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Ayala v. Frito Lay, Inc.

United States District Court, E.D. California

June 30, 2017

REBECCA AYALA, Plaintiff,
v.
FRITO LAY, INC., Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS IN PART AND DENYING IN PART; DENYING DEFENDANT'S MOTION TO STRIKE (DOC. NOS. 9-10.)

         This matter is before the court on April 18, 2017, for hearing of defendant's motions to dismiss and to strike brought under Federal Civil Procedure Rules 12(b)(6) and 12(f). (Doc. Nos. 9-10.) Plaintiff Rebecca Ayala, proceeding pro se in this action, appeared telephonically on her own behalf, and attorney James Berry appeared telephonically on behalf of defendant Frito Lay, Inc. Oral argument was heard and the motions were taken under submission. For the reasons stated below, defendant's motion to dismiss will be granted in part and denied in part, and its motion to strike will be denied.

         FACTUAL BACKGROUND

         On September 1, 2016, plaintiff Rebecca Ayala filed a complaint on her own behalf in the Stanislaus County Superior Court against defendant Frito Lay, Inc. (“Frito Lay”). (Doc. No. 1 at 2.) Plaintiff Ayala is a citizen of California, and defendant Frito Lay is a citizen of Delaware and Texas. (Id. at 3-4, ¶ 7.) On November 7, 2016, defendant removed the action to this federal court based on diversity of citizenship jurisdiction. (Doc. No. 1.) On January 19, 2017, plaintiff filed a First Amended Complaint (“FAC”), the operative complaint in this action. (Doc. No. 8.)

         Plaintiff's complaint asserts four types of claims against defendant Frito Lay: (i) violation of California's Fair Employment Housing Act (“FEHA”), California Government Code §§ 12940, et seq., for alleged discrimination on the basis of sex, race, and disability; failure to accommodate disability; refusal to engage in the interactive process; unlawful harassment; failure to prevent harassment and maintain an environment free from harassment; and retaliation; (ii) violation of the California Labor Code, §§ 201-203, 986., 98.7, 1102.5, and 6310, based on unlawful termination and retaliation, and failure to pay all wages due upon discharge; and (iii) wrongful termination in violation of California public policy, and (iv) a claim for declaratory relief. (Id.) Plaintiff seeks an award of damages and injunctive relief. (Id.)

         In her FAC, plaintiff alleges the following. Plaintiff Ayala was an employee of defendant Frito Lay between 2004 and 2015. (Id. at 2, ¶ 6.) During her employment, plaintiff worked in the dispatch office in the Traffic Center of Frito Lay's Modesto Facility between 2004 and 2014, and was on medical leave due to disability between 2014 and 2015. (Id. at 2-3, ¶¶ 6, 8.) Plaintiff is Mexican-American, and suffers from anxiety, depression, and post-traumatic stress disorder. (Id. at 5, 9, ¶¶ 18, 44.)

         While employed by defendant, plaintiff filed a number of internal and external complaints regarding defendant's unlawful employment practices, and subsequently suffered adverse employment action. (Id. at 2-6.)

         Between 2005 and 2010, plaintiff made repeated requests for unpaid wages related to on-call services and missed meal breaks. (Id. at 2-3, ¶¶ 7-9.) Defendant's Human Resource (“HR”) department ultimately reviewed the issue and partially compensated her for the unpaid wages. (Id. at 3, ¶ 9.) However, plaintiff was given negative performance evaluations in retaliation for her requests for unpaid wages. (Id. at 3, ¶ 8.)

         Beginning in July 2012, plaintiff also began submitting internal petitions for investigation of defendant's unlawful employment practices. (Id. at 3, ¶ 11.) Plaintiff alleged the following issues in her petitions: deliberate false statements made by management in performance evaluations; failure to pay full wages owed; discrimination by management; inappropriate and racially-based comments by coworkers in the workplace; and a lack of air conditioning in the dispatch office. (Id. at 3-5, ¶¶ 11, 15-16.) Defendant did not open an investigation into any of these issues, despite plaintiff's petitions. (Id.)

