MEMORANDUM OPINION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS AND MOTION TO STRIKE
This is an action in diversity for damages under California’s Fair Employment and Housing Act (“FEHA”) by plaintiff Teressa Kelley (“Plaintiff’) against Defendant Corrections Corporation of America (“Defendant”). In her complaint, Plaintiff alleges four claims under FEHA; unlawful discrimination based on physical disability, failure to accommodate physical disability, failure to engage in the interactive process and retaliation. Plaintiff also alleges a common law claim for wrongful termination in violation of public policy. With regard to each of the five claims for relief, Plaintiff also seeks punitive damages. In the instant motion, Defendant seeks dismissal of each of Plaintiffs claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant also moves to strike each of Plaintiffs claims for punitive damages pursuant to Rule 12(f) of the Federal Rules of Civil Procеdure. Diversity jurisdiction exists pursuant to 28 U.S.C. § 1332. Venue is proper in this court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The following facts are alleged in Plaintiffs complaint and are presumed true for purposes of this motion.
Plaintiff was employed by Defendant in 2002 as a Count Clerk at the California City Correctional Center, a California correctional institution owned and operated by Defendant. In 2003 Plaintiff was pro *1136 moted to Records/Sentence Clerk. In 2004 she was promoted to Records Supervisor/Movement Coordinator, a position she held until her termination in 2009. In or about June 2007, Plaintiff had carpal tunnel release surgery on her right hand following which she returned to work. In or about March 2008, she started experiencing pain in her right wrist as well as numbness in her left hand. The pain in her hands became worse and, in or about September 2008, she filed a workers’ compensation claim with Defendant’s humаn resources department.
Plaintiff continued to work despite increasing pain in both hands until about December 19, 2008, at which time she was taken off work by Dr. George Balfour, M.S. Plaintiff had surgery on her left hand in or about February 2009 and surgery on her right hand in or about May 2009. Plaintiff remained on workers’ compensation leave of absence (temporary total disability) pursuant to the directions of Dr. Balfour. She kept Defendant’s human resources department apprised of her condition by means of faxed status reports by Dr. Balfour.
In or about October 2009, Plaintiff submitted to a Qualified Medical Examination (“QME”) by Dr. Vincent Gumbs, M.D. In his QME report, Dr. Gumbs concluded that Plaintiff had reached “maximal medical improvement” and could be regarded as “Permanent and Stationary.” Doc. # 2 at ¶ 10. Dr. Gumbs concluded Plaintiff could return to work subject to an number of “work restrictions.” Plaintiff was restrictеd from performing work involving repetitive gripping, grasping, pushing, pulling, and typing. Dr. Gumbs ordered that Plaintiff was restricted from performing work that involved manipulation for longer than one hour at a time and was ordered to rest ten minutes every hour to relieve symptoms. Plaintiff was also restricted from repetitive flexion or extension of the left elbow and from any forceful pushing or pulling with the left elbow. Dr. Gumbs report also opined that Plaintiff might require any of a number of medical interventions in the future.
Defendant received workers’ compensation notification of Plaintiffs condition, including Dr. Gumbs’ QME report in or about November 2009. Plaintiff thereafter received a letter from Barbara Wagner, Warden of the California City Correctional Center, dated November 16, 2009, advising Plaintiff that her QME had been reviewed and that:
Based on your restrictions we have determined that your are not able to perform all of the essential functions of your job, as listed in your job description for records supervisor. Therefore, effective November 16, 2009, we are terminating your employment with the California City Correctional Center .... ”
Doc. # 1 at ¶ 14.
Plaintiff alleges that at no time did Defendant attempt to reasonably accommodate Plaintiffs known disability, or contact Plaintiff in order to determine possible accommodations that would allow Plaintiffs return to work or contact Plaintiff for any reason at all before terminating her employment.
It is not disputed that Plaintiff exhausted administrative remedies prior to filing this action by filing a complaint with the California Department of Fair Housing and Employment and receiving a “Right-to-Sue Notice.”
