ORDER GRANTING DEFENDANT’S MOTION TO -DISMISS IN' PART AND DENYING IN PART; DENYING DEFENDANT’S MOTION TO STRIKE :
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, Iric, ("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.)
Plaintiffs 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 accommo
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 plaintiffs shift, thereby increasing plaintiffs 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 plaintiffs 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
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 plaintiffs 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 plaintiffs 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.
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 plaintiffs FAC as exhibits. (Id. at 64-65.)
On February 13, 2017, defendant Frito Lay filed a motion to dismiss plaintiffs 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,
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] [ijmpertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question.” Fantasy, Inc. v. Fogerty,
“[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.,
ANALYSIS
A. Motion to Dismiss
Defendant moves to dismiss plaintiffs 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 plaintiffs 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) plaintiffs January 10, 2015 charge of employment discrimination filed with the California DFEH against defendant; and (ii) plaintiffs concurrent January 21, 2015 complaint against defendant filed with the EEOC. (Doc. No. 9-2.) These documents
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,
“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,
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 D.FEH 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
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,
In the pending motion to dismiss, defendant argues that plaintiffs ■ FEHA claims based on unlawful race and disability discrimination, failure to accommodate, and failure to engage in the interactive process,
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 next examines whether plaintiffs 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 plaintiffs 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
Accordingly, defendant’s motion to dismiss plaintiffs 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 plaintiffs 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 plaintiffs claims, below.
i. FEHA Discrimination Claims
Defendant first moves to dismiss plaintiffs FEHA claims for discrimination on the basis of sex, race, and disability, and for failure to prevent discrimination.
Under the FEHA, it is unlawful, for an employer “to discriminate against [a] person in compensation or in terms, conditions, or privileges of employment” because of a person’s race, gender, or physical disability. Cal. Gov. Code § 12940(a). To state a prima facie case of discrimination under the FEHA, a plaintiff must allege and ultimately show that: (i) she was a member of a protected class; (ii) she was qualified for the position she sought or was performing competently in the position she held; (iii) she suffered an adverse employment action; and (iv) the employer acted with a discriminatory motive. See Lawler v. Montblanc N. Am., LLC,
An “adverse employment action” must be both substantial and detrimental, and conduct that is minor or trivial is insufficient to meet this standard. See Horsford v. Bd. of Tr. of Cal. State Univ.,
Under the FEHA, it is also prohibited for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring in the workplace.” Cal. Gov’t Code § 12940(k). To state a prima facie case of failure to prevent discrimination or harassment, a plaintiff must allege and show that (i) plaintiff was subjected to discrimination, harassment or retaliation, (ii) which defendant failed to take all reasonable steps prevent, and (iii) which caused plaintiff harm. See Lelaind,
Here, defendant contends. that plaintiffs FEHA claims based on discrimination and failure to prevent discrimination fail because plaintiff does not allege an adverse employment action, discriminatory animus, or a causal link between, any intent to discriminate and an adverse employment action. (Doc. No. 9-2 at .22-23.) Defendant does not separately address plaintiffs failure to prevent discrimination claim, but appears to argue that this claim. is subject to dismissal because plaintiff has failed to plead any underlying discrimination. (See id. at 22) (stating that “Plaintiffs Allegations are Insufficient to Support any FEHA Claim”). Plaintiff argues in her opposition to the pending motions that the FAC adequately alleges all elements of her discrimination claims under FEHA. (Doc. No. 13 at 9-11.)
