1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PETER GALLO,

12 Plaintiff, No. 2:24-cv-03391-TLN-SCR

13 14 v. ORDER

LANTHEUS MEDICAL IMAGING, INC.,

15 Defendant. 16

17 18 This matter is before the Court on Defendant Lantheus Medical Imaging, Inc.’s 19 (“Defendant”) Motion to Dismiss. (ECF No. 6.) Plaintiff Peter Gallo (“Plaintiff”) filed an 20 opposition. (ECF No. 7.) Defendant filed a reply. (ECF No. 10.) For the reasons set forth 21 below, Defendant’s motion is GRANTED. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 The instant action arises out of Defendant’s alleged violation of the California Fair 3 Employment and Housing Act (“FEHA”) for its failure to accommodate Plaintiff’s religion by 4 refusing to grant him an exemption from the COVID-19 vaccination requirement and terminating 5 his employment. (See ECF No. 1-2 at 8–13.) Plaintiff started working for Defendant around 6 November 29, 2010 as a Senior Cardiovascular Imaging Specialist, performed his job well 7 throughout his lengthy career, and received several performance-based pay raises. (Id. at 9.) 8 Plaintiff alleges that on October 4, 2021, he applied for a religious accommodation or exemption 9 from the requirement to be vaccinated against COVID-19, and in response, Defendant sent 10 Plaintiff a questionnaire to further inquire into the religious basis for his accommodation request. 11 (Id. at 9–10.) Plaintiff further alleges he returned the questionnaire on October 11, 2021, and 12 around October 31, 2021, Defendant informed Plaintiff that his request was denied and no other 13 accommodation was offered. (Id. at 10.) On November 1, 2021, Plaintiff then went on short- 14 term disability in connection with a medical condition. (Id.) Plaintiff alleges that on January 26, 15 2022, he was terminated due to his failure to comply with Defendant’s vaccination policy. (Id.) 16 Plaintiff filed the instant action in Placer County Superior Court on November 18, 2024, 17 alleging the following claims: (1) failure to provide reasonable accommodations in violation of 18 FEHA; (2) retaliation in violation of FEHA; and (3) wrongful termination in violation of FEHA 19 and public policy. (Id. at 8–13.) Defendant removed the action to this Court on December 5, 20 2024. (ECF No. 1.) Defendant filed the instant motion to dismiss on December 6, 2024. (ECF 21 No. 6.) 22 II. STANDARD OF LAW 23 A motion to dismiss for failure to state a claim upon which relief can be granted under 24 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests the legal sufficiency of a complaint. 25 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Rule 8(a) requires that a pleading contain 26 “a short and plain statement of the claim showing that the pleader is entitled to relief.” See 27 Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). Under notice pleading in federal court, the 28 complaint must “give the defendant fair notice of what the claim . . . is and the grounds upon 1 which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). 2 “This simplified notice pleading standard relies on liberal discovery rules and summary judgment 3 motions to define disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz 4 v. Sorema N.A., 534 U.S. 506, 512 (2002). 5 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 6 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give the plaintiff the benefit of every 7 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 8 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 9 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 10 relief.” Twombly, 550 U.S. at 570. 11 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 12 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 13 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 14 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 15 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 16 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 17 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements, do not suffice.”). Moreover, it is inappropriate to assume the plaintiff “can prove 19 facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not 20 been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 21 U.S. 519, 526 (1983). 22 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 23 facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting 24 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 25 content that allows the court to draw the reasonable inference that the defendant is liable for the 26 misconduct alleged.” Id. at 680. While the plausibility requirement is not akin to a probability 27 requirement, it demands more than “a sheer possibility that a defendant has acted unlawfully.” 