Kennie Goode v. Maximus Human Services, Inc., et alNOTICE OF MOTION AND MOTION to Dismiss CaseC.D. Cal.November 14, 2016FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Michael S. Kun (State Bar No. 208684) Ted A. Gehring (State Bar No. _218715) EPSTEIN BECKER & GREEN, P.C. 1925 Century Park East, Suite 500 Los Angeles, CA 90067 Telephone: 310.556.8861 Facsimile: 310.553.2165 mkun@ebglaw.com tgehring@ebglaw.com Attorneys for Defendant MAXIMUS HUMAN SERVICES, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA KENNIE GOODE, an individual, Plaintiff, v. MAXIMUS HUMAN SERVICES, INC., a Virginia Corporation doing business in California; and DOES 1 through 50, inclusive, Defendants. Case No.: 8:16-cv-1254 JVS (DFMx) DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS SECOND AMENDED COMPLAINT [Fed. R. Civ. P. 8, 12(b)(6)] DATE: December 19, 2016 TIME: 1:30 p.m. CTRM: 10C JUDGE: Hon. James V. Selna TO THE COURT, PLAINTIFF, AND HER COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on December 19, 2016, at 1:30 p.m., or as soon thereafter as the matter may be heard before the Honorable James V. Selna in Courtroom 10C of the United States District Court, Central District of California, located at 411 W. Fourth Street, Santa Ana, California 92701, Defendant MAXIMUS Human Services, Inc. (“Defendant”) will and hereby does move, pursuant to Fed. R. Civ. P. 8 and 12(b)(6), to dismiss Plaintiff’s Second Amended Complaint (“SAC”). Defendant moves to dismiss each count in Plaintiff’s SAC on the grounds that Plaintiff has failed to allege sufficient facts supporting her claims or to Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 1 of 32 Page ID #:224 - 2 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 otherwise satisfy the basic pleading requirements set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“a plaintiff’s obligation to provide the ‘grounds’ of [her] ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”) and Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009) (non-conclusory allegations must “plausibly give rise to an entitlement too relief”). Specifically, Plaintiff remains unable to provide any factual allegations that would establish that she had a “disability,” as that term is defined by law, nor has she alleged facts that would establish that Defendant was aware of her alleged “disability.” Without such facts, her disability discrimination claims cannot proceed. This motion is made following the conference of counsel pursuant to L.R. 7-3, which took place at 9:00 a.m. on November 3, 2016, after the meet-and- confer letter sent by Defendant’s counsel on October 26, 2016. This motion is based upon this Notice of Motion, the accompanying Memorandum of Points and Authorities, all pleadings on file in this action, and such further written or oral argument as may be permitted by this Court. DATED: November 14, 2016 By: EPSTEIN BECKER & GREEN, P.C. /s/ Michael S. Kun Michael S. Kun Ted A. Gehring Attorneys for Defendant MAXIMUS Human Services, Inc. Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 2 of 32 Page ID #:225 - i - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page No. I. INTRODUCTION..........................................................................................1 II. STATEMENT OF FACTS.............................................................................5 A. The Parties.................................................................................................5 B. Plaintiff Alleged In Her Original Complaint That She Was “Hurt” In A Car Accident, But She Did Not Allege That She Suffered From Headaches, Let Alone Migraine Headaches. ..................................5 C. Plaintiff’s Original Complaint Alleged In Conclusory Fashion That She Had A “Disability.”............................................................................5 D. Defendant Filed A Motion To Dismiss Plaintiff’s Complaint..................6 E. Plaintiff’s FAC Merely Added Allegations That She Had An Abrasion, Bruises And Non-Migraine Headaches, And It Added The Latin Terms For General Back and Neck Pain..................................6 F. The Court Granted Defendant’s Motion To Dismiss Plaintiff’s FAC With Leave To Amend, Explaining That Plaintiff Had Not Alleged Anything More Than Injuries With “Little Or No Residual Effect.” ......................................................................................................7 G. Plaintiff’s SAC Still Does Not Identify An Alleged “Disability,” Nor Does It Allege Any Factual Allegations Regarding The Duration Of Any “Disability” Or That Would Demonstrate That Defendant Knew She Had A “Disability.” ...............................................8 1. Plaintiff Now Alleges For The First Time That She Had Migraine Headaches, But Does Not Allege How Many She Had Or How Long She Had Them....................................................8 Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 3 of 32 Page ID #:226 - ii - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page No. 2. Plaintiff Has Presented No Allegations To Show That Her Alleged “Disability” Was Anything More Than A Temporary Condition Without Any Residual Effects, Or That She Ever Informed Defendant Of Her Alleged “Disability.”...........................8 III. ARGUMENT ...............................................................................................10 A. The Pleading Standard. ...........................................................................10 B. Plaintiff Is Unable To Plead Facts Sufficient To Establish A Claim For Disability Discrimination Under FEHA...........................................13 1. Plaintiff Must Establish That She Had A “Disability” In Order To Have A Disability Discrimination Claim. .................................13 2. Not Every Injury Or Condition Is A “Disability.” ..........................14 3. Plaintiff’s Conclusory Allegation That She Had A “Disability” Is Insufficient. .............................................................15 4. The Various “Injuries” Plaintiff Has Identified Are Not “Disabilities.” ..................................................................................17 5. As She Has Not Alleged Any Facts That Would Show That They Were Anything More Than Temporary Conditions, Plaintiff’s Alleged Back and Neck “Pain” Are Not “Disabilities.” ..................................................................................19 C. Plaintiff Is Unable To Plead Facts To Show That Defendant Was Aware She Had A “Disability.” ..............................................................22 IV. CONCLUSION ............................................................................................23 Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 4 of 32 Page ID #:227 - ii - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Federal Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................11, 12, 13, 16 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ...................................................................................passim Blackburn v. Trs. of Guilford Tech. Cmty. College, 733 F.Supp.2d 659 (M.D. N.C. 2010)...............................................................20 Blanton v. Winston Printing Co., 868 F. Supp. 804 (M.D. N.C. 1994)..................................................................20 Branscomb v. Group USA, Inc., 475 F. App’x 134 (9th Cir. 2012)......................................................................20 Bresaz v. County of Santa Clara, 2015 U.S. Dist. LEXIS 32908 (N.D. Cal. Mar. 17, 2015) ................................16 Fadel Lefte Khudiar v. Colvin, 2015 U.S. Dist. LEXIS 177823 (M.D. Tenn. Oct. 8, 2015)..............................21 Felix v. N.Y. City Transit Auth., 324 F. 3d 102 (2d Cir. N.Y. 2003) ....................................................................17 Garcia v. Qwest Corp., 2008 U.S. Dist. LEXIS 101840 (D. Ariz. 2008) ...............................................20 Hodge v. Henry County Med. Ctr., 341 F. Supp.2d 968 (W.D. Tenn. 2003) ............................................................20 Johnson v. Foulds, Inc., 1996 WL 41482 (N.D. Ill. 1996).......................................................................20 Klamut v. Cal. Highway Patrol, 2015 U.S. Dist. LEXIS 169074 (N.D. Cal. Dec. 16, 2015) ..............................16 Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 5 of 32 Page ID #:228 - iii - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Koller v. Riley Riper Hollin & Colagreco, 850 F. Supp.2d 502 (E.D. Pa. 2012)..................................................................20 Lane v. Colvin, 2016 U.S. Dist. LEXIS 35501 (E.D. Cal. Mar. 17, 2016) ................................21 Madrigal v. Senior Aerospace SSP, Case No. 2:16-CV-01883-CAS, 2016 WL 4251573 (C.D. Cal. Aug. 18, 2016) .................................................................................16 Morgan v. Goodwill Indus. of Denver, Inc., 2013 U.S. Dist. LEXIS 178769 (D. Colo. July 19, 2013).................................20 Olson v. Mono County Superior Court, 2014 U.S. Dist. LEXIS 58756 (E.D. Cal. Apr. 25, 2014).................................16 Peoples v. Langley/Empire Candle Co., 2012 U.S. Dist. LEXIS 6671 (D. Kan. Jan. 20, 2012) ......................................20 Rakestraw v. Carpenter Co., 898 F. Supp. 386 (N.D. Miss. 1995) .................................................................20 Ramirez v. Manpower, Inc., 2014 WL 116531 (N.D. Cal. Jan. 10, 2014) .....................................................12 Ramos v. Colvin, 2016 U.S. Dist. LEXIS 62547 (E.D. Cal. May 11, 2016).................................21 Rebarchek v. Farmers Co-op. Elevator & Mercantile Ass’n, 60 F. Supp. 2d 1145 (D. Kan. 1999) .................................................................20 Reed v. Colvin, 2016 U.S. Dist. LEXIS 84110 (N.D. Ind. June 28, 2016).................................21 Sanders v. Arneson Prods., Inc., 91 F.3d 1351 (9th Cir. 1996).............................................................................20 Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 6 of 32 Page ID #:229 - iv - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Schneider v, Space Sys./Loral, Inc., No. 5:11-cv-02489-JF, 2011 WL 4344232 (N.D. Cal. Sept. 15, 2011)..................................................................12 Smith v. Colvin, 2013 U.S. Dist. LEXIS 121394 (E.D.N.Y. Aug. 26, 2013) ..............................21 Sneed v. City of N.Y. Dep't of Parks & Rec., 2011 U.S. Dist. LEXIS 157810 (S.D.N.Y. Sept. 30, 2011) ..............................21 Summers v. Altarum Inst. Corp., 740 F. 3d 325 (4th Cir. Va. 2014) .....................................................................17 Waldrip v. GE, 325 F. 3d 652 (5th Cir. La. 2003)......................................................................13 Washington v. Lowe’s HIW Inc., 75 F.Supp.3d 1240, 1245, 1250-52 (N.D. Cal. 2014) .......................................12 Zurenda v. Cardiology Associates, P.C., 2012 U.S. Dist. LEXIS 68633 (N.D. N.Y. May 16, 2012) ...............................20 California Cases Arteaga v. Brink’s, Inc., 163 Cal. App. 4th 327 (2009)..........................................................14, 17, 19, 22 Avila v. Continental Airlines, Inc., 165 Cal. App. 4th 1237 (2008) as modified on denial of reh’g (Aug. 28, 2008) ....................................14, 20, 22 Brundage v. Hahn, 57 Cal. App. 4th 228 (1997)..............................................................................13 Cassista v. Community Foods, Inc., 5 Cal. 4th 1050 (1993).......................................................................................14 Faust v. California Portland Cement Co., 150 Cal. App. 4th 864 (2007)............................................................................23 Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 7 of 32 Page ID #:230 - v - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34..........................................................................................22 Nealy v. City of Santa Monica, 234 Cal. App. 4th 359 (2015)............................................................................13 Raine v. City of Burbank, 135 Cal.App.4th 1215 (2006)............................................................................22 Salazar v. Easter Seals Southern California, Inc., B267211 at 4-5 (Cal. Ct. App. October 13, 2016) . (RJN Ex. 1.)..............passim Scotch v. Art Institute of California, 173 Cal.App.4th 986 (2009)..............................................................................22 Federal Statutes American Disabilities Act ................................................................................20, 21 Fair Employment and Housing Act ......................................................12, 13, 14, 22 California Statutes Cal. Code. Regs. Title 2 § 11065(d)(9)(B) .........................................................................................1, 3, 4 California Government Code Section 12926 ...............................................................................................18 California Labor Code ............................................................................................12 Section 1926.1(m) .............................................................................................15 Section 12926.1(c).............................................................................................15 Section 12926(k)(1)(B)(ii).................................................................................15 Section 12926(k)(3)...........................................................................................15 Section 12940(m) ..............................................................................................22 Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 8 of 32 Page ID #:231 - vi - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Other Authorities Federal Regulations 2 C.C.R. 7293.6(d)(1)....................................................2, 3, 18 Encyclopedia Britannica, http://www.britannica.com/science/ .............................21 Federal Rules Fed. R. Civ. Proc. 8(a)(2) ................................................................10 Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 9 of 32 Page ID #:232 - 1 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In her Second Amended Complaint (“SAC”), Plaintiff Kennie Goode (“Plaintiff”) has once again alleged that Defendant MAXIMUS Human Services, Inc. (“Defendant”) discriminated against her based on an alleged “disability” in violation of the Fair Employment and Housing Act (“FEHA”) after she suffered some short-term injuries in a car accident. Despite multiple opportunities to do so and explicit directions from the Court about the deficiencies in her allegations that had to be addressed, Plaintiff remains entirely unable to allege facts that would establish the two most critical components of her disability discrimination claims - that she had a “disability” as defined by FEHA, and that Defendant was aware of that “disability.” Even at this late date, Plaintiff herself cannot identify what her alleged “disability” was, nor can she present any facts regarding its duration that would establish that it was anything more than a temporary condition with “little or no residual effect.” Cal. Code. Regs. Tit. 2, § 11065(d)(9)(B). There can be no question that Plaintiff understood that she had to assert such factual allegations for this case to proceed. In granting Defendant’s motion to dismiss Plaintiff’s First Amended Complaint (“FAC”), this Court explained in no uncertain terms that Plaintiff had not alleged that her injuries limited her ability to work after her leave of absence ended, and that she had only alleged conditions with “little or no residual effect” - which the Court explained are not “disabilities” under FEHA. (Dkt. No. 25 at 5.) Although the Court had described these deficiencies, Plaintiff’s SAC still does not contain any allegations regarding the duration of any alleged “disability,” and it still does not identify any condition or impairment other than injuries with “little or no residual effect.” As before, she remains unable to allege any facts to show that Defendant was even aware of her alleged “disability.” Indeed, Plaintiff Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 10 of 32 Page ID #:233 - 2 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 does not allege that she ever informed Defendant of it. It is axiomatic that an employer cannot discriminate against an individual based on a “disability” of which it was not aware. Plaintiff has had every opportunity to allege facts sufficient to establish the basic elements of her claims. She cannot do so. As this Court is aware, Plaintiff originally alleged in her Complaint that she “hurt” her back and neck in a car accident. (Dkt. No. 1-1.)1 As Defendant explained in its motion to dismiss the Complaint, simply being in a car accident and being “hurt” or having “pain” do not constitute a “disability” unless the pain is the result of, or tied to, a particular physical impairment. Plaintiff alleged no such physical impairment. For instance, she did not allege that she suffered from bone, tissue, ligament or nerve damage to her back or neck that caused her to be “hurt” or to suffer “pain,” nor did she allege facts to show she was limited in any “major life activity.” (Dkt. No. 11.) Rather than oppose Defendant’s motion to dismiss, Plaintiff filed a First Amended Complaint (“FAC”). (Dkt. No. 15.) In it, Plaintiff added allegations that she suffered from an “abrasion,” “bruises” and non-migraine headaches. (Id. at 3:16-19) (describing her alleged headaches as “painful,” but not as “migraine”). However, the governing regulations found at 2 C.C.R. 7293.6(d)(1) expressly exclude each of those conditions from the definition of “disability.” Her FAC alleged once again that Plaintiff suffered from neck and back pain, adding the Latin names for the general “pain” she allegedly suffered in her neck and back - “cervicalgia” and “lumbago,” respectively. (Id. at 3:19-21.) Of course, adding the Latin names for “pain” changed nothing. “Pain” alone is not a “disability.” As before, she did not allege that her “pain” was tied to any physical impairment, nor did she allege how long her alleged neck and back pain lasted. As such, Defendant 1 Importantly, for reasons that will become apparent momentarily, Plaintiff did not allege in her original Complaint that she suffered from any headaches, let alone migraine headaches. (Id.) Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 11 of 32 Page ID #:234 - 3 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 moved to dismiss the SAC. (Dkt. No. 17.) The Court granted the motion, holding that Plaintiff did not suffer from a qualified “disability.” (Dkt. No. 25.) Given leave to amend, Plaintiff has now filed her SAC. (Dkt. No. 26.) Remarkably, her FAC still does not identify her alleged “disability.” (Id.) Just as remarkably, she has identified for the first time an alleged “injury” that she never mentioned before - she now alleges for the first time that she had “painful migrane [sic] headaches” following her car accident. (Id. at 3:19.) Plaintiff has offered no explanation whatsoever why this allegation was omitted from her Complaint, her FAC and her opposition to Defendant’s motion to dismiss the FAC. (Dkt. Nos. 1-1, 15, 19.) Indeed, it appears that Plaintiff simply chose to insert the word “migraine” in her allegations in an attempt to avoid dismissal because the regulations governing FEHA expressly exclude non-migraine headaches. Regardless of whether she in fact had migraine efforts and somehow forgot about them, or whether she has fabricated them to try to avoid dismissal, her efforts are unavailing. While Plaintiff now alleges for the first time that she had migraine headaches, she does not allege how often the alleged migraine headaches occurred - once? twice? Nor has she alleged how long they lasted - a week? two weeks? In short, she has presented nothing to even suggest that any migraine headaches she had, which she had heretofore forgotten about entirely, were so long-lasting in duration to qualify as a “disability.” She has presented nothing to show that they were anything more than a temporary condition with “little or no residual effect.” Cal. Code. Regs. Tit. 2, § 11065(d)(9)(B). The same deficiencies remain regarding her other injuries, which she appears to wish to lump together to create some sort of unnamed, combined “disability.” While she has alleged that her various injuries limited her ability to sit, walk, or read from a computer screen, she does not allege how long those alleged limitations lasted. She has presented nothing to even suggest that any Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 12 of 32 Page ID #:235 - 4 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 limitations lasted more than a few days or weeks. Accordingly, as she contends that she was involved in a car accident on July 27, 2014 and released to return to work on October 3, 2014, at most her limitations lasted no more than 9 weeks - and they had no residual effects. Thus, even if her various injuries could somehow be lumped together, they would still only amount to a temporary condition with “little or no residual effect” - not a “disability.” Indeed, in granting Defendant’s motion to dismiss the FAC, this Court explained, “Goode did not allege any specific limitations on her ability to work after the leave ended …. Finally, Goode never suggested that she would require accommodations once she returned to work. This suggests that Goode’s pain, like the conditions excluded in the regulation had ‘little or no residual effect.’ Cal. Code Regs. Tit. 2, § 11065(d)(9)(B). Therefore, it does not qualify as a disability under the FEHA.” (Dkt. No. 25 at 5) (emphasis added). Plaintiff’s SAC has presented nothing that would change that conclusion. Assuming, arguendo, that Plaintiff’s new allegations could somehow be construed to identify a “disability,” the case still must be dismissed. Critically, as before, Plaintiff remains entirely unable to allege that Defendant was ever aware she had a “disability.” Indeed, even if any or all of her injuries could somehow qualify as a “disability,” Plaintiff still does not allege that she ever told Defendant about them. For instance, she does not allege that she ever told Defendant that she suffered from migraine headaches, nor does she allege that she ever informed Defendant of any limitations she had sitting, walking or reading from a computer screen. All she has alleged is that Defendant knew she was injured in a car accident and would need some time off to recover. That is not the same as knowing she had a “disability.” Just weeks ago, in affirming the dismissal of an employee’s disability discrimination claims, the California Court of Appeal confirmed that the fact that an employer knew an employee was injured and needed time to recover does not Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 13 of 32 Page ID #:236 - 5 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 mean it knew she had a “disability.” Salazar v. Easter Seals Southern California, Inc., B267211 at 4-5 (Cal. Ct. App. October 13, 2016) (request for publication pending). (RJN Ex. 1.) Here, there are no allegations that Defendant knew Plaintiff had a “disability,” nor could there be any such allegations. In fact, even at this late date, Defendant still does not know what Plaintiff’s alleged “disability” was.2 As there are no allegations that would establish that Defendant knew she had a “disability.” Plaintiff’s discrimination claims may not proceed. For all of these reasons and those discussed below, Plaintiff’s SAC must be dismissed with prejudice. II. STATEMENT OF FACTS A. The Parties. Defendant is a Virginia corporation that does business in California. (Dkt. No. 26 ¶ 15 at 1:20-23.) It employed Plaintiff from November 2013 to September 2014. (Id. at 3:4-5, 5:17-22.) B. Plaintiff Alleged In Her Original Complaint That She Was “Hurt” In A Car Accident, But She Did Not Allege That She Suffered From Headaches, Let Alone Migraine Headaches. In her original Complaint, Plaintiff alleged that she was involved in a car accident on July 28, 2014. (Dkt. No. 1-1 at 11:27-12:1.) She alleged that she “hurt” her neck and back and had a concussion. (Id.) She did not allege that she suffered from headaches, much less migraine headaches. (Id.) C. Plaintiff’s Original Complaint Alleged In Conclusory Fashion That She Had A “Disability.” In her original Complaint, Plaintiff repeatedly alleged that she had a “disability.” (Id. at 13:17-18, 13:22-14:23.) However, she did not identify the alleged “disability” or provide any factual allegations to describe it or how it limited any “major life activity.” (Dkt. No. 1-1.) While she alleged that she saw a 2 To the extent that Plaintiff is contending that her suddenly remembered migraine headaches were her “disability,” the first Defendant learned of them was when it received the SAC itself. Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 14 of 32 Page ID #:237 - 6 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 physician and received notes, she did not identify why she saw the physician, what he treated her for, or whether he made any diagnosis of a physical impairment that limited her major life activities such that it would constitute a “disability.” (Id. at 12:8-10, 12:25-13:2.) D. Defendant Filed A Motion To Dismiss Plaintiff’s Complaint. On July 18, 2016, Defendant filed a motion to dismiss Plaintiff’s Complaint. (Dkt. No. 11.) In it, Defendant explained that Plaintiff’s allegations that she was in a car accident and “hurt” her neck and back did not sufficiently allege facts to show that she had a “disability.” (Id.) E. Plaintiff’s FAC Merely Added Allegations That She Had An Abrasion, Bruises And Non-Migraine Headaches, And It Added The Latin Terms For General Back and Neck Pain. Rather than respond to Defendant’s motion to dismiss, Plaintiff filed her FAC on August 8, 2016. (Dkt. No. 15) In it, Plaintiff added allegations that she suffered an “abrasion,” “bruises,” and “headaches” -- which she did not identify as migraine headaches. (Id. at 3:16-19.) She also added the Latin terms for neck and back pain - “cervicalgia” and “lumbago,” respectively. (Id. at 3:19-21.) As before, Plaintiff did not allege that her back or neck pain was related to any physical impairment, such as bone, tissue, ligament, or nerve damage. (Dkt. No. 15.) And, as before, Plaintiff did not allege in her FAC how long her alleged pain lasted. (Id.) Nowhere in Plaintiff’s FAC did she set forth any factual allegations to show that her alleged “disability” limited any “major life activity.” (Id.) And nowhere in her FAC did Plaintiff set forth any factual allegations that would demonstrate that Defendant was aware of her alleged “disability.” (Id.) More specifically, nowhere in the FAC did she allege that she ever told Defendant about her alleged “disability.” (Id.) Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 15 of 32 Page ID #:238 - 7 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F. The Court Granted Defendant’s Motion To Dismiss Plaintiff’s FAC With Leave To Amend, Explaining That Plaintiff Had Not Alleged Anything More Than Injuries With “Little Or No Residual Effect.” On October 3, 2016, the Court granted Defendant’s motion to dismiss the FAC, doing so with leave to amend. (Dkt. 25.) The Court concluded that Plaintiff had “failed to allege specific facts that suggest her condition qualifies as a disability under the FEHA.” (Id. at 4.) It noted that “her condition is similar to those excluded under the DFEH regulations.” (Id.) The Court noted that “courts have repeatedly found that pain alone does not qualify as a disability without additional facts that demonstrate how the condition restricts a plaintiff’s job performance.” (Id. at 5.) The Court explained: Here, Goode only described her physician’s diagnosis and recommendation that she take a leave of absence. FAC ¶ 11. Goode did not allege any specific limitations on her ability to work after the leave ended, nor did she allege any specific limitations that necessitated the leave. Finally, Goode never suggested that she would require accommodations once she returned to work. This suggests that Goode’s pain, like the conditions excluded in the regulation, had “little or no residual effect.” Cal. Code Regs. tit. 2, § 11065(d)(9)(B). Therefore, it does not qualify as a disability under the FEHA. (Id.) (emphasis added). Finally, the Court explained that “although Goode’s physician recommended a leave of absence, such a recommendation - standing on its own - does not qualify her as disabled.” (Id.) (citation omitted). “[B]ecause Goode’s condition does not qualify as a disability under the DFEH regulations and relevant case law, her physician’s recommendation and her resulting absence also do not qualify her as disabled.” (Id. at 6.) Not unimportantly, the Court did not address whether Plaintiff had properly alleged the second and third elements of a prima facie case of disability Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 16 of 32 Page ID #:239 - 8 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discrimination - that she was otherwise qualified and was subjected to an adverse employment action because of her disability - because it found that she did not suffer from a qualified “disability.” (Id. at 3, fn. 1.) G. Plaintiff’s SAC Still Does Not Identify An Alleged “Disability,” Nor Does It Allege Any Factual Allegations Regarding The Duration Of Any “Disability” Or That Would Demonstrate That Defendant Knew She Had A “Disability.” 1. Plaintiff Now Alleges For The First Time That She Had Migraine Headaches, But Does Not Allege How Many She Had Or How Long She Had Them. On October 21, 2016, Plaintiff filed her SAC. (Dkt. No. 26.) As before, Plaintiff contends that she was involved in a car accident on July 28, 2014, that resulted in “injuries to her back and neck and a concussion” (Id. at 3:6-8.) She contends that she was treated on August 5, 2014, for “a deep abrasion of her right forearm, multiple bruises on bilateral lower extremity, and a palpation of her greater optical nerve.” (Id. at 3:16-19.) For the first time, however, she contends that the palpation of her optical nerve caused her “painful migrane [sic] headaches,” but does not identify how many migraine headaches she had or how long she allegedly suffered from them. (Id.) (emphasis added). There are no allegations even suggesting that any migraine headaches lasted more than several days or weeks. As discussed below, she also does not allege that she ever told Defendant that she had any migraine headaches. 2. Plaintiff Has Presented No Allegations To Show That Her Alleged Injuries Were Anything More Than A Temporary Condition Without Any Residual Effects, Or That She Ever Informed Defendant Of Any Alleged “Disability.” As with her FAC, Plaintiff’s SAC alleges that she was diagnosed as suffering from “cervicalgia, characterized by significant neck pain, and lumbago, characterized by lower back pain.” (Id. at 3:19-21.) Demonstrating that her condition was not expected to be long-lasting, she contends that her doctor Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 17 of 32 Page ID #:240 - 9 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “provided her with a note indicating that she would be able to return to work on September 8, 2014.” (Id. at 3:21-23) (emphasis added). While Plaintiff contends that she spoke with a representative of Defendant “in order to notify her that she had been placed on a leave of absence until September 8, 2014,” she does not contend that she ever informed Defendant of her alleged condition. (Id. at 3:24-25.) That is, she does not contend that she ever told Defendant that she was had migraine headaches or pain. (Id.) Instead, Plaintiff contends vaguely that she told a representative of Care Works USA (“Care Works”), “a third party company which manages disability leave of absences claims for [Defendant],” about the “circumstances surrounding her medical condition.” (Id. at 3:25-4:5.) But she does not even allege that she told Care Works about any migraine headaches or pain. Plaintiff alleges that her “physical injuries” made her unable to drive or walk up or down stairs, and she was unable to sit for prolonged periods of time, unable to hold her head up straight, unable to bathe or dress herself. (Id. at 4:13- 17.) And she contends that her now-remembered “migraine headaches [ ] prevented her from reading documents or looking at a computer screen.” (Id. at 23-25.) However, Plaintiff has not alleged how long any of these conditions lasted; specifically, she has not alleged that these conditions were not entirely resolved by the time she was released to return to work. (Id.) Demonstrating again that her injuries were not long-lasting, Plaintiff alleges that on September 2, 2014, her doctor provided her with a second note indicating that she would be released to work on October 3, 2014. (Id. at 4:26-28.) Plaintiff contends that she spoke with a representative of Defendant “to provide an update regarding her condition,” but nowhere does she allege that she ever told that representative about any alleged disability. (Id. at 4:28-5:1.) Plaintiff contends that she spoke with a representative of Defendant on September 19, 2014, and told that representative “that she was still being treated Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 18 of 32 Page ID #:241 - 10 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 by her physician and indicated she would be returning to work on October 3, 2014.” (Id. at 5:12-15.) Once again, Plaintiff has not alleged that she informed the representative of any alleged “disability.” (Id.) Moreover, Plaintiff has not alleged that her alleged “disability” was not entirely resolved by the time she was released to work. (Id.) Finally, Plaintiff alleges that she was notified on September 22, 2014 that her employment was being terminated just before she planned to return to work on October 3, 2014 because she had exhausted her six-week discretionary leave of absence. (Id. at 5:17-20.) Again, Plaintiff does not allege that her alleged “disability” was not entirely resolved by the time she was released to work. (Id.) Again, Plaintiff does not allege that she ever informed Defendant of any alleged “disability” at any time prior to the termination of her employment. (Id.) III. ARGUMENT A. The Pleading Standard. Rule 8(a)(2) requires “a short and plain statement of claim showing that the pleader is entitled to relief.” Fed. R. Civ. Proc. 8(a)(2). While this may appear to be a simple standard, the Supreme Court has clarified its requirements and has explained that it requires more than conclusory allegations. Instead, as discussed below, a plaintiff must plead sufficient factual allegations. Plaintiff did not do so in her Complaint or her FAC, and she has not done so in her SAC. It is now clear that she simply cannot do so. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007), the Supreme Court explained that a plaintiff must plead “factual allegations . . . enough to raise a right to relief above the speculative level;” it is not enough to merely create a suspicion of a legally cognizable right of action. Furthermore, a formulaic recitation of the elements of a cause of action will not do. Plaintiff must provide the “grounds” of her “entitlement to relief” by more than mere labels and conclusions. Id. Twombly requires an allegation of “enough facts” to “nudge [the] Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 19 of 32 Page ID #:242 - 11 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claim[s] across the line from conceivable to probable.” Id. at 570 (emphasis added). In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court further explained that, unlike factual allegations, conclusory allegations are not accepted as true: [T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice . . . we are not bound to accept as true a legal conclusion couched as a factual allegation. 556 U.S. at 678. The Court explained that “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. The logic behind Twombly and Iqbal is simple: Before a defendant must suffer the burden of defending against a plaintiff’s claims, the plaintiff must provide the necessary factual predicates to her allegations. Twombly, 550 U.S. at 559-60. To that end, Iqbal provides a two-step approach to a motion to dismiss. First, “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” 556 U.S. at 679. Second, a court must consider the factual allegations to “determine whether they plausibly give rise to an entitlement to relief.” Id. “The plausibility standard ... asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). In short, a plaintiff must plead some factual content to support the legal conclusions that she ultimately seeks to establish. Where the well-pleaded facts “do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’ -- `that the pleader is entitled to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). In such a Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 20 of 32 Page ID #:243 - 12 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 situation, the court must dismiss plaintiff’s complaint because it fails to show a plausible claim for relief. See id. Based on Twombly and Iqbal, courts have regularly dismissed claims in a wide variety of circumstances, including dismissing employment claims that did not advance sufficient factual allegations. See, e.g., Washington v. Lowe’s HIW Inc., 75 F.Supp.3d 1240, 1245, 1250-52 (N.D. Cal. 2014) (dismissing plaintiff’s hostile work environment claims under the Fair Employment and Housing Act (“FEHA”) because plaintiff “fail[ed] to allege facts giving rise [to] a viable sexual harassment or sexually hostile work environment claim”); Ramirez v. Manpower, Inc., 2014 WL 116531, at *4-7 (N.D. Cal. Jan. 10, 2014) (dismissing various of plaintiff’s California Labor Code claims under Twombly and Iqbal; “With nothing more than an unadorned allegation citing the California Labor Code and IWC Wage Order Defendants are accused of violating, the Court is unable to draw the reasonable inference that Defendants are liable for the misconduct alleged.”); Schneider v, Space Sys./Loral, Inc., No. 5:11-cv-02489-JF, 2011 WL 4344232, at *1-3 (N.D. Cal. Sept. 15, 2011)(dismissing plaintiff’s complaint for violations of various California Labor Code provisions due to alleged misclassification because it “contain[ed] only bare assertions untethered to any facts about [plaintiff’s] particular employment history”). Even where there are factual allegations that the court must accept as true, the court must turn to the second prong of Iqbal’s approach and determine whether these factual allegations plausibly give rise to an entitlement to relief. This plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” 556 U.S. at 678. As demonstrated below, like her Complaint and her FAC, Plaintiff’s SAC falls far short on both prongs of this analysis. As the Court noted in granting Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 21 of 32 Page ID #:244 - 13 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant’s motion to dismiss the FAC, “disability claims must be plead with factual specificity.” (Dkt. No. 25 at 5, citing Madrigal v. Senior Aerospace SSP, Case No. 2:16-CV-01883-CAS (SSx), 2016 WL 4251573 at *3 (C.D. Cal. Aug. 18, 2016).) The few factual allegations Plaintiff has presented in her SAC simply would not establish that she had a “disability,” as that term is defined by law. Without a “disability,” an individual’s disability discrimination claims cannot proceed. Moreover, she has not alleged sufficient factual allegation to demonstrate that Defendant was aware of her alleged disability. It is axiomatic that an employer cannot discriminate against an individual based on a “disability” of which it was unaware. B. Plaintiff Is Unable To Plead Facts Sufficient To Establish A Claim For Disability Discrimination Under FEHA. 1. Plaintiff Must Establish That She Had A “Disability” In Order To Have A Disability Discrimination Claim. In order to establish a prima facie case of disability discrimination under FEHA, a plaintiff must establish, inter alia, that she in fact had a “disability.” See, e.g., Nealy v. City of Santa Monica, 234 Cal. App. 4th 359, 