United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.
wrongful termination action, defendants move to dismiss all
claims against them. For the reasons discussed below, the
motion is Granted in part and Denied in
following facts are taken from the complaint. Plaintiff
Adrian Duane worked for defendant IXL Learning, Inc., from
June 2013 to January 2015. In January 2014, Duane sought and
obtained permission from his supervisor to work outside the
office and with “irregular hours.” With this
flexible work schedule, Duane often worked from 7 a.m. to
3:30 p.m. or 11 a.m. to 7:30 p.m. (Amd. Compl. ¶¶
8-12, 16, 52-59).
2014, Duane informed his supervisor that he would
periodically miss work for weekly pre-operative appointments
for his phalloplasty surgery and that he would be out for six
to eight weeks following the day of his surgery. Duane's
supervisor informed Duane that he could work remotely on the
days that he had pre-operative appointments. Duane took a
leave of absence from his IXL employment from October 2014 to
December 2014 to undergo and recover from the surgery
(id ¶¶ 17-18, 25, 38).
mid-December 2014, Duane e-mailed his supervisor to request
to work half-days in the office and half-days at home upon
his return to work due to the effects of a “surgical
complication” (id ¶ 27). Duane's
supervisor responded that he would “prefer that [Duane]
be in the office” when working because he is
“more productive” there (id ¶ 28).
Upon Duane's return to work, his supervisor also informed
him that he must be in the office at fixed hours every day
and report to his supervisor twice per week via e-mail and
another two times per week in person. Duane alleges that
these accommodations were “very strict by the standards
of other employees at IXL, nearly all of whom work flexible
hours and from home, with few checkups or restrictions”
(id ¶¶ 27, 32, 37-39).
then posted an anonymous review of IXL on the Glassdoor
website. This review stated:
If you're not family-oriented white or Asian straight or
mainstream gay person with 1.7 kids who really likes softball
- then you'll likely find yourself on the outside.
Treatment in the workplace, in terms of who gets flexible
hours, interesting projects, praise, promotions, and a big
yearly raise, is different and seems to run right along these
(id ¶ 40). Shortly thereafter, Duane told his
supervisor that he felt discriminated against by IXL after he
returned from surgery. The supervisor subsequently informed
Mishkin of Duane's complaints (id. ¶¶
met with Duane to discuss Duane's concerns that IXL
discriminated against him on the “basis of his
disability” (id ¶ 52). Duane informed
Mishkin that he felt discriminated against because IXL
refused his request for accommodations following his surgery.
Mishkin then handed Duane a printout of Duane's Glassdoor
review and demanded evidence proving the statements in the
review. Duane responded, “I'm queer and I stick
out” (id ¶¶ 48, 53-55). After
leaving the meeting with Mishkin, Duane realized that
“Mishkin had intended to terminate him before their
meeting had started” because the items in his desk were
already removed and Human Resources had already prepared
discharge papers for him (id ¶ 59). According
to IXL, Mishkin terminated Duane because his anonymous
Glassdoor review demonstrated poor judgment and poor ethics
(id. ¶ 57).
In July 2015, the National Labor Relations Board filed a
complaint on behalf of Duane against IXL, based on the
charges filed by Duane with the NLRB, alleging that IXL
violated Section 8(a) (Dkt. No. 25-2 at 2). Section 8(a)
provides that an employer cannot “restrain or coerce
employees” from exercising their rights under NLRA
Section 7 “to engage in . . . concerted activities for
the purpose of collective bargaining or other mutual aid or
protection.” In April 2016, the ALJ held that
Duane's actions did not amount to protected concerted
activity under the NLRA. Duane's review on Glassdoor was
instead found to be “individual gripes posted to hurt
[IXL's] ability to recruit prospective employees”
that constituted a “reckless and impetuous reaction to
[IXL's] hesitation to immediately accepting Duane's
regular fifty percent remote work privilege” (Dkt. No.
25-3 at 31). The NLRB adopted the ALJ's order in June
2016, dismissing Duane's complaint (Dkt. No. 25-4 at 2).
January 2017, Duane filed this lawsuit asserting two claims:
(1) that IXL violated the Family Medical Leave Act by
terminating Duane's employment because he took FMLA leave
for his surgery and (2) that Mishkin and IXL wrongfully
terminated his employment in violation of public policy
expressed in California Code Section 232.5(a) (Dkt. No. 1).
March 2017, Duane filed an amended complaint to add
references to the FMLA, the ADA, FEHA, Title VII, and the
CFRA in his wrongful termination in violation of public
policy claim (Dkt. No. 30). Defendants now jointly move to
dismiss all claims ...