Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Phomthevy v. Winco Holdings, Inc.

United States District Court, E.D. California

July 11, 2019

SIBOU PHOMTHEVY, Plaintiff,
v.
WINCO HOLDINGS, INC., Defendant.

          ORDER

         On August 8, 2016, plaintiff Sibou Phomthevy began his employment with defendant WinCo Holdings, Inc. (“Winco”).[1] 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.

         On 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.

         For the reasons set forth below, WinCo's motion to dismiss is GRANTED, with leave to amend.

         I. LEGAL STANDARD

         A party 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 (2007).

         II. DISCUSSION

         A. Claims One Through Four

         WinCo 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.

         As 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.

         As 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 disability” as:

(1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:
(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 section:
(i) “Limits” shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.