Plaintiffs complaint was originally filed in the Superior Court of Kern County on March 25, 2010, and was removed to this court on July 20, 2010. Defendant’s motions to dismiss and to strike were filed on July 26, 2010. Plaintiff filed her oppositions on August 23, 2010, and Defendant filed its replies on September 3, 2010. The *1137 hearing on Defendant’s motions to dismiss and strike was vacated and the matter was taken under submission as of September 13, 2010.
LEGAL STANDARDS
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory.
Robertson v. Dean Witter Reynolds, Inc.,
The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiffs complaint:
“[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”
Moss v. U.S. Secret Service,
Rule 12(f) of the Federal Rules of Civil Procedure allows the court to strike from “any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” The purpose of a Rule 12(f) motion is to avoid the costs that arise from litigating spurious issues by dispensing with those issues pri- or to trial.
Sidney-Vinstein v. A.H. Robins Co.,
“If a complaint is dismissed for failure to state a claim, leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.”
Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc.,
DISCUSSION
I. Defendant’s Motion to Dismiss Pursuant to Rule 12(b)(6)
A. Plaintiff’s First Claim for Relief for Unlawful Discrimination
Plaintiff first claim for relief somewhat ambiguously alleges Defendant unlawfully discriminated against Plaintiff on the basis of her disability in violation of Cal. Gov’t Code § 12940
et seq.
Because plaintiffs complaint allegеs a separate claim pursuant to section 12940(m), the court presumes Plaintiffs first claim for relief is alleged pursuant to section 12940(a). Defendant moves to dismiss Plaintiffs first claim for relief on the ground that Plaintiff has failed to allege she is a “qualified individual” within the meaning of
Green v. State of California,
To state a
prima facie
claim for unlawful discrimination on account of disability, a plaintiff must allege; (1) that she is disabled within the statutory definition; (2) that she is qualified to perform the essential functions of the job with or without reasonable accommodations
1
; and (3) that she has suffered a discriminatory employment action on account of the disability.
Le Bourgeois v. Fireplace Manufacturers, Inc.,
While FEHA “prohibits discrimination based on an employee’s physical disability,”
Green,
The question the
Green
court answered is, which party in a FEHA action for discrimination on the basis of disability has the burden to show that the plaintiff is (or is not) an individual who is able to
*1139
perform the essential duties with reasonable accommodation?
Green,
It is clear, then, that the [California] Legislature incorporated the ADA requirement with the full knowledge of the purpose the language serves in the ADA — as a means of distinguishing permissible employment practices from impermissible disability discrimination based on the employee’s ability to perform in the particular employment position with reasonable accommodation. Thus, even if there were some conceivable ambiguity regarding the burden [of proof] issue prior to that point in time, no such ambiguity existed afterward.
Id.
at 263,
Given that the
Green
court found it appropriate to allocate to the plaintiff the burden to demonstrate that he or she is a “qualified individual” based on the similarity between the ADA and FEHA, this court finds that it is appropriate to import the ADA’s 2-part definition of “qualified individual.”
See Mixon v. Fair Employment & Housing Com.,
There is no question that Plaintiffs complaint adequately alleges facts to satisfy the first prong of the “qualified individual” analysis. The problem is that Plaintiff has alleged no discernable facts that bear upon the second prong. Although the plaintiffs burden in a civil rights case is minimal with regard to the facts that must be alleged to show a
prima facie
case,
Caldwell v. Paramount Unified School Dist.,
Plaintiffs complaint details her disability in some detail but gives no information at all as to what Plaintiff can do or what the essential elements of Plaintiffs job is or might be with or without reasonable accommodations. Plaintiffs first claim for relief alleges no facts at all to indicate whether Plaintiff is a qualified individual or what the essential elements of her job are or what the essential elements of an alternative job might be. For that reason Plaintiffs first claim for relief will be dismissed with leave to amend. Because the court cannot determine as a matter of law that amendment would not cure the deficiency in Plaintiffs allegation of discrimination, leave to amend will be granted.