In her FAC, plaintiff alleges that she experienced the following adverse actions as an employee of defendant: receipt of false, negative work performance reports, (Doc. No. 8 at 3, ¶ 8); denial of a request to transfer work shifts, (Id. at 5, ¶ 16); denial of long-term disability benefits, (Id. at 5-6, ¶¶ 18, 23, 26); and ultimately termination, ■ (Id. at 6, ¶ 27). The court finds that these allegations are sufficient to allege adverse employment action for purposes of the FEHA discrimination claim. See Lewis v. United Parcel Serv., Inc., No. 05-cv-02820 WHA,
Plaintiffs FAC also alleges discriminatory animus on the basis of race and sex. In this regard, the FAC states' that while plaintiff was employed with defendant, her coworkers made the following sexual and racial comments: “I thought it was role-play gone bad”; “they must have found that guy in front of the Home Depot, you know where all the Mexicans hang looking for work”; “pull over and sell cookies on the side of the road like the guys that sell oranges”; “let me go get you your own rubber”; and “a man’s reference to wearing steel boots to put his foot up a woman’s behind.” (Doc. No. 8 at 4, ¶ 15.) The FAC also alleges that plaintiff was treated differently than her male coworkers — in particular, that she requested and was denied a transfer to a different shift while a male employee was permitted a shift transfer under similar circumstances;-and that she was granted twelve months of medical leave while a male employee was granted eighteen months of leave' after making the same request. (Id. at 5, .¶¶ 16-17.) These allegations are sufficient to plead that defendant acted with intent to discriminate on the basis of race and sex. See Achal,
Accordingly, the court concludes that plaintiff has adequately pled claims of sex and race discrimination, and failure to prevent such discrimination, under FEHA. Therefore, defendant’s motion to dismiss those claims will be denied.
However, plaintiff does not allege facts in her FAC that support defendant’s intent to discriminate on the basis of disability. The FAC alleges that plaintiff went on medical leave in July 17, 20Í4, due to her disability-anxiety, depression, and post-traumatic stress disorder. (Id. at 5, 9, ¶¶18, 44.) The FAC does not allege that any of the claimed adverse employment actions were linked to disability-related discriminatory animus on the part of defendant. Rather, plaintiff alleges merely that “owing to her disability ... Defendants treated Plaintiff detrimentally.” (Id. at 16, ¶ 75.) However, this is a conclusion rather than an allegation of fact. See Eclectic Properties East, LLC v. Marcus & Millichap Co.,
ii. FEHA Failure to Accommodate ' Claim
Under the FEHA,- an employ: er must “make reasonable accommodation for the known physical or mental disability” of an employee. Cal. Gov’t Code § 12940(m)(l). The elements of a failure to accommodate claim are: (i) the- plaintiff has'a disability under the FEHA; (ii) the plaintiff is qualified to perform the essential functions of the position; and (iii) the employer failed to reasonably accommodate the plaintiffs disability.
A reasonable accommodation is “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” Nadaf-Rahrov v. Neiman Marcus Grp., Inc.,
In the pending motion to dismiss, defendant argues that plaintiffs FEHA claim for failure to accommodate should be dismissed because plaintiff has not alleged it was possible for her to perform the essential duties of her position with or without reasonable accommodation. (Doc. No. 9-1 at 25-26.) Defendant also contends that, under the allegations of the FAC, defendant properly provided plaintiff with accommodation for her disability by granting her medical leave. (Id. at 26.) In her opposition to the pending motion, plaintiff argues that the FAC adequately alleges facts supporting her FEHA failure to accommodate claim. (Doc. No. 11.)
In her FAC plaintiff alleges that she suffers from a disability because of her anxiety, depression, and post-traumatic stress disorder. (Id. at 5, 9 ¶¶ 18, 44.) Though the FAC does not specifically identify the essential duties of the position she held with defendant, plaintiff alleges in the FAC that she “did competently perform her duties.” (Id. at 7, ¶ 34.) Plaintiff also alleges that management “sent note cards to the Plaintiffs home praising the Plaintiffs work performance” prior to 2012, and that her doctor concluded she “can perform job tasks” if “not in [a] hostile environment.” (Id. at 3, 6, 10, ¶¶ 8, 25, 45.) These allegations are sufficient at this stage of the litigation to allege plaintiff was capable of performing the essential duties of her position with reasonable accommodation. See Achal,
The FAC also alleges that plaintiff requested medical leave from defendant in July 2014. (Doc. No. 8 at 6, ¶ 26.) Plaintiff has therefore adequately pled that defendant was aware of her disability and her need for accommodation. See Brown v. Lucky Stores,
Finally, plaintiff alleges that defendant did not provide certain accommodations for her disability, such as granting her long-term disability benefits (Doc. No. 8 at 6, ¶ 23), or keeping her job open for her while she was on medical leave (Id. at 6, ¶ 24). These allegations are sufficient to plead the refusal of reasonable accommodation. See Alejandro v. ST Micro Elecs., Inc.,
Defendant’s motion to dismiss will be denied as to plaintiffs failure to accommodate claim brought under FEHA.
iii. FEHA Refusal to Engage in the Interactive Process Claim
Defendant moves to dismiss plaintiffs FEHA claim for failure to engage in the interactive process.