373, 378-379 (2015); Salazar, Case No. B27211 at 4) (RJN Ex. 1); Brundage v. Hahn, 57 Cal. App. 4th 228, 236 (1997). There can be no question that a plaintiff has no disability discrimination claim if she did not have a “disability.” See, e.g., Waldrip v. GE, 325 F. 3d 652, 654 (5th Cir. La. 2003) (an employee suing for disability discrimination on a theory that he was wrongfully discharged from his employment “must, of course, establish that he has a disability” in order to meet the “threshold requirement.”) Like her Complaint and her FAC, Plaintiff’s SAC here does not satisfy Twombly and Iqbal with regard to this threshold element of her disability discrimination claims. As discussed below, she remains unable to present sufficient allegations to demonstrate that she had a “disability.” Alleging that she was in a car accident or that she had neck or back pain would not establish that she Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 22 of 32 Page ID #:245 - 14 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 had a “disability,” as that term is defined by law, nor would allegations that she suffered injuries that are expressly excluded from the definition of “disability.” Even her new allegation that she had “migrane [sic] headaches” would not establish that she had a “disability” as she has neither alleged how many times she had headaches or how long she allegedly had them. Simply put, despite the language in this Court’s order granting Defendant’s motion to dismiss the FAC, Plaintiff has not set forth any allegations that would demonstrate that her alleged “disability” was anything more than a temporary condition with “little or no residual effect.” Indeed, she has not alleged how long her various conditions lasted, let alone that they lasted beyond her October 3, 2014 release to return to work, or that she needed any accommodations thereafter. As such, at best, her condition lasted from July 27, 2014 to October 3, 2014 - 9 weeks - with no residual effects. That is a temporary condition. That is not a “disability.” 2. Not Every Injury Or Condition Is A “Disability.” Under FEHA, “‘[n]ot every illness qualifies as [a] disability . . . .’” Avila v. Continental Airlines, Inc., 165 Cal. App. 4th 1237, 1249 (2008) as modified on denial of reh’g (Aug. 28, 2008); Arteaga v. Brink’s, Inc., 163 Cal. App. 4th 327, 344 (2009). “[T]he touchstone of a qualifying [physical] disability [under FEHA] is an actual or perceived physiological disorder which affects a major body system and limits the individual’s ability to participate in one or more major life activities.” Cassista v. Community Foods, Inc., 5 Cal. 4th 1050, 1061 (1993). FEHA is specific. A physical “disability” is defined as: (1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: (A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 23 of 32 Page ID #:246 - 15 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. (B) Limits a major life activity. For purposes of this section: (i) “Limits” shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity. (ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult. (iii) “Major life activities” shall be broadly construed and includes physical, mental, and social activities and working. Cal. Govt. Code Section 1926.1(m) (emphasis added). The requirement that a condition or impairment “limits a major life activity” means that it “makes the achievement of the major life activity difficult.” Cal. Gov’t Code § 12926(k)(1)(B)(ii) (emphasis added). By statute, “physical disabilities” include chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, heart disease and multiple sclerosis. Cal. Gov’t Code § 12926.1(c). Importantly, the statutory definition of “physical disability” includes “[h]aving a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment ... which is known to the employer.” Cal. Gov’t Code §12926(k)(3) (emphasis added). Defendant’s lack of knowledge of Plaintiff’s alleged “disability,” whatever it might be, is addressed below. 3. Plaintiff’s Conclusory Allegation That She Had A “Disability” Is Insufficient. As this Court explained, when a plaintiff alleges she is disabled, she must plead her alleged disability with factual specificity. (Dkt. No. 25 at 5, citing Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 24 of 32 Page ID #:247 - 16 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Madrigal, Case No. 2:16-CV-01883-CAS (SSx), 2016 WL 4251573 at *3.) See also Bresaz v. County of Santa Clara, 2015 U.S. Dist. LEXIS 32908, *21 (N.D. Cal. Mar. 17, 2015); Klamut v. Cal. Highway Patrol, 2015 U.S. Dist. LEXIS 169074 (N.D. Cal. Dec. 16, 2015) (an allegation of mental illness does not support claim of disability without more specific allegations addressing the type and nature of the mental illness that would qualify it as a disability); Olson v. Mono County Superior Court, 2014 U.S. Dist. LEXIS 58756 (E.D. Cal. Apr. 25, 2014) (dismissing a disability claim on the grounds that “at the very least, plaintiff should plead facts describing the nature of her disability”) (emphasis added). Nowhere in Plaintiff’s Complaint did she identify her alleged “disability” beyond her conclusory allegation that she had a “disability” and her insufficient allegation that she was “hurt,” nor did she advance any factual allegations to show that any impairment “limited a major life activity.” Without this basic information, Plaintiff’s allegations of disability discrimination were mere labels and were not entitled to a presumption of truth under Twombly and Iqbal. Further, in the absence of specific factual allegations about her alleged “disability,” Plaintiff’s claims remained merely possible and could not cross the threshold to probable. Plaintiff’s FAC did not change that, nor does her SAC. Indeed, even in her SAC, Plaintiff herself cannot identify what her alleged “disability” was. At best, it appears she is contending that the Court should lump her various short-term injuries together to create some new, entirely nameless “disability.” Defendant has been unable to locate a single case that would allow that. The Twombly and Iqbal standards were created to curb the injustice created if lax pleading standards were permitted. “Something beyond the mere possibility of loss causation must be alleged, lest a plaintiff with ‘a largely groundless claim’ be allowed to ‘take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value.’” Twombly, 50 U.S. 544, 558 (citing Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005). Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 25 of 32 Page ID #:248 - 17 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff cannot be permitted to subject Defendant to the cost and burden of defending itself in a public forum on disability discrimination claims without setting forth the most basic, threshold factual allegations for her claim - an identification and description of her alleged “disability” that would raise her right to relief beyond mere speculation. It is now abundantly clear that Plaintiff simply cannot do that. 4. The Various “Injuries” Plaintiff Has Identified Are Not “Disabilities.” (a) Abrasions And Bruises Are Not “Disabilities.” In her original Complaint, Plaintiff alleged that she was in a car accident and “hurt” her back and neck and had a concussion. Of course, being in a car accident itself is not a “disability.”3 As discussed in Defendant’s motions to dismiss the original Complaint and the FAC, and as discussed below, being “hurt” or having “pain” is not itself a “disability” either.4 See, e.g., Arteaga v. Brink’s, Inc., 163 Cal. App. 4th 327, 348 (2008). Amending the Complaint to use the Latin phrases for general neck and back pain changes nothing, nor does adding “abrasion,” “bruises” or non-migraine headaches - all of those conditions are expressly identified in regulations as conditions that are not “disabilities.” The Department of Fair Employment and Housing (“DFEH”) has promulgated regulations defining the term “disability.” In so doing, the DFEH has clarified that being hurt, or having abrasions, bruises, non-migraine headaches, aches and pains, are not “disabilities”: 3A car accident could cause one to have a disability, such as losing the ability to walk. Felix v. N.Y. City Transit Auth., 324 F. 3d 102, 105 (2d Cir. N.Y. 2003). See also, Summers v. Altarum Inst. Corp., 740 F. 3d 325, 327 (4th Cir. Va. 2014) (the plaintiff fell when departing a train and fractured his left leg, tore the meniscus tendon in his left knee, fractured his right ankle, and ruptured the quadriceps- patellar tendon in his right leg, with the result that he was unable to walk for seven months.) 4A concussion is often, even normally, a mild or temporary condition. If it was more than that, Plaintiff has not alleged so, nor has she alleged that she was ever treated for or diagnosed with a concussion that was anything more than mild or temporary. Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 26 of 32 Page ID #:249 - 18 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (9) “Disability” does not include: (A) excluded conditions listed in the Government Code section 12926 definitions of mental and physical disability. These conditions are compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs, and “sexual behavior disorders,” as defined at section 7293.6, subdivision (q), of this subchapter; or (B) conditions that are mild, which do not limit a major life activity, as determined on a case-by-case basis. These excluded conditions have little or no residual effects, such as the common cold; seasonal or common influenza; minor cuts, sprains, muscle aches, soreness, bruises, or abrasions; non-migraine headaches, and minor and non-chronic gastrointestinal disorders. 