*1140 B. Plaintiff’s Second and Third Claim for Relief for Failure to Accommodate and Failure to Engage in the Interactive Process
The duties of employers under Cal. Gov’t Code §§ 12940(m) and 12940(h) are inextricably linked.
Gelfo v. Lockheed Martin Corp.,
Subdivisions
2
(m) and (n) of FEHA each describe employer obligations that are separate and distinct from the prohibition against discriminatory treatment described in Subdivision (a).
Id.
at *2;
Gelfo,
A number of factors that might apply otherwise to excuse employer failure to participate in other FEHA provisions do not apply with respect to the employer’s obligation to participate in the interactive process. The plaintiff has no obligation to demonstrate that he or she is a “qualified individual” as is necessary under Subdivision (a).
Jacques,
Defendant contends that Plaintiff has not alleged facts sufficient to state a claim for failure to participate in the interactive process because Plaintiff has not alleged the fact “that she was able to perform the essential function of her position with or without accommodation.” Doc. # 16-1 at 5:5-7. Defendant cites
Swonke v. Sprint, Inc.,
[T]he employer cannot prevail on summary judgement on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that (1) reаsonable accommodation was offered and refused; (2) there simply was no vacant position within the employer’s organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation; or (3) the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.
Jensen,
While the court in
Swonke
recognized the obligations imposed on employers to accommodate and engage in the interactive process, the court expressly rested its decision on the specific facts of that case that were established by the parties in their summary judgment pleadings and that were admittedly unusual.
Swonke,
Subdivision (n) requires than an “employer engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any,
in response to a request for reasonable accommodation by an employee
or applicant with a known physical or mental disability or known medical condition.”
Milan v. City of Holtville,
*1142
Defendants motion to dismiss Plaintiffs claim for failure to accommodate fails for much the same reason as the motion to dismiss the claim for failure to engage in the interactive process — Defendant improperly attempts to allocate to Plaintiff the burden to show that Plaintiff was a qualified individual. Defendant cites
Jensen
for the proposition that Plaintiff has the burden to plead and prove that she was a ‘qualified individual,’ but the court’s decision in that case does not support the argument Defendant asserts. In
Jensen,
the court noted that under Subdivision (a), the employee does have the burden to show that he or she is a qualified individual.
As the
Jensen
court noted, pursuant to then Subdivision (k), reasonable accommodation includes the requirement that the employer make available to the disabled person any available position that the claimant is qualified to perform with or without accommodation.
See id.
at 263 fn. 6,
The
Jensen
court held that, in the context of an employer’s obligation to provide reasonable accommodation under Subdivision (k) (now (m)), a plaintiff bringing an action for failurе to provide such accommodation has the ultimate burden to show that he or she is a qualified individual by showing that “she can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position.”
Id.
at 257,
Pursuant to the above discussion, the court rejects Defendant’s contention that Plaintiff has the burden at the pleading stage in an action pursuant to subdivisions (m) and (n) to allege facts to show that shе was a “qualified individual” with respect to her existing job or to plead that there existed a specific alternative for which she was a “qualified individual.” To the extent Defendant may seek to challenge the sufficiency of Plaintiffs claims under these Subdivisions, Defendant may make the challenge only after Plaintiff has had adequate opportunity through discovery to identify then-available alternative positions that would reasonably accommodate her needs. Plaintiffs motion to dismiss Plaintiffs second and third claims for relief will be denied.
C. Plaintiff’s Fourth Claim for Relief for Retaliation
Plaintiffs fourth claim for relief alleges retaliation by Defendant against Plaintiff in violation of Subdivision (h). To establish a claim for retaliation, the plaintiff has the initial burden to show that (1) that she engaged in a protected activity, (2) she was subjected to an adverse employment action, and (3) that there wаs a causal link between the protected activity and the adverse action.
Jadwin v. County of Kern,
Logic demands that any protected activity engaged in by a plaintiff that is the basis for a claim of rеtaliation must precede the defendant’s retaliatory act. Thus, because Plaintiff received the letter of termination on or about November 16, 2009, any protected activity that Plaintiff could have undertaken that could have cause the retaliation must have preceded that date. In her opposition to Defendant’s motion to dismiss the retaliation claim, Plaintiff contends that the protected activity she engaged in was requesting accommodation. Assuming for purposes of this discussion that Plaintiffs allegation in the complaint is actually sufficient to show that she did request accommodation, 4 the question that Plaintiffs contention poses is whether the requesting of accommodation is a protected activity within the meaning of Subdivision (h).
“The statutory language of section 12940(h) indicates that protected conduct can takе many forms. Specifically, section 12940(h) makes it an unlawful employment practice ‘[f]or any employer ... to discharge, expel, or otherwise discriminate against any person because the person has opposed
any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.’ ” Yanowitz v. L’Oreal USA, Inc.,
The case authority Plaintiff primarily relies upon for the proposition requesting accommodation is a protected activity,
Nadaf-Rahrov v. Neiman Marcus Group, Inc.,
The interpretation of “protected activity” that Plaintiff urges would significantly blur and perhaps obliterate the distinction between an action for failure to accommodate or engage in the interactive process and retaliation. Essentially, Plaintiffs claim for retaliation is nothing more than a claim of failure to engage in the interactive process coupled with a short time period between the request for accommodation and the evidence of the employer’s non-accommodation or non-participation in the interactive process. While the temporal relationship between the protected activity and the adverse employment action by the employer may serve to establish a
prima facie
claim for retaliation,
see Loggins v. Kaiser Permanente Int’l,
The court finds Plaintiff has failed to allege she was engaged in a protected activity prior to suffering termination. Plaintiffs claim for retaliation will therefore be dismissed with leave to amend.
*1145 D. Plaintiff’s Fifth Claim for Relief for Wrongful Tеrmination
Plaintiffs fifth claim for relief alleges wrongful termination in violation of public policy. “To state a cause of action for wrongful discharge in violation of fundamental public policy, an employee must prove that his dismissal violated a policy that is fundamental, beneficial for the public, and embodied in statute or constitutional provision. ‘Tort claims for wrongful discharge typically arise when an employer retaliates against an employee for ‘(1) refusing to violate a statute ... [,] (2) performing a statutory obligation ... [,] (3) exercising a statutory right or privilege ... [, or] (4) reporting an alleged violation of a statute of public importance.’ [Citation.]”
Cramer v. Consolidated Freightways, Inc.,
Defendant bases its motion to dismiss Plaintiffs wrongful termination claim on its contention that Plaintiff has not successfully pled any claims under FEHA because Plaintiff has failed to allege facts to show she is a “qualified individual.” Since Plaintiffs claims for failure to accommodate and failure to engage in the interactive process have survived Defendant’s motion to dismiss, the court finds that dismissal of Plaintiffs wrongful termination claim is not warranted at this stage. If Plaintiffs termination was the consequence of Defendant’s failure to engage in the interactive process and to provide reasonable accommodation as required by FEHA, then Plaintiffs termination would have been in violation of public policy. The court cannot conclude at this point in the proceedings that Plaintiff has not adequately alleged a claim for wrongful termination as a matter of law. Defendant’s motion to dismiss Plaintiffs fifth claim for relief will be dеnied.
II. Defendant’s Motion to Strike Pursuant to F.R.C.P. 12(f)
Defendant moves to strike Plaintiffs claims for exemplary or punitive damages on the grounds that Plaintiffs claims fail to adequately allege that Defendant’s officers, directors or managing agent(s) had any prior knowledge of the alleged unlawful conduct and that the claims fail to allege any factual basis to support the allegation of malice, oppression or fraud.
Plaintiffs complaint exactly reproduces the following paragraph in each of Plaintiffs five claims for relief:
[Plaintiff] is informed and believes that [Defendant’s] acts were carried out by its managerial employees, officers and directors, and were directed or ratified by [Defendant] with a conscious disregard of [Plaintiffs] rights and with the intent to vex, injure and annoy [Plaintiff] such as to constitute oppression, fraud or malice under California Civil Codе Section 3294, entitling [Plaintiff] to punitive damages in a sum appropriate to punish and set an example of [Defendant.]
Doc. # 2 at ¶¶ 27, 39, 51, 59 and 66.
Civil Code section 3294 provides, in pertinent part:
‘(a) In an action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.’ ..... ‘(c) As used in this section, the following definitions shall apply: ‘(1) ‘Malice’ means conduct which *1146 is intended by the defendant to cause injury to the plaintiff or conduct which is carried on by the defendant with a conscious disregard of the rights or safety of others. ‘(2) ‘Oppression’ means subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights. ‘(3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.
Plaintiff argues three grounds for denial of Defendant’s motion to strike. First, Plaintiff argues that the state law cases that are cited by Defendant for the proposition that pleading of specific facts to show fraud oppression or malice do not control in federal court and that a more liberal federal pleading standard controls. Second, Plaintiff contends that a motion to strike pursuant to Rule 12(f) is an improper vehicle to challenge a claim for punitive damages. Third, Plaintiff argues that the complaint adequately alleges claims for punitive damages under the appropriate pleading standаrd even if that standard is equivalent to the standard Defendant urges. The court will consider Plaintiffs argument regarding the suitability of a motion pursuant to Rule 12(f) to challenge pleadings for punitive damages. The court will then proceed to the other of Plaintiffs arguments.
A. Rule 12(f) is an Inappropriate Basis for Defendant’s Motion
Plaintiff cites
Whittlestone, Inc. v. Handi-Craft Co.,
The court finds that Defendant’s motion to strike Plaintiffs claims for punitive damages is based entirely on issue of whether Plaintiff sufficiently pled facts to show that there was fraud, oppression or malice and whether Plaintiff sufficiently pled facts to show that Defendant’s controlling officer(s) had prior knowledge of Defendant’s unlawful conduct. In short, Defendant is challenging the sufficiency of claims for punitive damages without any argument that the claims are redundant, immaterial, impertinent or scandalous. The court finds that Defendant’s resort to Rule 12(f) is misplaced. “The proper medium for challenging the sufficiency of factual allegations in a complaint is through Rule 12(b)(6) not Rule 12(f).”
Consumer Solutions REO, LLC v. Hillery,
“[W]here a motion is in substance a Rule 12(b)(6) motion, but is incorrectly denominated as a Rule 12(f) motion, a court may convert the imрroperly designated Rule 12(f) motion into a Rule 12(b)(6) motion.”
Id.
at 1021;
Parker v. Fidelity Security Life Ins. Co.,
B. Applicable Pleading Standard
Plaintiff correctly contends that federal standards govern the pleading requirements applicable to Plaintiffs claims for punitive damages.
See Neveu v. Fresno,
“Allegations that the acts ... were ‘arbitrary, capricious, fraudulent, wrongful and unlawful,’ like other adjectival descriptions of such proceedings, constitute mere conclusions of law ...” Faulkner v. California Toll Bridge Authority,40 Cal.2d 317 , 329,253 P.2d 659 (1953); see Lehto v. Underground Construction Co.,69 Cal.App.3d 933 , 944,138 Cal.Rptr. 419 (1977) (facts and circumstances of fraud should be set out clearly, concisely, and with sufficient particularity to support punitive damages); Smith v. Superior Court,10 Cal.App.4th 1033 , 1042, 13 Cal.Rptr .2d 133 (1992) (punitive damages claim is insufficient in that it is “devoid of any factual assertions supporting a conclusion petitioners acted with oppression, fraud or malice.”); Brousseau v. Jarrett,73 Cal.App.3d 864 , 872,141 Cal.Rptr. 200 (1977) (“conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’- within the meaning of section 3294”).
