The opinion of the court was delivered by: Robert C. Jones United States District Judge
This case arises out of alleged age discrimination, Family Medical Leave Act ("FMLA") violations, and unlawful retaliation. Pending before the Court is a Motion to Dismiss (ECF No. 19). For the reasons given herein, the Court grants the motion in part.
FACTS AND PROCEDURAL HISTORY
Plaintiff Carolyn Sproul was injured on the job while working for Defendant Washoe Barton Medical Clinic ("WBMC")*fn1 and sought workers compensation benefits. (Compl. ¶¶ 4--6, Dec. 24, 2010, ECF No. 1). After she returned to work, WBMC demoted her on January 7, 2008 and terminated her on or about March 31, 2009. (Id. ¶¶ 7--9). At all relevant times, Plaintiff was
years old, but Plaintiff was denied opportunities that persons substantially younger Id. ¶¶ 10--11).
Plaintiff sued Defendant in this Court on three causes of action: (1) FMLA violations; (2) Age Discrimination in Employment Act ("ADEA") violations; and (3) "tortious retaliation and discharge in violation of public policy." Defendant moved to dismiss for failure to exhaust administrative remedies, failure to state a claim, and under the statute of limitations. The Court granted the motion to dismiss in part and granted Plaintiff's motion to amend. Plaintiff has filed the First Amended Complaint ("FAC"), and Defendant has moved to dismiss it for failure to state
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See N. Star Int'l v. Ariz. Corp. Comm'n, 720
F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555).
"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss." Hal Roach Studios, Inc. v. Richard Feiner
, 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which
not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting the motion to dismiss into a motion for summary
Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule of Evidence 201, a court may take judicial notice of "matters of public record." Mack v. S. Bay
., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for
judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.
Plaintiff originally alleged that Defendant terminated her for requesting and taking leave off from work, in violation of the FMLA. (See Compl. ¶¶ 18--20). Under the FMLA, "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period . . .
serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). It is "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided" under subchapter I of Chapter 28 of Title 29 or "to discharge or in any other manner discriminate
individual for opposing any practice made unlawful" by subchapter I. Id. § 2615(a)(1)--(2). To establish a prima facie case of retaliation in violation of the FMLA, a
plaintiff must establish: (1) she engaged in a protected activity under the FMLA; (2) she suffered adverse action by the employer following the protected activity; and (3) the adverse employment action was causally linked to the protected activity. Raymond v. Albertson's Inc., 38 F. Supp. 2d 866, 869 (D. Nev. 1999) (Rawlinson, J.). The McDonnell Douglas burden-shifting framework applies to an FMLA claim:
[O]nce the employee has established a prima facie case, the burden shifts to the employer to articulate a legitimate nonretaliatory reason for its employment decision. Once the employer meets its burden, the employee must show that a material issue of fact exists regarding whether the employer's proffered reason for the challenged action is a pretext. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802--04 (1973)).
Defendant argued that Plaintiff alleged no FMLA retaliation, because she did not allege that she was retaliated against for opposing any employer practices that are unlawful under
See Xin Liu v. Amway Corp., 347 F.3d 1125, 1133 (9th Cir. 2003). The Court agreed that Plaintiff's claim must therefore be characterized as an interference claim, i.e., that Defendant interfered with her rights under FMLA directly. But Plaintiff did not plead facts indicating that she attempted to take leave under FMLA and was denied leave or was fired for taking it. She did not allege having been fired for taking twelve or fewer workweeks of leave in a twelve month period related to a "serious health condition that [made her] unable to perform the functions of [her] position." Nor did she allege that she hd ...