2 C.C.R. § 7293.6(d)(1) (emphasis added). This Court emphasized this in its order dismissing Plaintiff’s FAC. (Dkt. No. 25 at 5.) (b) Plaintiff’s New Allegation That She Had “Migraine” Headaches Does Not Qualify As A Disability. In her FAC, Plaintiff alleged that she had headaches following her car accident. (Dkt. No. 19 at 3:16-19.) She did not allege that they were migraine headaches. Indeed, even after Defendant filed a motion to dismiss the FAC, in which it explained that non-migraine headaches are not a “disability,” Plaintiff did not allege in response that the headaches were migraine headaches. (Dkt. No. 19.) Without any explanation whatsoever, Plaintiff’s SAC now alleges for the first time that she had migraine headaches after her accident. This is literally the first time that Plaintiff has ever made such an allegation anywhere - and the first time Defendant has ever heard that she allegedly had any migraine headaches. As discussed below, even if migraine headaches could qualify as a “disability,” Defendant could not have discriminated against Plaintiff on a disability of which it was unaware - and Plaintiff does not contend that she ever told Defendant that Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 27 of 32 Page ID #:250 - 19 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 she had any migraine headaches.5 Simply inserting the word “migrane[sic]” before the word “headache” does not have some talismanic effect that would allow Plaintiff’s SAC to proceed. Plaintiff has not alleged any facts to show that any migraine headaches in fact would qualify as a “disability.” Nowhere has Plaintiff alleged how many migraine headaches she had. One? Two? Three? Nowhere has Plaintiff alleged how long any migraine headaches lasted. A couple of days? A couple of weeks? In fact, Plaintiff has not alleged that any migraine headaches had not ceased well before she was released to return to work on October 3, 2014, that they continued thereafter, or that she needed an accommodation for them. In short, Plaintiff has alleged nothing that would demonstrate that any alleged migraine headaches were anything more than an exceedingly temporary condition with “little or no residual effects.” Such conditions are not “disabilities.” 5. As She Has Not Alleged Any Facts That Would Show That They Were Anything More Than Temporary Conditions, Plaintiff’s Alleged Back and Neck “Pain” Are Not “Disabilities.” The courts have also confirmed that being “hurt” or having “pain” do not alone constitute a disability. See, e.g., Arteaga, supra, 163 Cal App 4th at, 348. Transient, non-permanent conditions or temporary, non-chronic impairments fall short of the standard for establishing a “disability.” See, e.g., Avila v. Continental 5The new allegation that she suffered from migraine headaches certainly suggests that Plaintiff is merely attempting to avoid dismissal of her action by making an allegation she knows to be untrue. If she in fact had migraine headaches, she certainly would have included that fact in her Complaint, her FAC, and her opposition to Defendant’s motion to dismiss the FAC. If Plaintiff does not explain that critical omission in response to this motion, her counsel must be made to explain it in the hearing on this motion. If Plaintiff and her counsel cannot produce documentation to show that she in fact had migraine headaches, there can be little question that this new allegation was nothing but a ploy to try to avoid dismissal. Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 28 of 32 Page ID #:251 - 20 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Airlines, Inc., 165 Cal. App. 4th 1237, 1249 (2008); Branscomb v. Group USA, Inc., 475 F. App’x 134, 136-137 (9th Cir. 2012) (the fact that plaintiff had surgery on pituitary tumor did not substantiate plaintiff’s disability claim); Sanders v. Arneson Prods., Inc., 91 F.3d 1351, 1354 (9th Cir. 1996) (psychological condition lasting four months and having no residual effects is not an actionable disability under the ADA); Garcia v. Qwest Corp., 2008 U.S. Dist. LEXIS 101840, 32, (D. Ariz. 2008) (a two-or-three month impairment does not qualify as a disability); Hodge v. Henry County Med. Ctr., 341 F. Supp.2d 968, 975 (W.D. Tenn. 2003) (temporary inability to work while recuperating from surgery does not constitute evidence of a disability); Johnson v. Foulds, Inc., 1996 WL 41482 (N.D. Ill. 1996) (temporary mental depression does not meet the requirements of a disability); Rakestraw v. Carpenter Co., 898 F. Supp. 386, 390 (N.D. Miss. 1995) (back injury completely resolved by surgery was not a disability); Blanton v. Winston Printing Co., 868 F. Supp. 804, 808 (M.D. N.C. 1994) (knee injury which flared up for several months but afterward only impaired ability to run well was not a disability); Peoples v. Langley/Empire Candle Co., 2012 U.S. Dist. LEXIS 6671, (D. Kan. Jan. 20, 2012) (hernia repair surgery not a disability); Morgan v. Goodwill Indus. of Denver, Inc., 2013 U.S. Dist. LEXIS 178769, *12 (D. Colo. July 19, 2013) (ACL surgery and rehabilitation does not establish a disability); Koller v. Riley Riper Hollin & Colagreco, 850 F. Supp.2d 502, 513 (E.D. Pa. 2012) (same); Blackburn v. Trs. of Guilford Tech. Cmty. College, 733 F.Supp.2d 659, 663 n. 3 (M.D. N.C. 2010); Rebarchek v. Farmers Co-op. Elevator & Mercantile Ass’n, 60 F. Supp. 2d 1145, 1151-52 (D. Kan. 1999) (back injury requiring surgery was not disability where no evidence that condition was expected to result in a permanent or long-term impairment); Zurenda v. Cardiology Associates, P.C., 2012 U.S. Dist. LEXIS 68633 (N.D. N.Y. May 16, 2012) (finding that plaintiff’s temporary disability due to knee surgery does not trigger protections under the ADA); Sneed v. City of N.Y. Dep't of Parks & Rec., Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 29 of 32 Page ID #:252 - 21 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2011 U.S. Dist. LEXIS 157810, 7-8 (S.D.N.Y. Sept. 30, 2011) (no discrimination in ADA disability case where Plaintiff alleges unspecific neck pain, among other complaints, but does not allege that she is a qualified individual under the ADA.) Here, Plaintiff’s back or neck “pain” is not itself a “disability.” Inserting the Latin terms for general neck and back pain - “cervicalgia” and “lumbago,” respectively, does not change that fact. “Lumbago is a term for low back pain. Encyclopedia Britannica, http://www.britannica.com/science/ lumbago (last visited May 5, 2016).” Ramos v. Colvin, 2016 U.S. Dist. LEXIS 62547, *23 (E.D. Cal. May 11, 2016). “Cervicalgia refers to neck pain. 1 ICD-9 CM Table of Diseases and Injuries § 723.1 (6th ed. 2014).” Fadel Lefte Khudiar v. Colvin, 2015 U.S. Dist. LEXIS 177823, *3 (M.D. Tenn. Oct. 8, 2015). See also Smith v. Colvin, 2013 U.S. Dist. LEXIS 121394, *14, n. 21 (E.D.N.Y. Aug. 26, 2013) (“Cervicalgia is a general term to describe neck pain”); Reed v. Colvin, 2016 U.S. Dist. LEXIS 84110, *3 (N.D. Ind. June 28, 2016) (“He was also diagnosed with severe and ongoing neck pain (called ‘cervicalgia’), as well as low back pain (called ‘lumbago’).”) Lane v. Colvin, 2016 U.S. Dist. LEXIS 35501, *19 (E.D. Cal. Mar. 17, 2016) (“cervicalgia (neck pain)”). Plaintiff has not alleged that any “pain” was related to any physical impairment that it would itself constitute a “disability,” such as bone, tissue, ligament or nerve damage. Moreover, despite the clear language in this Court’s order, she also has not asserted any factual allegations regarding how long her alleged “pain” or other injuries persisted that would even arguably demonstrate that they were anything more than temporary conditions. She has not alleged how long her “pain” or other injuries lasted. At best, they lasted 9 weeks. She also has not alleged that she needed any accommodations for them when she was released to return to work on October 3, 2014, or that they had any residual effects at all. That is a temporary condition, not a “disability.” As Plaintiff’s allegations are not enough to establish that she had a Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 30 of 32 Page ID #:253 - 22 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “disability,” and as it appears clear that she is unable to assert sufficient allegations, her SAC should be dismissed with prejudice. C. Plaintiff Is Unable To Plead Facts To Show That Defendant Was Aware She Had A “Disability.” Even if any of Plaintiff’s alleged injuries rose to the level of a “disability” - and they clearly do not - her claims still must be dismissed. Simply, she has not alleged that Defendant was aware of her alleged “disability.” It is axiomatic that Defendant could not have discriminated against her based on a “disability” of which it was unaware. Under FEHA, an employer must provide a reasonable accommodation for an applicant or employee with a known mental or physical disability unless the accommodation would cause undue hardship. Cal. Govt. § 12940(m). As the Court explained in Avila v. Continental Airlines, Inc., 165 Cal. App. 4th 1237, 1247 (2008), the duty does not arise until the employer is aware of the employee's disability. Simply put, to be liable for disability discrimination, an employer must know of the disability. Scotch v. Art Institute of California, 173 Cal.App.4th 986, 1008 (2009). Indeed, the California Court of Appeal just confirmed this several weeks ago in Salazar, holding, “To state a cause of action for disability discrimination, failure to accommodate, or failure to engage in an interactive process, a plaintiff must also establish that the employer has knowledge of the disability.” Case No. B267211 at 4 (citations omitted) (RJN Ex. 1). See also Arteaga, supra, 163 Cal. App. 4th at 344-345, 349; Avila, 165 Cal. App. 4th at 1247, 1252; Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34, 61. “An employee has a duty to inform the employer that he has a disability.” Raine v. City of Burbank, 135 Cal.App.4th 1215, 1222 (2006). Moreover, to establish a prima facie case of disability discrimination, a plaintiff must show that “[s]he was subjected to adverse employment action because of [her] disability.” Faust v. California Portland Cement Co., 150 Cal. App. 4th 864, 886 (2007) (emphasis Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 31 of 32 Page ID #:254 - 23 - FIRM:1000253642v1 Defendant’s Motion To Dismiss Second Amended Complaint Case No. 