Under-the FEHA, it is unlawful for an employer to “fail to engage in a timely, good faith, interactive process with the employee ... to' determine effective reasonable accommodations, if any, in response -to a request for reasonable accommodation by an employee [with a disability].” Cal. Gov. Code § 12940(n). The duty to engage in the interactive process is triggered once .an employer “becomes aware of the need to consider an accommodation.” Scotch,
Defendant moves to dismiss plaintiffs FEHA claim for failure to engage in the interactive process on the basis that the factual allegations of plaintiffs FAC are insufficient to support this claim. (Doc. No. 9-1 at 25-26.)
As noted above, plaintiff has pled in her FAC that she suffers from a disability, and that she made defendant aware of her disability in July 2014 by applying for medical leave. . (Doc. No. 8 at 6, ¶2). The FAC also contains allegations that defendant failed to engage in any interactive process to determine whether plaintiff should be given accommodations for her disability. Specifically, in the FAC, plaintiff alleges that defendant denied her long-term disability and failed to keep plaintiffs position open for her without following any form of informal or formal procedure. These allegations are sufficient to plead failure to engage in the interactive process under the FEHA. See Alejandro,
, iv. FEHA Harassment and Failure . . to Prevent Harassment Claims
To establish a prima facie claim for harassment and hostile work environment under the FEHA, a plaintiff must allege and demonstrate that: (i) she
Defendant contends in its motion to dismiss that plaintiffs harassment claims brought under the FEHA fail because the FAC does not allege'that plaintiff was subjected to unwelcome verbal or physical conduct that was severe-or pervasive, or that she was subjected to any. such conduct because of her membership in a protected group. (Doc. No. 9-2 at 22-23).
In her FAC, plaintiff alleges generally that she “experience^ sexual harassment.” (Doc. No.' 8 at 5, ¶ 16.) She also alleges that coworkers and managers made offensive statements of a. sexual nature, including the following:. “I thought it was role-play gone bad”; “let me go get you your own rubber”; and “a man’s reference to wearing steel boots to put his foot up a woman’s behind.” (Id. at 4, ¶ 15.) However, these isolated statements do not reach the level of severity required to form the basis of a cognizable harassment claim under the FEHA. See Faragher v. City of Boca Raton,
The court concludes that plaintiff has not alleged harassment severe or pervasive enough to “alter the conditions of her employment,” and that defendant’s motion to dismiss this claim must therefore be granted. Lyle,
v. FEHA Retaliation Claim
To establish a prima facie case of FEHA retaliation, a plaintiff must allege and show: (i) that she engaged in a protected activity; (ii) the employer subjected her to an adverse employment action; and (iii) a causal link existed between her protected activity and the employer’s action. See Dawson v. Entek Int’l,
A plaintiff engages in protected activity if she opposes unlawful employment practices, when that opposition is based on a “reasonable belief’ that the employer’s actions are unlawful. Moyo v. Gomez,
In, the pending motion to dismiss, defendant argues that plaintiff s ■ FEHA claims based on retaliation fail because the FAC does not allege adverse employment action or causation.' (Doc. No. 9-2 at 22-25). As to the latter, defendant argues that the FAC does not specify that defendant was ever aware of plaintiffs internal or •external complaints concerning allegedly unlawful employment conditions. (Doc. No. 9-1 at 25.)
The court has already concluded that the FAC adequately alleges adverse employment, action. Plaintiff also alleges her engagement in protected activity, as the FAC asserts that plaintiff filed a number of internal complaints opposing unlawful discrimination on the basis of sex and race between July 2012 and July 2014, and that she submitted a DFEH charge in January 2015, (Doc. No. 8 at 3-5, 62-65, ¶¶ 11,, 13-16). See Passantino,
Finally, plaintiff has alleged proximity in time between her participation in protected activities and the adverse employment action. In particular, plaintiff alleges in her FAC that she received negative performance evaluation reports after making requests for unpaid wages, (Doc. No. 8 at 2-3, ¶¶ 7-9); that her job duties were modified in May 2013, soon after she reported health and safety violations to OSHA, (Id. at 4, ¶¶ 13-14); that she was denied long-term disability in June 2015, a month after making a complaint to the Labor Commissioner related to defendant’s failure to provide employee rest breaks, (Id. at 6, 38); and that she was terminated in July 2015, two months after making her complaint to the Labor Commissioner, (Id. at 6, ¶ 27). These allegations of temporal proximity are sufficient to plead a causal link between plaintiffs engagement in protected activity and the adverse employment action. See Hernandez,
Accordingly, defendant’s motion to dismiss the FEHA retaliation claim will be denied.
vi. Declaratory Relief Claim
Defendant moves to dismiss plaintiffs claim for declaratory relief associated with her FEHA claims.
