Dettrich v. Shinseki, No. 1:2010cv00434 - Document 34 (D. Idaho 2011)

Court Description: MEMORANDUM AND ORDER Granting in Part and Denying in Part 29 Defendant's Motion to Dismiss. Defendant's request to strike portions of the FAC is Denied. Signed by Judge William B. Shubb. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm)

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Dettrich v. Shinseki Doc. 34 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF IDAHO 10 ----oo0oo---- 11 12 LAURIE DETTRICH, an individual, 13 Plaintiff, 14 15 16 17 NO. CIV. 1:10-434 WBS MEMORANDUM AND ORDER RE: MOTION TO DISMISS v. ERIC K. SHINSEKI, Secretary, United States Department of Veterans Affairs, Defendant. / 18 19 20 ----oo0oo---Plaintiff Laurie Dettrich brought this action against 21 defendant Eric R. Shinseki, Secretary of the United States 22 Department of Veterans Affairs, alleging disability 23 discrimination and failure to accommodate under the 24 Rehabilitation Act of 1973, 29 U.S.C. §§ 791-794f, wrongful 25 discharge, intentional and/or negligent infliction of emotional 26 distress, and breach of the implied covenant of good faith and 27 fair dealing. 28 Amended Complaint (“FAC”) for lack of subject matter jurisdiction Defendant now moves to dismiss plaintiff’s First 1 Dockets.Justia.com 1 pursuant to Federal Rule of Civil Procedure 12(b)(1) and for 2 failure to state a claim pursuant to Rule 12(b)(6). 3 also requests that the court strike portions of the FAC pursuant 4 to Rule 12(f). 5 I. Defendant Factual and Procedural Background 6 On June 22, 2008, plaintiff was hired as a staff nurse 7 at the VA Medical Center (“VAMC”) in Boise, Idaho. (FAC ¶ 10 8 (Docket No. 27).) 9 plaintiff served for twenty years as a Registered Nurse in the Prior to her employment with the VAMC, 10 United States Air Force. 11 service, plaintiff suffered a traumatic brain injury, which 12 resulted in her honorable discharge from the military and 13 allegedly substantially limits her major life activities. 14 ¶¶ 8-9.) 15 preclude her from working as a Registered Nurse and performing 16 all essential functions of her job at the VAMC with or without 17 reasonable accommodation. 18 (Id. ¶ 6.) During her military (Id. Plaintiff alleges that her injury did not, however, (Id. ¶¶ 8, 22.) When the VAMC hired plaintiff, it was allegedly aware 19 of her disability. 20 questioned plaintiff about her disability prior to and during her 21 employment interview. 22 (Id. ¶ 11). Additionally, the VAMC allegedly (Id.) Plaintiff avers that beginning in November of 2008, she 23 was subjected to a hostile work environment and retaliation. 24 (Id. ¶ 18.) 25 March of 2009 and continued throughout the remainder of her 26 employment with the VAMC. 27 contributing to the environment included: an “intervention” by 28 co-workers, wherein plaintiff was subject to various criticisms; The hostility and retaliation allegedly escalated in Plaintiff avers that incidents (Id.) 2 1 circulation of rumors by plaintiff’s co-workers concerning 2 plaintiff’s psychological state, personal relationships, and 3 medical records; and false allegations concerning plaintiff’s 4 work habits, which purportedly resulted in a reprimand by 5 plaintiff’s supervisor, Molly Kusik. (Id.) 6 On April 21, 2009, plaintiff allegedly sought 7 accommodation of her disability by requesting reassignment to the 8 Women’s Health Veteran Program (“WHVP”). 9 sought reassignment because she was the sole Registered Nurse (Id. ¶ 13.) Plaintiff 10 serving on her team at the time, which allegedly precluded her 11 from conferring with other licensed professionals and provided no 12 back-up support when she was out of the office for medical 13 appointments. 14 would not have required her to perform tasks that required a 15 second licensed professional’s opinion and would not have 16 required a replacement nurse when plaintiff was absent for 17 medical appointments. 18 for reassignment. 19 with the Equal Employment Opportunity Commission (“EEOC”), 20 seeking assistance with the VAMC’s denial of plaintiff’s request 21 for accommodation. (Id.) Plaintiff alleges that the WHVP position (Id.) (Id.) The VAMC denied plaintiff’s request That same day, plaintiff filed a report (Id. ¶ 14.) On June 3, 2009, plaintiff made a second request for 22 23 reassignment and also requested a part-time schedule. 