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 added). It is axiomatic that an employer cannot take an adverse action “because of” something about which it was unaware. Here, Plaintiff has not alleged any facts in her SAC that would demonstrate that Defendant knew she had a “disability.” She has not alleged that she ever informed Defendant of any of the injuries she contends constituted a “disability.” Specifically, while she now contends for the first she had migraine headaches, she does not contend that she ever informed Defendant of that. And she still does not contend that she ever informed Defendant of her alleged neck or back “pain,” her abrasions, or her other injuries. All Plaintiff contends is that she informed Defendant that she was injured in a car accident and would need time off. But even if Defendant knew she was injured in a car accident and needed time off to recover, that would not mean that Defendant knew she had a “disability.” Indeed, affirming the dismissal of disability discrimination claims several weeks ago, the Salazar Court reached this very conclusion: “… Easter Seals’ knowledge that Salazar had fractured her foot and needed time to recover did not necessarily mean that it knew she was disabled….” Case No. B267211 at 5 (emphasis added). Without those critical factual allegations, Plaintiff’s disability discrimination claims cannot proceed IV. CONCLUSION For the foregoing reasons, Defendant prays that Plaintiff’s SAC be dismissed with prejudice. DATED: November 14, 2016 By: EPSTEIN BECKER & GREEN, P.C. /s/ Michael S. Kun Michael S. Kun Ted A. Gehring Attorneys for Defendant MAXIMUS Human Services, Inc. Case 8:16-cv-01254-JVS-DFM Document 27 Filed 11/14/16 Page 32 of 32 Page ID #:255 EXHIBIT A Case 8:16-cv-01254-JVS-DFM Document 27-1 Filed 11/14/16 Page 1 of 10 Page ID #:256 16-cv-01254-JVS-DFM Document 26 Filed 10/21/16 Page 1 of 9 Page ID #:215 Anthony Ruggieri (SBN 195202) aruggieriadvantagelawgrou .com Marc G. Droop (SBN 168600) mkroopgadvantagelawgroup.corn John R. Go Ifar (SBN 184988) offaKDadvanta elawarou .com atrick ..S. Nellies (SB 1 1254) pnellies iadvantagela\A c cqoup.com ADVANTAGE LAW 'I OUP, APC 5820 Oberlin Drive, Suite 110 San Diego, California 92121 Telephone: (858) 622-9002 Facsimile: (858) 622-9540 Attorneys for Plaintiff, KENNIE GOODE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA KENNIE GOODE, CASE NO.: 8:16-cv-01254 TVS (DFMx) Plaintiff(s), SECOND AMENDED v. COMPLAINT MAXIMUS HUMAN SERVICES, INC., a Virginia Corporation doing business in California; anc DOES 1 through 50 inclusive, Defendant(s). 1. Defendant MAXIMUS HUMAN SERVICES, INC. (hereinafter "MAXIMUS") is Virginia corporation doing business in the State of California and in the County of Orange. The unlawful employment practices complained of herein occurred in Orange County. 2. Defendants DOES 1-50, inclusive, at all relevant times mentioned herein were either business entities of unknown form doing business in the State of California and in the County of Orange, and were affiliates, parents, subsidiaries, joint venturers, partners, members, fictitious business names, or were otherwise affiliated with defendant MAXIMUS, or alternatively were individuals residing in the County -1- SECOND AMENDED COMPLAINT Case 8 Case 8:16-cv-01254-JVS-DFM Document 27-1 Filed 11/14/16 Page 2 of 10 Page ID #:257 Case 8 16-cv-01254-JVS-DFM Document 26 Filed 10/21/16 Page 2 of 9 Page ID #:216 of Orange, State of California, and were employees, supervisors, officers, directors, owners, and/or managing agents of defendant MAXIMUS. Plaintiff is unaware of the true names of these defendants and therefore sues them by such fictitious names. Plaintiff will amend this complaint to allege their true names and capacities when ascertained. Plaintiff is informed and believes and thereon alleges that each of these fictitiously named defendants is responsible in some manner for the occurrences alleged herein, and that plaintiffs injuries and damages as alleged herein were caused by the aforementioned defendants. 3. Plaintiff is informed and believes and based thereon alleges that each of the Defendants named herein was, at all times relevant to this action, the agent, employee, representative, partner, managing member, or joint venturer of the remaining Defendants and was acting in the course and scope of that relationship. Plaintiff is further informed and believes, and based thereon alleges, that each of the Defendants named herein gave consent to, ratified, and/or authorized the acts alleged herein to each of the remaining Defendants. 4. Plaintiff is informed and believes and based thereon alleges that at all times mentioned herein there existed a unity and identity of interest and ownership between all defendants, such that any individuality and separateness between them have ceased. Each of the defendants is the alter ego of the other in that, inter alia, each is or was composed of the same or practically the same principals, the assets of the entities have been transferred and combined between the entities, and they carry on the same business. 5. Plaintiff is also informed and believes and based thereon alleges that adherence to the fiction of the separate existence of the defendants as distinct from one another would permit an abuse of the corporate privilege and would promote injustice in that it would permit these entities to evade their legal obligations. 6. The amount in controversy herein, exclusive of interest, attorneys' fees and costs, exceeds the jurisdictional minimums of this Court. -2- SECOND AMENDED COMPLAINT Case 8:16-cv-01254-JVS-DFM Document 27-1 Filed 11/14/16 Page 3 of 10 Page ID #:258 Case 8 16-cv-01254-JVS-DFM Document 26 Filed 10/21/16 Page 3 of 9 Page ID #:217 7. Plaintiff KENNIE GOODE (hereinafter "GOODE" or "Plaintiff') is an adult person and was employed within the county of ORANGE at the time the illegal acts transpired. 8. GOODE was hired by Maximus on November 8, 2013 and was employed as a Case Manager at all times. 9. On July 28, 2014, GOODE was involved in a serious car accident. The accident resulted in significant physical injuries to GOODE, including injuries to her back and neck and a concussion. 10. On July 29, 2014, GOODE's husband, Mr. James Goode, spoke with Mr. Monty Starks, Case Manager, who is GOODE's direct supervisor. Mr. Goode explained the situation to Mr. Starks, including the fact that GOODE would be required to take a leave of absence per her physician's instructions. Mr. Starks provided Mr. Goode with contact information for Ms. Shelia Holley, Human Resources Specialist, telling Mr. Goode to communicate with Ms. Holley regarding GOODE's status. 11. On August 5, 2014, GOODE consulted with Dr. Khyber Zaffarkhan, a physician with Fullerton Orthopaedic who, after examining GOODE, noted that she had a deep abrasion of right forearm, multiple bruises on bilateral lower extremity, and palpation of her greater optical nerve, causing her painful migrane headaches. Dr. Zaffarkhan further diagnosed GOODE as suffering from cervicalgia, characterized by significant neck pain, and lumbago, characterized by lower pain back. Dr. Zaffarkhan provided her with a note indicating that she would be able to return to work on September 8, 2014. 12. Later that same day, GOODE spoke with Ms. Holley in order to notify her that she had been placed on a leave of absence until September 8, 2014. Ms. Holley stated that the physician's note should be sent via facsimile to Care Works U.S.A. (Care Works), a third party company which manages disability leave of absence claims for Maximus. Ms. Holley also recommended that GOODE apply for -3- SECOND AMENDED COMPLAINT Case 8:16-cv-01254-JVS-DFM Document 27-1 Filed 11/14/16 Page 4 of 10 Page ID #:259 16-cv-01254-JVS-DFM Document 26 Filed 10/21/16 Page 4 of 9 Page ID #:218 leave under the Family and Medical Leave Act (FMLA). 13. GOODE then spoke with Ms. Nikki Scott, an Absence Management Specialist with Care Works. GOODE explained the circumstances surrounding her medical condition and also told Ms. Scott she would be sending her physician's note to Ms. Scott later that day by facsimile. GOODE also made a request for leave under the FMLA and Ms. Scott stated that she would be sending GOODE a letter to let her know if her request for leave was approved or denied. 14. On August 8, 2014, GOODE received a letter from Care Works U.S.A. stating that her request for leave under the FMLA was denied because she had not been employed with Maximus for twelve months at the time she was injured. The letter did state, however, that GOODE may be eligible for a discretionary leave of absence from Maximus. 15. As a result of the physical injuries sustained by GOODE, she experienced a limited range of motion in her neck, shoulder, arms and legs. GOODE was unable to drive or walk up and/or down stairs. GOODE was unable to sit for prolonged periods of time and was also unable to hold her head up straight. She was also unable to bathe or dress herself and required third party assistance to do so. 16. GOODE's physical limitations prevented her from driving to and from work. She was also unable to walk up and/or down stairs, which was required in her position with Maximus. GOODE was unable to look at a computer screen, which was a requirement of her position, because she could not physically hold her head up straight. GOODE was unable to sit for prolonged periods of time or type, both of which was required in her position. In addition, GOODE also suffered from migraine headaches, which prevented her from reading documents or looking at a computer screen, both of which were requirements of her position. 