         In May 2013, plaintiff reported alleged driver health and safety violations by defendant to the Occupational Safety and Health Administration (“OSHA”). (Id. at 4, ¶ 13.) An OSHA investigation began, which included an investigation into a recent fuel spill at defendant's Manteca Distribution Center. (Id.) However, no final response or report was released. (Id.) In retaliation for plaintiff's OSHA complaint, defendant changed the job responsibilities of dispatch employees working plaintiff's shift, thereby increasing plaintiff's work duties. (Id. at 4, ¶ 14.)

         In July 2014, plaintiff requested and was denied transfer to a different shift, despite a male employee being granted a shift transfer. (Id. at 5, ¶¶ 16-17.) During the same month, plaintiff requested medical leave due to disability and was granted twelve months of leave. (Id. at 5-6, ¶¶ 18, 26.) However, a male employee was granted eighteen months of leave after making the same request. (Id.)

         In February 2015, defendant began advertising that it was hiring a new employee to fill plaintiff's position. (Id. at 6, ¶ 24.) In May 2015, defendant's HR department notified plaintiff that her same-job protection had expired. (Id.) The HR department asked plaintiff whether reasonable accommodation could be provided, and requested that her doctor complete any requests for accommodation. (Id.) The department also told plaintiff that “as an accommodation, we have held your position open for you.” (Id.) Plaintiff's doctor subsequently submitted documentation to defendant listing plaintiff's work restrictions and concluding that plaintiff “can perform job tasks, ‘but not in the same hostile environment.'” (Id. at 6, ¶ 25.)

         In May 2015, plaintiff made a complaint to the Labor Commissioner relating to defendant's failure to provide employee rest breaks. (Id. at 6, 38.) On January 13, 2016, that complaint was dismissed after defendant provided full payment of plaintiff's claims. (Id. at 6, 41.) In June 2015, in retaliation for plaintiff having lodged complaints with the Labor Commissioner, defendant's leave vendor coerced a nurse practitioner working with plaintiff's doctors to state that plaintiff could return to work. (Id. at 6, ¶ 23.) Defendant then denied plaintiff long-term disability. (Id.)

         On July 24, 2015, plaintiff was terminated from her position.[1] (Id. at 6, ¶ 27.) Her termination occurred without justification, and in retaliation for her complaints of discrimination and violations of California employment law. (Id. at 7, 30, ¶¶ 30, 146.) Plaintiff did not receive all wages owed upon her discharge. (Id. at 2-3, ¶¶ 7, 9.)

         Plaintiff alleges that she exhausted her administrative remedies before the Department of Fair Employment and Housing (“DFEH”) and Equal Employment Opportunity Commission (“EEOC”) before initiating this action against defendant. (Id. at 7, ¶ 31.) Two DFEH right-to-sue letters from September 2015 and December 2015 are attached to plaintiff's FAC as exhibits. (Id. at 64-65.)

         On February 13, 2017, defendant Frito Lay filed a motion to dismiss plaintiff's FAC, as well as a motion to strike certain portions of the FAC. (Doc. No. 9-10.) Plaintiff filed an opposition to the motions on April 4, 2017, together with a motion seeking leave to amend. (Doc. Nos. 12-13.) Defendant filed a reply on April 11, 2017. (Doc. No. 15.)

         LEGAL STANDARDS

         A. Motion to Dismiss Pursuant to Rule 12(b)(6)

         The purpose of a motion to dismiss brought pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). “Dismissal can be 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). A claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Though Rule 8(a) does not require detailed factual allegations, a plaintiff is required to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). “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.” Iqbal, 556 U.S. at 678.

         In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). It is inappropriate to assume that the plaintiff “can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal, Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

         B. Motion to Strike Pursuant to Rule 12(f)

         Under Rule 12(f) of the Federal Rules of Civil Procedure, a court may strike from a complaint “any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). “‘Immaterial' matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded[, and] [i]mpertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (citation omitted), rev'd on other grounds by 510 U.S. 517 (2004).

