Court: District Court, N.D. California; April 25, 2016; Federal District Court
The Court has granted the motions to dismiss filed by Defendants FedEx Office and Print Services, Inc., Lance Freitas, Federal Express Corporation, and Gallagher Bassett Services, Inc. Plaintiff Gary Minor, representing himself, initiated this lawsuit after being employed as a store manager at FedEx Office since September 2006. Minor reported misconduct regarding timecard alterations by another manager but was subsequently demoted to assistant manager shortly thereafter. He faced further challenges, including a denial of medical leave for hip surgery, which he ultimately had to take under the Family Medical Leave Act (FMLA) after delays attributed to the company.
Upon returning to work, Minor discovered his job was insecure, and his medical insurance had been canceled, hindering his ability to pursue necessary physical therapy. He filed a complaint with the California Department of Fair Employment and Housing (DFEH) regarding denied accommodations related to his surgery, which was denied by the DFEH. In May 2008, Minor suffered a knee injury at work, which, alongside his hip condition, rendered him disabled. His workers' compensation claim for knee surgery was denied by Gallagher in June 2008. After being placed on disability leave, Minor underwent knee surgery in November 2008 and returned to work in January 2009 despite feeling unprepared.
Post-return, he was assigned tasks that exacerbated his condition, as he was frequently left alone to manage store operations, requiring him to lift heavy items against medical advice. Throughout 2009, Minor communicated his pain and treatment requests to Gallagher and FedEx Office, but these complaints went unanswered.
On December 17, 2009, Plaintiff underwent an MRI using personal medical insurance, which revealed permanent damage to his left knee and necessitated a full knee replacement. On April 13, 2010, he filed complaints for retaliation and harassment concerning a request for knee surgery with the DFEH, EEOC, and DIR, though the specific parties targeted were unclear. Gallagher approved the claim and the selection of a treating surgeon on April 29, 2010, but Plaintiff opted to use his own insurance for surgery on September 13, 2010. In November 2010, he sent a letter to the California Attorney General alleging discrimination and retaliation linked to his reporting of employee timecard editing and his knee injury, which prompted referrals to other agencies. Following his termination by FedEx Office on February 25, 2011, Plaintiff filed six complaints in 2011 and 2012 regarding retaliation, discrimination, and harassment related to a workers' compensation claim against Federal Express Corporation, with unclear outcomes. He continued to communicate with the California Attorney General in 2012 and 2013, raising further allegations of discrimination, tax underpayment, and timecard editing, each time receiving direction to other state agencies. In 2015, he reported tax and workers' compensation fraud to the DIR, and in 2016, he contacted multiple authorities regarding fraud by FedEx Office and related entities. Additionally, Plaintiff served as a Class Representative in a 2009 wage-and-hour class action against FedEx Office, alleging various labor law violations. He dismissed Express from the case after acknowledging FedEx Office as his employer. The class action was settled in November 2012, with final approval in July 2013, and Plaintiff received $5,000 as part of a limited release of claims against FedEx Office.
The limited release provision in the settlement agreement released all of Plaintiffs' claims except for five complaints filed with the Department of Fair Employment and Housing (DFEH). In 2014, Plaintiff filed a complaint against Class Counsel with the California State Bar, which was dismissed for lack of sufficient grounds to establish a violation of law or professional conduct rules.
On February 8, 2013, coinciding with the preliminary approval of the class action settlement, Plaintiff initiated a lawsuit in Santa Clara County Superior Court against Express and several Doe defendants. In February 2014, Plaintiff replaced two Doe defendants with FedEx Office and FedEx Corporation and subsequently dismissed Express without prejudice. FedEx Office removed the case to federal court on March 10, 2014.
The lawsuit, Minor I, stemmed from Plaintiff’s February 2011 termination and included allegations regarding FedEx Office’s handling of timecard violations and Plaintiff's injuries. Plaintiff asserted multiple claims under California's Fair Employment and Housing Act (FEHA), including discrimination based on disability, failure to accommodate, retaliation, and wrongful termination.
