ORDER GRANTING MOTION TO DISMISS PLAINTIFF'S FIRST CLAIM

Re: Dkt. No. 20

PHYLLIS J. HAMILTON, District Judge.

Defendant's motion to dismiss plaintiff's first cause of action came on for hearing before this court on May 11, 2016. Plaintiff Anthony T. Rivera appeared through his counsel, Anthony Bothwell. Defendant Lawrence Livermore National Security, LLC ("LLNS") appeared through its counsel, Dorothy Liu. Having read the parties' papers and carefully reviewed their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS the motion to dismiss the plaintiff's first claim, which alleges wrongful discharge in violation of public policy. As LLNS is named as a defendant only with respect to the first cause of action, LLNS is accordingly DISMISSED as a party in this matter.

BACKGROUND

This is a wrongful discharge action brought by Anthony T. Rivera, a former employee of the Lawrence Livermore National Laboratory, which LLNS manages and operates for the United States Department of Energy ("DOE"). See Compl. ¶¶ 1, 5 (Dkt. 1). Rivera is an engineer who was employed at Lawrence Livermore National Laboratory for 29 years. Id. at ¶ 11.

On October 16, 2013, Rivera was dismissed from his position. Id. at ¶ 36. In his complaint, Rivera alleges that his dismissal, and other adverse actions taken against him, were in retaliation for disclosures that he made about potential safety violations. Id. at ¶¶ 15-17, 33-36. Among other things, Rivera points to a "work pause" that he ordered on October 2, 2012 for an assignment relating to the 120 VAC (voltage alternating current) interlock. See id.

On January 19, 2016, Rivera filed a complaint against defendants LLNS, the DOE, the DOE's Office of Hearings and Appeals ("OHA"), the United States of America, and the National Nuclear Security Administration ("NNSA"), which is a component of the DOE. Id. at ¶¶ 5-9. Rivera also named as defendants the individuals Shiwali Patel, an OHA investigator, and Kimberly Davis Lebak, a site manager for the NNSA that oversees Lawrence Livermore National Laboratory. Id. The complaint asserted three causes of action: (1) a state tort claim for wrongful discharge in violation of public policy against LLNS; (2) a First Amendment claim against Patel and Lebak; and (3) a due process claim under the Administrative Procedures Act against NNSA, OHA, and DOE. Id. at ¶¶ 42-65.

On April 4, 2016, LLNS filed a motion to dismiss Rivera's wrongful discharge claim as time-barred. Dkt. 20. Neither the other defendants, nor Rivera's claims under the First Amendment and Due Process Clause, are implicated by the instant motion.

DISCUSSION

A. Legal Standards

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). To survive a motion to dismiss for failure to state a claim, a complaint generally must satisfy the pleading requirements of Federal Rule of Civil Procedure 8, which requires that a complaint include a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The court is to "accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899-900 (9th Cir. 2007). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The allegations in the complaint "must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and quotations omitted).

If a claim is barred by the applicable state statute of limitations, dismissal pursuant to Rule 12(b)(6) is appropriate. Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000). "A motion to dismiss based on the running of the statute of limitations period may be granted only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995) (citation and internal quotation marks omitted). "In fact, a complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim." Id. at 1207.

B. Legal Analysis

The parties agree that Rivera's cause of action for wrongful discharge accrued on October 16, 2013, when he received a Notice of Dismissal from Lawrence Livermore National Laboratory. Compl. ¶ 36; Romano v. Rockwell Int'l, 14 Cal.4th 479, 501 (1996) ("[W]hen an employee alleges that his or her employment has been terminated in violation of public policy, a cause of action will accrue at the time of dismissal for the purpose of the statute of limitations."). There is also no dispute that a two-year statute of limitations applies to wrongful discharge claims under California law. Cal. Code Civ. Pro. § 335.1; Lamke v. Sunstate Equipment Co., 387 F.Supp.2d 1044, 1051 (N.D. Cal. 2004). Rivera was thus required to file suit on or before October 16, 2015, and because his complaint was filed on January 19, 2016, it is several months untimely unless equitable tolling applies.