A claim for declaratory relief is unnecessary where an adequate remedy exists under some other cause of action. See Mangindin v. Wash. Mut. Bank,
In its motion to dismiss, defendant argues that plaintiffs declaratory relief claim fails because plaintiff has not exhausted her administrative remedies with respect to her underlying FEHA claims, and because any FEHA claims are now time-barred. (Doc. No. 9-1 at 27.) As discussed in detail above, the court has declined to dismiss plaintiffs FEHA claims on exhaustion grounds. Accordingly, the court will also not dismiss plaintiffs declaratory relief claim on this basis. However, the declaratory relief that plaintiff seeks is “commensurate with the relief sought through her substantive claims.” Achal,
vii. Wrongful Termination Claim .
Defendant moves to dismiss plaintiffs wrongful termination claim.
As a matter of California common law, “when an employer’s discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.” Tameny v. Atl. Richfield Co.,
In the pending motion to dismiss, defendant argues that plaintiffs claim for wrongful termination is derivative of her FEHA claims and fails for the same reasons articulated with respect to those causes of action. (Doc. No. 9 at 26r-27.) Plaintiff contests this argument in her opposition, arguing that her wrongful termination claim survives defendant’s motion to dismiss because her FEHA claims satisfy federal pleading standards. (Doc. No. 13 at 9-11.) ■
Having found that plaintiff has adequately pled her FEHA claims for discrimination and retaliation, the court concludes that plaintiff may maintain derivative claims for wrongful termination. See Hernandez,
viii. California Labor Code §§ 201-203 Claims
Defendant moves to dismiss plaintiffs claims brought under California Labor Code §§ 201-203 on statute of limitations grounds.
“[I]t is well-se.ttled that statutes of limitations are affirmative defenses, not pleading requirements.” Wyatt v. Terhune,
A three year statute of limitations applies to claims brought under California Labor Code §§ 201-203. See Pineda v. Bank of Am., N.A.,
In its pending motion to dismiss, defendant contends that plaintiffs claims under California Labor Code §§ 201-203 are time-barred because they are based on defendant’s alleged failure to pay wages that became due more than three years before plaintiff filed her original complaint state court in September 2016. (Id, at 27-28.) Plaintiff acknowledges that a three year statute of limitations applies to her claims under Labor Code §§ 201-203, but argues that those claims accrued on the date of her termination, in July 2015. (Doc, No. 13 at 11-12.)
The court finds plaintiffs arguments unpersuasive. In her FAC plaintiff specifically alleges that her claims under Labor Code §§ 201-203 relate'to defendant’s alleged failure to compensate for on-call services and missed meal breaks between 2005 and 2010. (Doc. No. 8 at 2-3, 6, ¶¶ 7, 9, 27.) 'However, plaintiff did not file her civil action in state court until September 1, 2016, far more than three years after wages associated with this work would have become due. (Doc. No. 1.) In light of the allegation's of plaintiffs FAC it is clear that plaintiffs claims under Labor Code §§ 201-203 are time-barred under the applicable statute of limitations. Defendant’s motion to dismiss these claims will therefore be granted.
ix. Labor Code §§ 98.6 and 98.7 Claims
Under California Labor Code § 98.6, employers may not discharge or discriminate against an employee for engaging in certain activities, including “filing a complaint with the Labor Commissioner or testifying in such proceedings.” Hollie v. Concentra Health Servs., Inc., C 10-5197 PJH,
Defendant moves .to dismiss plaintiffs Labor Code §§. 98.6 and 98.7 claims, arguing that plaintiffs allegations of reporting “illegal activity” to government agencies are insufficient to support these claims. (Id. at 29-30.) Plaintiff argues that she had adequately pled claims under §§ 98.6 and 98.7. . .