On August 11, 2014, the court granted FedEx Office's motion for judgment on the pleadings, allowing Plaintiff to amend the complaint due to failure to allege exhaustion of administrative remedies and to clarify the role of FedEx Corporation in the alleged wrongful conduct. The court prohibited the addition of new claims or parties without permission.
On September 11, 2014, after Plaintiff submitted a third amended complaint, the court ultimately dismissed the case with prejudice on January 16, 2016, following FedEx Office's motion to dismiss.
The Court recognized that FedEx Corporation, FedEx Office, and Express are separate entities, with FedEx Office and Express as wholly-owned subsidiaries of FedEx Corporation. It dismissed FedEx Corporation with prejudice due to the plaintiffs' failure to demonstrate its involvement in the alleged conduct. Claims against Express were also dismissed with prejudice, as they could only be asserted against the plaintiff's employer, which was established as FedEx Office in a 2009 class action stipulation. The plaintiff had previously voluntarily dismissed Express during the case in Santa Clara County Superior Court and later added Express to the third amended complaint without proper stipulation or court approval, violating an order that permitted only specific amendments.
The Court further dismissed six claims against FedEx Office with prejudice, particularly focusing on five FEHA causes of action where the plaintiff did not show that administrative remedies were exhausted, despite being granted leave to amend. The Court noted that even if Express were considered an employer, those claims would still be legally barred. Regarding the wrongful termination claim, the Court found that the plaintiff failed to allege facts indicating that consent to a release provision was obtained by fraud or misrepresentation, rendering the claim barred by the class action Settlement Agreement. Consequently, the third amended complaint was dismissed with prejudice.
Following this, on December 29, 2015, the plaintiff initiated a new lawsuit in Santa Clara County Superior Court, asserting five causes of action under FEHA and one for wrongful termination, along with additional claims under the EEOC, ADA, and California Labor Code. FedEx Office removed the case to federal court on February 1, 2016. Subsequently, motions to dismiss were filed on February 8, 2016. In response, the plaintiff submitted a First Amended Complaint (FAC) on March 1, 2016, which claimed to amend the original complaint but lacked factual allegations and clarity, consisting mainly of exhibits from prior lawsuits and communications. The Court noted defendants' confusion over the FAC's contents and promised a more detailed examination in subsequent sections.
On March 9, 2016, the Plaintiff filed a motion for an extension to submit a reply, which was noted as ECF No. 30. Before the Court could rule on this motion, the Defendants submitted three new motions to dismiss on March 11, 14, and 16, 2016. Additionally, they filed requests for judicial notice (ECF No. 34; ECF No. 39). On March 18, the Court interpreted the Plaintiff's extension request as an appeal to excuse the late filing of the First Amended Complaint (FAC) but denied it as moot, affirming the timeliness of the FAC (ECF No. 41). The Court also deemed moot two earlier motions to dismiss from February 8, 2016, by the Defendants. The Plaintiff opposed the new motions to dismiss throughout late March 2016 (ECF No. 45, 47, 50), with replies from Gallagher, FedEx Office, and Freitas filed in late March and early April 2016. On April 18, 2016, the Plaintiff requested the Court consider these oppositions (ECF No. 69).
The legal standard outlined includes Rule 12(b)(6) and Rule 8(a)(2) of the Federal Rules of Civil Procedure, which necessitate a "short and plain statement" of the claim and sufficient factual content to establish plausible grounds for relief. The standard requires more than mere possibility and allows the Court to accept factual allegations as true while disregarding those contradicted by judicially noticeable facts. The Court also has the discretion to consider public records without converting a Rule 12(b)(6) motion into a summary judgment motion.
The Court will not accept legal conclusions presented as factual allegations, as established in Fayer v. Vaughn and Adams v. Johnson, where conclusory allegations and unwarranted inferences are deemed inadequate to counter a motion to dismiss. If a complaint is dismissed, the Court must consider whether to allow leave to amend under Rule 15(a) of the Federal Rules of Civil Procedure, which generally favors granting leave unless there is undue delay, bad faith, repeated failures to amend, undue prejudice to the opposing party, or futility of amendment, as noted in Leadsinger, Inc. v. BMG Music Publishing.
