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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ADRIAN SCOTT DUANE,

Plaintiff,

 v.

IXL LEARNING, INC., and PAUL

MISHKIN,

Defendants. /

No. C 17-00078 WHA

ORDER GRANTING IN PART

AND DENYING IN PART

MOTION TO DISMISS

INTRODUCTION

In this wrongful termination action, defendants move to dismiss all claims against them. 

For the reasons discussed below, the motion is GRANTED IN PART AND DENIED IN PART. 

STATEMENT

The following facts are taken from the complaint. Plaintiff Adrian Duane worked for

defendant IXL Learning, Inc., from June 2013 to January 2015. In January 2014, Duane sought

and obtained permission from his supervisor to work outside the office and with “irregular

hours.” With this flexible work schedule, Duane often worked from 7 a.m. to 3:30 p.m. or

11 a.m. to 7:30 p.m. (Amd. Compl. ¶¶ 8–12, 16, 52–59).

 In July 2014, Duane informed his supervisor that he would periodically miss work for

weekly pre-operative appointments for his phalloplasty surgery and that he would be out for six

to eight weeks following the day of his surgery. Duane’s supervisor informed Duane that he

could work remotely on the days that he had pre-operative appointments. Duane took a leave of
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absence from his IXL employment from October 2014 to December 2014 to undergo and

recover from the surgery (id. ¶¶ 17–18, 25, 38). 

In mid-December 2014, Duane e-mailed his supervisor to request to work half-days in

the office and half-days at home upon his return to work due to the effects of a “surgical

complication” (id. ¶ 27). Duane’s supervisor responded that he would “prefer that [Duane] be

in the office” when working because he is “more productive” there (id. ¶ 28). Upon Duane’s

return to work, his supervisor also informed him that he must be in the office at fixed hours

every day and report to his supervisor twice per week via e-mail and another two times per

week in person. Duane alleges that these accommodations were “very strict by the standards of

other employees at IXL, nearly all of whom work flexible hours and from home, with few

checkups or restrictions” (id. ¶¶ 27, 32, 37–39). 

Duane then posted an anonymous review of IXL on the Glassdoor website. This review

stated:

If you’re not family-oriented white or Asian straight or mainstream

gay person with 1.7 kids who really likes softball — then you’ll

likely find yourself on the outside. Treatment in the workplace,

in terms of who gets flexible hours, interesting projects, praise,

promotions, and a big yearly raise, is different and seems to run

right along these characteristics.

(id. ¶ 40). Shortly thereafter, Duane told his supervisor that he felt discriminated against by IXL

after he returned from surgery. The supervisor subsequently informed Mishkin of Duane’s

complaints (id. ¶¶ 43, 47). 

Mishkin met with Duane to discuss Duane’s concerns that IXL discriminated against

him on the “basis of his disability” (id. ¶ 52). Duane informed Mishkin that he felt discriminated

against because IXL refused his request for accommodations following his surgery. Mishkin

then handed Duane a printout of Duane’s Glassdoor review and demanded evidence proving

the statements in the review. Duane responded, “I’m queer and I stick out” (id. ¶¶ 48, 53–55). 

After leaving the meeting with Mishkin, Duane realized that “Mishkin had intended to terminate

him before their meeting had started” because the items in his desk were already removed and

Human Resources had already prepared discharge papers for him (id. ¶ 59). According to IXL,
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28 * Defendants’ request for judicial notice of the existence of the NLRB decision is unopposed and

GRANTED. 

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Mishkin terminated Duane because his anonymous Glassdoor review demonstrated poor

judgment and poor ethics (id. ¶ 57). 

In July 2015, the National Labor Relations Board filed a complaint on behalf of Duane

against IXL, based on the charges filed by Duane with the NLRB, alleging that IXL violated

Section 8(a) (Dkt. No. 25-2 at 2). Section 8(a) provides that an employer cannot “restrain

or coerce employees” from exercising their rights under NLRA Section 7 “to engage in . . .

concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 

In April 2016, the ALJ held that Duane’s actions did not amount to protected concerted activity

under the NLRA. Duane’s review on Glassdoor was instead found to be “individual gripes

posted to hurt [IXL’s] ability to recruit prospective employees” that constituted a “reckless and

impetuous reaction to [IXL’s] hesitation to immediately accepting Duane’s regular fifty percent

remote work privilege” (Dkt. No. 25-3 at 31). The NLRB adopted the ALJ’s order in June 2016,

dismissing Duane’s complaint (Dkt. No. 25-4 at 2).*

In January 2017, Duane filed this lawsuit asserting two claims: (1) that IXL violated the

Family Medical Leave Act by terminating Duane’s employment because he took FMLA leave

for his surgery and (2) that Mishkin and IXL wrongfully terminated his employment in violation

of public policy expressed in California Code Section 232.5(a) (Dkt. No. 1). 