Endurance American Specialty Ins. Co. v. Lance-Kashian,
The court concludes that the application of the pleading standards set forth in Twombly and Iqbal to claims for punitive damages under California law serves the salutary purpose of harmonizing standards applicable to state and federal proceedings while avoiding unnecessary pleading distinctions between consequential and punitive damages claims in diversity proceedings in federal court. The court will apply the standards set forth in Twombly and Iqbal to Plaintiffs claims for punitive damages.
C. Plaintiff’s Claims for Punitive Damages are not Sufficiently Pled
There is no question that Plaintiffs clаims for punitive damages are nothing more than conclusory allegations of “conscious disregard of [Plaintiffs] rights and with the intent to vex, injure and annoy [Plaintiff] such as to constitute oppression, fraud or malice.” When the court searches the complaint for any alleged facts from which fraudulent, malicious or oppressive conduct could possibly be inferred, the court finds only that Plaintiff alleges that Plaintiff requested accommodation after a term of time off under worker’s compensation and was promptly *1148 terminated by Defendant without any interactive process. There is no allegation, for example, of procedural gamesmanship, of any misrepresentation by Defendant or of any expression of animus by Defendant during Plaintiffs period of worker’s compensated time off. Essentially, Plaintiff invites the court to read into facts that describe nothing more than the basic elements of failure to accommodate and failure to engage in the interactive process an evil motive based on nothing more than Plaintiffs bare characterization of Defendant’s motives as evil. The court must decline the invitation. The court finds that Plaintiffs claims for punitive damages are unsupported by allegation of any facts. The claims for punitive damages will therefore be dismissed. Again, because the court cannot determine that the deficiencies in Plaintiff’s claims for punitive damages cannot be cured by amendment. Leave to amend will therefore be granted.
THEREFORE, pursuant to the foregoing discussion, it is hereby ORDERED that:
1. Defendant’s motion to dismiss Plaintiffs first claim for relief for violation of California Gov’t Code § 12940, subdivision (a) is hereby GRANTED. Plaintiffs first claim for relief is hereby DISMISSED. Leave to amend is GRANTED with leave to amend.
2. Defendant’s motions to dismiss Plaintiffs second and third claims for relief for violation of California Gov’t Code § 12940, subdivisions (m) and (n) are hereby DENIED.
3. Defendant’s motion to dismiss Plaintiffs fourth claim for relief for retaliation in violation of California Gov’t Code § 12940, subdivisions (h) is hereby GRANTED. Plaintiffs fourth claim for relief is hereby DISMISSED with leave to amend.
4. Defendants motion to dismiss Plaintiffs fifth claim for relief for wrongful termination in violation of public policy is hereby DENIED.
5.Defendant’s motion to strike Plaintiffs claims for punitive damages pursuant to Rule 12(f) is construed by the court to be a motion to dismiss pursuant to Rule 12(b)(6). Defendant’s motion to dismiss Plaintiffs claims for punitive damages as set forth at paragraphs 27, 39, 51, 59 and 66 of Plaintiffs complaint is hereby GRANTED. Plaintiffs claims for punitive damages are each hereby DISMISSED with leave to amend.
7. Any amended complaint shall be filed and served not later than twenty-one (21) days from the date of service of this order.
IT IS SO ORDERED.
Notes
. The requirement that the individual be able to perform the essential functions of her job is sometimes formulated as being "otherwise qualified to perform his/her job.”
See Faust v. California Portland Cement Co.,
. "Subdivision” or "Subdivisions” hereinafter refer to subdivisions of Cal. Gov’t Code § 12940 unless otherwise specified.
. At the time of the decision in Jensen the requirement for reasonable accommodation was set forth at Subdivision (k). The current Subdivision (m) is identical to Subdivision (k) as referenced in Jensen.
. Plaintiff references her allegation at ¶ 13 of the complaint that she gave notice of her request for accommodation. Plaintiff alleges in her complaint at ¶ 13 that she provided Defendant with a “worker’s compensation notification regarding [Plaintiffs] medical status, including a copy of Dr. Gumbs' QME report” in November, 2009, and that she received her termination about two weeks thereafter.
. Other than
Neveu,
Plaintiff relies on
Clark v. Allstate Ins. Co.,