In a Rule 12(b)(6) motion, the Court typically cannot look beyond the complaint's content, except for documents referenced in the complaint and those subject to judicial notice, per Swartz v. KPMG LLP and Lee v. City of Los Angeles. Judicial notice can be taken of facts that are widely known within the court's jurisdiction or can be verified from reliable sources, including public records and administrative agency records.
In this case, FedEx Office and Freitas requested judicial notice of twenty-one documents, which includes materials from the 2009 Class Action and complaints filed with administrative agencies. FedEx Office and Freitas also submitted a corrected version of the 2009 Class Action Settlement Agreement. The Plaintiff did not oppose this request, and the Court granted it based on the appropriateness of these documents for judicial notice. Similarly, Express requested judicial notice of ten documents, which were largely the same as those submitted by FedEx Office and Freitas, and the Plaintiff did not oppose this request either, leading the Court to grant it as well.
The Court finds that the First Amended Complaint (FAC) lacks clarity and does not contain factual allegations or specific claims, consisting solely of 11 exhibits, including past lawsuits and communications with California administrative agencies. Consequently, the Court will interpret the claims as presented in the pleadings. The FAC has generated confusion among Defendants regarding the asserted causes of action, which they struggle to differentiate from those in the original complaint. Four key issues require clarification:
1. The claims under the "EEOC" lack an identified statute, as the EEOC is an agency rather than a law.
2. The FAC does not contain any factual allegations or claims.
3. There are inconsistencies between the complaint's caption, body, and the FAC's caption.
4. The Plaintiff's opposition introduces new claims and allegations that were not previously stated.
The Court notes that the ADA is relevant to the claims made, as the Plaintiff's references to the EEOC seem intended to assert claims under the ADA. Additionally, there is disagreement among Defendants regarding whether the FAC incorporates the original complaint; some argue it does not amend the original allegations, while others contend it supersedes it entirely. Generally, an amended complaint replaces the original unless it incorporates prior allegations by reference. However, since the FAC includes no factual allegations or claims, it does not function as a proper pleading.
The FAC is an amended complaint that clearly indicates the Plaintiff's intention to supplement the original complaint with federal court documents and maintain the same damages as previously stated. The Court interprets the FAC, filed on March 1, 2016, as incorporating the original complaint, allowing it to address both sets of allegations. However, inconsistencies exist between the claims listed in the captions of the original complaint and the FAC, particularly regarding whistleblower retaliation under California Labor Code 1102.5, which is discussed in the body of the original complaint but not included in its caption. To favor the pro se Plaintiff, the Court recognizes this claim as included.
The Court identifies seven causes of action: five directed solely against FedEx Office and Express, which include discrimination based on disability, failure to prevent discrimination, retaliation, failure to grant leave, and wrongful termination. Two additional claims—failure to make reasonable accommodations and whistleblower retaliation—are not attributed to specific defendants and are thus treated as claims against all defendants.
In response to the motions to dismiss, the Plaintiff attempts to introduce new allegations, including a workers’ compensation insurance fraud claim under California Insurance Code 1871.4. However, the Court dismisses these new assertions, noting that the pleadings do not contain a claim for such fraud or any supporting factual allegations. Although the FAC includes letters discussing workers’ compensation fraud, these do not reference California Insurance Code 1871.4 and lack contextual support, failing to provide adequate notice to the defendants regarding this new claim.
The Court establishes that the Plaintiff has not been charged or at risk of being charged with workers’ compensation insurance fraud related to his employment at FedEx Office. The Plaintiff is prohibited from introducing new allegations or claims not included in the original complaint, as supported by relevant case law. The Court cannot consider newly raised fraud claims in the Plaintiff's opposition papers for the purpose of a Rule 12(b)(6) dismissal. Additionally, the Court notes that California Insurance Code § 1871.4, which addresses false workers’ compensation claims, does not explicitly provide a private right of action for damages. The absence of such a right is underscored by the U.S. Supreme Court's stance on inferring private rights under criminal statutes. Consequently, since the Plaintiff does not assert a valid claim under this code in his pleadings, the Court dismisses the allegations related to workers’ compensation fraud.