In March 2017, Duane filed an amended complaint to add references to the FMLA, the

ADA, FEHA, Title VII, and the CFRA in his wrongful termination in violation of public policy

claim (Dkt. No. 30). Defendants now jointly move to dismiss all claims against them (Dkt.

No. 37). This order follows full briefing and oral argument. 

ANALYSIS

1. RETALIATION CLAIM UNDER THE FAMILY AND MEDICAL LEAVE ACT.

Duane’s first claim alleges that IXL violated the FMLA by considering his FMLA leave

as a negative factor in terminating his employment. The FMLA creates two interrelated

substantive rights: (1) the employee has a right to use a certain amount of leave for protected
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reasons and (2) the employee has a right to return to his or her job or an equivalent job after

using protected leave. Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1122 (9th Cir. 2001)

(citing 29 U.S.C. 2612(a), 2614(a)). The FMLA does not “entitle any restored employee to . . .

any right, benefit, or position of employment other than any right, benefit, or position to which

the employee would have been entitled had the employee not taken the leave.” 29 U.S.C.

2614(a)(3)(B). 

Complaints alleging that adverse employment actions were taken against employees

because they used FMLA leave are construed as claims of interference with rights guaranteed by

the statute. Bachelder, 259 F.3d at 1124. To establish a claim for FMLA interference, Duane

must allege that (1) he took FMLA-protected leave, (2) he suffered adverse employment actions,

and (3) the adverse actions were causally related to his FMLA leave. See id. at 1125. Here,

there is no dispute that Duane took leave protected under the FMLA and that he suffered an

adverse employment action. The parties, however, disagree whether Duane is able to plausibly

allege that his termination was causally related to his FMLA leave. 

IXL argues that this instant action is similar to Simms v. DNC Parks & Resorts at

Tenaya, Inc., No. 1:13-CV-2075 SMS, 2015 WL 1956441, at *4 (E.D. Cal. Apr. 29, 2015)

(Judge Sandra Snyder), in which the plaintiff’s allegation that “two of his co-workers with

similar positions complained that they were not able to perform office work and had to work

harder because of accommodations being made for [the plaintiff]” was insufficient to plausibly

allege an FMLA interference claim. 

In contrast, here, Duane has alleged facts sufficient to state a claim for interference of the

FMLA given the proximity between his return from leave and his termination. A close temporal

proximity between a return from FMLA-protected leave and termination supports an inference of

unlawful interference. See Xin Liu v. Amway Corp., 347 F.3d 1125, 1137 (9th Cir. 2003). In his

complaint, Duane alleges that he was terminated only eight days after his return from FMLA

leave (Amd. Compl. ¶¶ 68–71). At the pleading stage, the temporal proximity between Duane’s

return from FMLA leave and termination is enough to support a plausible inference that IXL

violated the FMLA.
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IXL also argues that Duane’s FMLA claim should be dismissed because it contradicts the

decision by the ALJ which stated that Duane was “terminated because he made angry, impulsive,

and false claim[s] of discrimination against [IXL] in his Glassdoor review” (Dkt. No. 25-3 at

37). On a Rule 12(b)(6) motion, a district court may take judicial notice of another court’s

opinion, “for the existence of the opinion, which is not subject to reasonable dispute over its

authenticity,” but “not for the truth of the facts recited therein.” Lee v. City of Los Angeles, 250

F.3d 668, 690 (9th Cir. 2001) (overruled on other grounds); see also Smith v. Ortiz, 234 F. App’x

698, 698 (9th Cir. 2007) (finding that the district court did not abuse its discretion in refusing to

take judicial notice of a finding of the Superior Court). This order takes judicial notice of the

existence of the ALJ’s determination, but refuses to take judicial notice of the ALJ’s finding that

Duane’s termination was motivated only by his Glassdoor review. Duane’s termination could

have been motivated by multiple reasons. The motion to dismiss in regards to Duane’s FMLA

claim is therefore DENIED. 

2. WRONGFUL TERMINATION CLAIM AGAINST IXL.

Duane also claims that IXL wrongfully terminated him in violation of public policy. 