In the FAC, plaintiff alleges that'defendant violated California Labor Code §§ 98.6, 98.7 by retaliating against her for reporting defendant’s unlawful practices to the California Labor Commissioner. (Doc. No. 8 at 26, ¶¶ 122-131.) In particular, plaintiff asserts that she reported defendant’s allegedly illegal rest break policy to the Labor Commissioner in May 2015, and-
x. Labor Code § 1102.5 Claim
California Labor Code § 1102.5 prohibits an employer from retaliating against an employee “for disclosing information to a government or law enforcement agency,” if the employee reasonably believes this information relates to a violation of state or federal, statutes or regulations. Cal. Lab. Code § 1102.5(b); see also Jadwin v. County of Kern,
In its motion to dismiss, defendant argues that a one year statute of limitations applies to plaintiffs claim under Labor Code § 1102.5, and that here the claim is time-barred. (Id. at 29) (citing Fenters v. Yosemite Chevron, No. CV-F-05-1630 OWW/DLB,
Section 1102.5 does not provide its own statute of limitations. See Cal. Lab. Code § 1102.5. In the absence of a specific limitations provision, the court looks to the statutes of limitations generally applicable under state law. See generally Collection Bureau of San Jose v. Rumsey,
California law- provides that a three year statute of limitations applies to “action[s] upon a liability created by statute, other than a penalty or forfeiture.” Cal. Civ. Proc. Code § 338(a). However, a one year
The undersigned observes that there is apparently no published decision by a California court addressing this question. District courts within California have noted that courts addressing the issue have reached different conclusions. See Minor,
The court finds the decision in Minor to be persuasive, and consistent with state law rules regarding determination of the applicable statutes of limitations. In general, it is true that California courts determine the limitations period applicable to a claim by analyzing the nature of the cause of action. See Hensler v. City of Glendale,
However, and most importantly for purposes of resolving the pending motion, California Labor Code § 1102.5 forms the basis for two distinct claims. See Minor,
Here, in her FAC, plaintiff alleges a claim under § 1102.5 and not under § 1102.5(f). Moreover, plaintiff does not seek civil penalties, and her prayer for relief requests only compensatory damages and punitive damages.
xi. Labor Code § 6310 Claim
Labor Code § 6310 prohibits an employer from terminating or discriminating against an employee who has reported health and safety violations. Cal. Lab. Code § 6310; see also Freund, 347 F.3d at
In the pending motion to dismiss, defendant argues that plaintiffs Labor Code § 6310 claim fails because plaintiffs allegations in her FAC regarding reporting “driver health and safety” to government agencies are insufficient to satisfy federal pleading standards. (Id. at 29-30).
Plaintiffs FAC alleges that she reported “driver health and safety violations” to OSHA in May 2013. (Id. at 4, ¶13.) Plaintiff also alleges in conclusory fashion that the practices she reported posed a risk to employee health or safety.
B. Motion to Strike
Defendant additionally moves to strike a number of allegations in plaintiffs FAC under Federal Civil Procedure Rule 12(f). In particular, defendant requests that the court strike as superfluous allegations pertaining to: (i) discrimination and retaliation based on race or disability, failure to engage in the interactive process, and failure to accommodate, for the reasons asserted in their arguments concerning exhaustion; (ii) wages due to plaintiff before 2010; (iii) air conditioning in defendant’s Dispatch office; (iv) plaintiffs 2012 performance evaluations being downgraded; (v) the May 2013 OSHA investigation of a fuel spill; (vi) changes to assignments and schedules of dispatchers in 2013; (vii) racial comments made by defendant’s employees and plaintiffs reporting of them; (viii) statements made, by defendant’s, employees implying plaintiff needed counseling; (ix) denial of long-term disability benefits; (x) accommodation requested or required by plaintiff; and (xi) disparate treatment with respect to the length of plaintiff’s medical leave. (Doc. No. 9-1 at 30-31; 9-2.)
