Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KATHERINE PHILLIPS, Case No.: 24-CV-2071 JLS (DEB)

12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANTS’ MOTION FOR PARTIAL 14 HEALTHCARE RESOURCES DISMISSAL OF PLAINTIFF’S MEDICAL ASSOCIATES, INC., et al., 15 SECOND AMENDED COMPLAINT Defendants. 16 (ECF No. 32) 17 18 Presently before the Court is Defendants Healthcare Resources Medical Associates, 19 Inc.’s, Spectrum Healthcare Resources, Inc.’s, Rachael Hearn Grove’s, and Crystal Curry’s 20 (collectively, “Defendants”) Motion for Partial Dismissal of Plaintiff’s Second Amended 21 Complaint (“Mot.,” ECF No. 32). Also before the Court is Plaintiff Katherine Phillips’s 22 Response in Opposition to Defendants’ Motion for Partial Dismissal of Plaintiff’s Second 23 Amended Complaint (“Opp’n,” ECF No. 35), and Defendants’ Reply to Opposition to 24 Motion for Partial Dismissal of Plaintiff’s Second Amended Complaint (“Reply,” ECF No. 25 36). After reviewing Plaintiff’s Second Amended Complaint (“SAC,” ECF No. 27), the 26 Parties’ arguments, and the relevant law, the Court GRANTS IN PART and DENIES IN 27 PART Defendants’ Motion (ECF No. 32). 28 / / / 1 BACKGROUND 2 Plaintiff was employed by Defendants for approximately one year as a chiropractor. 3 SAC ¶¶ 10(a)–(b). Plaintiff alleges that she suffered discrimination based on a disability 4 and was wrongfully terminated from her employment because of her disability. Id. at 6. 5 Plaintiff’s allegations surround two purported disabilities: (1) “pain and discomfort” in her 6 wrists, arms, shoulders, and neck due to a “lack of proper chiropractic equipment” and a 7 small workspace which “forced her to modify the way she typically adjusted her patients,” 8 id. ¶¶ 11(a)–12(a), and (2) “migraine headaches” with “photophobia and phonophobia 9 during her migraines, caused by the loud music and discomforting lights used throughout 10 the facility,” id. ¶ 16(a). Plaintiff repeatedly complained about these conditions, requested 11 accommodations, which were denied, attended many meetings with management, and was 12 eventually terminated. See generally id. 13 Plaintiff brings ten causes of action: (1) discrimination in violation of the Fair 14 Employment and Housing Act (“FEHA”), (2) hostile work environment harassment, (3) 15 retaliation, (4) failure to accommodate disability, (5) failure to engage in the interactive 16 process, (6) failing to take all reasonable steps to prevent discrimination, harassment, and 17 retaliation, (7) violation of Labor Code § 1102.5 (whistleblower retaliation), (8) violation 18 of Labor Code § 232.5 (retaliation for reporting working conditions), (9) wrongful 19 termination, and (10) intentional infliction of emotional distress (“IIED”). See generally 20 SAC. Defendants bring the present motion arguing that Plaintiff has failed to allege what 21 medical condition constitutes the disability at issue—thus requiring dismissal of her First, 22 Second, Fourth, Fifth, Sixth, and Ninth causes of action. See generally Mot. Defendants 23 also argue that Plaintiff fails to sufficiently allege IIED—thus requiring dismissal of the 24 Tenth cause of action. 25 / / / 26 / / / 27 / / / 28 / / / 1 LEGAL STANDARD 2 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 3 defense that the complaint “fail[s] to state a claim upon which relief can be granted.” To 4 survive a 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as 5 true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 6 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is 7 facially plausible when the facts pled “allow[] the court to draw the reasonable inference 8 that the defendant is liable for the misconduct alleged.” Id. That is not to say that the claim 9 must be probable, but there must be “more than a sheer possibility that a defendant has 10 acted unlawfully.” Id. Facts “‘merely consistent with’ a defendant’s liability” fall short of 11 a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Though this 12 plausibility standard “does not require ‘detailed factual allegations,’ . . . it [does] demand[] 13 more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting 14 Twombly, 550 U.S. at 555). In other words, a complaint will not suffice “if it tenders 15 ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (alteration in original) 16 (quoting Twombly, 550 U.S. at 557). Put differently, “a formulaic recitation of the 17 elements of a cause of action will not do.” Twombly, 550 U.S. at 555. 