Under California law, employment is at-will unless the parties contract otherwise. Cal. Lab.

Code § 2922. California courts, however, have held that an employer will be liable if it

terminates an employee in violation of public policy. See Xin Liu, 347 F.3d at 1137 (citing

Stevenson v. Superior Court, 16 Cal. 4th 880 (1997)). Our court of appeals has held that an

employment discharge in “violation of the FMLA . . . must constitute a violation of public

policy.” Id. at 1138. Given that Duane has plausibly alleged a claim for the violation of the

FMLA, his claim for wrongful termination in violation of public policy against IXL is also

sufficiently pled and survives dismissal. The motion to dismiss Duane’s second claim against

IXL and Mishkin is therefore DENIED. 

Because Duane has plausibly alleged a claim for wrongful termination in violation of

public policy in reference to the FMLA, this order need not address Duane’s reference to the

public policies expressed in California Labor Code Section 232.5(a), the ADA, the CFRA,

FEHA, and Title VII. Nonetheless, this order addresses IXL’s argument that Sections 7 and 8 of
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the NLRA preempt California Labor Code Section 232.5(a) — as this was a contentious point in

the parties’ briefing and at oral argument. 

 “When an activity is arguably subject to [Section] 7 or [Section] 8 of the [NLRA], the

States as well as the federal courts must defer to the exclusive competence of the National Labor

Relations Board.” San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959). 

Section 8 states that an employer may not interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed in Section 7 to engage in concerted activities for the purpose

of collective bargaining or other mutual aid or protection. California Labor Code Section 232.5,

however, states that no employer may “require, as a condition of employment, that an employee

refrain from disclosing information about the employer’s working conditions.” 

IXL cites Luke v. Collotype Labels USA, Inc., 159 Cal. App. 4th 1463, 1474 (2008),

in support of its proposition that California Labor Code Section 232.5 is preempted by the

NLRA statutes. In Luke, the plaintiff advised his co-workers to keep records of problems they

encountered and to express these concerns to management. Id. at 1471. The plaintiff claimed

he was then wrongfully terminated in violation of public policy set forth in California Labor

Code Section 232.5 for providing “support and ideas to other employees who complained about

working conditions.” Ibid. Luke held that the plaintiff’s alleged conduct constituted “concerted

activity” protected under Sections 7 and 8 of the NLRA and his claim for wrongful termination

under California Labor Code Section 232.5 was therefore preempted by the NLRA and within

the exclusive jurisdiction of the NLRB. Ibid.

In contrast, here, Duane’s alleged conduct does not constitute concerted activity under

Sections 7 and 8 of the NLRA. Duane merely alleges that he was terminated because

he informed his supervisor that IXL’s refusal to grant him work accommodations was

discriminatory. Duane does not allege that he was terminated because he encouraged his

co-workers to complain about discrimination at IXL or that he complained about the alleged

discriminatory work environment on behalf of any other employees. Accordingly, Duane’s

claim based on California Labor Code Section 232.5 is not preempted by Sections 7 and 8 of

the NLRA. 
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3. WRONGFUL TERMINATION CLAIM AGAINST MISHKIN.

Duane also claims Mishkin is individually liable for Duane’s wrongful termination. 

But a claim for wrongful termination in violation of public policy can only be brought against an

employer. Miklosy v. Regents of the Univ. of Cal., 44 Cal. 4th 876, 900 (2008). An individual

who is not an employer cannot commit the tort of wrongful discharge in violation of public

policy — “rather, he can only be the agent by which the employer commits that tort.” Ibid. 

Duane states in his opposition brief that Mishkin is “the founder and CEO of IXL;

clearly an agent of IXL; and . . . responsible for the decision to terminate [Duane]’s

employment” (Dkt. No. 39 at 16). Because Mishkin is only an agent of IXL, and not Duane’s

employer, Mishkin cannot be held personally liable for Duane’s wrongful termination in

violation of public policy. See Kim v. Konad USA Distribution, Inc., 226 Cal. App. 4th 1336,

1351–52 (2014) (finding that the plaintiff could not hold the defendant — a chief executive

officer and owner of the company that employed the plaintiff — individually liable for the

plaintiff’s wrongful termination because the defendant was not an employer). The motion to

dismiss Duane’s claim against Mishkin is therefore GRANTED. 

CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss is GRANTED IN PART AND

DENIED IN PART. 

IT IS SO ORDERED.

Dated: May 12, 2017. WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE