Ayala v. Frito Lay, Inc., 1:16–cv–01705–DAD–SKO

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtDale A. Drozd, UNITED STATES DISTRICT JUDGE
Citation263 F.Supp.3d 891
Parties Rebecca AYALA, Plaintiff, v. FRITO LAY, INC., Defendant.
Docket NumberNo. 1:16–cv–01705–DAD–SKO,1:16–cv–01705–DAD–SKO
Decision Date29 June 2017

263 F.Supp.3d 891

Rebecca AYALA, Plaintiff,
FRITO LAY, INC., Defendant.

No. 1:16–cv–01705–DAD–SKO

United States District Court, E.D. California.

Signed June 29, 2017
Filed June 30, 2017

Rebecca M. Ayala, Riverbank, CA, pro se.

James Harrod Berry, Jr., Landau Gottfried & Berger LLP, Los Angeles, CA, for Defendant.



This matter is before the court on April 18, 2017, for hearing of defendant's motions to dismiss and to strike brought under Federal Civil Procedure Rules 12(b)(6) and 12(f). (Doc. Nos. 9–10.) Plaintiff Rebecca Ayala, proceeding pro se in this action, appeared telephonically on her own behalf, and attorney James Berry appeared telephonically on behalf of defendant Frito Lay, Inc. Oral argument was heard and the motions were taken under submission. For the reasons stated below, defendant's motion to dismiss will be granted in part and denied in part, and its motion to strike will be denied.


On September 1, 2016, plaintiff Rebecca Ayala filed a complaint on her own behalf in the Stanislaus County Superior Court against defendant Frito Lay, Inc. ("Frito Lay"). (Doc. No. 1 at 2.) Plaintiff Ayala is a citizen of California, and defendant Frito Lay is a citizen of Delaware and Texas. (Id. at 3–4, ¶ 7.) On November 7, 2016, defendant removed the action to this federal court based on diversity of citizenship jurisdiction. (Doc. No. 1.) On January 19, 2017, plaintiff filed a First Amended Complaint ("FAC"), the operative complaint in this action. (Doc. No. 8.)

Plaintiff's complaint asserts four types of claims against defendant Frito Lay: (i) violation of California's Fair Employment Housing Act ("FEHA"), California Government Code §§ 12940, et seq., for alleged discrimination on the basis of sex, race, and disability; failure to accommodate

263 F.Supp.3d 899

disability; refusal to engage in the interactive process; unlawful harassment; failure to prevent harassment and maintain an environment free from harassment; and retaliation; (ii) violation of the California Labor Code, §§ 201 – 203, 986., 98.7, 1102.5, and 6310, based on unlawful termination and retaliation, and failure to pay all wages due upon discharge; and (iii) wrongful termination in violation of California public policy, and (iv) a claim for declaratory relief. (Id. ) Plaintiff seeks an award of damages and injunctive relief. (Id. )

In her FAC, plaintiff alleges the following. Plaintiff Ayala was an employee of defendant Frito Lay between 2004 and 2015. (Id. at 2, ¶ 6.) During her employment, plaintiff worked in the dispatch office in the Traffic Center of Frito Lay's Modesto Facility between 2004 and 2014, and was on medical leave due to disability between 2014 and 2015. (Id. at 2–3, ¶¶ 6, 8.) Plaintiff is Mexican–American, and suffers from anxiety, depression, and post-traumatic stress disorder. (Id. at 5, 9, ¶¶ 18, 44.)

While employed by defendant, plaintiff filed a number of internal and external complaints regarding defendant's unlawful employment practices, and subsequently suffered adverse employment action. (Id. at 2–6.)

Between 2005 and 2010, plaintiff made repeated requests for unpaid wages related to on-call services and missed meal breaks. (Id. at 2–3, ¶¶ 7–9.) Defendant's Human Resource ("HR") department ultimately reviewed the issue and partially compensated her for the unpaid wages. (Id. at 3, ¶ 9.) However, plaintiff was given negative performance evaluations in retaliation for her requests for unpaid wages. (Id. at 3, ¶ 8.)