18 Review under Rule 12(b)(6) requires a context-specific analysis involving the 19 Court’s “judicial experience and common sense.” Iqbal, 556 U.S. at 679. In performing 20 that analysis, “a district court must accept as true all facts alleged in the complaint, and 21 draw all reasonable inferences in favor of the plaintiff.” Wi-LAN Inc. v. LG Elecs., Inc., 22 382 F. Supp. 3d 1012, 1020 (S.D. Cal. 2019). “[W]here the well-pleaded facts do not 23 permit the court to infer more than the mere possibility of misconduct, the complaint has 24 alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. 25 at 679 (second alternation in original). If a complaint does not survive Rule 12(b)(6), a 26 court grants leave to amend unless it determines that no modified contention “consistent 27 with the challenged pleading could . . . possibly cure the deficiency.” Schreiber Distrib. 28 Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). 1 DISCUSSION 2 I. Disability Under FEHA 3 Defendants first argue that Plaintiff “fails to plead with specificity the disability she 4 suffered from” and that any alleged disability fails to “constitute[] a disability under . . . 5 FEHA.” Mot. at 17. 6 “To establish disability discrimination under FEHA, Plaintiff must assert sufficient 7 facts to state a plausible claim that [she] ‘(1) suffered from a disability, or was regarded as 8 suffering from a disability, (2) could perform the essential duties of the job with or without 9 reasonable accommodations, and (3) was subjected to an adverse employment action 10 because of the disability or perceived disability.’” Padro v. Ferring Pharms., Inc., No. 25- 11 CV-369-SSS-SPX, 2025 WL 4058222, at *2 (C.D. Cal. Dec. 18, 2025) (quoting Wills v. 12 Superior Ct., 195 Cal. App. 4th 143, 159–60 (2011)). A “physical disability” under FEHA 13 “includes, but is not limited to, . . . any physiological disease, disorder [or] condition” that 14 affects a major body system and “[l]imits a major life activity” by “mak[ing] the 15 achievement of the major life activity difficult.” Cal. Gov. Code §§ 12926(m)(1)(A)–(B). 16 Major life activities are “broadly construed” and include “physical, mental, and social 17 activities and working.” Cabrales v. Aerotek, Inc., No. EDCV 17-1531 JGB (KKx), 2019 18 WL 12374001, at *12 (C.D. Cal. Jan. 9, 2019) (quoting § 12926(m)(1)(B)(iii)). California 19 regulations note that “[m]ajor life activities include, but are not limited to, sleeping, . . . 20 standing, sitting, . . . lifting, . . . bending, . . . concentrating, thinking, . . . interacting with 21 others, and working.” Cal. Code Regs. § 11065(l)(1). “Under FEHA, not every illness 22 qualifies as a disability.” Cabrales, 2019 WL 12374001, at *13 (citing Avila v. Cont’l 23 Airlines, Inc., 165 Cal. App. 4th 1237, 1249 (2008)). “And simply having pain alone does 24 not constitute a disability.” Id. (citing Arteaga v. Brink’s, Inc., 163 Cal App. 4th 327, 348 25 (2008)). “However, short term conditions that do limit a major life activity qualify for 26 protection.” Id. (citing Diaz v. Fed. Express Corp., 373 F. Supp. 2d 1034, 1051–53 (C.D. 27 Cal. 2005)). 