24 16.) 25 documentation from plaintiff, the VAMC “ignored” plaintiff’s 26 request. 27 28 (Id. ¶ After allegedly requesting and receiving supplemental (Id.) Later that month, plaintiff suspected unauthorized access of her personal medical records and requested a list of 3 1 all individuals with access to them. 2 list, plaintiff allegedly became aware that fellow VAMC employees 3 had accessed the records without proper authorization. (Id.) 4 (Id. ¶ 17.) From this On June 19, 2009, plaintiff was subject to a 5 Professional Standards Board review, which allegedly arose from 6 false allegations made in a Proficiency Report by plaintiff’s 7 supervisor and a medical assistant. 8 review, the Board recommended accommodations for plaintiff, 9 including a “Performance Improvement Plan” and temporary (Id. ¶ 19.) Following the 10 reassignment to a separate department with a second Registered 11 Nurse on duty. 12 the Board’s recommendation and instead placed plaintiff on 13 “authorized absence status,” ultimately terminating her 14 employment. 15 (Id. ¶ 20.) The VAMC allegedly did not follow (Id. ¶ 21.) Defendant originally moved to dismiss plaintiff’s 16 Complaint on January 7, 2011. 17 subsequently filed her FAC, which directly responded to some of 18 the alleged deficiencies set forth in defendant’s motion. 19 (Docket No. 23.) 20 plaintiff’s FAC on May 31, 2011, incorporating by reference the 21 entire January 7 motion and asserting no new arguments in favor 22 of dismissal. 23 II. 24 25 (Docket No. 5.) Plaintiff Defendant filed the instant motion to dismiss Discussion A. Motion to Dismiss On a motion to dismiss for lack of subject matter 26 jurisdiction under Federal Rule of Civil Procedure Rule 12(b)(1), 27 the plaintiff bears the burden of establishing a jurisdictional 28 basis for her claim. Kokkonen v. Guardian Life Ins. Co. of Am., 4 1 511 U.S. 375, 377 (1994). 2 of limited jurisdiction” that “possess only that power authorized 3 by Constitution and statute,” id., a court must dismiss claims 4 over which it has no jurisdiction. 5 The court is presumed to lack jurisdiction unless the contrary 6 appears affirmatively from the record. 7 Cuno, 547 U.S. 332, 342 n.3 (2006). Fed. R. Civ. P. 12(h)(3). DaimlerChrysler Corp. v. On a motion to dismiss for failure to state a claim 8 9 Because “[f]ederal courts are courts upon which relief may be granted pursuant to Rule 12(b)(6), the 10 court must accept the allegations in the complaint as true and 11 draw all reasonable inferences in favor of the plaintiff. 12 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other 13 grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 14 405 U.S. 319, 322 (1972). 15 complaint must contain sufficient factual matter, accepted as 16 true, to ‘state a claim to relief that is plausible on its 17 face.’” 18 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 19 570 (2007)). 20 1. Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S. Ct. 1937, Disability Discrimination and Failure to Accommodate Claims under the Rehabilitation Act 21 22 “To survive a motion to dismiss, a Defendant seeks dismissal of plaintiff’s claims for 23 disability discrimination and failure to accommodate. In 24 plaintiff’s original Complaint, she sought to bring these claims 25 under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 26 12101-12183. 27 dismissal on the ground that the Rehabilitation Act provides 28 plaintiff’s exclusive remedy for discrimination. Defendant’s January 7 motion to dismiss sought 5 On May 26, 1 2011, plaintiff amended her complaint, alleging these claims 2 under the Rehabilitation Act and omitting all reference to the 3 ADA. 4 incorporated the January 7 motion in its entirety, but asserted 5 no new arguments supporting dismissal of plaintiff’s disability 6 discrimination or failure to accommodate claims. When defendant filed the instant motion to dismiss, he 7 Because the instant motion offers no new arguments in 8 support of dismissal and because plaintiff’s FAC, the operative 9 complaint, asserts claims under the Rehabilitation Act rather 10 than the ADA, defendant’s motion to dismiss plaintiff’s claims 11 for disability discrimination and failure to accommodate will be 12 denied. 