United States District Court, E.D. California
August 8, 2016, plaintiff Sibou Phomthevy began his
employment with defendant WinCo Holdings, Inc.
(“Winco”). First Amended Complaint
(“FAC”), ECF No. 7, ¶¶ 6, 14. On or
about October 2017, plaintiff began to suffer from a
disability and was placed by his physician on two-week
medical leave from his employment with WinCo. Id.
¶¶ 7, 9. In November 2017, as a result of his
disability, plaintiff experienced severe back pain, was
admitted to the emergency room and was required to take three
additional days of medical leave from work. Id.
¶ 11. For his absence, plaintiff received “demerit
points” from WinCo; under WinCo policy, too many
“demerit points” provided grounds for
termination. Id. ¶ 12. On January 7, 2018,
WinCo terminated plaintiff for accumulating too many
“demerit points.” Id. ¶ 14.
October 15, 2018, based on his termination, plaintiff
initiated this action against WinCo in Sacramento County
Superior Court; WinCo then timely removed the matter to this
court on January 4, 2019. See Not. of Removal, ECF
No. 1. On January 14, 2019, plaintiff filed the first amended
complaint, which serves as the operative complaint here.
See FAC. In all, plaintiff brings seven claims
against WinCo: (1) disability discrimination, (2) failure to
accommodate, (3) failure to engage in the good faith
interactive process, (4) retaliation in violation of the Fair
Employment and Housing Act, (5) retaliation for exercising
leave under the California Family Rights Act, (6)
retaliation/discrimination for use of sick leave, and (7)
wrongful termination in violation of public policy. See
generally Id. WinCo now moves to dismiss the first
amended complaint under Federal Rule of Civil Procedure
12(b)(6), arguing plaintiff has not sufficiently alleged,
among other things, he is “disabled” under
California law. See Mot., ECF No. 9-1, at 2.
Plaintiff opposes the motion, Opp'n, ECF No. 12, and
WinCo has replied, Reply, ECF No. 19. On May 17, 2019, the
court heard oral argument on the motion. Counsel Christina
Begakis appeared for plaintiff and counsel Lindsay Fitch
appeared for WinCo.
reasons set forth below, WinCo's motion to dismiss is
GRANTED, with leave to amend.
may move to dismiss a complaint against it for “failure
to state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). The motion may be granted only if the
movant can show the complaint lacks a “cognizable legal
theory” or if its factual allegations do not support a
cognizable legal theory. Hartmann v. Cal. Dep't of
Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013).
Determining whether a complaint will survive a motion to
dismiss is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). The court must construe the complaint in a light most
favorable to a plaintiff and accept as true its factual
allegations. Erickson v. Pardus, 551 U.S. 89, 93-94
Claims One Through Four
contends plaintiff's first four claims must be dismissed
because he fails to plead facts sufficient to show a
disability under California law. Reply at 2-3. Plaintiff
argues his complaint adequately alleges he suffers from a
disability under California law. See generally
Opp'n. The court finds WinCo's arguments have merit.
plaintiff concedes, his first four claims require that he
allege he “had a disability” under
California's Fair Employment and Housing Act
(“FEHA”), Cal. Gov't Code § 12940, and
his fifth claim similarly requires he suffered from an
eligible medical condition under California's Family
Rights Act (“CFRA”), Cal. Gov't Code §
12945.2. Opp'n at 10 (listing elements for disability
discrimination, failure to accommodate, failure to engage in
interactive process, FEHA retaliation and CFRA retaliation).
Thus, a properly pleaded disability or medical condition is
an essential element of each of these claims.
pertinent here, FEHA prohibits an employer from discharging
an employee because of a “physical disability [or]
mental disability.” Cal. Gov't Code §
12940(a). The statute defines “physical
(1) Having any physiological disease, disorder, condition,
cosmetic disfigurement, or anatomical loss that does both of
(A) Affects one or more of the following body systems:
neurological, immunological, musculoskeletal, special sense
organs, respiratory, including speech organs, cardiovascular,
reproductive, digestive, genitourinary, hemic and lymphatic,
skin, and endocrine.
(B) Limits a major life activity. For purposes of this
(i) “Limits” shall be determined without regard
to mitigating measures such as medications, assistive
devices, prosthetics, or reasonable accommodations, unless