Rivera argues that he was entitled to equitable tolling while he pursued an administrative remedy before the DOE pursuant to 10 C.F.R. § 708. Rivera filed his administrative complaint on January 16, 2014, within the applicable two-year period. Compl. ¶ 37.1 His claim for wrongful discharge would therefore be timely if equitable tolling was available in this case.

Under established California law, "whenever the exhaustion of administrative remedies is a prerequisite to the initiation of a civil action," the limitations period is automatically tolled during the time consumed by the administrative proceeding. Elkins v. Derby, 12 Cal.3d 410, 414 (1974). Rivera does not argue that exhaustion was required in his case. However, "equitable tolling may extend even to the voluntary pursuit of alternate remedies" in some circumstances. See McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal.4th 88, 101 (2008). If otherwise appropriate, equitable tolling is available if there is "timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff." Id. at 102 (citation omitted). In McDonald, for example, the California Supreme Court held that the statute of limitations for Fair Employment and Housing Act ("FEHA") claims may be equitably tolled during the period that a plaintiff voluntarily pursues an employer's internal administrative remedy. Id. at 110-11.

However, unlike statutory claims under FEHA that may be tolled during the pendency of administrative proceedings, common law claims for wrongful termination are independent and voluntary alternatives that are not tolled while the plaintiff pursues an administrative remedy. See Mathieu v. Norrell Corp., 115 Cal.App.4th 1174, 1189-90 (2004) (citing Rojo v. Kliger, 52 Cal.3d 65, 86 (1990)). In such a case, "the putative plaintiff is not in any way disadvantaged by having to file his or her nonstatutory claims before receiving a right-to-sue letter from the DFEH [the Department of Fair Employment and Housing] and, therefore, there is no basis for recognizing equitable tolling in this situation." Id. at 1189.

Mathieu compels a finding that Rivera's wrongful discharge claim is time-barred. Rivera's attempts to rely on general language in the McDonald decision are misplaced. Pl.'s Opp'n at 8-11, Dkt. 24. McDonald held that a statutory claim under FEHA was tolled when "an employee voluntarily pursues an internal administrative remedy." 45 Cal. 4th at 96. Rivera does not seek to toll a statutory claim, but instead a common law tort action for wrongful discharge. That is precisely the type of claim that was at issue in Mathieu, which held that equitable tolling was not available while a plaintiff pursued voluntary administrative relief. See 115 Cal. App. at 1189-90.

Indeed, following Mathieu, a number of federal courts have denied equitable tolling under circumstances similar to this case. See Tanner v. Kaiser Found. Health Plan, Inc., No. C 15-02763-SBA, 2015 WL 7770216, at *5 (N.D. Cal. Dec. 3, 2015) ("Because a cause of action for wrongful discharge does not require the filing of an administrative complaint, however, equitable tolling does not apply."); Villalvaso v. Odwalla, Inc., No. 1:10-CV-02369-OWW, 2011 WL 1585604, at *8-*9 (E.D. Cal. Apr. 25, 2011) ("California Courts do not extend equitable tolling to permit `a plaintiff to delay filing a common law tort action' of wrongful termination in violation of public policy while a Plaintiff pursues a FEHA administrative claim."); Gardner v. Pediatrix Med. Grp., No. C-09-1325 MMC, 2009 WL 2394368, at *1 (N.D. Cal. Aug. 4, 2009) (no tolling of wrongful discharge or retaliation claim limitations based on filing of administrative claim); but see McEnroe v. AT&T Mobility Servs. LLC, No. 15-CV-02190-HSG, 2015 WL 5168671, at *2-*4 (N.D. Cal. Sept. 3, 2015) (distinguishing Mathieu as limited to the FEHA context).

Because equitable tolling is not available, Rivera's claim for wrongful discharge is untimely under the applicable statute of limitations. Cal. Code Civ. Pro. § 335.1. In light of this holding, the court need not consider the alternative bases for dismissal asserted in LLNS's motion.

CONCLUSION

For the foregoing reasons, defendant's motion to dismiss Rivera's claim for wrongful discharge as time-barred is GRANTED, and LLNS is hereby DISMISSED as a defendant in this action.

IT IS SO ORDERED.