28 / / / 1 In the Order dismissing Plaintiff’s First Amended Complaint (“Order,” ECF No. 21), 2 Judge Anello1 found that Plaintiff failed “to adequately explain what ‘physical limitations’ 3 she suffer[ed] from, or that [those] limitations amount[ed] to a disability as defined by 4 FEHA.” Order at 2. Judge Anello reasoned that the headaches, migraines, and frequent 5 urination “as pleaded, were caused by loud music or fumigation of the facility,” and while 6 it is possible that temporary conditions are actionable, Plaintiff failed to plausibly plead 7 that these “actually limited a major life activity or negatively impacted her ability to work.” 8 Id. (citing Diaz, 373 F. Supp. 2d at 1051–53). Regarding Plaintiff’s pain in her wrists, 9 arms, shoulders, and neck, Judge Anello found that Plaintiff failed to plausibly allege that 10 these “interfered with her ability to perform her job.” Id. (citing Leatherbury v. C & H 11 Sugar Co., Inc., 911 F. Supp. 2d 872, 880 (N.D. Cal. 2012) (“Although pain can be a 12 disability under FEHA it must actually limit the employee’s ability to work.”)). The Court 13 now finds that Plaintiff has sufficiently alleged that her migraines and pain in her wrists, 14 arms, shoulders, and neck interfered with her ability to perform her job. 15 Regarding Plaintiff’s allegations concerning headaches and migraines, the Court 16 agrees with Defendants that ordinary headaches are not actionable under FEHA. See 17 Cabrales, 2019 WL 12374001, at *12 (“California regulations expressly exclude non- 18 migraine headaches.”) (citing Cal. Code Regs. § 11065(d)(9)(B)). Thus, Defendants’ 19 Motion is GRANTED regarding any allegations concerning non-migraine headaches. 20 However, Plaintiff has sufficiently pled that she suffered from migraines and that these 21 migraines “actually limited a major life activity or negatively impacted her ability to 22 work.”2 See Order at 2. 23 24 25 1 This matter was reassigned to Judge Sammartino on December 10, 2025. ECF No. 43. 2 Defendants rely on Ellis v. City of Reedley, No. CV F 05-1474 AWI SMS, 2007 WL 1098571, at *11 26 (E.D. Cal. Apr. 12, 2007) for the proposition that “infrequent migraine headaches” cannot constitute a disability under FEHA. This case is distinguishable because in Ellis the plaintiff merely alleged one 27 instance of a migraine leading to his termination and a general “susceptibility to migraine headaches.” Id. 28 Here, Plaintiff alleges migraine issues over the course of several months and that she received a doctor’s 1 Plaintiff alleges that, beginning on or around July 15, 2022, Plaintiff was suffering 2 from migraines and was “unable to concentrate, miss[ed] important patient details during 3 patient sessions, and [was unable] to devote herself to patient care.” SAC ¶ 15(c). On or 4 around July 16, 2022, Plaintiff submitted a note from her healthcare provider “outlining 5 that [Plaintiff] was diagnosed with migraine headaches, and has photophobia and 6 phonophobia during her migraines, caused by the loud music and discomforting lights used 7 throughout the facility.” Id. ¶ 16(a). As a result of these migraines, Plaintiff alleges that 8 she “found it harder to concentrate on patient treatment, [felt] drawn away from her 9 patients, and purposefully created small breaks during patients’ treatment sessions to regain 10 her well-being and composure.” Id. ¶ 17(a). Plaintiff repeatedly alleges throughout her 11 SAC that these migraines impacted her ability to concentrate, provide patient care, and 12 sleep at night. See id. ¶¶ 15(d), 17(b)–(c), 18(a), 19(b), 20(b), 22(b), 27(a), 28(a). The 13 Court finds these allegations sufficient to allege a negative interference with her work. See 14 Cabrales, 2019 WL 12374001, at *14 (denying summary judgment for employer on a 15 FEHA discrimination claim where plaintiff alleged that her migraines “made it difficult for 16 her to concentrate, think, and interact with others” because “[c]oncentrating, thinking, and 17 interacting with others are each considered major life activities,” and the plaintiff did not 18 “need to be totally unable to work or engage in other major life activities for her alleged 19 migraines to limit major life activities”) (citing Cal. Code Regs. § 11065(l)(1)). 