13 2. State Law Claims 14 Plaintiff, as a former federal employee, attempts to 15 bring several state law claims against her employer. As a 16 preliminary matter, the court notes that agencies of the United 17 States cannot be sued unless Congress expressly waives sovereign 18 immunity. 19 Though the Federal Tort Claims Act (28 U.S.C. § 1346(b)) serves 20 as a limited waiver of the United States’ sovereign immunity, the 21 Supreme Court has made clear that statutes governing federal 22 employment significantly restrict a plaintiff’s ability to bring 23 employment-related suits. 24 2d 1057, 1061 (E.D. Mo. 1999) (“Generally, . . . federal 25 employees are barred from bringing claims against the government 26 when the claims ‘arise out of an employment relationship that is 27 governed by comprehensive procedural and substantive provisions 28 giving meaningful remedies against the United States.’”) (quoting United States v. Dalm, 494 U.S. 596, 608 (1990). Biermann v. United States, 67 F. Supp. 6 1 Bush v. Lucas, 462 U.S. 367, 368 (1983)). 2 Specifically, a federal employee must pursue 3 employment-related claims under the Civil Service Reform Act of 4 1978 (“CSRA”), Pub. L. No. 95-454, 92 Stat. 1111 (codified in 5 scattered sections of 5 U.S.C.), personal injury claims under the 6 Federal Employees’ Compensation Act (“FECA”), 5 U.S.C. §§ 8101- 7 8193, and disability discrimination claims under the 8 Rehabilitation Act.1 9 States, 460 U.S. 190, 193-94 (1983) (FECA “was designed to See Lockheed Aircraft Corp. v. United 10 protect the Government from suits under statutes, such as the 11 Federal Tort Claims Act, that had been enacted to waive the 12 Government’s sovereign immunity.”); Mangano v. United States, 529 13 F.3d 1243, 1246 (9th Cir. 2008) (“[W]here Congress has provided a 14 process[, the CSRA,] for processing prohibited personnel 15 practices, other potential employee remedies are preempted.”); 16 Spence v. Straw, 54 F.3d 196, 197 (3d Cir. 1995) (The 17 Rehabilitation Act “is the exclusive means by which a plaintiff 18 may raise claims against federal agencies relating to handicap 19 discrimination.”). a. 20 Wrongful Discharge Claim Plaintiff’s third cause of action seeks relief for 21 22 wrongful discharge under state law. In Idaho, an employer may be 23 liable for the wrongful termination of an employee if such 24 1 25 26 27 28 When asked at oral argument whether plaintiff could cite any case in which a claimant was able to bring suit against a federal employer for state tort claims arising in the employment context, plaintiff cited only one First Circuit decision: Ellenwood v. Exxon Shipping Co., 984 F.2d 1270 (1st Cir. 1993). The defendant in Ellenwood, however, was not an agency or department of the government – it was a government contractor. 7 1 termination contravenes public policy. 2 Lumber Prods., 139 Idaho 172, 176 (2003). 3 derives from the state constitution and statutes. 4 Idaho, 139 Idaho 615, 621 (2004). 5 terminated her employment based on her disability, which was a 6 violation of public policy because it violated the Rehabilitation 7 Act. 8 policy other than those alleged in her Rehabilitation Act claims. (FAC ¶ 39.) 9 Edmondson v. Shearer Idaho public policy Mallonee v. Plaintiff avers that the VAMC She does not allege any violations of public As explained above, the Rehabilitation Act is the 10 exclusive remedy for disability discrimination claims by federal 11 employees. 12 1989), abrogated on other grounds by Irwin v. Dep’t of Veterans 13 Affairs, 498 U.S. 89 (1990). 14 Inc., 554 F. Supp. 2d 1165, 1185 (D. Idaho 2008) (“[S]tatutory 15 remedies under the ADA for the same allegations asserted within a 16 wrongful discharge claim necessarily preclude the latter, 17 separate, duplicative claim.”). 18 for wrongful discharge will be dismissed. 