Minor v. Fedex Office & Print Services, Inc.Minor v. Fedex Office & Print Services, Inc.
Re: Dkt. Nos. 31, 33, 38
Plaintiff Gary Minor (“Plaintiff’) filed this action pro se against Defendants FedEx Office and Print Services, Inc. (“FedEx Office”), Lance Freitas (“Freitas”), Federal Express Corporation (“Express”), and Gallagher Bassett Services, Inc. (“Gallagher”) (collectively, “Defendants”). Before the Court are Defendants’ three motions to dismiss. ECF Nos. 31 (“Gallagher Mot.”); 33 (FedEx Office and Freitas Motion, or “Office Mot.”); 38 (“Express Mot.”). Having considered the parties’ submissions, the record in this case, and the applicable law, the Court GRANTS Defendants’ motions to dismiss.
I. BACKGROUND
A. Plaintiffs Employment and Termination
Plaintiff began working as a store manager for FedEx Office in September 2006. ECF Nos. 6, 6-1 (collectively “Compl.”) ¶ 11. As a store manager, Plaintiff supervised other employees and performed other duties required to manage a store. Id. Around October 1, 2006, Plaintiff discovered that another store manager was altering employee timecards, so Plaintiff filed a complaint with management. Id. ¶ 13. Soon after, on October 19, 2006, Plaintiff was demoted to assistant manager. Id. ¶ 14. In January 2007, Plaintiff was transferred to a different location, and no longer held any duties as assistant manager. Id. ¶ 15.
In February 2007, a store manager denied Plaintiffs request for medical leave to have surgery on Plaintiffs right hip. Id. ¶ 16. However, Plaintiffs condition worsened and in October 2007 Plaintiff began an approved Family Medical Leave Act (“FMLA”) leave of absence to have a right hip replacement. Id. ¶ 17. Plaintiff underwent surgery in January 2008—a three-month delay allegedly attributable to FedEx Office. Id. ¶ 17-18.
Plaintiff returned to work in April 2008 after learning that his position was in peril and his medical insurance had been can-celled, which prevented him from going to out-patient physical therapy. Id. ¶¶ 20-21. On May 29, 2008, Plaintiff filed a complaint with the California Department of Fair Employment and Housing (“DFEH”) for being denied reasonable accommodations related to Plaintiffs hip surgery. Id. ¶ 35; FAC E-29 to -32 (Plaintiffs letter to the presiding judge in another federal court case discussing DFEH complaint). The DFEH denied Plaintiffs claim on June 18, 2008. Compl. ¶ 37.
Meanwhile, on May 24, 2008, Plaintiff tripped over a rubber floor mat at work and tore the meniscus in his left knee. Id. ¶¶ 22, 24. Together, Plaintiffs right hip replacement and torn meniscus limited Plaintiffs ability to work and rendered him disabled. Id. ¶¶ 24, 49. On June 18, 2008, Defendant Gallagher, FedEx Office’s third party workers’ compensation administrator, denied Plaintiffs claim for surgery .on Plaintiffs knee. Id. ¶ 36.
In July 2008, after additional visits to the doctor and another MRI, Plaintiff was placed on disability leave by his treating physician. Id. ¶¶ 36, 39. Plaintiff underwent knee surgery in November 2008 and returned to work in January 2009 despite not feeling ready to return. Id. ¶¶ 40-41., After Plaintiffs return to work, Defendant Freitas and Randy Leighton (“Leighton”), store managers with FedEx Office, “knowingly made schedules where Plaintiff was left alone” in the store to complete shipments. Id. ¶ 59. This required Plaintiff to lift heavy boxes despite his knee injury. Id. ¶¶ 60, 62-63. According to Plaintiff, Freitas’s and Leighton’s actions “violated Fe
From January to December of 2009, Plaintiff sent over fifty emails to Gallagher and FedEx Office complaining of extreme pain and requesting further treatment, which were ignored. Id. ¶ 41. On December 17, 2009, Plaintiff used his own medical insurance for an MRI. Id. ¶ 69. The physician discovered permanent damage to Plaintiffs left knee and recommended a full knee replacement. Id. On April 13, 2010, Plaintiff filed retaliation and harassment complaints requesting another knee surgery with the DFEH, the U.S. Equal Employment Opportunity Commission (“EEOC”), and the, Department of Industrial Relations (“DIR”). M-¶¶ 70, 83. It is not clear against whom these complaints were filed. Although Gallagher approved Plaintiffs claim and Plaintiffs selection of a treating surgeon on April 29, 2010, Plaintiff apparently used Plaintiffs own medical insurance for the surgery on September 13, 2010. Id. ¶¶ 71, 84.
Shortly after, in November 2010, Plaintiff wrote a letter to the California Attorney General complaining of discrimination and retaliation related to Plaintiffs’ reporting of employee timecard editing and Plaintiffs knee injury. FAC E-62 to E-65. The California Attorney General directed Plaintiff to file his complaint with different agencies, including the DFEH. Id. E-60 to -61.
On February 25, 2011, FedEx Office terminated Plaintiff. Compl. ¶52. Following Plaintiffs termination, in 2011 and 2012, Plaintiff filed six complaints related to “retaliation, discrimination and harassment for filing a worker’s [compensation claim] for a work related injury against sister company Federal Express Corporation” with the Workers’ Compensation Appeals Board. Id. ¶¶ 74-75. The outcome of these complaints is unclear. Also in 2012, Plaintiff wrote a second letter to the California Attorney General complaining of discrimination and retaliation, FAC E-68 to -69, to which the California Attorney General again responded by referring Plaintiff to other state agencies, id. E-66 to -67. In 2013, Plaintiff wrote a third letter to the California Attorney General alleging that FedEx Office unlawfully underpays taxes and edits employee time-cards. Id. E-91 to -96. For the third time, the California Attorney General directed Plaintiff to other state agencies. Id. E-87 to -89. In 2015, Plaintiff apparently contacted the DIR regarding tax and workers’ compensation fraud by FedEx Office, which Plaintiff discovered through the altered employee timecards. Id. E-110 to - 117 (emails sent to DIR). In 2016, Plaintiff contacted the Santa Clara County District Attorney, the California Attorney General, the California Department of Insurance, and the DIR to report workers’ compensation and tax fraud by FedEx Office, Express, and Gallagher. Id. E-120 to -123, E-128 to -129.