20 Similarly, regarding her allegations surrounding pain in her wrists, arms, shoulders, 21 and neck, Plaintiff now sufficiently alleges that her pain actually limited her ability to work. 22 See Sanchez v. Walmart Inc., No. 23-2352-DMG (SHKx), 2025 WL 3050066, at *2 (C.D. 23 Cal. July 30, 2025) (“Courts have generally held that pain ‘must actually limit the 24 employee’s ability to work’ in order to qualify as a disability under FEHA.” (quoting 25 Leatherbury, 911 F. Supp. 2d at 880)). Plaintiff alleges that the pain prevented her “from 26 providing proper spinal manipulations and adjustments to her patients,” which at one point 27 became so “excruciating” that she “was approved to go home early for the day” because 28 “it was becoming increasingly evident that [Plaintiff] could not perform her job duties.” 1 SAC ¶¶ 11(a), 23(b). Plaintiff alleges that she was forced to “continuously modif[y] the 2 way she adjusted her patients” and her patients “visibly saw her pain and discomfort” 3 resulting in patient complaints “that they were not being adjusted properly.” Id. ¶ 24(a). 4 Due to these complaints, Plaintiff alleges that she “purposefully created informal breaks 5 during treatment sessions to regain her well-being and composure, in hopes she could 6 provide proper treatment, as she used to.” Id. ¶ 24(b). 7 The Court recognizes that Plaintiff also pleads that, until her wrongful termination, 8 Plaintiff “worked diligently in her position and performed her job duties in an exemplary 9 matter.” Id. ¶ 10(a). At the pleading stage, the Court finds that Plaintiff’s other allegations 10 are sufficient to allege that her pain limited her ability to perform her job. See Achal v. 11 Gate Gourmet, Inc., 144 F. Supp. 3d 781, 798 (N.D. Cal. 2015) (finding pleading sufficient 12 where plaintiff alleged that his injury caused “lifting and bending restrictions that impaired 13 his ability to work”); cf. Smith v. Constellation Brands, Inc., No. C 16-04101 WHA, 2017 14 WL 264064, at *3 (N.D. Cal. Jan. 20, 2017) (finding allegations of pain insufficient where 15 plaintiff claimed head and neck mobility issues but did not explain how the condition made 16 her unable to complete her job); Phomthevy v. Winco Holdings, Inc., No. 19-CV-41-KJM- 17 CKD, 2020 WL 6044040, at *2 (E.D. Cal. Oct. 13, 2020) (finding allegations of pain 18 insufficient as mere recitations of the elements where plaintiff only listed difficulties 19 “sleeping, getting out of bed, walking, sitting, lifting, bending[,] and moving” but did not 20 explain how these limited plaintiff’s work activities); Goode v. Maximus Human Servs., 21 Inc., No. SACV 16-1254-JVS (DFMx), 2016 WL 11811972, at *3 (C.D. Cal. Oct. 3, 2016) 22 (finding no disability where plaintiff “did not allege any specific limitations on her ability 23 to work”). Therefore, Defendants’ Motion is DENIED as to Plaintiff’s allegations 24 concerning migraines and pain in her wrists, arms, shoulders, and neck. 25 Further, regarding any allegations concerning “excessive urination,” the Court 26 concludes that Plaintiff has not sufficiently alleged that the “excessive urination” caused 27 by the fumigation is a disability under FEHA because she did not demonstrate how it 28 impacted a major life activity. See Jaco v. Winco Holdings, Inc., No. 18-CV-301-DAD- 1 EPG, 2019 WL 1438069, at *8 (E.D. Cal. Mar. 31, 2019) (granting a motion to dismiss as 2 to allegations concerning an urgent need to urinate because the plaintiff did not allege how 3 frequently she suffered from this need, how severe the condition was, the duration of the 4 condition, any long term impact, or how it impacted a major life activity). Therefore, 5 Defendants’ Motion is GRANTED regarding Plaintiff’s allegations about excessive 6 urination. See SAC ¶ 20(b). 7 In sum, Plaintiff’s allegations concerning migraines and pain in her wrists, arms, 8 shoulders, and neck sufficiently allege a disability under FEHA for purposes of her First, 9 Second, Fourth, Fifth, Sixth, and Ninth causes of action. 10 II. Harassment Claim 11 Defendants next argue that Plaintiff fails to sufficiently plead her Second cause of 12 action for harassment. Mot. at 24. Defendants argue that Plaintiff’s allegations all 13 constitute “personnel management actions” that were not done for the secondary purpose 14 of “communicating a hostile message,” and therefore, cannot constitute harassment under 15 FEHA. Id. at 24–25 (first citing Reno v. Baird, 18 Cal. 4th 640, 646–47 (1998); then citing 16 Wexler v. Jensen Pharms., Inc., No. CV 15-3518-AB (AJWx), 2015 WL 6159101, at *5 17 (C.D. Cal. Oct. 20, 2015)). Defendants argue that Plaintiff’s allegations supporting her 18 harassment claim are: “write ups, written counseling, and warnings (SAC ¶¶ 14, 18, 19, 19 26, 27, 35, 36); scheduling decisions (id. ¶ 18); accommodation decisions (id. ¶¶ 15, 17, 20 22, 23, 30); equipment decisions (id. ¶ 24); removal from position or suspension decisions 21 (id. ¶¶ 38, 43); and replacement of position (id. ¶¶ 40, 42).” Mot. at 25. Defendants 22 conclude that these are “quintessential personnel actions.” Id. 23 Plaintiff argues that the alleged harassment incidents include: “(1) issuing [Plaintiff] 24 questionable warnings (SAC ¶¶ 14, 19, 26, 36, 28); (2) declining to address her complaints 25 because Defendant[s] did not want to provide her requested accommodations ([id.] ¶ 17); 26 and (3) terminat[ing] her employment ([id.] ¶¶ 38, 40, 42, 43).” Opp’n at 20–21. Plaintiff 27 does not address Defendants’ argument that these decisions constitute “personnel 28 management actions.” See Opp’n. 1 “To establish a claim for harassment, a plaintiff must demonstrate that: (1) she is a 2 member of a protected group; (2) she was subjected to harassment because she belonged 3 to this group; and (3) the alleged harassment was so severe that it created a hostile work 4 environment.” Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1244 (9th Cir. 2013) 5 (citation omitted). “Unlike discrimination claims, harassment ‘consists of actions outside 6 the scope of job duties which are not of a type necessary to business and personnel 7 management.’” Id. (first citing Reno, 18 Cal. 4th at 646–47; then citing Janken v. GM 8 Hughes Elecs., 46 Cal. App. 4th 55, 64 (1996)). For example, “commonly necessary 9 personnel management actions such as hiring and firing, job or project assignments, office 10 or work station assignments, promotion or demotion, performance evaluations, the 11 provision of support, the assignment or nonassignment of supervisory functions, . . . 12 deciding who will be laid off, and the like, do not come within the meaning of harassment.” 13 Reno, 18 Cal. 4th at 646–47. “[H]arassment consists of conduct outside the scope of 14 necessary job performance, conduct presumably engaged in for personal gratification, 15 because of meanness or bigotry, or for other personal motives.” Id. at 645–46. Personnel 16 management actions can be actionable if the decision has “a secondary effect of 17 communicating a hostile message” and where the “actions establish a widespread pattern 18 of bias.” Wexler, 2015 WL 6159101, at *6 (citing Roby v. McKesson Corp., 47 Cal. 4th 19 686, 709 (2009)). 20 Judge Anello previously concluded that Plaintiff’s allegations were not actionable 21 because they fell “within the scope of routine management activities,” were only 22 “occasional, isolated, sporadic, or trivial,” were not “severe enough to create a work 23 environment that qualifies as hostile or abusive,” and were not severe enough to “interfere 24 with the reasonable employee’s work performance and seriously affect the psychological 25 well-being of a reasonable employee.” Order at 3. The Court comes to the same conclusion 26 concerning Plaintiff’s SAC. 27 / / / 28 / / / 1 As Plaintiff summarized in her Opposition, Plaintiff’s allegations of harassment 2 include the issuance of “questionable warnings,” “declining to address her complaints” 3 surrounding accommodations, and terminating her employment. Opp’n at 20–21. The 4 Court concludes that these are routine management activities, and Plaintiff has failed to 5 allege that these were done with the “secondary effect of communicating a hostile 6 message” or part of a “widespread pattern of bias.” See Wexler, 2015 WL 6159101, at *6. 