Beginning in July 2012, plaintiff also began submitting internal petitions for investigation of defendant's unlawful employment practices. (Id. at 3, ¶ 11.) Plaintiff alleged the following issues in her petitions: deliberate false statements made by management in performance evaluations; failure to pay full wages owed; discrimination by management; inappropriate and racially-based comments by coworkers in the workplace; and a lack of air conditioning in the dispatch office. (Id. at 3–5, ¶¶ 11, 15–16.) Defendant did not open an investigation into any of these issues, despite plaintiff's petitions. (Id. )

In May 2013, plaintiff reported alleged driver health and safety violations by defendant to the Occupational Safety and Health Administration ("OSHA"). (Id. at 4, ¶ 13.) An OSHA investigation began, which included an investigation into a recent fuel spill at defendant's Manteca Distribution Center. (Id. ) However, no final response or report was released. (Id. ) In retaliation for plaintiff's OSHA complaint, defendant changed the job responsibilities of dispatch employees working plaintiff's shift, thereby increasing plaintiff's work duties. (Id. at 4, ¶ 14.)

In July 2014, plaintiff requested and was denied transfer to a different shift, despite a male employee being granted a shift transfer. (Id. at 5, ¶¶ 16–17.) During the same month, plaintiff requested medical leave due to disability and was granted twelve months of leave. (Id. at 5–6, ¶¶ 18, 26.) However, a male employee was granted eighteen months of leave after making the same request. (Id. )

In February 2015, defendant began advertising that it was hiring a new employee to fill plaintiff's position. (Id. at 6, ¶ 24.) In May 2015, defendant's HR department notified plaintiff that her same-job protection had expired. (Id. ) The HR department asked plaintiff whether reasonable accommodation could be provided, and requested that her doctor complete any requests for

263 F.Supp.3d 900

accommodation. (Id. ) The department also told plaintiff that "as an accommodation, we have held your position open for you." (Id. ) Plaintiff's doctor subsequently submitted documentation to defendant listing plaintiff's work restrictions and concluding that plaintiff "can perform job tasks, ‘but not in the same hostile environment.’ " (Id. at 6, ¶ 25.)

In May 2015, plaintiff made a complaint to the Labor Commissioner relating to defendant's failure to provide employee rest breaks. (Id. at 6, 38.) On January 13, 2016, that complaint was dismissed after defendant provided full payment of plaintiff's claims. (Id. at 6, 41.) In June 2015, in retaliation for plaintiff having lodged complaints with the Labor Commissioner, defendant's leave vendor coerced a nurse practitioner working with plaintiff's doctors to state that plaintiff could return to work. (Id. at 6, ¶ 23.) Defendant then denied plaintiff long-term disability. (Id. )

On July 24, 2015, plaintiff was terminated from her position.1 (Id. at 6, ¶ 27.) Her termination occurred without justification, and in retaliation for her complaints of discrimination and violations of California employment law. (Id. at 7, 30, ¶¶ 30, 146.) Plaintiff did not receive all wages owed upon her discharge. (Id. at 2–3, ¶¶ 7, 9.)

Plaintiff alleges that she exhausted her administrative remedies before the Department of Fair Employment and Housing ("DFEH") and Equal Employment Opportunity Commission ("EEOC") before initiating this action against defendant. (Id. at 7, ¶ 31.) Two DFEH right-to-sue letters from September 2015 and December 2015 are attached to plaintiff's FAC as exhibits. (Id. at 64–65.)

On February 13, 2017, defendant Frito Lay filed a motion to dismiss plaintiff's FAC, as well as a motion to strike certain portions of the FAC. (Doc. No. 9–10.) Plaintiff filed an opposition to the motions on April 4, 2017, together with a motion seeking leave to amend. (Doc. Nos. 12–13.) Defendant filed a reply on April 11, 2017. (Doc. No. 15.)


A. Motion to Dismiss Pursuant to Rule 12(b)(6)

The purpose of a motion to dismiss brought pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n , 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990). A claim for relief must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Though Rule 8(a) does not require detailed factual allegations, a plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Ashcroft v. Iqbal , 556 U.S. 662, 677–78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

263 F.Supp.3d 901

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding , 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) ; Love v. United States , 915 F.2d 1242...

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