ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
On July 13, 2006, defendant Bechtel Corporation (“Defendant”) removed San Diego County Superior Court case Stiefel v. Bechtel, case number GIN053461, to this Court. (Doc. No. 1.) On December 27, 2006, plaintiff James Richard Stiefel (“Plaintiff’) filed a first amended complaint (“FAC”). (Doc. No. 21.) On January 11, 2007, Defendant filed a motion to dismiss Plaintiffs FAC. (Doc. No. 22.) On February 12, 2007, Plaintiff filed an opposition. (Doc. No. 25.) On February 16, 2007, Defendant filed a reply. (Doc. No. 26.)
The Court held a hearing on Defendant’s motion to dismiss on February 26, 2007. Attorney Marcus Jackson represented Plaintiff and attorney Thomas Mclnerney represented Defendant at the hearing. On February 27, 2007, the Court filed a scheduling order regarding supplemental briefing. (Doc. No. 28.) On March 9, 2007, Defendant filed a supplemental brief in support of its motion to dismiss. (Doc. No. 32.) On March 19, 2007, Plaintiff filed a supplemental opposition to Defendant’s motion to dismiss. (Doc. No. 34.) On March 21, 2007, Defendant filed a motion requesting the Court take judicial notice of certain facts. (Doc. No. 35.) On March 28, 2007, Plaintiff filed an opposition brief. (Doc. No. 37.)
For the following reasons, the Court DISMISSES WITHOUT PREJUDICE Plaintiff’s disability discrimination and retaliation claims to the extent that they are based on the ADA (claims two and three). The Court GRANTS WITH PREJUDICE Defendant’s motion to dismiss Plaintiffs claims for wrongful termination in violation of public policy (claim one), disability discrimination and retaliation to the extent that they are based on the California Fair Employment Housing Act (claims two and three), violations of sections 98.6, 1102.5, 132a, 6402, 6403, and 6404 of California’s Labor Code (claim four), negligent supervision (claim five), and intentional infliction of emotional distress (claim six). The Court GRANTS WITHOUT PREJUDICE Defendant’s motion to dismiss Plaintiff’s disability discrimination claim under the Rehabilitation Act (claim two), and Plaintiffs claims for violations of sections 6310 and 6311 of California’s Labor Code.
Background
Plaintiff began working for Defendant at the San Onofre Nuclear Generating Station (“SONGS”) as an ironworker in May 2004.
1
(FAC ¶ 7.) Defendant performs services at SONGS pursuant to a contract it has with Southern California Edison (“SCE”).
{Id.
¶ 4.) In November 2005, Plaintiff reported to personnel employed by Defendant the names of people involved with an emergency boom lift malfunction.
(Id.
¶¶ 9-14.) In December 2005, Plaintiff brought to the attention of his supervisor a cracked weld in a system designed to remove radioactive material from the containment building which housed the nuclear reactor.
(Id.
¶ 15.) Plaintiff injured his left thumb while working for Defendant on January 31, 2006.
(Id.
¶¶ 16, 17.) Plain
Subsequently, Plaintiff filed a charge of discrimination with the California Department of Fair Employment and Housing. (Id. ¶ 31.) In June 2006, Plaintiff filed a complaint in San Diego County Superior Court for wrongful termination in violation of public policy, failure to accommodate a disability, retaliation, violations of California’s Labor Code, negligent supervision, and intentional infliction of emotional distress. (Compklffl 1-74.) Defendant removed the suit to federal court. (Notice Removal, at 1-4.)
On December 13, 2006, the Court granted Plaintiff leave to amend his complaint. (Doc. No. 19.) On December 27, 2006, Plaintiff filed a FAC alleging wrongful termination in violation of public policy (claim one), disability discrimination under the California Fair Employment Housing Act, section 12940 et seq. of the California Gov. Code (“FEHA”), the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), and the Rehabilitation Act, 29 U.S.C. § 701 et seq. (claim two), retaliation under FEHA and the ADA (claim three), violations of California’s Labor Code (claim four), negligent supervision (claim five), and intentional infliction of emotional distress (claim six). On January 11, 2007, Defendant filed a motion to dismiss Plaintiffs entire suit. (Def. Bechtel Corporation’s Notice Mot. and Mot. Dismiss, at 1.)