The Court then addresses the merits of the Plaintiff's claims, starting with FedEx Office and Express, both of which contend that all claims are barred by res judicata due to prior litigation involving Minor I. Express raises additional arguments, including that it was not the Plaintiff's employer under FEHA and ADA, the Plaintiff's failure to exhaust administrative remedies, the inadequacy of the whistleblower retaliation claim under California Labor Code § 1102.5, and the untimeliness of the wrongful termination claim. However, the Court finds the claims against FedEx Office and Express are precluded by res judicata, rendering further examination of Express's additional arguments unnecessary.
Res judicata, or claim preclusion, prevents the litigation of claims that were previously raised or could have been raised in an earlier action. To assess the res judicata impact of the federal case Minor I, federal law is applied, focusing on three criteria: (1) identity of claims, (2) final judgment on the merits, and (3) privity between the parties. The plaintiff does not contest that these criteria are met in opposing the motions to dismiss by FedEx Office and Express. The Court, however, will evaluate each criterion.
For determining identity of claims, the Ninth Circuit considers four factors: (1) whether the prior judgment's rights would be impaired by a new action, (2) whether similar evidence is presented in both cases, (3) whether the suits involve the same right infringement, and (4) whether they arise from the same transactional nucleus of facts, with the fourth being the most significant.
In both Minor I and the current case, the plaintiff claims violations of the California Fair Employment and Housing Act (FEHA) and wrongful termination. The two notable differences in the current complaint are the inclusion of claims under the Americans with Disabilities Act (ADA) and a new whistleblower retaliation claim under California Labor Code 1102.5. However, these differences are deemed immaterial for res judicata purposes, as both cases arise from the same set of workplace events, including allegations of tampering with timecards, requests for medical leave, and a work-related injury. Thus, the Court finds that both lawsuits share a common transactional nucleus of facts stemming from the plaintiff's termination in February 2011.
All claims brought by the Plaintiff in the current case are rooted in the Defendants' actions related to the Plaintiff's termination, which was allegedly motivated by the Plaintiff's disability and requests for time off. Defendants are accused of failing to accommodate the Plaintiff's disability, specifically by requiring strenuous lifting despite the Plaintiff's knee injury, a situation paralleled in a previous case (Minor I). The Plaintiff claims to have been left alone to manage shipments and subsequently terminated for being unable to perform heavy lifting. No new evidence has been introduced that was not already available in Minor I, which aligns with legal precedents regarding the identity of claims. The Plaintiff's current claims, including those under the ADA and California Labor Code for whistleblower retaliation, arise from the same set of facts as in Minor I. The Ninth Circuit's criteria for determining whether a claim could have been included in a previous case support the notion that these claims are indeed related, as they stem from the same factual circumstances. The Plaintiff's claims under the ADA and FEHA are considered coextensive, and the whistleblower retaliation claim is based on actions taken in reporting misconduct that also formed the basis for claims in Minor I. Consequently, there is a clear identity of claims between the current lawsuit and Minor I, reinforcing the application of res judicata.
Satisfaction of the fourth factor for res judicata is often sufficient for establishing an identity of claims, though the Court examines all four factors. The first factor, concerning whether rights established in a prior judgment would be impaired by a new action, is deemed neutral since its resolution hinges on whether the current claims are identical to those in Minor I. The second factor indicates an identity of claims because "substantially the same evidence" would be presented in both cases. The third factor also supports this identity as both suits involve the same right, specifically the plaintiff's right to be free from employment discrimination and retaliation. Three factors support finding an identity of claims, while one remains neutral, leading the Court to conclude that res judicata bars all seven claims against FedEx Office and Express.