28 Id. at 678. This plausibility inquiry is “a context-specific task that requires the reviewing court to 1 draw on its judicial experience and common sense.” Id. at 679. 2 In ruling on a motion to dismiss, a court may consider only the complaint, any exhibits 3 thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201 or 4 incorporated by reference. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 5 1988); Isuzu Motors Ltd. v. Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 6 1998); Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). 7 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 8 amend even if no request to amend the pleading was made, unless it determines that the pleading 9 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 10 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)); 11 see also Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in 12 denying leave to amend when amendment would be futile). Although a district court should 13 freely give leave to amend when justice so requires under Rule 15(a)(2), “the court’s discretion to 14 deny such leave is ‘particularly broad’ where the plaintiff has previously amended its complaint.” 15 Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (quoting 16 Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)). 17 III. ANALYSIS 18 Defendant argues Plaintiff’s Fair Employment and Housing Act (“FEHA”) claims (Claims 19 One and Two) and wrongful termination in violation of public policy claim (Claim Three) are 20 time-barred. (ECF No. 6-1.) The Court will consider these claims in turn, after addressing the 21 parties’ requests for judicial notice. 22 A. Requests for Judicial Notice 23 Defendant requests judicial notice of: (1) Exhibit A, Plaintiff’s first charge of 24 discrimination filed with the U.S. Equal Employment Opportunity Commission (“EEOC”) and 25 dually filed with the California Civil Rights Department (“CRD”), dated January 25, 2022; (2) 26 Exhibit B, the “Notice to Complainant and Respondent” and the right-to-sue notice from CRD; 27 and (3) Exhibit C, the “Determination of Charge” and right-to-sue notice from EEOC dated 28 December 20, 2022. (ECF No. 6-3 at 2.) Plaintiff has not opposed this request. Courts have 1 found EEOC forms appropriate for judicial notice. Adetuyi v. City & Cnty. of San Francisco, 63 2 F. Supp. 3d 1073, 1080–81 (N.D. Cal. 2014) (granting defendant’s request to take judicial notice 3 of plaintiff's EEOC intake questionnaire and Department of Fair Employment and Housing 4 (“DFEH”) charge, the EEOC and DFEH letters indicating receipt of the questionnaire and charge, 5 and the DFEH right-to-sue letter); see also Nkwuo v. Santa Clara Cnty. Hum. Res., No. 16-cv- 6 06741-BLF, 2017 WL 3605229, at *3 (N.D. Cal. Aug. 21, 2017) (granting judicial notice of 7 plaintiff’s EEOC charge and defendant’s response). Accordingly, Defendant’s request for 8 judicial notice of Exhibits A, B, and C is GRANTED. 9 Plaintiff requests judicial notice of Exhibit A, an order from Ledezma v. Optum Services, 10 Inc., No. 23-cv-06691-VC (N.D. Cal. May 21, 2024). Defendant has not opposed this request. 11 The Court may take judicial notice of facts that can be “accurately and readily determined from 12 sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). The Court 13 may also take judicial notice of proceedings in other courts if they have “a direct relation to the 14 matters at issue.” U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 15 244, 248 (9th Cir. 1992). Accordingly, Plaintiff’s request for judicial notice of Exhibit A is 16 GRANTED. 17 B. FEHA Claims (Claims One and Two) 18 Prior to filing a civil lawsuit under the FEHA, a plaintiff must file an administrative 19 complaint with the CRD1 and obtain a right-to-sue notice. Cal. Gov’t Code §§ 1960, 20 12965(c)(1)(C). A plaintiff must file a civil lawsuit within one year of obtaining the right-to-sue 21 notice. Id. § 12965(c)(1)(C). Where an administrative complaint is timely filed concurrently 22 with the EEOC and CRD, the aforementioned one-year statute of limitations (commencing from 23 the date of CRD’s right-to-sue notice) shall be tolled. Id. § 12965(e)(1). Once an administrative 24 complaint is referred for investigation by the EEOC, the agency “must issue a right-to-sue notice 25 if it has not taken action by 180 days after the referral” and a plaintiff “then has 90 days from 26