19 See Johnston v. Horne, 875 F.2d 1415, 1420 (9th Cir. b. Cf. McWilliams v. Latah Sanitation, Accordingly, plaintiff’s claim Negligent and/or Intentional Infliction of 20 Emotional Distress Claim 21 i. 22 CSRA The CSRA “governs the relationship between the federal 23 government and its employees.” Sculimbrene v. Reno, 158 F. Supp. 24 2d 1, 5 (D.D.C. 2001). 25 intended to balance the right of federal employees to obtain 26 redress for employment-related grievances against the interest in 27 promoting an efficiently run civil service,” Lehman v. Morrissey, 28 779 F.2d 526, 527 (9th Cir. 1985), and “offers an administrative The Act “provides a comprehensive scheme 8 1 remedy to federal employees who allege prohibited personnel 2 practices.” 3 1991). Saul v. United States, 928 F.2d 829, 833 (9th Cir. The remedies provided under the CSRA are “the 4 5 comprehensive and exclusive procedures for settling work-related 6 controversies between federal civil service employees and the 7 federal government.” 8 Tex. 1994). 9 based on prohibited personnel practices covered by the Act. Ross v. Runyon, 858 F. Supp. 630, 635 (S.D. Thus, the CSRA preempts those common law tort claims 10 Saul, 928 F.2d at 841-43 (state law tort claims were preempted by 11 CSRA in order to “prevent them from conflicting with the remedial 12 system that Congress prescribed for federal employees”). 13 The “prohibited personnel practices” of the CSRA 14 include taking “personnel action[s]” that discriminate “for or 15 against any employee or applicant for employment . . . on the 16 basis of a handicapping condition, as prohibited [by] the 17 Rehabilitation Act of 1973.”2 18 5 U.S.C. § 2302(b)(1)(D). Plaintiff asserts that her emotional distress claim is 19 based on conduct outside the ambit of CSRA protection: 20 “co-workers accessing her private psychiatric records and 21 disseminating such information amongst the staff; co-workers 22 holding an ‘intervention’ with Dettrich to criticize her for 23 forgetting things and making mistakes; co-workers making a number 24 of false allegations regarding Plaintiff’s work habits; and 25 26 27 28 2 The CSRA expressly preserves a federal employee’s right of action under various antidiscrimination statutes, including the Rehabilitation Act. 5 U.S.C. § 2302(d). Plaintiff’s Rehabilitation Act claims set forth in counts one and two of the FAC are thus not preempted by the CSRA. See id. § 2302(d)(4). 9 1 inappropriate questions asked during Dettrich’s interview 2 process.” 3 No. 13).) 4 (Pl.’s Resp. to Def.’s Mot. to Dismiss at 10 (Docket Each of the allegations, however, falls well within the 5 scope of the CSRA. The “intervention” at issue, dissemination of 6 confidential information contained in personnel records, 7 purportedly wrongful questioning during an interview, and false 8 allegations regarding plaintiff’s work habits which, according to 9 plaintiff’s FAC, resulted in a reprimand by plaintiff’s 10 supervisor and a subsequent Professional Standards Board review, 11 are covered by several of the CSRA’s definitions of “personnel 12 action”: (1) a disciplinary or corrective action; (2) a 13 performance evaluation; or (3) any other significant change in 14 duties, responsibilities, or working conditions. 15 2302(a)(2)(A); see also Saul, 928 F.2d at 834 (rejecting “cramped 16 construction of ‘personnel action’”). 5 U.S.C. § 17 Plaintiff also attempts to avoid CSRA preemption by 18 arguing that her emotional distress arose from the conduct of 19 co-workers rather than a supervisor. 20 to Dismiss at 9-10.) 21 committed by “[a]ny employee who has authority to take, direct 22 others to take, recommend, or approve any personnel action.” 23 U.S.C. § 2302(b). 24 broadly, and a claim does not escape application of the CSRA 25 simply by virtue of the fact that an unlawful act was committed (Pl.’s Resp. to Def.’s Mot. Prohibited personnel practices may be 5 The Ninth Circuit interprets this definition 26 27 28 10 1 by a subordinate employee rather than a supervisor.3 2 Mahtesian v. Lee, 406 F.3d 1131, 1134 (9th Cir. 2005). 3 plaintiff’s allegations regarding her co-workers’ actions fall 4 within the definition of prohibited personnel practices, the CSRA 5 preempts state law tort claims based on those allegations. 