On February 26, 2007, the Court held a hearing on Defendant’s motion to dismiss. At the hearing, Plaintiffs attorney Marcus Jackson stated that he did not have a right-to-sue letter from the Equal Employment Opportunity Commission (“EEOC”) regarding his ADA claims.
Discussion
A. Judicial Notice
Defendant requests the Court take judicial notice of the fact that SONGS is located on a federal enclave. Plaintiff states that he does not oppose Defendant’s request because the evidence Defendant submitted demonstrates that the Court may properly take judicial notice that SONGS is a federal enclave.
A matter that is properly the subject of judicial notice may be considered along with the complaint when deciding a motion to dismiss for failure to state a claim.
See MGIC Indem. Corp. v. Weisman,
In 1939, California consented to allow the United States to acquire by purchase or condemnation any track of land within the state for the purpose of erecting forts or other needful buildings. See Cal. Stats. 1939, eh. 710, § 1, p. 2231 (Deel. Thomas M. Mclnerney Supp. Def.’s Mot. Req. Judicial Notice, Ex. D). In 1942, the United States acquired Camp Pendleton through condemnation. See Law Enforcement at San Onofre Nuclear Generation Plant, 1 Op. Off. Legal Counsel 204, 204-05 (1977); see also Letter from James Forrestal, Under Secretary of the Navy, to Earl Warren, California Governor (Sept. 8,1943) (on file in Official Recorder’s Office of San Diego County, California) (Decl. Thomas M. Mclnerney Supp. Def.’s Mot. Req. Judicial Notice, Ex. E) (“The United States of America became vested with valid title to certain lands in San Diego County, California on December 31, 1942.... [F]or the establishment of Camp Joseph H. Pendle-ton....”).
In 1963, Congress authorized the Secretary of the Navy to grant an easement allowing Southern California Edison Com
Furthermore, it is generally known in the community that Camp Pendleton is a United States Marine Corp Base under the jurisdiction of the federal government. Accordingly, the Court takes judicial notice of the fact that SONGS is located within the federal enclave of Camp Pendle-ton, which was acquired by the United States no later than December 31, 1942.
B. Legal Standards For A Motion To Dismiss
Defendant has moved to dismiss Plaintiffs entire suit against it under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. A motion to dismiss for failure to state a claim pursuant to section 12(b)(6) tests the legal sufficiency of the claims in the complaint.
See Conley v. Gibson,
Dismissal is proper, however, if a complaint is vague, conclusory, and fails to set forth any material facts in support of the allegation.
See North Star Intern, v. Arizona Corp. Com’n,
As a general matter, a court may only consider the pleadings and judicially noticed facts in deciding a 12(b)(6) motion.
See Hal Roach Studios, Inc. v. Richard Feiner & Co.,
C. ADA Claims
Plaintiff stated at oral argument, and again in his supplemental briefing, that he does not have a right-to-sue letter from the EEOC regarding his ADA claims. “An individual plaintiff must first file a timely EEOC complaint against the allegedly discriminatory party before bringing an ADA suit in federal court.”
Josephs v. Pacific Bell,
D. Rehabilitation Act Claims
Plaintiffs second cause of action alleges disability discrimination under the Rehabilitation Act, 29 U.S.C. § 701 et seq. (FAC ¶¶ 41-48.) Defendant argues that section 503 of the Rehabilitation Act, 29 U.S.C. § 793, entails no private right of action. Plaintiff concedes that there is no private right of action under section 503.
Defendant also argues that section 504 of the Rehabilitation Act, 29 U.S.C. § 794, only permits a right of action against an entity receiving federal financial assistance, that Plaintiff has failed to allege that Defendant is an entity receiving federal financial assistance, and that, in fact, Defendant does not receive federal financial assistance for its work at SONGS. Section 504 prohibits any program or activity receiving federal financial assistance from excluding an individual from participating in the program or activity, denying an individual the benefits of the program or activity, or subjecting an individual to discrimination, solely by reason of the individual’s disability. See 29 U.S.C. § 794(a). Individuals aggrieved under § 794 by an act of a recipient of federal assistance are provided a private right of action. See Id. § 794a(a)(2).
Plaintiff alleges in his FAC that he suffered discrimination by Defendant based on his disability. (FAC ¶ 44.) Plaintiff also alleges that Defendant was a subcontractor of SCE working on various
E. Federal Enclave Doctrine
Defendant alleges that Plaintiffs claims for wrongful termination in violation of public policy (claim one), disability discrimination under FEHA (claim two), retaliation under FEHA (claim three), violations of California’s Labor Code (claim four), and intentional infliction of emotional distress (claim six) are barred by the federal enclave doctrine.
Article I, Section 8, Clause 17 of the United States Constitution provides that Congress shall have the power to exercise exclusive legislation over all places purchased by the consent of the legislature of the state in which the same shall be. This constitutional provision permits the continuance of those state laws existing at time of surrender of sovereignty, except insofar as they are inconsistent with the laws of the United States or with the governmental use for which the property was acquired, unless they are abrogated by Congress, so that no area may be left without a developed legal system for private rights.
See Pacific Coast Dairy v. Department of Agriculture of Cal.,
Only state laws in effect at the time of cession or transfer of jurisdiction, however, can continue in operation.
See James Stewart & Co.,
The Court has taken judicial notice of the fact that SONGS is located within the federal enclave of Camp Pendleton, which was acquired by the federal government no later than December 31, 1942. Defendant argues that all or part of Plaintiffs first, second, third, fourth, and sixth claims are based on California laws enacted after the transfer of jurisdiction of the area encompassing SONGS to the federal government, and therefore those claims must be dismissed. Plaintiff counters, relying on
Taylor v. Lockheed Martin Corp.,
Plaintiff alleges that Defendant was at all relevant times a subcontractor of SCE working on various projects at SONGS. (FAC ¶ 4.) He alleges that he began working at Defendant on or about May 1, 2004 in the facilities department of SONGS, and was moved to the Unit 1 decommissioning project at SONGS on or about November 2005. (Id. ¶¶ 7-9.) Plaintiff alleges that in November 2005, he was involved in an incident where he was stuck on a boom lift at SONGS, which he reported to personnel employed at Defendant (Id. ¶¶ 9-14), and that in December 2005 he reported a problem with a system used to remove radioactive material as SONGS. (Id. ¶ 15.) Plaintiff alleges that in January 2006 he injured his thumb while working. (Id. ¶ 16.) He alleges that in February 2006, he met with SCE employees at his work area regarding SCE’s safety department reviewing the circumstances of his injury. (Id. ¶ 21.) He alleges that at some point Defendant’s site manager met with another employee of Defendant at the site manager’s office, and that the site manager told the employee that Plaintiff was a trouble maker. (Id. ¶23.) He alleges that beginning on February 16, 2006, and for the next three weeks, Defendant assigned him work requiring the use of both hands despite the fact that he provided his foreman and a safety department representative a note from his orthopedist stating he was not to use his left hand. (Id. ¶¶ 25-27.) Plaintiff alleges that on March 6, 2006, Defendant laid him off, and that in late October 2006, he learned that defendant refused to put him back to work, claiming that no light duty work was available. 28-30.)
In
Taylor,
the court rejected the argument that the plaintiffs wrongful termination claim should not be barred by the federal enclave doctrine because Plaintiff was terminated while he was on paid suspension and therefore not working on the enclave.
See Taylor,
Since these claims are subject to the federal enclave doctrine, any of the claims based on state law enacted after December 31, 1942, the date the Court took judicial notice that the federal government obtained jurisdiction over Camp Pendleton, are inapplicable in the federal enclave unless they come within a reservation of jurisdiction by California or are adopted by Congress.
See Paul,
Plaintiffs first claim is a state law claim for wrongful termination in violation of public policy. The common law claim for wrongful termination in violation of
Plaintiffs second and third claims, for failure to accommodate and retaliation, are based, in part, on FEHA, section 12940 et seq. of California’s Government Code. FEHA was not enacted until 1980.
See Taylor,
Plaintiffs sixth claim, for intentional infliction of emotional distress, was first recognized by California courts after the Restatement of Torts was amended in 1947 to recommend allowing a claim based on the violation of a plaintiffs interest in peace of mind -without the necessity of showing the elements of any traditional torts such as assault, battery, false imprisonment, trespass, defamation, or invasion of privacy.
See
5 B.E. Witkin,
Summary Of California Law: Torts,
§§ 449-50 (10th ed.2005) (citing
State Rubbish Collectors Assn. v. Siliznoff,
Plaintiffs fourth cause of action alleges violations of sections 98.6, 1102.5, 132a, 6310, 6311, 6402, 6403, and 6404 of California’s Labor Code. Section 98.6 of the Labor Code was adopted in 1978.
See
Cal. Stats.1978, ch. 1250, § 1, p. 4064. Section 98.6 of California’s Labor Code was derived from former section 1196 of California’s Labor Code, which was adopted by the California Legislature in 1937.
See
Cal. Stats.1937, ch. 90, § 1196, p. 217. Prior to the 1978 statute, however, former section 1196 of California’s Labor Code simply made it a misdemeanor for anyone to discriminate against an employee for testifying in an investigation of California’s Labor Commissioner.
See Id.
Plaintiff does not allege in the FAC that he was discriminated against for offering testimony to the Labor Commissioner. Rather, his claim pursuant to section 98.6 of the Labor Code is allegedly based on unsafe working conditions and retaliation for reporting those conditions. Section 98.6 prohibits discrimination in the workplace based on various reasons, including termination because of “the exercise by the employee ... on behalf of himself, herself, or others of any rights afforded
Section 1102.5 of California’s Labor Code was adopted in 1984. See Cal. Stats.1984, ch. 1083, § 1. Plaintiff does not argue that a claim under section 1102.5 comes within a reservation of jurisdiction by California or that this section was adopted by Congress. Therefore Plaintiffs claim pursuant to section 1102.5 of California’s Labor Code is barred by the federal enclave doctrine. Accordingly, the Court grants with prejudice Defendant’s motion to dismiss this claim.
Section 132a of California’s Labor Code, which in its current form prohibits discrimination against workers injured in the course of their employment, was adopted in 1972. See Cal. Stats.1972, ch. 874, § 1, p. 1545. Although a previous version of § 132a of California’s Labor code was adopted in 1941, that version did not address discrimination by an employer based on an employee’s injury, but rather prohibited an employer from discriminating against an employee for filing an application or complaint with, or testifying in an investigation held by, the Labor Commissioner. See Cal. Stats.1941, ch. 401, § 1, p. 1686. Furthermore, Plaintiff does not argue that a claim under section 132a comes within a reservation of jurisdiction by California or that this section was adopted by Congress. Therefore Plaintiffs claim pursuant to section 132a of California’s Labor Code is barred by the federal enclave doctrine. Accordingly, the Court grants with prejudice Defendant’s motion to dismiss this claim.
Sections 6310 and 6311 of California’s Labor Code were adopted in 1973. See Cal. Stats.1973, ch. 993, §§ 59, 61, p.1930. Section 6311 was derived from former section 6604 of the Labor Code, adopted by the California Legislature in 1949. See Cal. Stats.1949, ch. 1060, § 1, p.1968. Therefore, both of these California statutes are inapplicable in SONGS unless they come within a reservation of jurisdiction or were adopted by Congress.
Plaintiff argues, relying on
Taylor,
that sections 6310 and 6311 of California’s Labor Code have been approved by Congress for enforcement within a federal enclave. Sections 6310 and 6311 are part of the California Occupational Safety and Health Act, Cal. Labor Code §§ 6300 et seq., which was enacted in 1973, and approved by the federal Occupational Safety and Health Administration in 1975.
See Taylor,
Sections 6402, 6403, and 6404 of California’s Labor Code were adopted by the California Legislature in 1973.
See
Cal. Stats.1973, ch. 993, § 96, p.1939. The statutes derive from very similar statutes codified in the same sections of California’s Labor Code, however, that were adopted in 1937.
See
Cal. Stats.1937, ch. 90, § § 6402-04, p. 309. Since these laws were in effect at the time Camp Pendleton became a federal enclave in 1942, they were federalized and are not barred by the federal enclave doctrine.
See James Stewart & Co.,
F. Defendant’s Other Arguments Regarding Plaintiffs Labor Code Claims
1. Sections 6402, 6403, and 6404 of California’s Labor Code
Defendant argues that Plaintiffs claims under sections 6402, 6403, and
Since the Court has previously granted Defendant’s motion to dismiss Plaintiffs claims pursuant to sections 98.6, 1102.5, and 132a of California’s Labor Code pursuant to the federal enclave doctrine, the Court declines to address Defendant’s other arguments regarding these claims.
G. Negligent Supervision Claim
Defendant argues that Plaintiffs negligent supervision claim should be dismissed because it is barred by workers’ compensation exclusivity provisions of California labor law. Plaintiff alleges that Defendant breached an owed duty by its failure to “advise” Plaintiff of unsafe working conditions, and to “obtain proper treatment and accommodation following [Plaintiffs] injuries.” (FAC ¶ 62-69.)
Subject to limited exceptions, workers’ compensation is the only remedy available to injured employees against an employer responsible for injuries “arising out of and in the course of employment.”
See
Cal. Lab.Code §§ 3600-3602, 5300;
see also
Chin et al.,
supra,
¶ 15:520. “The exclusivity provisions encompass all injuries ‘collateral to or derivative of an injury compensable by the exclusive remedies of the Workers Compensation Act.”
Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund,
Although disability discrimination claims are not preempted by workers’ compensation law because disability discrimination falls outside the compensation bargain,
see City of Moorpark v. Superior Ct.,
Conclusion
For the reasons discussed, the Court DISMISSES WITHOUT PREJUDICE Plaintiffs disability discrimination and retaliation claims to the extent that they are based on the ADA (claims two and three). The Court GRANTS WITH PREJUDICE Defendant’s motion to dismiss Plaintiffs claims for wrongful termination in violation of public policy (claim one), disability discrimination and retaliation to the extent that they are based on FEHA (claims two and three), violations of sections 98.6, 1102.5, 132a, 6402, 6403, and 6404 of California’s Labor Code (claim four), negligent supervision (claim five), and intentional infliction of emotional distress (claim six). The Court GRANTS WITHOUT PREJUDICE Defendant’s motion to dismiss Plaintiffs disability discrimination claim under the Rehabilitation Act (claim two), and Plaintiffs claims for violations of sections 6310 and 6311 of California’s Labor Code. Plaintiff is granted thirty days from the date this order is filed to file an amended complaint correcting the deficiencies of the claims dismissed without prejudice.
IT IS SO ORDERED.
Notes
. Defendant alleges that Plaintiff was employed by Bechtel Construction Company, a subsidiary of Defendant, and states that it is not waiving its right to later contest the fact that Plaintiff sued the wrong entity. (Def. Bechtel Corporation’s Mem. P. & A. Supp. Mot. Dismiss, at 1 & n. 1.) Since the Court must accept all well-pleaded factual allegations as true for purposes of a motion to dismiss, the Court accepts that Plaintiff was employed by Defendant for purposes of this order.
. Unpublished decisions of the ninth circuit issued before January 1, 2007 may be cited by courts in the ninth circuit for factual purposes. See Ninth Circuit Rule 36 — 3(c)(ii).
. Plaintiff also cites an out of circuit, district court case to support his argument. The Court declines to address this non-binding case.
. Section 6310 provides in part that:
(a) No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following: [¶](1) Made any oral or written complaint to the [Division of Occupational Safety and Health], other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative,....
(b) Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because such employee has made a bona fide oral or written complaint to the [Division of Occupational Safety and Health], other governmental agencies having statutoiy responsibility for or assisting the division with reference to employee safety or health, his or her employer or his or her representative, of unsafe working conditions or work practices, in his or her employment or place of employment ... shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.