An involuntary dismissal, such as that in Minor I, constitutes a judgment on the merits for res judicata purposes, confirming that the second prong is satisfied since the dismissal was made after a consideration of the merits. Privity between the parties is established as the plaintiff in Minor I is the same complainant and FedEx Office and Express are the same defendants. Thus, the Court concludes that the plaintiff's claims against FedEx Office and Express are barred by res judicata, and this legal deficiency cannot be remedied through amendment.
The Court grants FedEx Office’s and Express’s motions to dismiss with prejudice. The claims against Freitas and Gallagher include failure to make reasonable accommodations under the Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA), and whistleblower retaliation under California Labor Code. Freitas and Gallagher argue for dismissal based on three points: 1) they were not the Plaintiff's employer, 2) the Plaintiff failed to exhaust administrative remedies, and 3) the claim is time-barred. Freitas contends that individual defendants cannot be held personally liable under FEHA or ADA.
The Court notes that the Plaintiff did not respond to these arguments but will still consider them. It emphasizes that exhaustion under FEHA requires filing a complaint with the Department of Fair Employment and Housing (DFEH) within one year of the alleged unlawful act and obtaining a right-to-sue notice. Additionally, for a civil suit to be timely, it must be filed within one year of receiving this notice. The Court highlights that unexhausted FEHA claims are typically dismissed and that claims outside the scope of the administrative charge are barred.
Under the ADA, exhaustion occurs when a charge is filed with the Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged act, extendable to 300 days if state proceedings are initiated. After receiving an EEOC right-to-sue letter, a plaintiff has 90 days to file suit. The Court asserts it lacks jurisdiction over unexhausted ADA claims. Although the Plaintiff claims to have filed several complaints with the DFEH, he does not specify that any were against Freitas or Gallagher or detail their substance.
Plaintiff did not file any complaints with the EEOC regarding Freitas or Gallagher. However, Freitas noted that Plaintiff filed a charge against him with the DFEH on June 1, 2010, and received a right-to-sue notice on April 1, 2011. The DFEH closed the case, stating it could not find evidence of a statutory violation. The statute of limitations for Plaintiff to sue on this charge expired on April 1, 2012, before Plaintiff initiated the current lawsuit on December 29, 2015. Plaintiff has not provided justification for tolling the statute of limitations, rendering any claims based on this charge time-barred. Furthermore, Plaintiff does not indicate any additional DFEH or EEOC complaints against Freitas or Gallagher and has not argued for excusal of failure to exhaust administrative remedies. Consequently, Plaintiff fails to state a failure to accommodate claim under the FEHA or ADA due to lack of exhaustion.
The document further addresses whether Freitas or Gallagher qualifies as Plaintiff's “employer.” For claims under both the FEHA and ADA, the legal definition of “employer” requires an entity to employ a minimum number of employees—five for the FEHA and fifteen for the ADA. The Court will assess whether Plaintiff has sufficiently alleged that Freitas or Gallagher meets this definition, as well as Freitas’s claim of not being individually liable under the FEHA or ADA.
The term "employer," as defined under the ADA, refers to any person engaged in an industry affecting commerce with 15 or more employees for at least 20 weeks in the current or preceding year, including agents of such persons. The determination of an employer-employee relationship involves examining all incidents of the relationship, as advised by the U.S. Supreme Court in Clackamas Gastroenterology Assocs., which emphasizes factors such as the employer's control over the employee's performance, hiring and firing authority, and task assignment. Under the FEHA, similar factors are considered, focusing on the totality of circumstances surrounding the work relationship.
In the current case, the Plaintiff fails to allege that Freitas or Gallagher were their employers or provide sufficient facts for the Court to infer such a relationship. For Freitas, the Plaintiff only states that Freitas created work schedules, lacking additional details about supervision or authority over the Plaintiff's employment. Regarding Gallagher, the Plaintiff's acknowledgment of Gallagher as FedEx Office's workers' compensation administrator and the lack of interaction beyond a workers' compensation dispute suggests Gallagher does not qualify as an employer. Judicial precedents indicate that mere administrative roles do not establish an employer-employee relationship under the ADA.
