United States District Court, N.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS RE:
DKT. NO. 5
R. LLOYD United States Magistrate Judge
before the court is Defendant Safeway, Inc.'s
(“Safeway”) motion to dismiss three of the eleven
claims brought by Plaintiff Aref Rabieh
(“Rabieh”). Dkt. No. 5. Both parties have
consented to magistrate judge jurisdiction. Dkt. Nos. 8, 9.
For the reasons described below, the court grants the motion
following facts are alleged in Rabieh's complaint. Dkt.
No. 1, Ex. A. Rabieh started working as a food clerk at
Safeway, a supermarket chain, in October 2010. Id.,
¶ 1. He received positive performance reviews.
Id., ¶ 10.
takes prescription medication for back pain. Id.,
¶ 11. In 2016, he took several sick days to deal with
this pain. Id., ¶ 12. His manager, however,
called him and threatened to fire him if he took additional
sick days, putting Rabieh in fear of losing his job.
Id. As a result, Rabieh came into work
“despite extreme pain” on December 19, 2016,
having taken prescription medication earlier that day.
Id., ¶ 13. Once Rabieh arrived at work, his
manager accused him of being drowsy and “under the
influence, ” ordered him to take a drug test, and
suspended his employment. Id., ¶ 13.
tested positive for his prescription pain medication-and for
no other drugs. Id., ¶ 14. Safeway did not work
with Rabieh to find a reasonable accommodation for his pain.
Id., ¶ 15. Instead, despite Rabieh showing his
supervisors his prescription paperwork and doctor's notes
confirming that he had been prescribed the medicine for which
he tested positive, Rabieh was terminated. Id.,
¶¶ 14, 15. The official reason given for
Rabieh's termination was his violation of unspecified
“company policies and rules.” Id.,
¶ 15. As a result of his termination and the events
leading up to it (including his manager's threats and the
imposed drug test), Rabieh experienced “mental
distress, anguish, indignation, humiliation, depression,
anxiety, fear, loss of sleep, loss of appetite, and
body-aches.” Id., ¶ 70.
filed suit against Safeway in Santa Clara Superior Court less
than one month after his termination. Dkt. No. 1, ¶ 1.
His complaint alleges eleven claims, including: unlawful
retaliation in violation of public policy, wrongful
termination in violation of public policy, discrimination and
harassment, failure to prevent and investigate discrimination
and harassment, failure to provide reasonable accommodation,
violation of California Family Rights Act
(“CFRA”) / Family Medical Leave Act
(“FMLA”) rights, intentional infliction of
emotional distress, negligent infliction of emotional
distress, negligence, and invasion of privacy. Dkt. No. 1,
Ex. A. Safeway removed the action to federal court on the
basis of federal question jurisdiction and filed the present
motion to dismiss. Dkt. Nos. 1, 5.
moves to dismiss only Rabieh's claims for intentional
infliction of emotional distress, negligent infliction of
emotional distress, and negligence. Dkt. No. 5. Safeway
asserts that each claim is barred by the exclusive remedy
provisions of California's Workers' Compensation Act
(“WCA”)-and thus that leave to amend is not
warranted. Id. Safeway also argues that dismissal of
each claim is appropriate on the grounds that Rabieh fails to
state a claim upon which relief may be granted. Id.
For the intentional infliction of emotional distress claim,
Safeway asserts that Rabieh does not allege extreme and
outrageous conduct. Id. For the negligent infliction
of emotional distress and negligence claims, Safeway argues
that Rabieh alleges only intentional actions by Safeway and
that he fails to sufficiently plead the essential elements of
a negligence claim. Id.
response, Rabieh argues that his claims are not barred by the
WCA's exclusivity provisions because Safeway's
discriminatory conduct both falls outside the normal course
of employment and implicates substantial public policy
considerations. Dkt. No. 7. Rabieh further asserts that
Safeway's conduct in threatening to fire him for taking
sick leave, forcing him to take a drug test, and firing him
for taking prescription drugs is “outrageous”-or
at least that the question of whether this conduct is
outrageous should go to a jury. Id. As for his
negligence and negligent infliction of emotional distress
claims, Rabieh argues that Safeway negligently handled his
termination by breaching the standard of care of a reasonable
employer who should not terminate employees for attempting to
manage their pain. Id. If the court finds the
negligence-related claims insufficiently plead, Rabieh
requests leave to amend to allege additional facts as to the
reasons Safeway provided Rabieh for his termination (namely,
that the levels of the pain medication in Rabieh's system
were above those typically found in the bodies of those
taking that medication; Rabieh argues that his supervisors
were neither doctors nor his doctor, and that their
decision to terminate him on the basis of their own medical
opinions was negligent). Id.
survive a motion to dismiss, a complaint must allege
sufficient facts to state a claim for relief that is facially
plausible. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Complaints that merely
recite the elements of a cause of action are insufficient.
Id. In considering a motion to dismiss, a court
accepts all of the plaintiff's factual allegations as
true and construes the pleadings in the light most favorable
to the plaintiff. Manzarek v. St. Paul Fire & Marine Ins.
Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “the
court is not required to accept legal conclusions cast in the
form of factual allegations if those conclusions cannot
reasonably be drawn from the facts alleged.” Clegg
v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.
argues that each of the three claims it moves to dismiss are
barred by the exclusive remedy provisions of the WCA.
is the exclusive remedy for employees suffering physical or
mental injuries arising out of the course of employment.
Shoemaker v. Myers, 52 Cal.3d 1, 7, 15. The
WCA's exclusive remedy provisions institute a
“compensation bargain” between employers and
employees governing claims for such injuries. Id.,
at 16. In this bargain, employees receive faster and more
certain awards of compensation in exchange for giving up the
more varied and substantial damages available at common law.
Id. There are two relevant exceptions to WCA
exclusivity. Claims may fall beyond the WCA's exclusivity
when either (1) the defendant's conduct causing the
injury is not “a normal part of the employment
relationship” and/or has a “questionable”