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Duane v. IXL Learning, Inc.

United States District Court, N.D. California

May 12, 2017





         In this 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 part.


         The 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).

         In July 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).

         In 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).

         Duane 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 characteristics.

(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. ¶¶ 43, 47).

         Mishkin 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). [*]

         In 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).

         In 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 ...

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