United States District Court, N.D. California
GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS
AND DENYING LEAVE TO AMEND RE: DKT. NO. 8
ILLSTON, UNITED STATES DISTRICT JUDGE
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.
22, 2019, plaintiff filed this lawsuit in pro
per 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
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
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
Id. ¶ 12.
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. ¶
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). 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
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
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.
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. 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.
also recalls a December 2017 phone conversation with DFEH
representative Brenda Valle. Id. ¶¶ 12-18.
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