7 Nor has Plaintiff alleged that she “was subject to harassment that was so objectively severe 8 or pervasive as to alter the conditions of her employment and create an abusive work 9 environment.” Gunderson v. Potter Handy, LLP, No. 25-CV-634-VC, 2025 WL 2945696, 10 at *1 (N.D. Cal. Oct. 17, 2025). Further, any conclusory allegations by Plaintiff that these 11 personnel management decisions were “intended to harass and single-out” Plaintiff are 12 insufficient to allege harassment. SAC ¶ 14(c); see Ventura v. IQVIA, Inc., No. 25-CV- 13 9163-RS, 2026 WL 84530, at *3 (N.D. Cal. Jan. 12, 2026) (“[T]he court is not bound to 14 accept, without more, Plaintiff’s legally conclusive allegations that this conduct was 15 ‘harassing’ and in furtherance of ‘pervasive harassment.’”). Therefore, Defendants’ 16 Motion is GRANTED as to Plaintiff’s harassment claim. Plaintiff cannot rely on alleged 17 harassment for her remaining causes of action, e.g., cause of action Six, for failure to take 18 all reasonable steps to prevent harassment. 19 III. Intentional Infliction of Emotional Distress 20 Defendants next argue that Plaintiff’s IIED claim (cause of action Ten) fails to state 21 a claim because none of the conduct alleged is so “outrageous or extreme it exceeds all 22 bounds of that usually tolerated in a civilized community.” Mot. at 29–30 (internal 23 quotation marks and citation omitted). Defendants also argue that Plaintiff has failed to 24 allege severe emotional distress and that the IIED claim is preempted by the California 25 Workers’ Compensation Act. Id. at 31–33. Judge Anello previously dismissed Plaintiff’s 26 IIED claim—finding that Plaintiff failed “to allege that the conduct at issue was extreme 27 or outrageous or that she in fact suffered serious or severe emotional distress.” Order at 4. 28 The Court likewise concludes that Plaintiff’s allegations are insufficient. 1 Under California law, to state a claim for IIED, Plaintiff must allege: 2 (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of 3 causing, emotional distress; (2) the plaintiff's suffering severe or 4 extreme emotional distress; and (3) actual and proximate causation of the emotional distress by [the] defendant's 5 outrageous conduct. 6 Sabow v. United States, 93 F.3d 1445, 1454 (9th Cir. 1996) (citing Christensen v. Superior 7 Ct., 54 Cal. 3d 868, 903 (1991)). “Conduct to be outrageous must be so extreme as to 8 exceed all bounds of that usually tolerated in a civilized community.” Miller v. Fortune 9 Com. Corp., 223 Cal. Rptr. 3d 133, 143 (Ct. App. 2017). There is no bright line rule for 10 when conduct qualifies as outrageous, and it is typically a question of fact for the jury. So 11 v. Shin, 212 Cal. App. 4th 652, 671 (2013). “A court may dismiss such claims as a matter 12 of law if the conduct alleged is insufficiently outrageous, particularly where the conduct 13 alleged amounts to ‘mere insults, indignities, threats, annoyances, petty oppressions, or 14 other trivialities.’” Morse v. Cnty. of Merced, No. 16-cv-142-DAD-SKO, 2016 WL 15 3254034, at *13 (E.D. Cal. June 13, 2016) (quoting Hughes v. Pair, 46 Cal. 4th 1035, 1051 16 (2009)). 17 In the context of FEHA, “[a] plaintiff may pursue a claim for intentional infliction 18 of emotional distress in the employment context where the conduct at issue violates FEHA 19 and also satisfies the elements of the claim.” Cornell v. Berkeley Tennis Club, 18 Cal. App. 20 5th 908, 945–46 (2017) (citation omitted). “A simple pleading of personnel management 21 activity is insufficient to support a claim of intentional infliction of emotional distress, even 22 if improper motivation is alleged.” Janken, 46 Cal. App. 4th at 80 (dismissing IIED claim 23 where allegations only involved criticism of work performance and management of 24 personnel). 