27 1 CRD was previously known as the California Department of Fair Employment of Housing, or DFEH. All references to DFEH in this order have been changed to CRD for ease of 28 reading and consistency. 1 receipt of that notice to file a civil lawsuit.” McCullough v. Xerox Corp., No. 13-cv-04596-HSG, 2 2015 WL 5769620, at *7 (N.D. Cal. Oct. 2, 2015). A plaintiff’s time to file a lawsuit “expires 3 when the federal right-to-sue period to commence a civil action expires, or one year from the date 4 of the right-to-sue notice by [CRD], whichever is later.” Cal. Gov’t Code § 12965(e)(2). 5 Defendant notes Plaintiff filed his charge of discrimination with the EEOC on January 25, 6 2022 (which was dually filed with CRD), CRD deferred its investigation to the EEOC and 7 immediately issued a right-to-sue notice, and then the EEOC advised Plaintiff in a 8 “Determination of Charge” on December 20, 2022, that his “lawsuit must be filed within 90 days 9 of [his] receipt of notice.” (ECF No. 6-1 at 11 (citing ECF No. 6-3 at 18).) Defendant argues the 10 90-day period from the EEOC’s right-to-sue notice expired on March 20, 2023, but Plaintiff did 11 not file the instant action until November 18, 2024, nearly 20 months after the statute of 12 limitations period expired. (Id.) Defendant further argues Plaintiff’s newly-filed CRD complaint 13 does not “revive” expired claims, as the facts in this case are analogous to Collins v. Wal-Mart 14 Stores, Inc., No. 3:23-cv-01368-RBM-DEB, 2024 WL 56993 (S.D. Cal. Jan. 4, 2024). (Id. at 11.) 15 Defendant notes that in Collins, the district court rejected the plaintiff’s argument that a “second 16 right-to-sue notice effectively reinstates the one-year period to file a civil lawsuit, thereby 17 rendering [the] plaintiff’s complaint as timely.” (Id. at 11–12.) 18 In opposition, Plaintiff argues the EEOC right-to-sue notice satisfies the requirement of 19 administrative exhaustion “only for purposes of an action based on Title VII” and Plaintiff only 20 mentioned Title VII claims in his first EEOC charge, not any FEHA state claims. (ECF No. 7 at 21 3–4 (citing Ledezma v. Optum Services, Inc., No. 3:23-cv-06691-VC; ECF No. 8 at 5–6).) 22 Plaintiff maintains he filed a subsequent charge of discrimination based on violations of state 23 claims that were never brought before EEOC or CRD and obtained the right-to-sue notice within 24 three years of the most recent discriminatory conduct. (Id.) 25 In reply, Defendant maintains Plaintiff’s argument is unavailing because he ignores the 26 work-sharing agreement between the EEOC and CRD, which “allows both agencies to integrate 27 their procedures to reduce duplication of effort by allowing the CRD to cede to the EEOC the 28 investigation of ‘identical facts and charges,’ based on their share[d] common goals and 1 jurisdiction.” (ECF No. 10 at 3–4 (citing Downs v. Dep’t of Water & Power, 58 Cal. App. 1093, 2 1097 (1997)).) 3 The Court finds Plaintiff’s claims are time-barred. First, “the procedures and remedies of 4 Title VII and the [FEHA] are wholly integrated and related,” and therefore “[t]he state agency 5 defer[s] the investigation and processing of [the employee’s] claims to the EEOC.” Downs, 58 6 Cal. App. at 1101–02 (internal citation omitted). The California Legislature codified the holding 7 of Downs in California Government Code § 12965(e)(2) (“§ 12965(e)(2)”), which as previously 8 stated, provides that Plaintiff may file a lawsuit alleging FEHA violations until “the federal right- 9 to-sue period to commence a civil action expires, or one year from the date of the right-to-sue 10 notice by [CRD], whichever is later.” In the instant matter, the parties do not dispute that CRD 11 ceded its investigation to the EEOC. Therefore, the later of the two dates in § 12965(e)(2) was 12 the close of the 90-day period from the EEOC’s right-to-sue notice, which was issued on 13 December 20, 2022. Defendant is therefore correct the 90-day period and the statute of 14 limitations expired on March 20, 2023. Because Plaintiff did not file the instant action until 15 November 18, 2024, the instant action is untimely. 