Fed.R.Civ.P. 15(a).
However, leave to amend may be denied when “the court
determines that the allegation of other facts consistent with
the challenged pleading could not possibly cure the
deficiency.” Schreiber Distrib. Co. v. Serv-Well
Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986).
III.
ANALYSIS
Defendants’
move to dismiss plaintiffs Fifth Claim (disability
discrimination in violation of FEHA), Sixth Claim (disability
discrimination in violation of public policy), Seventh Claim
(retaliation for requests for accommodation, and/or complaint
of disability discrimination in violation of FEHA), Eigth
Claim (retaliation for requests for accommodation, and/or
complaint of disability discrimination in violation of public
policy), and Ninth Claim (failure to accommodate in violation
of FEHA). As a prerequisite for each of these claims,
plaintiff must allege that she suffers from a qualifying
disability. See, e.g., Faust v. California Portland
Cement Co., 150 Cal.App.4th 864, 886 (2007) (“A
prima facie case for discrimination on grounds of physical
disability under the FEHA requires plaintiff to show: (1)
he suffers from a disability; (2) he is otherwise
qualified to do his job; and, (3) he was subjected to adverse
employment action because of his disability.”)
(emphasis added) (citations omitted); Scotch v. Art Inst.
of California-Orange Cnty., Inc., 173 Cal.App.4th 986,
1009-10 (2009) (“The elements of a failure to
accommodate claim are (1) the plaintiff has a disability
under the FEHA, (2) the plaintiff is qualified to
perform the essential functions of the position, and (3) the
employer failed to reasonably accommodate the plaintiff's
disability.”) (emphasis added). Here, defendants allege
that plaintiff has failed to adequately allege that she
suffers from a qualifying disability. For the following
reasons the Court agrees.
Under
FEHA, “[n]ot every illness qualifies as [a]
disability.” Avila v. Continental Airlines,
Inc., 163 Cal.App.4th 1237, 1249 (Cal.Ct.App. 2008). The
California Court of Appeal has explained the test a plaintiff
must ...