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Zolensky v. American Medflight, Inc.

United States District Court, E.D. California

March 24, 2017

ROBERT ZOLENSKY II, Plaintiff,
v.
AMERICAN MEDFLIGHT, INC.; and DOES 1 THROUGH 10, inclusive, Defendant.

          ORDER

         Plaintiff Robert Zolensky II alleges in this lawsuit that defendant American Medflight, Inc. wrongfully terminated him when, instead of working his assigned shifts, Zolensky reported for duty as a Volunteer Firefighter and Paramedic. American Medflight alleges Zolensky has failed to state a claim upon which relief can be granted, and moves to dismiss. Def.'s Mot. to Dismiss (“Def.'s Mot.”), ECF No. 7.[1] Zolensky opposes, Pl.'s Opp'n to Mot. (“Pl.'s Opp'n”), ECF No. 10, and American Medflight has replied to Zolensky's opposition, Def.'s Reply Br. (“Def.'s Reply”), ECF No. 13. The court held a hearing on July 29, 2016, at which Damion D. Robinson appeared for Zolensky and Anthony Lucas Hall appeared for American Medflight. ECF No. 18. As explained below, the court GRANTS American Medflight's motion to dismiss, with leave to amend.

         I. BACKGROUND

         A. Factual Allegations

         American Medflight employed Zolensky as a flight paramedic in Susanville, California from July 2013 through August 13, 2014. Notice of Removal-Ex. A: Pl.'s Compl. (“Compl.”) ¶¶ 6, 13, ECF No. 1-1. In his job, Zolensky worked as a paramedic on American Medflight's aircraft in order to provide air ambulance services to individuals located in areas remote from hospitals and other medical facilities. Id. ¶ 6. Prior to accepting American Medflight's offer of employment, Zolensky informed American Medflight's Chief Flight Nurse that he was a Volunteer Firefighter and Paramedic, and that he may need to take leave on short notice in order to respond to emergencies. Id. ¶ 7. The Chief Flight Nurse informed him “that this would not be a problem . . . [and Zolensky] therefore accepted [American Medflight's] offer of employment. Id.

         On August 7, 2014, the fire department for which Zolensky volunteered informed Zolensky that he was being deployed to fight a fire. Id. ¶ 8. Before commencing his deployment, Zolensky contacted the Manager on Call, Scott Rule, who informed him that he could not take leave for his deployment unless he found coverage for his upcoming shifts. Id. ¶ 9. Zolensky was ultimately unable to find coverage for his shifts, see Id . ¶ 10-11, but he left work and reported for duty as a Volunteer Firefighter and Paramedic anyway, id. ¶ 11.

         On August 13, 2014, American Medflight terminated plaintiff's employment “on grounds of job abandonment.” Id. ¶ 13-14. “Prior to his termination for job abandonment, [Zolensky] had received only positive feedback on his work performance from [American Medflight] and was an outstanding employee.” Id. ¶ 15.

         B. Procedural History and Claims Raised

         On March 8, 2016, Zolensky filed this suit against American Medflight in Shasta County Superior Court. Notice of Removal, ECF No. 1. On April 18, 2016, American Medflight removed the case to this court based on diversity jurisdiction, id., and thereafter filed the pending motion.

         In his complaint, Zolensky alleges that American Medflight wrongfully terminated him in violation of California Labor Code section 230.3 and public policy, and intentionally inflicted emotional distress (IIED). See generally Compl. Zolensky seeks (1) general damages; (2) special and compensatory damages, including but not limited to, loss of wages, salary, benefits, back pay, front pay, future lost income and benefits, and other economic losses; (3) punitive or exemplary damages on each of his claims, and that such damages be trebled under California Civil Code section 3345; (4) civil penalties under California's Private Attorney General Act of 2004 (PAGA); (5) costs; (6) reasonable attorney's fees under California Labor Code section 2699(g); (7) prejudgment interest and post judgment interest as available by law; and (8) such other and further relief as this court may deem just and proper. Id. at 9.

         In its motion to dismiss, American Medflight argues (1) Zolensky's allegations do not support a violation of California Labor Code section 230.3 because American Medflight qualifies for a statutory exemption as a provider of emergency services; (2) Zolensky's allegations fail to allege wrongful termination in violation of public policy because no public policy prohibited his termination; and (3) Zolensky's IIED claim fails because he does not allege the extreme and outrageous conduct necessary to support such a claim, and the claim is preempted by California's Workers' Compensation Act. See generally Def.'s Mot. Zolensky opposes the motion, arguing (1) the statutory exemption for emergency service providers does not apply; (2) he has stated a valid claim for termination in violation of public policy; and (3) the allegations in the complaint are sufficient to state an IIED claim, and the Workers' Compensation Act's exclusivity provisions do not prevent his recovery. See generally Pl.'s Opp'n. In the reply, American Medflight reiterates its original arguments while addressing Zolensky's opposition. See generally Def.'s Reply.

         II. LEGAL STANDARD

         Under Rule 12(b)(6), a party may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A court may dismiss “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) (citing Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984)).

         Although a complaint need contain only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), in order to survive a motion to dismiss this short and plain statement “must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than “an unadorned, the-defendant-unlawfully-harmed-me accusation” or “‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action.'” Id. (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

         In making this context-specific evaluation, this court must construe the complaint in the light most favorable to the plaintiff and accept as true its factual allegations. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). This rule does not apply to “‘a legal conclusion couched as a factual allegation, '” Papasan v. Allain, 478 U.S. 265, 286 (1986), nor to “allegations that contradict matters properly subject to judicial notice” or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir. 2001). A court's consideration of documents attached to a complaint or incorporated by reference or matters of judicial notice will not convert a motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003); Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); cf. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002) (noting that even though the court may look beyond pleadings in analyzing a motion to dismiss, generally the court is limited to the face of the complaint).

         III. DEFENDANT'S REQUEST FOR JUDICIAL NOTICE

         American Medflight requests the court take judicial notice of the following four exhibits:

Exhibit 1 - public record search results from http://www.centralregistry.ca.gov/Verification/ for last name “Rule”;
Exhibit 2 - public record search results from http://www.centralregistry.ca.gov/Verification/ for last name “Zolensky”;
Exhibit 3 - termination letter from Scott Rule to Zolensky dated August 13, 2014; and Exhibit 4 - the declaration of Janice ...

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