         “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). However, motions to strike are generally disfavored and “should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.” Neveu v. City of Fresno, 392 F.Supp.2d 1159, 1170 (E.D. Cal. 2005) (citation and quotation marks omitted); see also Neilson v. Union Bank of Cal, N.A., 290 F.Supp.2d 1101, 1152 (CD. Cal. 2003) (“Motions to strike are generally regarded with disfavor because of the limited importance of pleading in federal practice, and because they are often used as a delaying tactic”). Whether to grant a motion to strike is within the sound discretion of the court, but the court must view the pleading in a light most favorable to the non-moving party and resolve any doubt as to the relevance of the challenged allegations in favor of the non-moving party. See In re 2TheMart.com, Inc. v. Sec. Litig., 114 F.Supp.2d 955, 965 (C.D. Cal. 2000).

         ANALYSIS

         A. Motion to Dismiss

         Defendant moves to dismiss plaintiff's FAC on the following grounds: (i) plaintiff has not exhausted her administrative remedies with respect to claims other than those based on sex discrimination and sexual harassment, and any unexhausted claims are time-barred; and (ii) plaintiff's FEHA and California Labor Code claims do not satisfy federal pleading standards. (Doc. No. 9-1.) Defendant also requests that the court take judicial notice of plaintiff's charges filed with the DFEH attached as exhibits to the motion to dismiss. (Doc. No. 9-2.) The court will address defendant's request for judicial notice before turning to the arguments made by defendant in its motion to dismiss.

         1. Request for Judicial Notice

         Defendant asks the court to take judicial notice of the following: (i) plaintiff's January 10, 2015 charge of employment discrimination filed with the California DFEH against defendant; and (ii) plaintiff's concurrent January 21, 2015 complaint against defendant filed with the EEOC. (Doc. No. 9-2.) These documents constitute “matters of public record” that may be judicially noticed. Intri-Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007); see also Adetuyi v. City and County of San Francisco, 63 F.Supp.3d 1073, 1080 (N.D. Cal. 2014) (taking judicial notice of plaintiff's charges filed with the DFEH, EEOC as well as DFEH letters indicating receipt of the charges, and the DFEH right-to-sue letter). Accordingly, the court grants defendant's request for judicial notice. The court additionally takes judicial notice of plaintiff's September 2, 2015 charge of discrimination filed with the DFEH against various employees of defendant, which is attached as an exhibit to plaintiff's opposition to the pending motions. (Doc. No. 14 at 2, 8-17.)

         2. Exhaustion of Administrative Remedies

         Defendant moves to dismiss the FAC's FEHA claims based on unlawful race and disability discrimination, failure to accommodate, and failure to engage in the interactive process, on the basis that plaintiff did not exhaust her administrative remedies prior to bringing these claims.

         In order to be entitled to file a civil action in court based on FEHA violations, an employee must first exhaust administrative remedies. See Blum v. Superior Court, 141 Cal.App.4th 418, 422 (2006). An employee exhausts administrative remedies by filing a complaint with the DFEH within one year of the occurrence of the allegedly unlawful act, and obtaining a notice of the right to sue from the Department. Blum, 141 Cal.App.4th at 422 (citing Medix Ambulance Serv., Inc. v. Superior Court, 97 Cal.App.4th 109, 116 (2002); see also Rao v. Amerisource Bergen Corp., No. CIV S-08-1527 DAD PS, 2010 WL 3767997, at *9 (E.D. Cal. Sept. 22, 2010) (“The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA.”). It is the plaintiff's burden to plead and prove timely exhaustion of administrative remedies. See Kim v. Konad USA Distribution, Inc., 226 Cal.App.4th 1336, 1345 (2014) (citing Garcia v. Los Banos Unified School Dist., 418 F.Supp.2d 1194, 1215 (E.D. Cal. 2006)).