The Court has determined that the administrator of Pacific Telesis’s employee health insurance plans is not considered an employer of its employees. Evidence presented indicates that FedEx Office, rather than Freitas or Gallagher, was the actual employer of the Plaintiff. This is supported by various documents, including a letter from the Plaintiff identifying FedEx Kinkos (now FedEx Office) as their employer and a stipulation from a previous class action confirming FedEx Office’s role as the employer. The Plaintiff has not contested this identification and has not claimed that Freitas or Gallagher was their employer in opposition to motions to dismiss. Consequently, the Plaintiff fails to establish a claim for failure to accommodate under the Fair Employment and Housing Act (FEHA) or the Americans with Disabilities Act (ADA) against either Freitas or Gallagher.
Furthermore, even if the Plaintiff were to assert that Freitas was their employer, the failure to accommodate claim would still be untenable under the ADA and FEHA. The Ninth Circuit has established that individual defendants cannot be held personally liable for ADA violations, as the law restricts liability to employers with 15 or more employees. This limitation is based on Congressional intent to avoid overburdening small entities with litigation costs. The same principle applies to the ADA, thereby exempting individuals like Freitas from being classified as employers. Additionally, while California courts have not definitively ruled on individual liability under FEHA, the California Supreme Court has determined that individual supervisors cannot be personally sued under FEHA provisions.
California law prohibits employers from discriminating based on disability, as established in Reno v. Baird. The California Supreme Court recognized that under Title VII and the ADA, individual supervisors are not liable for employment discrimination, reflecting a "clear and growing consensus" among federal courts. The court noted that the Fair Employment and Housing Act (FEHA) also exempts small employers (those with fewer than five employees) from liability, leading to an incongruity if individual supervisors were held liable. Discrimination claims often stem from actions indistinguishable from routine job duties, such as hiring, firing, and performance evaluations. The court emphasized that imposing individual liability for these necessary personnel management actions would create an undue risk of lawsuits for supervisors.
In contrast, while FEHA prohibits discrimination by employers, it also allows for individual liability for harassment, as harassment involves actions outside the scope of job duties. Supervisors can avoid harassment claims by refraining from inappropriate conduct, unlike personnel management actions essential to business operations. Consequently, the court concluded that individuals who do not qualify as employers cannot be sued for discriminatory acts under the FEHA. This principle was reaffirmed in Jones v. Lodge at Torrey Pines P’ship, where it was held that individuals cannot be liable for retaliation under the FEHA.
In retaliation cases, the California Supreme Court highlighted that if an employee is perceived as a complainer, supervisors may hesitate to discipline that employee due to fears of retaliation claims. The Court criticized the idea of exposing supervisors to lawsuits for legitimate personnel decisions, paralleling its rationale from Reno, which exempted individuals from personal liability for discrimination, to also apply to retaliation claims. Consequently, non-employer individuals are not personally liable for retaliation under the Fair Employment and Housing Act (FEHA) § 12940(m). Two district courts have upheld this reasoning, ruling that FEHA § 12940(m) does not allow individual liability for failure to accommodate, as it parallels the discrimination provisions in Reno. The Court determined that actions like work assignments, schedules, and terminations do not expose individual supervisors to liability under FEHA. As a result, Freitas cannot be held individually liable for the plaintiff's failure to accommodate claim. The Court granted motions to dismiss Freitas's and Gallagher's involvement in the claim due to lack of evidence that they were the plaintiff's employer or that the plaintiff had exhausted administrative remedies, concluding that amending the claim would be futile.
The Court allows for a potential amendment of the Plaintiff's claims against Freitas regarding the employer-employee relationship but confirms that Freitas cannot be held individually liable for failure to accommodate under the Fair Employment and Housing Act (FEHA) or the Americans with Disabilities Act (ADA). The Ninth Circuit's precedent states that individual supervisors are not liable under the ADA, and the California Supreme Court has ruled similarly under the FEHA regarding personnel management decisions. Consequently, the Court dismisses the failure to accommodate claim against Freitas with prejudice.
In contrast, the Court leaves open the possibility for amending the claim against Gallagher, as it does not determine that any amendment would be futile.