In addition to the administrative complaints and the instant lawsuit, Plaintiff has filed two federal court cases regarding his employment with FedEx Office as discussed below.
B. 2009 Class Action Suit and Settlement Agreement
In 2009, Plaintiff was a Class Representative in a wage-and-hour class action against FedEx Office before Judge Thel-ton E. Henderson of this Court (the “2009 Class Action”). See ECF No. 34-7 (Second Amended Class Action Complaint); Minor et al. v. FedEx Office & Print Servs. Inc., Case No. 09-1375 (N.D.Cal.). In that case, the Class claimed that FedEx Office failed to pay overtime wages, provide meal periods, pay a minimum wage, keep accurate records, and indemnify employees’ expenses, among other allegations. See ECF
The parties settled the 2009 Class Action in November 2012. See ECF No. 53 (“Settlement Agreement”). . Judge Henderson preliminarily approved the settlement agreement in February 2013, ECF No. 34-10, and gave final approval in July 2013, FAC E-l to -6. As part of the settlement, Plaintiff, as a Class Representative, received $5,000 in exchange for a limited release of claims against FedEx Office. See FAC E-l to -6. The limited release provision released all of Plaintiffs claims except for five already-filed DFEH complaints. See Settlement Agreement § 2.13.
In 2014, Plaintiff filed a .complaint against Class Counsel with the California State Bar. See FAC E-43 to 44. The State Bar closed Plaintiffs complaint after finding there was not sufficient grounds to find that Class Counsel violated the law or the Rules of Professional Conduct. Id. E-52 to -57.
C. 2013 Federal Lawsuit: Minor I
On February 8, 2013, the same day the class action settlement agreement was preliminarily approved by Judge Henderson, Plaintiff filed a lawsuit in Santa Clara County Superior Court against Express and several Doe defendants. See ECF No. 34-12; ECF No, 39-4. In February 2014, Plaintiff substituted FedEx Office and FedEx Corporation for two Does as Defendants. ECF No. 34-15. Then, on March 6, 2014, Plaintiff voluntarily dismissed Express without prejudice. ECF No. 34-16. On March 10, 2014, FedEx Office removed the case to federal court. See ECF No. 39-7; Minor v. FedEx Office and Print Services, Inc., Case No. 14-CV-01117-LHK (N.D.Cal.) (“Minor I”).
Minor I arose from Plaintiffs February 2011 termination and related events, including FedEx Office’s responses to Plaintiffs reporting of employee timecard violations and Plaintiffs hip and knee injuries. Plaintiff asserted claims for (1) discrimination on the basis of disability in violation of California’s Fair Employment and Housing Act (“FEHA”) § 12946; (2) failure to maké reasonable accommodations in violation of FEHA § 12940(m); (3) failure to protect from discrimination in violation of FEHA § 12940(k); (4) retaliation in violation of FEHA § 12940(h); (5) failure to grant leave under the California Family Rights Act, FEHA § 12945.2; and (6) wrongful termination in violation of public policy. ECF No. 39-8 (“Minor I Compl.”).
1. August 11, 2014 Order Granting Judgment on the Pleadings With Leave to Amend
On August 11, 2014, this Court granted FedEx Office’s motion, for judgment on the pleadings with leave to amend. ECF No. 34-17. First, the Court found that Plaintiff failed to allege that he filed an administrative complaint after Plaintiff was terminated even though Plaintiffs FEHA claims all stemmed from his February 2011 termination. Accordingly, the Court determined that Plaintiff failed to allege exhaustion of administrative remedies as required by FEHA § 12960 and dismissed Plaintiffs five FEHA claims with leave to amend. Id. at 7-9.
Second, the Court concluded that the Settlement Agreement prohibited tort claims against FedEx Office and therefore facially barred Plaintiffs wrongful termination claim. Id. at 9-10. However, -the Court granted Plaintiff leave to amend to allege the existence of evidence that FedEx Office obtained Plaintiffs consent to
Additionally, the Court ordered Plaintiff to clarify what role FedEx Corporation had in the allegedly wrongful conduct, as Plaintiffs complaint alleged that Plaintiff was employed solely by FedEx Office, not FedEx Corporation. Id. at 4 n.1. The Court warned Plaintiff that failure to cure all of these deficiencies would result in dismissal of Plaintiffs claims with prejudice. Id. at 12. The Court also ordered Plaintiff not to add new causes of action or parties without leave of the Court or stipulation of the parties. Id.
2. September 11, 2014 Order Granting Motion to Dismiss With Prejudice
On September 11, 2014, Plaintiff filed a third amended complaint reasserting Plaintiffs claims against FedEx Office and FedEx Corporation and adding Express back into the lawsuit as a defendant. Minor I Compl. On January 16, 2016, the Court granted FedEx Office’s motion to dismiss with prejudice. ECF No. 34-19 (“Minor I Order”). The Court noted that the three FedEx companies—FedEx Corporation, FedEx Office, and Express—are distinct entities with FedEx Office and Express structured as wholly-owned subsidiaries of FedEx Corporation. Id. at 8. The Court dismissed FedEx Corporation with prejudice because Plaintiffs third amended complaint still failed to address what role, if any, FedEx Corporation played in the conduct at issue. Id. at 9.
The Court also dismissed Plaintiffs claims against Express with prejudice because Plaintiffs claims could only be brought against Plaintiffs employer and Plaintiff had signed a stipulation in the 2009 Class Action that stated FedEx Office—not Express—was Plaintiffs employer. Id. at 10. Further, as noted above, Plaintiff had voluntarily dismissed Express while the case was pending in Santa Clara County Superior Court. ECF No. 34-16. Moreover, Plaintiff added Express to the third amended complaint without a stipulation or leave of the Court in violation of the Court’s order granting judgment on the pleadings with leave to amend. Minor I Order at 10.
Finally, the Court dismissed Plaintiffs six claims against FedEx Office with prejudice. As to Plaintiffs five FEHA causes of action, the Court held that Plaintiff again failed to allege that Plaintiff exhausted his administrative remedies even after the Court granted Plaintiff leave to amend to cure that deficiency. Id. at 15. For the same reason, the Court also noted that the five FEHA causes of action against Express would be legally precluded even if Express met the definition of employer. Id. at 10.
As to Plaintiffs wrongful termination claim, the Court held that Plaintiff failed to allege facts to show that FedEx Office obtained Plaintiffs consent to the release provision by fraud, deception, or misrepresentation. Id. at 17. Thus, Plaintiffs wrongful termination claim was facially barred by the class action Settlement Agreement. Id. Accordingly, the Court dismissed Plaintiffs third amended complaint with prejudice.
D. The Instant Lawsuit
On December 29, 2015, Plaintiff filed a new lawsuit in Santa Clara County Superior Court against Defendants. ECF Nos. 6, 6-1. As in Minor I, Plaintiff asserted five causes of action for violations of FEHA §§ 12946, 12940(h), (k), (m), 12945.2, and one cause of action for wrongful termination in violation of public policy. Id. In addition, Plaintiff added claims under “the EEOC,” the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112 et seq., and California Labor Code § 1102.5. Id.
On March 9, 2016, Plaintiff submitted a motion “requesting approval for missed deadline to file rely [sic].” ECF No. 30. After Plaintiff filed the motion to extend time, but before the Court ruled, Defendants filed three new motions to dismiss the FAC and/or the original complaint. See Gallagher Mot. (filed March 11, 2016); Office Mot. (filed March 14, 2016); Express Mot. (filed March 16, 2016). FedEx Office, Freitas, and Express also filed requests for judicial notice. ECF No. 34; ECF No. 39. On March 18, 2016, the Court interpreted Plaintiffs motion to extend time as a request to excuse the untimeliness of the FAC, but denied the motion as moot because Plaintiffs FAC was timely. ECF No. 41. The Court also denied as moot the two February 8, 2016 motions to dismiss the original complaint filed by FedEx Office, Freitas, and Express. Id.
In March 2016, Plaintiff opposed the three new motions to dismiss. ECF No. 45 (Opposition to Gallagher Mot., filed March 25, 2016); ECF No. 47 (Opposition to Office Mot., filed March 28, 2016); ECF No. 50 (Opposition to Express Mot., filed March 30, 2016). Gallagher filed a reply on March 31,2016. ECF No. 48. FedEx Office and Freitas filed a reply on April 4, 2016. ECF No. 54. FedEx Office and Freitas also filed a notice of errata correcting an exhibit in their March 14, 2016 request for judicial notice, ECF No. 53. Express filed a reply on April 6, 2016. ECF No. 56. On April 18, 2016, Plaintiff filed a request for the Court to consider the oppositions filed in response to the instant motions to dismiss. ECF No. 69.
II. LEGAL STANDARD
A. Rule 12(b)(6)
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint that fails to meet this standard may be dismissed pursuant to Rule 12(b)(6). Rule 8(a) requires a plaintiff to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co.,
B. Leave to Amend
If the Court concludes that the complaint should be dismissed, it must then decide whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend “shall be freely given when justice so requires,” bearing in mind “the underlying purpose of Rule 15... [is] to facilitate decision on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith,
III. JUDICIAL NOTICE
On a Rule 12(b)(6) motion, the Court generally may not look beyond the four corners of the complaint, with the exception of documents incorporated into the complaint by reference and any relevant matters subject to judicial notice. See Swartz v. KPMG LLP,
In connection with the instant motion to dismiss, FedEx Office and Freitas request judicial notice of twenty-one documents, including (1) documents filed by the. parties in the 2009 Class Action and Minor P, (2) court orders issued in the 2009 Class Action and Minor I; (3) complaints Plaintiff filed with various administrative agencies; and (4)- case information from publicly available websites. ECF No. 34. On April 4, 2016, FedEx Office and Freitas filed a notice of errata and a complete version of Exhibit 8, the 2009 Class Action Settle
Similarly, Express requests judicial notice of ten documents, including (1) documents filed by the parties in the 2009 Class Action and Minor I; (2) court orders issued in the 2009 Class Action and Minor I; and (3) case information from publicly available websites. ECF No. 39. These ten documents are nearly identical in form and in kind to the documents provided by FedEx Office and Freitas, and Plaintiff does not oppose judicial notice. For the reasons outlined above,, the Court GRANTS Express’s unopposed request for judicial notice.