6 See Because Because the CSRA preempts plaintiff’s intentional 7 and/or negligent infliction of emotional distress claim, this 8 court lacks subject matter jurisdiction over the claim. 9 Saul, 928 F.2d at 843 (CSRA preempts intentional infliction of See 10 emotional distress claim); Lehman, 779 F.2d at 526-28 (same). 11 Accordingly, plaintiff’s emotional distress claim will be 12 dismissed. 13 14 ii. FECA To the extent that plaintiff’s claim may not properly 15 be categorized as a personnel action under the CSRA, FECA 16 provides the exclusive remedy for federal employees injured 17 during the course of their employment. 18 v. United States, 557 F.2d 204, 207 (9th Cir. 1977). 19 claim falls within the purview of FECA coverage, a district court 20 lacks jurisdiction to hear the claim. 21 Sheehan v. United States, 896 F.2d 1168, 1174 (9th Cir. 1990). 22 23 5 U.S.C. § 8116(c); Reep Where a 5 U.S.C. § 8116(c); Injured employees must pursue their administrative remedies under FECA unless their injuries are clearly not covered 24 25 26 27 28 3 Notably, plaintiff’s former supervisor was directly involved in three of the four incidents that allegedly resulted in plaintiff’s emotional distress. (Compare Pl.’s Resp. to Def.’s Mot. to Dismiss at 10 (setting forth the actions on which plaintiff’s claim is based) (Docket No. 13), with FAC ¶¶ 11, 1819 (naming plaintiff’s former supervisor, Molly Kusik, in several incidents).) 11 1 by FECA. 2 filed suit in district court and a substantial question as to 3 FECA coverage exists, the district court will generally stay the 4 action pending a determination by the Secretary of Labor. 5 Reep, 557 F.2d at 208. If a plaintiff has already Id. The Ninth Circuit has held that emotional or 6 psychological injuries divorced from any claim of physical harm 7 are not cognizable under FECA. 8 Where, however, a plaintiff brings a claim for psychological harm 9 resulting in physical injury, the claim falls within FECA’s Sheehan, 896 F.2d at 1174. 10 scope. Moe v. United States, 326 F.3d 1065, 1069 (9th Cir. 11 2003); see also Figueroa v. United States, 7 F.3d 1405, 1408 (9th 12 Cir. 1993) (possible claim under FECA where emotional injuries 13 were “tied to physical harm”). 14 Here, plaintiff alleges her emotional distress resulted 15 in “extreme stress and anxiety/panic attacks, depression, loss of 16 sleep, headaches, paranoia, difficulties with focus and 17 concentration, and further reduction in her cognitive abilities.” 18 (FAC ¶ 43.) 19 and eligible for redress under FECA is a determination that must 20 be made by the Secretary of Labor before this court may exercise 21 jurisdiction over plaintiff’s emotional distress claim. 22 Newsome v. United States, No. CV-F-04-5335 LJO, 2006 WL 1153609, 23 at *4 (E.D. Cal. Apr. 28, 2006). 24 was not preempted by the CSRA, plaintiff’s claim would be 25 dismissed or stayed pending administrative review. 26 F.2d at 208. 27 28 Whether plaintiff’s symptoms are physical injuries c. See Thus, even if plaintiff’s claim See Reep, 557 Breach of Implied Covenant of Good Faith and Fair Dealing Claim 12 1 The Tucker Act, 28 U.S.C. § 1491, grants the United 2 States Court of Federal Claims jurisdiction “to render judgment 3 upon any claim against the United States founded upon . . . any 4 express or implied contract with the United States . . . .” 5 U.S.C. § 1491(a)(1). 6 exclusive jurisdiction of claims arising under the Tucker Act in 7 excess of $10,000.”4 8 F.3d 907, 927 (9th Cir. 2009). 28 “The Court of Federal Claims possesses United States v. Park Place Assocs., 563 This court thus lacks jurisdiction over contract-based 9 10 claims against the United States. 11 Dynamics Corp., 136 F.3d 641, 646-47 (9th Cir. 1998). 12 implied covenant of good faith and fair dealing is a covenant 13 implied in law in the parties’ contract. 14 Spring-Wareham, LLC, 141 Idaho 185, 192 (2005). 15 implied covenant results in contract damages, not tort damages. 16 Id. 17 covenant of good faith and fair dealing must be dismissed for 18 lack of subject matter jurisdiction. 19 v. United States, 88 Fed. Cl. 688, 703-04 (Fed. Cl. 2009) (Court 20 of Federal Claims has jurisdiction over claim for breach of 21 covenant of good faith and fair dealing). 