17. On September 2, 2014, GOODE met again with Dr. Zaffarkhan. After evaluating GOODE, she was provided with a second note which indicated she would be released to work on October 3, 2014. Later that same day, GOODE spoke to Ms. -4- SECOND AMENDED COMPLAINT Case 8 Case 8:16-cv-01254-JVS-DFM Document 27-1 Filed 11/14/16 Page 5 of 10 Page ID #:260 16-cv-01254-JVS-DFM Document 26 Filed 10/21/16 Page 5 of 9 Page ID #:219 Holley in order to provide an update regarding her condition. During this conversation, GOODE stated that she was now scheduled to return to work on October 3, 2014. Ms. Holley then told GOODE to send the revised physician's note to Care Works, which she did the following day. 18. On September 9, 2014, GOODE received a letter from Care Works informing her that her request for discretionary medical leave was approved by Maximus from July 29, 2014 through September 8, 2014. She was also sent a release to return to work form which her physician would be required to complete before she would be permitted to return to work. 19. During her leave of absence from Maximus, GOODE was approved for California state disability benefits as a result of her inability to work. 20. On September 19, 2014, GOODE contacted Ms. Holley in order to ask for information being requested by her insurance carrier. Ms. Holley inquired about GOODE's condition and she responded that she was still being treated by her physician and indicated she would be returning to work on October 3, 2014. In response, Ms. Holley stated, "Okay, we will see you then." 21. On September 22, 2014, GOODE received an email from Maximus notifying her that her employment with the company was being terminated. The termination letter attached to the email stated that she was being terminated due to the exhaustion of her six week discretionary leave of absence. The letter also indicated Maximus was notified that GOODE would be unable to return to work until October 3, 2014. 22. Based upon information and belief, GOODE was terminated by MAXIMUS as a result of her disability, including MAXIMUS's failure to accommodate GOODE's disability. 23. GOODE filed a timely Charge of Discrimination with the California Department of Fair Employment and Housing (hereinafter "DFEH") and has received her "Right to Sue Letter." Thus, she has exhausted her administrative remedy. -5- SECOND AMENDED COMPLAINT Case 8 Case 8:16-cv-01254-JVS-DFM Document 27-1 Filed 11/14/16 Page 6 of 10 Page ID #:261 Case 8 16-cv-01254-JVS-DFM Document 26 Filed 10/21/16 Page 6 of 9 Page ID #:220 FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS (Disability Discrimination in Violation of the FEHA) 24. Plaintiff incorporates and re-alleges each and every preceding paragraph of this complaint as if set forth fully herein. 25. As described above, plaintiff is in a protected group on the basis of her physical disability. Specifically, Plaintiff suffered from a physiological condition affecting one of her body systems which limits Plaintiff's major life activity of working. Despite plaintiff's qualifications and record of competent performance, plaintiff was discriminated against in the terms and conditions of her employment on the basis of her disability, culminating in defendants illegal termination of plaintiff's employment. 26. Defendants discriminatory actions against plaintiff, including MAXIMUS's failure to accommodate GOODE's disability, constitutes unlawful discrimination in employment on the basis of disability, in violation of the FEHA. 27. As a result of defendants' discriminatory actions against plaintiff, as alleged above, plaintiff has suffered loss of wages, salary, benefits and additional amounts of money plaintiff would have received if plaintiff had not been discriminated against in the terms and conditions of plaintiff's employment. As a result of such discrimination and consequential harm, plaintiff has suffered damages in an amount, according to proof at trial. 28. As a further result of defendants' discriminatory actions against plaintiff, as alleged above, plaintiff has been harmed in that plaintiff has suffered the intangible loss of such employment-related benefits and opportunities as promotion, job satisfaction, job security, and other job-related benefits in an amount to be proven at trial. 29. As a further result of defendants' discriminatory actions against plaintiff, as alleged above, plaintiff has been harmed in that plaintiff has suffered humiliation, mental anguish, and emotional and physical distress and has been injured in mind and -6- SECOND AMENDED COMPLAINT Case 8:16-cv-01254-JVS-DFM Document 27-1 Filed 11/14/16 Page 7 of 10 Page ID #:262 16-cv-01254-JVS-DFM Document 26 Filed 10/21/16 Page 7 of 9 Page ID #:221 body. As a result of such emotional harm, plaintiff has suffered such damages in an amount according to proof at trial. 30. The above-recited actions of defendants, and each of them, were done with malice, fraud, and oppression, and in reckless disregard of plaintiffs' rights under the FEHA. Specifically, the discriminatory and malicious acts to undermine plaintiff's employment was carried by managing agents/policy maker's of defendant. As a result of such malicious, fraudulent, and oppressive actions on the part of defendants, and each of them, plaintiff is entitled to an award of punitive damages in an amount sufficient to punish defendants, and each of them, and set an example to those similarly situated to defendants, and each of them. Said punitive damages should be awarded in an amount according to proof at trial. SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS (Failure to Engage in the Interactive Process in Violation of the FEHA) 31. Plaintiff incorporates and re-alleges each and every preceding paragraph of this Complaint as if set forth fully herein. 32. As described above, plaintiff is in a protected group on the basis of her disability. 33. Defendants failed to engage plaintiff in the interactive process in order to determine if the company could accommodate GOODE's need for a further leave of absence and/or determine when GOODE could reasonably be expected to return to her position with MAXIMUS. Defendants' failure to engage plaintiff in the interactive process violates the express provisions of California Government Code § 12940 (m). 34. As a result of defendants' discriminatory actions against plaintiff, as alleged above, plaintiff has suffered loss of wages, salary, benefits and additional amounts of money plaintiff would have received if plaintiff had not been discriminated against in the terms and conditions of plaintiff's employment. As a result of such discrimination and consequential harm, plaintiff has suffered damages -7- SECOND AMENDED COMPLAINT Case 8 Case 8:16-cv-01254-JVS-DFM Document 27-1 Filed 11/14/16 Page 8 of 10 Page ID #:263 Case 8 16-cv-01254-JVS-DFM Document 26 Filed 10/21/16 Page 8 of 9 Page ID #:222 in an amount according to proof at trial. 35. As a further result of defendants' discriminatory actions against plaintiff, as alleged above, plaintiff has been harmed in that plaintiff has suffered the intangible loss of such employment-related benefits and opportunities as promotion, job satisfaction, job security, and other job-related benefits in an amount to be proven at trial. 36. As a further result of defendants' discriminatory actions against plaintiff, as alleged above, plaintiff has been harmed in that plaintiff has suffered humiliation, mental anguish, and emotional and physical distress and has been injured in mind and body. As a result of such emotional harm, plaintiff has suffered such damages in an amount according to proof at trial. 37. The above-recited actions of defendants, and each of them, were done with malice, fraud, and oppression, and in reckless disregard ofplaintiffs' rights under the FEHA. Specifically, the discriminatory and malicious acts to undermine plaintiff's employment was carried by managing agents/policy maker's of defendant. As a result of such malicious, fraudulent, and oppressive actions on the part of defendants, and each of them, plaintiff is entitled to an award of punitive damages in an amount sufficient to punish defendants, and each of them, and set an example to those similarly situated to defendants, and each of them. Said punitive damages should be awarded in an amount according to proof at trial. PRAYER WHEREFORE, Plaintiff KENNIE GOODE prays for judgment as follows: 1. For general damages, in an amount to be proven at trial; 2 For special damages, in an amount to be proven at trial; 3. For punitive damages in an amount appropriate to punish defendants for their wrongful conduct and to set an example for others pursuant to California Civil Code § 3294(b); 4. For prejudgment interest on the sum of damages awarded; -8- SECOND AMENDED COMPLAINT Case 8:16-cv-01254-JVS-DFM Document 27-1 Filed 11/14/16 Page 9 of 10 Page ID #:264 Case 8 1 2 3 4 5 16-cv-01254-JVS-DFM Document 26 Filed 10/21/16 Page 9 of 9 Page ID #:223 5. For reasonable attorney's fees pursuant to California Government Code § 12965(b); 6. For costs of suit herein incurred; and 7. For such other and further relief as the court may deem just and proper. Dated: October 21, 2016 ADVANTAGE LAW GROUP, A.P.C. 6 7 By: /s/Anthony Ruggieri 8 Anthony Ruggieri, Attorneys for Plaintiff, KENNIE GOODE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- SECOND AMENDED COMPLAINT Case 8:16-cv-01254-JVS-DFM Document 27-1 Filed 11/14/16 Page 10 of 10 Page ID #:265 FIRM:1000253179v1 [Proposed] Order Granting Defendant’s Motion To Dismiss Second Amended Complaint - Case No.: 8:16-cv-1254 JVS (DFMx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Michael S. Kun (State Bar No. 208684) Ted A. Gehring (State Bar No. _218715) EPSTEIN BECKER & GREEN, P.C. 1925 Century Park East, Suite 500 Los Angeles, CA 90067 Telephone: 310.556.8861 Facsimile: 310.553.2165 mkun@ebglaw.com tgehring@ebglaw.com Attorneys for Defendant MAXIMUS HUMAN SERVICES, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA KENNIE GOODE, an individual, Plaintiff, v. MAXIMUS HUMAN SERVICES, INC., a Virginia Corporation doing business in California; and DOES 1 through 50, inclusive, Defendants. Case No.: 8:16-cv-1254 JVS(DFMx) [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT DATE: December 19, 2016 TIME: 1:30 p.m. CTRM: 10C JUDGE: Hon. James V. Selna Having considered the parties’ briefs and having heard oral argument on Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint, it is hereby ORDERED that: 1. Defendant’s Motion be, and hereby is, granted; and 2. Plaintiff’s Second Amended Complaint be, and hereby is, dismissed with prejudice. IT IS SO ORDERED. DATED: __________________ _______________________________ Hon. James V. Selna Judge of U.S. District Court Case 8:16-cv-01254-JVS-DFM Document 27-2 Filed 11/14/16 Page 1 of 1 Page ID #:266