         “Under the FEHA, the scope of the DFEH complaint defines the scope of the subsequent civil action.” Keever v. Mediation Ctr. of San Joaquin, No. 2:13-cv-00029-KJM-KJN, 2015 WL 75194, at *6 (E.D. Cal. Jan. 6, 2015). Thus, “[a]llegations in the civil complaint that fall outside of the scope of the administrative charge are barred for failure to exhaust.” Rodriguez v. Airborne Express, 265 F.3d 890, 897 (9th Cir. 2001); see also Soldinger v. Northwest Airlines, Inc., 51 Cal.App.4th 345, 381 (1996). However, a plaintiff may bring a civil action based on conduct not specifically included in a DFEH complaint if it is “like or reasonably related” to the allegations in the administrative complaint, or “can reasonably be expected to grow out of an administrative investigation.” Lelaind v. City and County of San Francisco, 576 F.Supp.2d 1079, 1091 (N.D. Cal. Sept. 2, 2008); Okoli v. Lockheed Tech. Operations Co., 36 Cal.App.4th 1607, 1615 (1995).

         There is not clear guidance from California courts as to whether and under what circumstances a plaintiff may bring FEHA claims against a party not specifically named in a DFEH complaint. California Government Code § 12960 generally sets forth procedures that employees are to use when filing DFEH complaints. Cal. Gov't Code § 12960. That provision states that employees may “file with the department a verified complaint in writing which shall state the name and address of the person, employer, labor organization or employment agency alleged to have committed the unlawful practice.” Id. Moreover, California appellate courts have interpreted this provision as establishing that exhaustion is not satisfied unless a plaintiff's administrative charge provides defendant notice of the substance of plaintiff's claims. See Medix Ambulance Service, Inc., 97 Cal.App.4th at 117-118; Cole v. Antelope Valley Union High School Dist., 47 Cal.App.4th 1505, 1511 (1996); Martin v. Fisher, 11 Cal.App.4th 118, 119- 123 (1992); Valdez v. City of Los Angeles, 231 Cal.App.3d 1043, 1060-1061 (1991). These courts also have concluded that a defendant does not receive adequate notice if it is not named in either the caption or the body of the administrative charge. See generally Medix Ambulance Serv., Inc., 97 Cal.App.4th at 116 (“None of these [California Court of Appeals] cases held that a harassment case may proceed against one not mentioned in the administrative complaint”).

         However, the California Court of Appeals has also held that a plaintiff can exhaust administrative remedies for claims against defendants not named in the caption of the administrative charge if those defendants are identified in the body of the charge. See Martin, 11 Cal.App.4th at 119-123; Saavedra v. Orange Cty. Consol. Transp. etc. Agency, 11 Cal.App.4th 824, 826-828 (1992). These appellate courts have reasoned that a party specifically named in the body of a charge should be on notice of plaintiff's claims and able to “anticipate they will be named as parties in any ensuing lawsuit.” Martin, 11 Cal.App.4th at 122.

         In the pending motion to dismiss, defendant argues that plaintiff's FEHA claims based on unlawful race and disability discrimination, failure to accommodate, and failure to engage in the interactive process, [2] are subject to dismissal on the grounds that plaintiff failed to exhaust her administrative remedies prior to initiating this action as required. (Doc. No. 9-1 at 15-21.) Defendant acknowledges that plaintiff filed charges with the DFEH in January and September of 2015. (Id.) However, defendant contends that plaintiff's January 2015 administrative charge only alleged sex discrimination and harassment, and did not allege facts supporting claims for race or disability-based discrimination. (Id.) With respect to the September 2015 administrative charge, defendant recognizes that plaintiff alleged facts pertaining to discrimination on the basis of race and disability, but argues that the charge did not specifically name defendant Frito Lay as a respondent. (Id. at 18-19.)

         In her opposition, plaintiff argues that she has satisfied exhaustion requirements with respect to her FEHA claims, because the body of her September 2015 DFEH complaint identified respondents as employees of defendant, putting defendant on notice of her claims of race discrimination, disability discrimination, and retaliation. (Doc. No. 13 at 14-15.) In the alternative, plaintiff argues that her prior DFEH charge of January 2015 satisfied exhaustion requirements, because defendant's race and disability discrimination claim would necessarily have been discovered during investigation of her sex discrimination charge. (Doc. No. 13 at 12- 13.)