IV. DISCUSSION
A. Plaintiffs Claims
As stated above, the FAC does not describe Plaintiffs claims or include any factual allegations. Instead, the FAC consists of 11 exhibits, including orders and filings from Plaintiffs prior lawsuits and communications between Plaintiff and various California administrative agencies. Thus, as a preliminary matter, the Court will construe Plaintiffs claims as alleged in Plaintiffs pleadings. The Court acknowledges that Plaintiffs pleadings are not a model of clarity and that Defendants are confused by these filings. See, e.g., Express Mot. at 5-6 (“[I]t is difficult for [ ] Express to determine precisely what causes of action are asserted or how those causes of action differ from those asserted in Plaintiffs initial [] [cjomplaint.”); Gallagher Mot. at 2-3 (noting confusion); Office Mot. at 3, 8-9 (same). From Defendants’ statements and the Court’s review of the record,- the Court identifies four issues in need of clarification: (1) Plaintiffs original and amended complaints assert claims under the “EEOC” without identifying a relevant statute; (2) the FAC contains no factual allegations or claims; (3) the caption of the complaint, the body of the complaint, and the caption of the FAC are inconsistent; and (4) Plaintiffs oppositions attempt to raise a seemingly new claim and new allegations. When addressing these issues, the Court is mindful that “courts must construe pro se pleadings liberally.” See Resnick v. Hayes,
First, in response to Plaintiffs claims brought under “the EEOC,” the Court notes that the EEOC is not a federal law. Rather, the EEOC is a federal agency “responsible for enforcing federal laws that make it illegal to discriminate against.. .an employee because of the person’s ... disability.” Overview, U.S. Equal Employment Opportunity Commission, http://www.eeoc.gov/eeoc/ (last visited Apr. 25, 2016). Thus, Plaintiff cannot assert claims under “the EEOC.” However, the ADA is among the federal laws under the EEOC’s purview. Plaintiff cites the ADA with regard to some of the claims in the complaint and all of Plaintiffs, “EEOC” claims sound in discrimination. Construing Plaintiffs pleadings liberally, it appears to the Court that when Plaintiff references the EEOC, Plaintiff intends to state a claim under the ADA. See Compl. ¶¶ 55-94 (second, third, fourth, and fifth causes of action).
Second, Defendants disagree as to whether the FAC incorporates Plaintiffs
As FedEx Office and Freitas point out, as a general rule “an amended pleading supersedes the original pleading and renders it of no legal effect, unless the amended complaint incorporates by reference portions of the prior pleading.” Williams v. Cty. of Alameda,
Third, the claims listed in the captions of the original complaint and the FAC are not entirely consistent with those described in the body of the original complaint. For example, the caption in the original complaint does not list whistle-blower retaliation in violation of California Labor Code § 1102.5 as a cause of action, but Plaintiff extensively discusses this claim in the body of the complaint and lists this claim in the caption of the FAC. In order to give this pro se complainant the “benefit of any doubt,” see Cooper v. Pasadena Unified Sch. Dist.,
Having carefully reviewed the original complaint and FAC, the Court identifies seven causes of action. Of these seven causes of action, Plaintiff asserts five solely against FedEx Office and Express: (1) discrimination on the basis of disability in violation of FEHA § 12946 and the ADA, Compl. ¶¶ 48-51; (2) failure to take reasonable steps to prevent discrimination in violation of FEHA § 12940(k) and the ADA, id. ¶¶ 55-56; (3) retaliation in violation of FEHA § 12940(h) and the ADA, id. ¶¶ 72-87; (4) failure to grant leave in violation of FEHA § 12945.2 and the ADA, id. ¶¶ 88-94; and (5) wrongful termination in violation of public policy pursuant to Tameny v. Atlantic Richfield Co.,
Finally, in opposition to the instant motions to dismiss Plaintiff does not refute Defendants’ motions and instead attempts to offer new allegations and raise at least one new claim related to Defendants’ allegedly fraudulent business practices. Specifically, Plaintiff appears to assert a workers’ compensation insurance fraud claim under California Insurance Code § 1871.4. ECF No. 45 at 7; ECF No. 47 at 9;'ECF No. 50 at 9. Plaintiff contends that “Plaintiff fears of being charged with worker’s compensation insurance fraud even though it was committed by FedEx Office, GBS and Federal Express. Plaintiff has the right to clear his good name no matter how long it takes.” See, e.g., ECF No. 47 at 10. For the following reasons, the Court disregards these new assertions related . to workers’ compensation fraud.
Most importantly,. Plaintiffs pleadings do not include a claim for workers’ compensation insurance fraud nor any factual allegations to support such a claim. See generally Compl.; FAC. Although the FAC includes letters that Plaintiff sent to various California agencies discussing workers’ compensation insurance fraud, these letters never cite California Insurance Code § 1871.4. Additionally, these letters—attached to the FAC with no context or supporting factual allegations—are not “sufficient to put [Defendants] on notice that [Plaintiff] was making claims” of workers’ compensation insurance fraud in the instant lawsuit. See Cooper,
Additionally, Plaintiff may not use his opposition to raise and argue new allegations or claims not in the complaint. See Schneider v. Cal. Dep’t of Corr.,
Moreover, although the Court will not determine the merits of Plaintiffs fraud allegations, the Court notes that California Insurance Code § 1871.4 is a penal statute. See Leegin Creative Leather Prods., Inc. v. Diaz,
The Court now turns to.the merits of Plaintiffs claims. Given the number of Defendants in the instant lawsuit and the varying claims asserted, the Court will first discuss FedEx Office and Express, then turn to Freitas and Gallagher.
B. FedEx Office and Express
FedEx Office and Express both contend that, because of Minor I, all of Plaintiffs claims are barred by res judicata. Office Mot. at 11-13; Express Mot. at 7-10.
“Res judicata, or claim preclusion, prohibits lawsuits on any claims that were raised or could have been raised in a prior action.” Stewart v. U.S. Bancorp,
In opposition to FedEx Office’s and Express’s motions to dismiss, Plaintiff does not challenge that these criteria are satisfied. ECF Nos. 47, 50. Nevertheless, the Court will address each factor in turn to determine whether the application of res judicata is appropriate.
1. Identity of Claims
To decide if there is identity of claims, courts in the Ninth Circuit apply four factors: “(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two , suits arise
In both the instant case and Minor I, Plaintiff asserts the same violations of FEHA §§ 12946, 12940(h), (k), (m), 12945.2 and the same claim for wrongful termination in violation of public policy. The Court identifies just two differences between the claims that Plaintiff asserted in Minor I and the claims asserted in the instant ease. First, in the instant complaint Plaintiff alleges that Plaintiffs FEHA claims are also viable claims under the ADA. Second, Plaintiff adds a single new claim, for whistleblower retaliation under California Labor Code § 1102.5. As explained below, these two differences are immaterial in the context of res judicata because the Court finds that Minor I and the instant lawsuit arise out of the same transactional nucleus of facts.
