Opinion
No. C-09-1325 MMC.
August 4, 2009
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; VACATING HEARING
Before the Court is defendant's motion for summary judgment, filed May 18, 2009. Plaintiff has filed opposition, to which defendant has replied. Having read and considered the papers filed in support of and in opposition to the motion, the Court deems the matter appropriate for decision thereon, hereby VACATES the hearing scheduled for August 7, 2009, and rules as follows.
On June 24, 2009, upon the parties' stipulation, the Court continued the hearing on the motion from June 26, 2009 to August 7, 2009. (See Order filed June 24, 2009.)
1. Contrary to plaintiff's argument, defendant is entitled to summary judgment on plaintiff's First Cause of Action ("Tortious Termination in Violation of Public Policy"), for the reason that such cause of action is time-barred. In particular, plaintiff does not dispute that her complaint was filed after the expiration of the applicable statute of limitations, and, as defendant correctly points out, such statute of limitations was not equitably tolled by plaintiff's filing of an administrative claim with the California Department of Fair Employment and Housing ("DFEH").See Mathieu v. Norrell Corp., 115 Cal. App. 4th 1174, 1189 (2004) (holding "there is no basis for recognizing equitable tolling" of cause of action for wrongful termination in violation of public policy on basis of filing of DFEH claim).
2. Contrary to plaintiff's argument, defendant is entitled to summary judgment on plaintiff's Second Cause of Action ("Retaliation" under Cal. Labor Code § 1102.5), for the reason that such cause of action likewise is time-barred. In particular, plaintiff does not dispute that her complaint was filed after the expiration of the applicable statute of limitations, and McDonald v. Antelope Valley Cmty. Coll., 45 Cal. 4th 88 (2008), on which plaintiff relies for equitable tolling, is distinguishable.McDonald involved an employee's voluntary pursuit of an "alternate administrative remedy" prior to the filing of a complaint under the California Fair Employment and Housing Act ("FEHA"). See id. at 96, 101. Here, by contrast, plaintiff's pursuit of a DFEH claim was not an alternative to filing suit, as her DFEH claim contains no reference to retaliation (see Fair Decl. Ex. L), and indeed, her Second Cause of Action did not accrue until after the filing of the DFEH claim (see Compl. ¶ 23 (alleging "as a consequence of [plaintiff's] reporting" to DFEH and Equal Employment Opportunity Commission ("EEOC") of acts alleged in complaint, defendant "retaliated against plaintiff by terminating [her]").
3. Contrary to plaintiff's argument, defendant is entitled to summary judgment on plaintiff's Third Cause of Action ("Breach of the Implied Covenant of Good Faith and Fair Dealing"), for the reason that plaintiff has failed to submit any evidence suggesting she was not an at-will employee, whereas defendant has shown plaintiff was in fact such an employee. (See Fair Decl. Ex. B (Employee Handbook and Employment At-Will Confirmation, signed by plaintiff) (stating "I understand that this handbook does not constitute a contract of guaranteed or continued employment and that I am an at-will employee")); Guz v. Bechtel Nat'l, Inc., 24 Cal. 4th 317, 351 (2000) (holding, where employment is at will, "the implied covenant of good faith and fair dealing imposes no independent limits on an employer's prerogative to dismiss employees").
4. Contrary to plaintiff's argument, defendant is entitled to summary judgment on plaintiff's Fourth Cause of Action ("Violation of California Civil Code § 51, et seq. — the Unruh Civil Rights Act") and plaintiff's Fifth Cause of Action ("Violation of Cal. Civ. Code § []54, et seq. — the Disabled Persons Act"), for the reason that the statutes under which such causes of action are brought are inapplicable to "employment discrimination." See Bass v. County of Butte, 458 F.3d 978, 981, 983 (9th Cir. 2006) (rejecting argument that amendment of Unruh Act and Disabled Persons Act to incorporate "[a] violation of the right of any individual under the Americans with Disabilities Act" made such statutes applicable to employment discrimination).
5. Defendant is entitled to summary judgment on plaintiff's Sixth Cause of Action ("Violation of 42 U.S.C. § 12181, et seq. — Title III of the Americans with Disabilities Act"), for the reason that the statute under which such cause of action is brought likewise is inapplicable to employment discrimination. See Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1115 (6th Cir. 1997) (holding "the statutory framework of the ADA expressly limits discrimination in employment practices to Title I of the ADA"); Motzkin v. Trs. of Boston Univ., 938 F. Supp. 983, 996 (D. Mass. 1996) (holding "Title III does not apply to employment discrimination"); see also Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) (citingParker; noting "[w]e see no reason why the rationale of Zimmerman [v. State Dep't of Justice, 170 F.3d 1169 (9th Cir. 1999)]," in which Ninth Circuit held Title II of ADA inapplicable to "employment," would not "apply equally to Title III [of the ADA]").
Plaintiff has not responded to defendant's argument in support of summary judgment on plaintiff's Sixth Cause of Action.
6. Defendant is entitled to summary judgment on plaintiff's Seventh Cause of Action ("Declaratory Relief"). In particular, to the extent such cause of action is brought on behalf of individuals other than plaintiff, plaintiff lacks standing to pursue her Seventh Cause of Action, and to the extent such cause of action is brought on behalf of plaintiff herself, it is duplicative of plaintiff's other causes of action and fails for the same reasons.
Plaintiff has not responded to defendant's argument in support of summary judgment on plaintiff's Seventh Cause of Action.
CONCLUSION
For the reasons stated above, defendant's motion for summary judgment is hereby GRANTED.
The Clerk shall close the file.