United States District Court, E.D. California
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.
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.
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.
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.
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.
Procedural History and Claims Raised
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.
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.
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.
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)).
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).
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).
DEFENDANT'S REQUEST FOR JUDICIAL NOTICE
Medflight requests the court take judicial notice of the
following four exhibits:
Exhibit 1 - public record search results from
last name “Rule”;
Exhibit 2 - public record search results from
last name “Zolensky”;
Exhibit 3 - termination letter from Scott Rule to Zolensky
dated August 13, 2014; and Exhibit 4 - the declaration of