Minor I stemmed from workplace events leading up to, and including, Plaintiffs February 2011 termination. See Minor I Order. Specifically, Plaintiff alleged in Minor I that Plaintiff was demoted after complaining to management that employee timecards had been altered; that Plaintiffs employer delayed Plaintiffs hip surgery and then encouraged Plaintiff to return to work early post-operation; and that Plaintiffs employer did not properly accommodate Plaintiffs work restrictions after Plaintiff injured his knee at work. See id. at 2-3. Plaintiff asserted that Plaintiffs termination “was motivated by Plaintiffs disability and/or requests for time off due to Plaintiffs disability.” Minor I Compl. ¶ 36.
Similarly, in the instant lawsuit, Plaintiff describes three events: Plaintiffs discovery of allegedly illegal tampering of employee timecards; Plaintiffs request for medical leave to have surgery on his right hip; and Plaintiffs work-related accident where Plaintiff injured his left knee. See Compl. ¶¶ 5-47. As in Minor I, all of Plaintiffs claims in the instant case stem from Defendants’ responses to and involvement in those events, including Plaintiffs eventual termination. See, e.g., id. ¶ 50 (“The termination of Plaintiffs employment was motivated by Plaintiffs disability and/or requests for time off due to Plaintiffs disability. ...”), ¶ 52 (“Rather than providing an accommodation, Defendants terminated Plaintiffs employment.... ”). For example, in both the instant case and Minor I, Plaintiff accuses FedEx Office and Express .of failing to accommodate Plaintiff by forcing Plaintiff to do heavy lifting despite his knee injury. Compare Minor I Compl. ¶ 30 (“Plaintiff was left in the Federal Express store” alone and was required “to lift heavy boxes and shipments irregardless of the injury to his knee”), with Compl. ¶¶ 59-60 (alleging that “Plaintiff was left alone to do international and domestic shipments” and then terminated because he was “unable to do heavy lifting”). Plaintiff does not allege that he has obtained any new evidence regarding these events that was unavailable to Plaintiff prior to the filing of Minor I. See Ardalan v. McHugh,
Moreover, the fact that Plaintiff brings his disability-related claims pursuant to the ADA and adds a seventh claim for whistleblower retaliation under California Labor Code § 1102.5 has no bearing on res judicata. “Newly articulated claims based on the same nucleus of facts may still be- subject to a res judicata finding if the claims could have been brought in the earlier .action.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency,
Here, Plaintiff could have brought the ADA and California Labor Code § 1102.5 claims in Minor I because “[t]here are no real differences (if there are any differences at all) between the factual predicates” for the two actions. Id. Plaintiffs ADA claims are coextensive with the associated FEHA claims. See Compl. ¶¶ 55-94 (asserting ADA and FEHA claims in same causes of action). As noted above, Plaintiffs FEHA claims are the same claims asserted in Minor I and arise from the same facts. Additionally, Plaintiffs California Labor Code § 1102.5 claim states that Plaintiff “reported the illegal tampering of employee time cards” to management and subsequently won the 2009 Class Action. Id. ¶¶ 95-102. As a result of reporting these “wrongdoings,” Plaintiff alleges that he “suffered continuous retaliation that last[ed] for over two and [a] half years” during which time he was denied benefits related to medical leave and ultimately terminated. Id. ¶¶ 100-01, 106, 109-10. Plaintiff could have—and did—bring claims based on these same allegations in Minor I. Accordingly, the “transactional nucleus of facts” factor supports finding an “identity of claims” between all of the claims in the instant suit and Minor I.
Although satisfaction of the fourth factor is often sufficient to find an identity of claims for res judicata purposes without analysis of the other factors, see Int'l Union of Operating Eng’rs,
The second factor supports a finding of an identity of claims because “substantially the same evidence” as was presented in Minor I would necessarily be presented here. See id. at 1150 & n. 7 (finding that the presentation of substantially the same evidence supports a finding of res judicata). The third factor also supports an identity of claims because the “two suits in
In sum, three factors support finding an identity of claims while one factor is neutral. The Court concludes that the identity of claims supports a finding that res judi-cata bars all seven of Plaintiffs claims against FedEx Office and Express.
2. Final Judgment on the Merits
“An involuntary dismissal generally acts as a judgment on the merits for the purposes of res judicata.... ” In re Schimmels,
3. Privity
Lastly, the Court looks at whether the prior actions and the current lawsuit involve parties in privity with each other. The Ninth Circuit has defined privity in the res judicata context as “a legal conclusion ’designating a person so identified in interest with a party to former litigation that he represents precisely the same right in respect to the subject matter involved.’ ” In re Schimmels,
In light of the foregoing, the Court concludes that Plaintiffs claims against FedEx Office and Express are barred by the doctrine of res judicata. This deficiency is a legal one that can not be cured by amendment. Accordingly, the Court GRANTS FedEx Office’s and Express’s motions to dismiss with prejudice. See Leadsinger, Inc.,
C. Freitas and Gallagher
The Court now turns to the two claims that Plaintiff asserts against Freitas and Gallaher: (1) failure to make reasonable accommodations in violation of FEHA § 12940(m) and ADA § 12112(b)(5), and (2) whistleblower retaliation in violation of California Labor Code § 1102.5. Because Freitas and Gallaher make similar arguments about these claims, the Court addresses these defendants’ motions to dismiss together. The Court first addresses Plaintiffs failure to accommodate claim, and then Plaintiffs whistleblower retaliation claim.