16 The Court finds Plaintiff’s second-filed CRD complaint does not revive any of his expired 17 FEHA claims. Plaintiff’s reliance on Ledezma is unpersuasive. (ECF No. 7 at 4.) In Ledezma, it 18 appears plaintiff received right-to-sue notices both from the EEOC and from CRD. (ECF No. 8 at 19 5.) The court concluded the Title VII claim was barred by the statute of limitations because 20 plaintiff waited more than 90 days from the EEOC notice to file her suit, but the FEHA claim was 21 timely because she filed suit within one-year of receiving the CRD notice. (Id.) The court did 22 not provide background facts regarding which agency completed the investigation and only 23 provided a date for plaintiff’s EEOC notice. (Id.) The court did not provide a date for plaintiff’s 24 CRD notice. (Id.) Accordingly, this Court cannot ascertain exactly how § 12965(e)(2) was 25 applied in Ledezma, if at all, as there is no reference at all to § 12965(e)(2) and only scant 26 analysis on the application of the statute of limitations. Plaintiff’s citation to Martin v. Lockheed 27 Missiles & Space Co., 29 Cal. App. 4th 1718, 1726 (1994) for the proposition that an EEOC 28 right-to-sue notice satisfies administrative exhaustion for only Title VII claims is similarly 1 unpersuasive. (ECF No. 7 at 3.) Martin was decided prior to Downs, in which the California 2 Court of Appeal implicitly disagreed with that proposition and held that: 3 [W]hen a charge of discrimination or harassment is timely filed concurrently with the EEOC and [CRD], the investigation of the 4 charge is deferred by [CRD] to the EEOC under a worksharing agreement, and [CRD] issues a right-to-sue letter upon deferral, then 5 the one-year period to bring a FEHA action is equitably tolled during the pendency of the EEOC investigation until a right-to-sue letter 6 from the EEOC is received. 7 Downs, 58 Cal. App. 4th at 1102. 8 Further, the Court finds Collins persuasive. In Collins, plaintiff filed a FEHA complaint 9 with the CRD and was issued a right-to-sue notice on March 12, 2021, which started the one-year 10 period to file a civil action by March 12, 2022. 2024 WL 56993, at *5. On April 13, 2023 — 13 11 months after the statute of limitations period had run — plaintiff filed a similar charge against the 12 same respondent, obtained another right-to-sue notice, and filed a civil action on June 16, 2023. 13 Id. Although plaintiff attempted to argue that the continuing violations doctrine applied because 14 the harassment was “continuous and ongoing,” the district court disagreed and held that “while 15 the continuing violations doctrine is an equitable exception to the three-year statutory period set 16 forth in California Government Code [§] 12960(e)(5), it is inapplicable to save claims that were 17 already the subject of a right-to-sue letter and are now subject to the one-year statutory period to 18 file suit.” Id. at *6. Similarly, here, Plaintiff does not dispute that his second-filed charge of 19 discrimination concerns the exact same subject matter and investigation of “identical facts and 20 charges” of Plaintiff’s first charge of discrimination and EEOC right-to-sue notice. See id.; see 21 also Downs, 58 Cal. App. 4th at 1097. Accordingly, the second-filed notice does not save 22 Plaintiff’s FEHA claims. 23 Because the Court finds Plaintiff’s FEHA claims are time-barred, Plaintiff’s “pleading 24 could not possibly be cured by the allegation of other facts.” Lopez, 203 F.3d at 1130. 25 Accordingly, Defendant’s motion to dismiss Claims One and Two is GRANTED without leave to 26 amend. 27 /// 28 /// 1 C. Wrongful Termination in Violation of Public Policy (Claim Three) 2 Defendant argues Plaintiff's FEHA claims are time-barred and serve as the sole predicate 3 | of the “public policy” Defendant allegedly violated in terminating Plaintiff's employment. (ECF 4 | No. 6-1 at 13.) Defendant further argues that aside from the FEHA, Plaintiff does not allege what 5 | fundamental policy was violated by his termination. Ud.) Defendant contends, therefore, that 6 | Plaintiff's wrongful termination claim is derivative of his FEHA statutory violation claims and 7 | falls with the FEHA claims. (Ud. at 13-14.) Plaintiff does not address this argument in his 8 | opposition. (See ECF No. 7.) Consequently, Plaintiff concedes this argument. See Crandall v. 9 | Teamsters Loc. No. 150, No. 2:23-CV-03043-KJM-CSK, 2024 WL 3889916, at *5 (E.D. Cal. 10 | Aug. 20, 2024) (finding plaintiff abandoned claims not raised in opposition to defendants’ motion 11 | dismiss). Accordingly, Defendant’s motion to dismiss Claim Three is GRANTED without 12 | leave to amend. 13 IV. CONCLUSION 14 For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss without 15 | leave to amend. (ECF No. 6.) The Clerk of the Court is directed to close the case. 16 IT IS SO ORDERED. 17 | Date: April 17, 2025 18

20 1 TROY L. NUNLEY

CHIEF UNITED STATES DISTRICT JUDGE

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