Unreported / Non-Citable
Background
Christine Romero Malabed alleged that GEICO terminated her employment after she requested two weeks off to care for her mental health. She said supervisor Daniel Simpson initially offered three days but approved the full request, and that her emails and voicemails were not monitored while she was away. She returned to eighty-eight unanswered voicemails and reported the situation to another manager, but alleged that no action followed. GEICO later audited client calls, discussed two calls with her, and terminated her the day after the second meeting. Her complaint asserted disability discrimination, failure to engage in the interactive process, retaliation, contract, emotional-distress, personnel-record, and wrongful-termination claims.
Defendants removed the action on April 9, 2026, after discovering that Simpson was an Alaska resident rather than the California resident identified in the complaint. Malabed sought remand because removal occurred more than thirty days after the November 20, 2025 service date she alleged. Defendants separately moved to dismiss. The court resolved both fully briefed motions on the papers under its local rules.
The Court’s Holding
The court denied remand under Roth v. CHA Hollywood Medical Center. It reasoned that the statutory removal clocks restrict a defendant placed on notice of removability by the plaintiff, but do not prevent later removal based on the defendant's own information when the pleadings supply no such notice. Malabed did not contend that her complaint revealed diversity jurisdiction; it alleged California residence for Simpson. The court also noted Defendants' earlier representation that Simpson was a California resident and their statement that GEICO would remove after Simpson was dismissed. It nevertheless denied remand under the controlling notice rule. The vague, unidentified Doe defendants were dismissed sua sponte without prejudice.
The court dismissed the FEHA disability-discrimination claim because the allegations did not sufficiently show employer knowledge of a qualifying disability, causation based on that disability, or Malabed's ability to perform essential duties. Her statements about mental health, understaffing, workload, and fighting for her life did not make disability the only reasonable interpretation of the known facts. The complaint also attributed her difficulties to workplace stress and overwork, and did not identify essential duties or specific accommodation needs. The interactive-process claim failed because she received the requested leave and did not adequately identify later limitations or accommodations. FEHA retaliation failed because merely notifying an employer of medical status was not the protected activity alleged, and new protected activities raised in briefing could not expand the complaint.
Labor Code § 1102.5 retaliation failed because the alleged internal personnel disclosures were not whistleblowing. But the court rejected NLRA preemption of the § 232.5 working-conditions claim: unlike the cited authority, this complaint alleged no concerted activity, representation of coworkers, organizing, or collective bargaining. The derivative FEHA failure-to-prevent claim fell with the underlying claims, while public-policy wrongful termination survived because a Labor Code violation can support it and § 232.5 remained. The implied and express contract claims lacked supporting facts; NIED lacked a pleaded duty and breach; IIED lacked factual support for severe distress; and § 1198.5 lacked an allegation showing when GEICO received the personnel-file request. All claims except § 232.5 retaliation and public-policy wrongful termination were dismissed without prejudice, with thirty days to file a First Amended Complaint.
Key Takeaways
- A complaint that does not affirmatively reveal diversity may permit removal based on a defendant's later-discovered information despite the ordinary thirty-day removal periods.
- General references to mental health and workplace stress did not adequately plead GEICO's knowledge of a qualifying FEHA disability or the essential-functions element.
- Opposition briefing cannot substitute for complaint allegations by introducing new protected activity or new facts to avoid dismissal.
- The § 232.5 claim survived the jurisdictional preemption challenge because the complaint described individual workload complaints rather than NLRA-protected concerted activity.
- The dismissals were without prejudice, and Malabed received thirty days to amend rather than a final judgment on the dismissed claims.
Why It Matters
The order separates pleading deficiencies from a merits determination and leaves two employment claims pending. Its removal analysis turns on what the complaint disclosed, while its FEHA analysis emphasizes concrete allegations of disability, employer knowledge, essential duties, accommodations, and protected activity.
The surviving § 232.5 ruling also illustrates the importance of concerted activity to the particular NLRA-preemption argument presented. The court did not dismiss that claim on jurisdictional grounds, and the related public-policy claim survived because a Labor Code violation may supply its foundation.