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DeLarge v. Walmart Inc.

United States District Court, N.D. California

December 12, 2019

WALMART INC., Defendant.



         On December 6, 2019, the Court held a hearing on defendant's motion for judgment on the pleadings. For the reasons set forth below, the Court GRANTS the motion and DENIES plaintiff leave to amend the complaint.


         On May 22, 2019, plaintiff filed this lawsuit in pro per[1] against defendant Walmart in Alameda County Superior Court. Dkt. No. 1, Ex. A at 1 (“Compl”). On August 16, 2019, defendant removed this case to this Court on the basis of diversity jurisdiction. The complaint alleges four causes of action for violations of California's Fair Employment and Housing Act (“FEHA”), as well as a claim for wrongful termination.

         The following facts are based on the allegations in the complaint. Plaintiff Demetria DeLarge began working as a Walmart cashier on February 20, 1999. Compl. ¶ 10. Around 2010, she injured her shoulder; this injury made it difficult for her to use some of the cash registers, so plaintiff chose which register to operate at the beginning of her shift. Id. ¶¶ 11-12. Plaintiff alleges:

On or about May 24, 2013, Plaintiff was called into the office because the New Market Manager Jeff (last name unknown) wanted to talk to her. The new store manager Jennifer Munoz was present. Jeff asked why Plaintiff she [sic] uses whichever cash register she wants. Plaintiff explained to both managers that she has a medical condition accompanied by a Doctor's note, which required greater flexibility in cash register assignments. Jeff stated he did not care about the doctor's note. He further explained that the home office takes care of accommodations requests, and that Plaintiff just needed to follow the system and not choose her own register. Ms. Munoz agreed and indicated that if Plaintiff went home because she was physically unable to work the assigned register, it would be held against her attendance.

Id. ¶ 12.

         After the meeting with Jeff and Ms. Munoz, plaintiff “called Anetra Edwards, the new H.R. District manager, to complain about Defendant's lack of accommodations. Ms. Edwards explained that she would set up a meeting, and get back to Plaintiff.” Id. ¶ 13. During May and June of 2013, plaintiff worked at registers that caused her pain, notwithstanding her repeated requests for an “accommodating register.” Id. ¶¶ 14-17. Plaintiff was told that she had to work at the assigned registers or go home, and that if she went home it would be counted against her attendance. Id. On or around June 4 or 6, 2013, plaintiff visited the emergency room after her shift. Id. ¶ 17. For some shifts between June 6 through June 17, plaintiff took time off at the request of her doctor, and on June 18, 2019, she filed a workers' compensation claim. Id. ¶¶ 18-19. On June 18, she again requested the accommodation of working at a register that did not cause her pain. Id. ¶ 19. Plaintiff did not receive any response to her request, and on June 24, 2013, plaintiff received a letter from defendant informing her that she had been terminated, effective June 19, 2013. Id. ¶ 22.

         In June 2014, plaintiff filed a complaint with the Department of Fair Employment and Housing (“DFEH”). Id. ¶ 24. The DFEH closed the complaint and issued a Right to Sue letter on June 12, 2015. Def's Request for Judicial Notice, Ex. B (Dkt. No. 8-1).[2] The Right to Sue letter stated, inter alia, that “DFEH is unable to conclude that the information obtained establishes a violation of the statute.” Id. The letter also stated,

This is your Right to Sue notice. According to Government Code section 12966, subdivision (b), a civil action may be brought under the provisions of the Fair Employment and Housing Act against the person, employer, labor organization or employment agency named in the above-referenced complaint. This is also applicable to DFEH complaints that are filed under, and allege a violation of, Government Code section 12948 . . . . The civil action must be filed within one year from the date of this letter. . . .

Id., Ex. B (bold in original). The letter informed plaintiff that her complaint had been “dual filed” with the U.S. Equal Employment Opportunity Commission (“EEOC”) and that if plaintiff exercised her right to request the EEOC to review the DFEH's findings, “your right to sue may be tolled during the pendency of EEOC's review of your complaint.” Id. The letter also informed plaintiff,

You may file an appeal with DFEH which is a written request made to the District Administrator for reconsideration of the decision to close your case. Your appeal should include a 1) summary as to why you disagree with the reason; and/or, 2) any new detailed information (e.g., documents, records, witness information) that supports your claim. If you appeal, the information you provide will be carefully considered.

Id. Finally, the letter provided resources for finding an attorney in order to file a civil action, as well as resources for filing in small claims court. Id.

         On July 15, 2015, plaintiff appealed the case closure within the DFEH, and she continued to contact the DFEH throughout 2016 and 2017. DeLarge Decl. ¶¶ 7-14.[3] In her declaration she states, “My goal from the start was to get the DFEH to take my case.” Id. ¶ 3. Plaintiff states that during the appeals process, a DFEH employee, Ms. Bonilla, “told me that if the DFEH determined that there was merit to my case they would take it on my behalf.” Id. ¶ 8.

         Plaintiff also recalls a December 2017 phone conversation with DFEH representative Brenda Valle. Id. ¶¶ 12-18. Plaintiff states,

12. In December 2017, Brenda Valle called me and asked if I wanted to see if the other side wanted to mediate; she said it was a voluntary process.
13. I indicated to Ms. Valle that I wanted to mediate and that she should ask if Walmart wanted to mediate.
14. During that December 2017 phone call I asked Ms. Valle if the DFEH would file a lawsuit, she told me they weren't going to be able to do that, they couldn't and I asked why and she said per their regulation.
15. I asked for that regulation and it was read to me over the phone by someone in the office, who said if the complaint you first filed was not investigated within a year they can't file a civil action.
16. I told her that since my complaint was investigated within a year and initially closed out, that regulation didn't ...

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