1. Failure to Accommodate in Violation of FEHA § 12940(m) and ADA § 12112(b)(5)
Freitas and Gallagher move to dismiss Plaintiffs failure to accommodate claim on three bases: (1) Plaintiff fails to state a claim because neither Freitas nor Gallagher was Plaintiffs employer; (2) Plaintiff has not alleged that Plaintiff exhausted his administrative remedies; and (3) the claim is time-barred. Freitas also asserts that individual defendants can not be personally liable under the FEHA or the ADA. Office Mot. at 15-16. Plaintiff does not respond to any of Freitas’s or Gallagher’s arguments. Although this may be a suffi
a. Plaintiff Has Not Alleged That He Exhausted His Administrative Remedies or Timely Filed the Complaint
Exhaustion under the FEHA requires filing a complaint with the DFEH within one year of the date of the alleged unlawful practice and obtaining- notice of the right to sue. FEHA § 12960; see Romano v. Rockwell Int’l, Inc.,
Exhaustion under the ADA occurs when the plaintiff files a charge with the EEOC within 180 days from the date upon which the alleged unlawful practice occurred. See 42 U.S.C. § 2000e-5(e). If, however, a plaintiff has initially instituted proceedings with a state or local agency with authority to grant relief from the allegedly unlawful practice, a plaintiff has 300 days after the allegedly unlawful employment practice, or 30 days after receiving notice that the state or local agency has terminated proceedings under state or local law, whichever is earlier, to file a charge with the EEOC. Id, After receiving an EEOC right-to-sue letter, a plaintiff has 90 days to file suit. See id. § 2000e-5(f)(1). The Court lacks subject matter jurisdiction over unexhausted ADA claims. EEOC v. Farmer Bros. Co.,
In Plaintiffs pleadings, Plaintiff alleges that he filed a number of complaints with the DFEH. See, e.g., Compl. ¶¶ 8, 35, 70, 83. However, Plaintiff does not allege that any of these DFEH complaints were brought against Freitas or Gallagher and does not explain the substance of the complaints. Nor does Plaintiff allege that Plaintiff filed any complaints against Freitas or Gallagher with the EEOC. See generally id.; FAC.
Freitas, however, states that Plaintiff filed a single charge against Freitas with the DFEH on June 1, 2010, ECF No. 34-21, and received notice of right-to-sue on April 1, 2011, ECF No. 34-22.
As noted above, Plaintiff does not identify any additional DFEH or EEOC claims against Freitas. Nor does Plaintiff allege that Plaintiff filed any DFEH or EEOC complaints against or received any right-to-sue letters for Gallagher, See generally Compl.; FAC. In opposition to the instant motions to dismiss, Plaintiff does not point to any complaints that would demonstrate exhaustion nor argue that the Court should excuse Plaintiffs failure to exhaust. See generally ECF Nos. 45, 47. Accordingly, Plaintiff fails to allege that he exhausted his administrative remedies and thus fails to state a failure to accommodate claim under the FEHA or the ADA. Miller v. United Airlines, Inc.,
b. Whether Freitas or Gallagher Was Plaintiffs “Employer”
Although failure to exhaust is a sufficient basis for dismissal, the Court next addresses Freitas’s and Gallagher’s assertion that Plaintiff may not state a claim for failure to accommodate under the FEHA and the ADA because neither Freitas nor Gallagher was Plaintiffs employer. To determine whether Plaintiff has stated a failure to accommodate claim, the Court first analyzes the definition of “employer” under the FEHA and the ADA. The Court next considers the sufficiency of Plaintiffs allegations as to whether either Freitas or Gallagher was Plaintiffs employer. Lastly, the Court examines Freitas’s argument that Freitas may not be held individually liable as an employer under the FEHA or the'ADA.
i. Legal Standard
Claims under both FEHA § 12940(m) and ADA § 12112(b)(5)(A) may be brought only by an employee against an “employer.” See FEHA § 12940(m) (“It is an unlawful employment practice... [f]or an employer or other entity...to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.”); 42 U.S.C. §§ 12112(b)(5)(A), 12111(2) (providing that no “covered entity,” or “employer,” shall discriminate by “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee”). An “employer” is a person who employs more than five employees (under the FEHA) or fifteen employees (under the ADA). See FEHA § 12926(d) (defining an employer as, in part, “any person regularly employing five or. more persons, or any person acting as an agent of an employer, directly or indirectly”); 42 U.S.C. § 12111(5)(A) (“The term ’employer’ means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person_”).
To determine whether an employer-employee relationship exists under the ADA, the U.S. Supreme Court has advised courts to examine “all of the incidents of the relationship.” Clackamas Gastroenterology Assocs., P.C. v. Wells,
ii. Lack of Allegations of an Employer-Employee Relationship
In the instant case, Plaintiff never alleges 'that Freitas or ' Gallagher was Plaintiffs “employer.” See Compl.; FAC. Nor has Plaintiff alleged sufficient facts from which the Court may infer that Freitas or Gallagher was Plaintiffs employer. As to Freitas, who was a store manager at the FedEx Office where Plaintiff worked, Plaintiff alleges that Freitas and another store manager “knowingly made schedules where Plaintiff was left alone to do international and domestic shipments.” Compl. ¶ 59. However, there are no other allegations relevant to an employee-employer relationship, including the relationship between Freitas, the other store manager, and FedEx Office; the extent of Freitas’s supervision of Plaintiff; or whether Freitas could fire Plaintiff or direct Plaintiffs work.
As to Gallagher, the exhibits filed with the FAC indicate that Plaintiff has long acknowledged that Gallagher was FedEx Office’s workers’ compensation administrator. See FAC E-29 to -32 (Letter to Judge Henderson) (discussing a Gallagher claims adjustor’s denial of Plaintiffs claim); E-46 to -50 (Letter to California State Bar) (arguing Gallagher violated duty as claims adjuster); E-68-(Letter to Attorney General) (“FedEx Kinkos is licensed and has worker’s comp ins. Ace American (claims adjustor-Gallagher Basset Services)”). Plaintiff does not allege that Plaintiff had any interactions or relationship with Gallagher besides the dispute over Plaintiffs workers’ compensation. However, if Gallagher acted only as FedEx Office’s workers’ compensation administrator, then Gallagher was not Plaintiffs employer. See Weyer v. Twentieth Century Fox Film Corp.,
Because Plaintiff does not allege that Freitas or Gallagher was Plaintiffs employer, Plaintiff has not pled a claim for failure to accommodate under the FEHA or the ADA against Freitas or Gallagher. See, e.g., Montazer v. SM Stoller, Inc.,
iii. Individual Liability
Even if Plaintiff were to allege that Freitas was Plaintiffs employer, Plaintiffs failure to accommodate claim against Frei-tas would still fail under the ADA and the FEHA. The Ninth Circuit has clearly held, in accordance with other circuits, that “individual defendants cannot be held personally liable for violations of the ADA,” See Walsh v. Nev. Dep’t of Human Res.,
Similarly, the Court concludes that Freitas is not an “employer” for purposes of FEHA § 12940(m). Although California courts have not ruled specifically on the availability of individual liability under FEHA § 12940(m), the California Supreme Court has held that individual supervisors may not be sued personally under FEHA § 12940(a), which prohibits “an employer” from discriminating on the basis of disability. Reno v. Baird,
In addition, the California Supreme Court explained that the “[b]ehavior that gives rise to a discrimination claim... is often indistinguishable from performing one’s job duties.” Id. at 657,
Lastly, the California Supreme Court contrasted discrimination to harassment. While the FEHA prohibits discrimination by “an employer,” the FEHA prohibits “an employer.. .or any other person” from harassing an employee. Id. at 644,
Relying on Reno, the California Supreme Court in Jones v. Lodge at Torrey Pines P’ship held that individuals may not be held liable'as ‘‘employers” for retaliation under FEHA § 12940(h).
Two district courts in this circuit have applied the reasoning of Reno to conclude that FEHA § 12940(m) does not permit individual liability for failure to accommodate. See Calderon v. Georgia-Pac. Corrugated LLC,
Similar to the discrimination provision examined in Reno, which prohibited actions by “an employer,” FEHA § 12940(m) prohibits actions by “an employer or other entity.” Given the similarity of these provisions, the Court concludes that the reasoning of Reno applies equally to FEHA § 12940(m). See Ball,
c. Leave to Amend
In sum, Plaintiff has failed' to allege exhaustion of administrative remedies and that either Freitas or Gallagher was Plaintiffs employer. Accordingly, the Court GRANTS Freitas’s and Gallagher’s motions to dismiss as to Plaintiffs failure to accommodate claim.'
The Court concludes that granting Plaintiff leave to amend the failure to accommodate claim against Freitas would be legally futile. If exhaustion of administrative remedies was the only issue before the Court, the Court would grant leave to amend. Additionally, if the factual sufficiency of Plaintiffs allegations as to the employer-employee. relationship was the only issue before the Court, the Court would grant leave to amend because Plaintiff may be able to allege additional facts
However, as to Gallagher, the Court can not say that any amendment of Plaintiffs failure to accommodate claim against Gallagher would necessarily be futile. Accordingly, the Court’s dismissal of Plaintiffs failure to accommodate claim against Gallagher is with leave to amend.
2. Whistleblower Retaliation Claim
Given Plaintiffs unclear pleadings, it appears that Freitas and Gallagher did not understand Plaintiff to raise a California Labor Code § 1102.5 whistleblower retaliation claim. Nonetheless, as discussed above, the Court construed Plaintiffs complaint liberally to include a claim under § 1102.5 against all Defendants. Accordingly, the Court deems it appropriate to examine whether Plaintiff is able to state a claim under § 1102.5. The Court finds dismissal appropriate for two reasons: (1) Plaintiffs claim is time barred; and (2) Plaintiff fails to allege that Freitas or Gallagher was Plaintiffs employer. The Court discusses the two reasons for dismissal in turn.
As a preliminary matter, only Express construed Plaintiffs pleadings to include a § 1102.5 claim and moved to dismiss the claim. Express argued that Plaintiff was unable to state a § 1102.5 claim because, among other reasons, the claim is untimely under the statute of limitations. Express Mot. at 13-14. In opposition to Express’s motion to dismiss, Plaintiff does not refute Express’s argument as to the statute of limitations nor address Plaintiffs § 1102.5 claim at all. Moreover, as discussed above, Plaintiff may not state a § 1102.5 claim against Express because the claim is barred by res judicata.
As to Plaintiffs § 1102.5 claim against Freitas and Gallagher, the Court first concludes that Plaintiffs claim is barred by the statute of limitations. California’s statute of limitations for “[a]n action upon a liability created by statute, other than a penalty or forfeiture” is three years. See Cal. Civ. Proc. Code § 338(a). Therefore, actions commenced under § 1102.5 must be brought within three years. See Monk v. Sacramento Metro. Fire Dist.,
Specifically, construing Plaintiffs pleadings liberally, Plaintiff alleges that Freitas retaliated against Plaintiff by making schedules that failed to accommodate Plaintiffs disability. Compl. ¶ 59. Gallagher, as FedEx Office’s third party claims administrator, allegedly denied Plaintiffs requests for medical treatment following Plaintiffs knee injury and refused to provide benefits. Id. ¶¶ 101, 107. The time frame for these alleged retaliations is unclear. However, the latest date on which Plaintiffs whistleblower claim could have accrued is February 25,2011, the date that Plaintiff was terminated and the latest alleged date of any retaliation by any defendants. See La v. San Mateo Cty. Transit Dist.,
As an alternative basis for dismissal, the Court considers whether Plaintiff has alleged Freitas or Gallagher was Plaintiffs employer for purposes of § 1102.5. Section 1102.5 is a whistleblower protection statute intended to encourage employees to report unlawful acts without fear of retaliation. Thus, § 1102.5(b) prohibits retaliation by “[a]n employer, or any person acting on behalf of an employer” against an employee “for disclosing information, . .if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local,, state, or federal rule or regulation.” As with the FEHA and ADA failure to accommodate claims, § 1102.5 claims may only be brought against “an employer.” See id.; Hansen v. Cal. Dep’t of Corr. & Rehab.,
Section 1102.5 does not define “employer,” so courts analyzing § 1102.5 claims have relied on interpretations of “employer” under the FEHA. See, e.g., Hall v. Apartment Inv. & Mgmt. Co.,
As discussed above, Plaintiff fails to allege that either Freitas or Gallagher was Plaintiffs “employer.” Nor has Plaintiff alleged sufficient facts from which the Court may infer that Freitas or Gallagher was Plaintiffs employer. As to Freitas, Plaintiffs sole relevant allegation is that Freitas and another store manager “knowingly made schedules where Plaintiff was left alone to do international and domestic shipments.” Compl. ¶ 59. There are no other allegations relevant to an employee-employer relationship, including the relationship between Freitas, the other store manager, and FedEx Office; the extent of Freitas’s supervision of Plaintiff; or whether Freitas could fire Plaintiff or direct Plaintiff’s work. Thus, the Court concludes that Plaintiff fails to allege that Freitas was Plaintiffs employer.
Furthermore, even if Plaintiff had alleged that Freitas was Plaintiffs employer, neither party addresses whether individual liability exists for employers under § 1102.5. Because this issue has not been briefed, the Court declines to determine whether individual liability is available under § 1102.5 and thus whether Freitas, an individual, can even be liable under § 1102.5. See Indep. Towers of Wash. v. Washington,
As to Gallagher, the exhibits filed with the FAC indicate that Plaintiff has long acknowledged that Gallagher was FedEx Office’s workers’ compensation administrator.- See FAC E-29 to -32 (Letter to Judge Henderson) (discussing a Gallagher claims adjustor’s denial of Plaintiffs claim); E-46 to -50 (Letter to California State Bar) (arguing Gallagher violated duty as claims adjuster); E-68 (Letter to Attorney General) (“FedEx Kinkos is licensed and has worker’s comp ins. Ace American (claims adjustor-Gallagher Basset Services)”). Moreover, Plaintiff signed a stipulation in the 2009 Class Action stating that FedEx Office (not Freitas or Gallagher) paid and employed Plaintiff. See EOF No. 39-2. Plaintiff also wrote letters stating that FedEx Office was his employer. See FAC E-91 (Letter from Plaintiff to Unidentified Recipient stating “I am writing this letter to report as a WHISTLEBLOWER against my employer FedEx Kinkos later renamed to FedEx Office...” (emphasis added)); id. E-121 (Letter from Plaintiff to Santa Clara District Attorney stating “Gallagher Basset Services covers FedEx Office employees only” (emphasis added)). The Court also notes that in Minor I, the Court found that Plaintiff had repeatedly acknowledged that FedEx Office was Plaintiffs employer. Minor I Order at 10. Thus, Plaintiff has failed to establish that Gallagher was his employer, and in fact, there is an abundance of evidence to the contrary.
In light of the foregoing, the Court concludes that Plaintiff fails to allege that either Freitas or Gallagher was Plaintiffs employer for purposes of Plaintiff’s § 1102.5 claim. Additionally, Plaintiff’s claim is time barred. Accordingly, the Court GRANTS Gallagher’s and Freitas’s motions to dismiss as to Plaintiff’s California Labor Code § 1102.5 claim. Plaintiff may be able to allege additional facts to show that the statute of limitations should be tolled, and that Gallagher or Freitas acted as Plaintiffs employer. Thus, as the Court can not say that amendment will necessarily be futile, this dismissal is with
V. CONCLUSION
For the foregoing reasons, the Court rules as follows:
• The Court GRANTS FedEx Office’s and Express’s motions to dismiss with prejudice;
• The Court GRANTS Freitas’s motion to dismiss with prejudice as to Plaintiffs claim for failure to accommodate under the FEHA and the ADA;
• The Court GRANTS Freitas’s motion to dismiss with leave to amend as to Plaintiffs California Labor Code § 1102.5 claim;
• The Court GRANTS Gallagher’s motion to dismiss with leave to amend as to Plaintiffs claim for failure to accommodate under the FEHA and the ADA and Plaintiffs California Labor Code § 1102.5 claim.
Should Plaintiff elect to file an amended complaint curing the deficiencies identified herein, Plaintiff shall do so within thirty (30) days of the date of this order.
IT IS SO ORDERED.
Notes
. As noted above, Express’s motion focuses upon the four claims expressly listed in the FAC and not all seven of the claims identified by the Court. However, Express specifically incorporates by reference Express’s first motion to dismiss, see Express Mot. at 6 n.l, which contends that all of Plaintiff’s claims are barred by res judicata. Moreover, "[a]s a general matter, a court may, sua sponte, dismiss a case on preclusion grounds where the records of that court show that a previous action covering.the same subject matter and parties had been dismissed.” Headwaters Inc. v. U.S. Forest Serv.,
, Freitas also requests judicial notice of an application for discrimination benefits that Plaintiff filed with the Workers' Compensation Appeals Board. ECF No. 34-5. Plaintiff does not rely on this application to argue that Plaintiff exhausted his administrative remedies under the FEHA. Moreover, to exhaust a claim under the FEHA, the employee must file a complaint with the DFEH—not the Workers’ Compensation Appeals Board. See FEHA § 12960; Romano,
. Plaintiff is encouraged to continue seeking advice from the Federal Pro Se Program. Appointments may be made with the Federal Pro Se Program by calling (408) 297-1480, or by stopping by Room 2070 of the San Jose Courthouse, 280 South First Street, San Jose, CA 95113.