         The court first considers whether plaintiff may bring claims based on conduct described in her September 2015 administrative charge. Plaintiff alleges in her FAC that she filed two separate charges with the DFEH in January and September 2015 prior to bringing suit against defendant. (Doc. Nos. 8 at 7, ¶ 31; 13 at 8-17.) The September 2015 administrative charge identifies fourteen different individual respondents and does not list defendant Frito Lay as a corespondent. (Doc. No. 14 at 14.) However, the document does specifically describe respondents as employees of Frito Lay and provides the location of the Frito-Lay Modesto Facility as an address for respondents. (Id.) The body of that complaint also references defendant Frito Lay multiple times. (Id. at 12-13.) Finally, the right-to-sue letter issued by the DFEH in response to plaintiff's September 2015 complaint, attached as an exhibit to plaintiff's FAC, describes the respondents as employees of defendant Frito Lay.[3] (Doc. No. 8 at 7, 62-63, ¶ 31.) Together, both the complaint and the DFEH right-to-sue letter were sufficient to provide defendant Frito Lay with notice of the substance of plaintiff's allegations. See Martin, 11 Cal.App.4th at 122 (“The function of an administrative complaint is to provide the basis for an investigation into an employee's claim of discrimination against an employer, and not to limit access to the courts. A strict rule would harm victims of discrimination without providing legitimate protection to individuals who are made aware of the charges through the administrative proceeding.”). Accordingly, this court concludes that plaintiff's failure to specifically identify defendant in the caption of her September 2015 administrative charge does not bar her from pursuing claims against defendant based on allegations in that charge.

         The court next examines whether plaintiff's DFEH charges adequately exhausted administrative remedies with respect to the FEHA claims alleged in the FAC. In the January 2015 administrative charge, plaintiff asserted that between July 2013 and July 2014 she experienced “work environment harassment of a verbal nature in the form of sexual comments and innuendos”; was forced to transfer work shifts as a result of harassing conduct; and was denied a later request to transfer shifts due to sex discrimination. (Doc. No. 14 at 4.) In the September 2015 charge, plaintiff alleged that she was “Denied a good faith interactive process, Denied a work environment free of discrimination and/or retaliation, ” and “Denied reasonable accommodation, ” due to her “Disability, Engagement in Protected Activity, Medical Condition, . . . [and] Sex.” (Doc. No. 14 at 12-13.) The September 2015 charge also alleged that defendant's employees made “sexual, racial, age statements” to plaintiff in the workplace, and retaliated against her for protesting unlawful working conditions by subjecting her to false negative employee evaluation reports, a change in work duties, and ultimately, termination. (Id. at 15-16.) Because the factual allegations of the administrative charge are like or reasonably related to plaintiff's FEHA claims for unlawful race discrimination, unlawful disability discrimination, failure to accommodate, and refusal to engage in the interactive process as presented in her FAC, the court concludes that plaintiff has exhausted her administrative remedies as required under FEHA with respect to those claims. See Lelaind, 576 F.Supp.2d at 1091 (“Because the factual allegations in the administrative charge are like or reasonably related to claims for hostile work environment, retaliation, and disparate treatment [although the charge did “not invoke magic words”], and such claims could be reasonably expected to grow out of an investigation based on the facts alleged, the court concludes that Lelaind has exhausted her administrative remedies as required under Title VII and FEHA.”).

         Accordingly, defendant's motion to dismiss plaintiff's FEHA claims for unlawful race discrimination, unlawful disability discrimination, failure to accommodate, and refusal to engage in the interactive process for failure to exhaust administrative remedies will be denied.

         3. Pleading Adequacy

         Defendant also argues that plaintiff's claims under the FEHA and the California Labor Code fail under federal pleading standards. The court considers defendant's arguments with respect to each of plaintiff's claims, below.

         i. FEHA ...


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