Regarding the whistleblower retaliation claim under California Labor Code § 1102.5, the Court finds dismissal appropriate for two primary reasons: the claim is time-barred, and the Plaintiff fails to establish that Freitas or Gallagher was the employer. The Court notes that only Express moved to dismiss the whistleblower claim and emphasized the claim's untimeliness under the statute of limitations, which is three years for actions on statutory liabilities. The Court cites case law confirming the dismissal of the claim as time-barred and notes that if seeking civil penalties under § 1102.5(f), the limitations period is one year. The Plaintiff did not refute the arguments regarding the statute of limitations or address the claim adequately in opposition to Express's motion.
The claim is dismissed as time-barred under the one-year statute of limitations outlined in Cal. Civ. Proc. Code § 340(a). The court notes that regardless of which statute may apply, the plaintiff's claim is untimely. The plaintiff alleges retaliation by Freitas through non-accommodating schedules for a disability and by Gallagher, a claims administrator for FedEx Office, who denied medical treatment requests and benefits following a knee injury. The latest potential date for these retaliatory actions is February 25, 2011, the plaintiff's termination date. The plaintiff filed the lawsuit almost five years later, on December 29, 2015, making the claim untimely. The court also highlights that the plaintiff does not argue for tolling the statute of limitations. Furthermore, the court examines whether Freitas or Gallagher qualifies as the plaintiff's employer under Labor Code section 1102.5, which protects whistleblower actions. For such a claim, a clear employer-employee relationship must exist at the time of the alleged retaliation. The definition of "employer" is not specified in section 1102.5, leading courts to refer to interpretations under the Fair Employment and Housing Act (FEHA) to determine employer status for these claims.
Under California's Fair Employment and Housing Act (FEHA), the determination of an employer-employee relationship hinges on the totality of circumstances, particularly the employer's control over the employee's performance. The court finds that the plaintiff has not sufficiently alleged that Freitas or Gallagher qualifies as his employer. The only relevant claim against Freitas is that he scheduled the plaintiff alone for shipments, lacking further allegations about Freitas's supervisory role or authority over the plaintiff's employment. Therefore, the court concludes that Freitas cannot be considered the plaintiff's employer.
Regarding Gallagher, the plaintiff previously acknowledged in various documents that FedEx Office employed him, not Gallagher or Freitas. This includes a signed stipulation in a 2009 class action and letters asserting that FedEx Office was his employer. Consequently, the court determines that Gallagher also does not qualify as the plaintiff's employer. Furthermore, the plaintiff's claim under California Labor Code § 1102.5 is time-barred. The court grants motions to dismiss from Gallagher and Freitas concerning the plaintiff's § 1102.5 claim, while allowing the possibility for the plaintiff to present additional facts that could toll the statute of limitations or demonstrate employer status for Gallagher or Freitas.
The Court dismisses FedEx Office and Express's motions with prejudice and grants Freitas's motion to dismiss the Plaintiff's claim for failure to accommodate under the FEHA and the ADA, also with prejudice. Freitas's motion regarding the Plaintiff's California Labor Code § 1102.5 claim is granted with leave to amend. Gallagher's motion is similarly granted with leave to amend for both the failure to accommodate claims and the California Labor Code § 1102.5 claim. The Plaintiff has thirty days from the order date to file an amended complaint addressing identified deficiencies; otherwise, claims will be dismissed with prejudice. The Plaintiff cannot add new claims or parties without court permission or party stipulation under Rule 15 of the Federal Rules of Civil Procedure. Express's arguments reference all claims being barred by res judicata, and the Court may dismiss cases sua sponte on such grounds if prior actions on the same subject matter and parties exist. Freitas's request for judicial notice regarding discrimination benefits application is noted, but the Plaintiff does not use this application to demonstrate exhaustion of administrative remedies under the FEHA. To exhaust claims under the FEHA, a complaint must be filed with the DFEH, not the Workers’ Compensation Appeals Board. The Plaintiff is advised to seek assistance from the Federal Pro Se Program for further guidance.