Above, the court has concluded that plaintiff ■ exhausted administrative remedies with respect to her FEHA claims, and that plaintiff may bring claims based on conduct described in her September 2015 administrative charge filed with the DFEH. As such, the court will not strike allegations pertaining to. discrimination, failure to accommodate, and-refusal to engage in the interactive process, contained within her September 2015 administrative charge. The court also cannot conclude that the remaining allegations defendant
CONCLUSION
Accordingly, for the reasons set forth above, defendant’s motion to strike (Doc. No. 10) is denied and defendant’s motion to dismiss (Doc. No. 9), is granted in part and denied in part as follows:
1. Defendant’s motion to dismiss is denied as to plaintiffs FEHA claim for discrimination on the basis of sex;
2. Defendant’s motion to dismiss is denied as to plaintiffs FEHA claims for discrimination on the basis of race;
3. Defendant’s motion to dismiss is granted as to plaintiffs FEHA claim for discrimination on the basis of disability, and this claim is dismissed with leave to amend;
4. Defendant’s motion to dismiss is denied as to plaintiffs FEHA claim for failure to accommodate;
5. Defendant’s motion to dismiss is denied as to plaintiffs FEHA claim for refusal to engage in the interactive process;
6. Defendant’s motion to dismiss is granted as to plaintiffs FEHA claims for harassment and failure to prevent harassment, and this claim is dismissed with leave to amend;
7. Defendant’s motion to dismiss is denied as to plaintiffs FEHA claim for retaliation;
8. Defendant’s motion to dismiss is granted as to plaintiffs FEHA claim for declaratory relief,, and this claim is dismissed with prejudice and without leave to amend;
9. Defendant’s motion to dismiss is denied as to plaintiff’s claim for wrongful termination;
10. Defendant’s motion to dismiss is granted as to plaintiffs claims brought under California Labor Code §§ 201-203, and these claims are dismissed ’ with prejudice and without leave to amend;
11. Defendant’s motion to dismiss is denied to plaintiff’s cláim under California Labor Code § 1102.5; .
12.. Defendant’s motion to dismiss is . granted as to plaintiffs claim under California Labor Code § 6310,-and this claim is dismissed with leave to amend;
13. Defendant’s motion to dismiss is denied as to plaintiff’s claims under California Labor Code §§ 98.6 and 98.7; and
14. ■ In the event plaintiff wishes to attempt to cure the deficiencies noted with respect tp, claims dismissed with leave to amend by this order, she is granted twenty-one days from the issuance of this order to file a second amended complaint.9
IT IS SO ORDERED.
Notes
. In her FAC, plaintiff initially alleges that she was terminated on July 23, 2015, (Doc. No. 8 at 2, ¶ 6), and later alleges that termination occurred on July 24, 2015, (Id. at 6, ¶ 27). In her opposition to the pending motions, plaintiff asserts that her termination occurred July 24, 2015. (Doc. No. 13 at 6, 12.) The court construes the FAC as alleging that plaintiff was terminated on July 24, 2015.
. Plaintiff identifies these claims in her FAC as the second, fifth, sixth, and seventh causes of action. (Doc. No, 8.)
. The DFEH right-to-sue letter prefaces the names of respondents with the names of their employer, e.g., "Frito Lay Jessica Finley,” "Frito Lay Jessica Chen,” etc. (Doc. No. 8 at 63.)
. A FEHA claim for failure to accommodate differs from a FEHA discrimination claim in that a plaintiff need not allege and demonstrate an adverse employment action, nor make any showing of a causal nexus between the disability and adverse employment action. See Jensen v. Wells Fargo Bank,
. Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36-3(b).
. Plaintiff also seeks injunctive relief based on other causes of action alleged in her FAC. (Doc. No. 8 at 32-33.)
. Because plaintiff's cause of action is not brought pursuant to subsection (f), the court does not reach the issue discussed in Delgado of whether the civil penalty involved in that statute is mandatory or discretionary. See Delgado,
. Plaintiff additionally alleges that following her May 2013 report, OSHA began an investigation that included a then-recent fuel spill at the defendant’s Manteca Distribution Center. (Doc. No. 8 at 4, ¶ 13.) However, it is not clear from the allegations of the FAC whether the alleged "driver health and safety violations” plaintiff initially reported to OSHA related to this fuel spill.
. On the other hand, should plaintiff wish to abandon those claims dismissed by this order with leave to amend and proceed only on the surviving claims of her FAC, she may file and serve a notice indicating that election, However, if plaintiff does elect to file a second amended complaint, she is reminded that Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay,