DEAN D. PREGERSON, District Judge.
Presently before the Court is Defendants' motion to dismiss Plaintiff's complaint (the "Motion"). (Docket No. 12.) For the reasons stated in this Order, the Motion is GRANTED IN PART and DENIED IN PART.
Plaintiff Azucena Tapia ("Plaintiff") is a former employee of Defendants Artistree, Inc. and Michaels, Inc. ("Defendants"). (Complaint, Docket No. 1-1, ¶ 14.) Plaintiff worked as a machine operator for Defendants for 8 years. (
Plaintiff did not work for the remainder of her pregnancy. She gave birth on August 4, 2012. (
Plaintiff alleges six causes of action arising from these events, all based on California state law: (1) pregnancy discrimination; (2) denial of pregnancy accommodation; (3) retaliation; (4) failure to prevent retaliation and discrimination; (5) violation of California disability leave law; and (6) wrongful termination in violation of public policy. Defendants now bring this Motion, advancing two primary arguments: (I) Plaintiff failed to exhaust her administrative remedies against Defendant Michaels, Inc.; and (II) Plaintiff's claims fail because Defendants offered her a reasonable accommodation.
A complaint will survive a motion to dismiss when it contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."
"When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief."
Defendants claim that Michaels must be dismissed from this action because Plaintiff failed to timely exhaust her administrative remedies as to Michaels. The Fair Employment and Housing Act ("FEHA") requires that plaintiffs file a discrimination charge with the California Department of Fair Employment and Housing ("DFEH") before bringing a civil suit for violation of FEHA. Plaintiff's first four claims for relief are subject to this requirement. Unless an exception applies, a DFEH complaint must be filed within one year of the "date upon which the unlawful practice or refusal to cooperate occurred." Cal. Gov. Code § 12960(d). A plaintiff is "barred from suing [any] individual defendants" if she "fail[s] to name them in the DFEH charge."
Plaintiff filed a DFEH complaint against Artistree on January 3, 2013; however, it appears that the attached Notice of Right to Sue that resulted from that complaint included only Artistree, and not Michaels, in the caption. Plaintiff apparently filed a second administrative charge, naming Michaels as a defendant, on January 6, 2014. However, the last day on which any discriminatory event allegedly occurred was August 20, 2012 when Plaintiff was fired; therefore, more than one year elapsed between that event and the filing of the administrative charge against Michaels, rendering such charge untimely.
Plaintiff argues, without citing any legal authority, that her failure to name Michaels in the first DFEH complaint should be excused because Michaels and Artistree are alter egos. Plaintiff's allegation in this regard does not include any underlying facts that show that Michaels is, or plausibly might be, Artistree's alter ego. Further, while California courts have indicated that, in limited circumstances, a technical failure to properly name a defendant will not preclude the filing of an action against that defendant, Plaintiff has not pled facts establishing that her failure to name Michaels in her DFEH complaint should be excused, nor has she established that Michaels was actually included in the body of her complaint, even if it was left out of the caption.
Defendants argue that Plaintiff's first, second, third, fourth, and fifth causes of action, which include pregnancy discrimination, denial of pregnancy accommodation, retaliation, failure to prevent discrimination and/or retaliation, and violation of pregnancy leave law, should be dismissed. Defendants argue that all of these causes of action should be dismissed because Plaintiff has not pled facts indicating that she was not offered a reasonable accommodation. Defendants essentially argue that their offer to place Plaintiff on total disability leave, as Plaintiff pleads in her complaint, is a reasonable accommodation, and therefore that Plaintiff can state no claim that relies on Defendants' failure to offer her a reasonable accommodation.
Contrary to Defendants' assertions, it is not at all clear that Plaintiff was offered a "reasonable accommodation." It is true that "in appropriate circumstances, reasonable accommodation can include providing the employee accrued paid leave or additional unpaid leave for treatment."
Here, it is far from clear that Plaintiff received a reasonable accommodation. Construing the facts in the light most favorable to Plaintiff, she approached her employer and told it of her work limitations during her pregnancy, namely that she could not perform heavy lifting or pushing and that she needed a bathroom break every 3 hours. In response, Defendant offered only one possibility to Plaintiff: take total disability leave for the duration of her pregnancy. It appears from these alleged facts that Defendant never sought to engage in the "interactive process" required, nor attempted to determine whether Plaintiff's disability could have been accommodated in another way.
Further, the
The only potential claim that the Court would dismiss is Plaintiff's fifth cause of action, to the extent that the claim is based on a violation of Cal. Gov. Code § 12945(a)(1). That code section provides that an employer may not refuse to allow a female employee to "take a leave for a reasonable period of time not to exceed four months" due to "pregnancy, childbirth, or a related medical condition." This provision is in addition to the 12 weeks of leave provided by the Family Medical Leave Act ("FMLA"). Plaintiff's complaint alleges that she received more than 8 months of leave, which would include 12 weeks of leave under the FMLA and also four months of leave under § 12945. Therefore, Plaintiff cannot state a claim for a violation of this particular provision, as she was provided with the required four months. However, to the extent that Plaintiff bases her claims on Defendant's failure to provide a reasonable accommodation, her claims survive.
Plaintiff's claim for wrongful termination in violation of public policy survives this motion because the claim may be based on underlying statutory violations. As the Court has determined that Plaintiff's underlying claims are sufficiently pled, the Court DENIES the Motion with respect to this claim.
For the foregoing reasons, the Court GRANTS the Motion as to Defendant Michaels WITHOUT PREJUDICE. Any amended complaint must be filed by April 28, 2014 and must address the deficiencies identified in this Order.
The Court DENIES the Motion as to Defendant Artistree, except that the Court GRANTS the Motion to the extent that Plaintiff's fifth cause of action relies on her not receiving the four months of leave promised by Cal. Gov. Code § 12945(a)(1).