22 23 Tuscon Airport Auth. v. Gen. The Bakker v. Thunder Breach of the Accordingly, plaintiff’s claim for breach of the implied B. See Kenney Orthopedic, LLC Defendant’s Request to Strike Portions of Plaintiff’s FAC 24 25 26 27 28 4 A separate provision confers on district courts concurrent jurisdiction over claims against the United States for less than $10,000. 28 U.S.C. 1346(a)(2). Plaintiff may satisfy this provision and obtain jurisdiction over her contract claim in this court by waiving her right to receive more than $10,000. Marceau v. Blackfeet Hous. Auth., 455 F.3d 974, 986 (9th Cir. 2006), readopted on reh’g, 540 F.3d 916, 929 (9th Cir. 2008). 13 1 Defendant’s motion to dismiss includes requests to 2 strike various portions of plaintiff’s FAC pursuant to Rule 12(f) 3 and to “dismiss” specific paragraphs pursuant to Rules 12(b)(6) 4 and 8(a). 5 strike. 6 The court will treat these requests as a motion to Motions to strike are governed by Federal Rule of Civil 7 Procedure 12(f), which allows the court to “strike from a 8 pleading an insufficient defense or any redundant, immaterial, 9 impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The 10 purpose of the rule is to avoid the costs that accompany 11 litigating spurious issues by dispensing with those issues prior 12 to trial. 13 (9th Cir. 1983). 14 disfavor and are not frequently granted. 15 pleading under attack in the light more favorable to the 16 pleader.” 17 1:08-CV-1924 AWI SMS, 2009 WL 2982900, at *23 (E.D. Cal. Sept. 18 14, 2009) (citation omitted). 19 appropriate and well-founded, Rule 12(f) motions often are not 20 granted in the absence of a showing of prejudice to the moving 21 party.” 22 1649911, at *1 (E.D. Cal. June 1, 2007). Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 “Motions to strike are generally viewed with Courts must view the Garcia ex rel. Marin v. Clovis Unified Sch. Dist., No. “[E]ven when technically Hernandez v. Balakian, No. CV-F-06-1383 OWW DLB, 2007 WL Defendant requests that the following allegations in 23 24 the FAC be stricken: (1) references to alleged wrongful conduct 25 that occurred prior to March 7, 2009;5 (2) descriptions of 26 27 28 5 A plaintiff seeking redress under the Rehabilitation Act must exhaust her available administrative remedies within forty-five days of the claimed wrongful act. 29 C.F.R. § 14 1 plaintiff’s disability as “perceived” or “as-regarded”;6 and (3) 2 references to retaliation, the Family Medical Leave Act (“FMLA”), 3 and the Health Insurance Portability and Accountability Act 4 (“HIPAA”).7 5 The court is not convinced that inclusion of these 6 allegations is redundant, immaterial, impertinent, or scandalous. 7 Simply because a particular word, phrase, or fact in a complaint 8 might not entitle plaintiff to recover does not bar plaintiff 9 from asserting additional historical or background information. 10 Accordingly, the court will deny defendant’s motion to strike 11 these allegations. 12 IT IS THEREFORE ORDERED that: 13 (1) Defendant’s motion to dismiss be, and the same hereby 14 is, DENIED as to plaintiff’s claims for disability discrimination 15 and failure to accommodate under the Rehabilitation Act, and 16 GRANTED as to plaintiff’s claims for wrongful discharge, 17 intentional and/or negligent infliction of emotional distress, 18 and breach of implied covenant of good faith and fair dealing; 19 and 20 (2) Defendant’s request to strike portions of the FAC be, 21 22 23 1614.105(a). Plaintiff’s first alleged contact with the EEOC occurred on April 21, 2009, forty-five days after March 7, 2009. (FAC ¶ 14.) 24 25 26 27 6 In the Ninth Circuit, there is no duty to accommodate an employee who is merely “regarded” as having a disability. Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1232-33 (9th Cir. 2003). Plaintiff has also alleged, however, that defendant knew that she was disabled. (See FAC ¶ 11.) 7 28 Plaintiff does not bring an independent cause of action for retaliation or violations of the FMLA or HIPAA. 15 1 and the same hereby is, DENIED. 2 3 DATED: July 26, 2011 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 16

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