25 The Court agrees with Defendants that Plaintiff has failed to plead extreme or 26 outrageous conduct or severe emotional distress. As discussed above, many if not all of 27 the allegations making up Plaintiff’s harassment claim, and her IIED claim, can be 28 considered personnel management activity. Further, none of the conduct alleged can “be 1 characterized as exceeding all bounds of that tolerated in a civilized community.” Lawler, 2 704 F.3d at 1245 (“While [the manager] may have inconsiderately and insensitively 3 communicated his dissatisfaction of [plaintiff’s] managerial performance, this is not 4 conduct from which California tort law protects employees.”); see also Schneider v. TRW, 5 Inc., 938 F.2d 986, 992 (9th Cir. 1991) (affirming summary judgment dismissal of IIED 6 claim where allegations included a supervisor screaming and yelling “in the process of 7 criticizing [plaintiff’s] performance,” threatening “to throw [plaintiff] out of the 8 department,” and making gestures plaintiff interpreted as threatening); Padro, 2025 WL 9 4058222, at *6–7 (dismissing IIED claim where the underlying allegation was firing based 10 on disability discrimination); Filipek v. Byram Healthcare Ctrs., Inc., No. SACV 22-254- 11 CJC(ADSx), 2022 WL 20401327, at *6 (C.D. Cal. Oct. 18, 2022) (“Both state and federal 12 courts have held that ‘[t]erminating an employee for improper or discriminatory reasons, 13 like many other adverse personnel management decisions, is insufficiently extreme or 14 outrageous to give rise to a claim for intentional infliction of emotional distress.’”) (quoting 15 Walker v. Boeing Corp., 218 F. Supp. 2d 1177, 1190 (C.D. Cal. 2002)); Kasperzyk v. 16 Shelter Sec. Servs., Inc., No. C-13-3358 EMC/TEH, 2015 WL 1348503, at *12 (N.D. Cal. 17 Mar. 25, 2015) (“At least in the absence of some extraordinary circumstances, a claim of 18 employment discrimination does not, in itself, give rise to an IIED claim.”). 19 Further, Plaintiff’s alleged emotional distress—feeling “shocked, confused, and 20 dejected because she was suddenly terminated,” SAC ¶ 43(b)—are insufficient to 21 constitute “emotional distress of such substantial quality or enduring quality that no 22 reasonable [person] in civilized society should be expected to endure it.” Hughes, 46 Cal. 23 4th at 1051; see also Lawler, 704 F.3d at 1246 (affirming summary judgment dismissing 24 IIED claim where plaintiff’s allegations of severe emotional distress included “[a]nxiety, 25 sleeplessness, upset stomach, [and] sometimes muscle twitches”). There is no evidence 26 that Plaintiff “suffered from anything other than typical psychological effects following 27 termination.” Desoto v. DOT Foods, Inc., No. 24-CV-1140-WBS-CSK, 2025 WL 28 3761815, at *5 (E.D. Cal. Dec. 29, 2025). 1 Therefore, Defendants’ Motion as to Plaintiff's IED claim (cause of action Ten) is 2 || GRANTED. 3 ||TV. Leave to Amend 4 The final consideration is whether Plaintiff should again be granted leave to amend. 5 || Leave to amend should be freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2). 6 ||But while the rule should be interpreted liberally, leave should not be granted 7 ||automatically. Jackson v. Bank of Haw., 902 F.2d 1385, 1387 (9th Cir. 1990). In 8 determining whether to grant leave to amend, trial courts should consider various factors, 9 including bad faith, undue delay, prejudice to the opposing party, futility of amendment, 10 || and whether the party has previously amended. Foman v. Davis, 371 U.S. 178, 182 (1962). 11 Applying the Foman factors here, the Court declines to grant Plaintiff leave to 12 |}amend. The Court finds that “it is clear that granting leave to amend would [be] futile.” 13 || Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004). 14 || Thus, Plaintiff’s causes of action Two (harassment) and Ten (IIED) are dismissed without 15 || leave to amend. 16 CONCLUSION 17 For the reasons above, the Court GRANTS IN PART and DENIES IN PART 18 || Defendants’ Motion for Partial Dismissal of Plaintiff's Second Amended Complaint 19 (‘Mot.,” ECF No. 32). Defendants SHALL file an answer within thirty (30) days of the 20 || electronic docketing of this Order. 21 IT IS SO ORDERED. 22 || Dated: February 23, 2026 24 United States District Judge 25 26 27 28