United States District Court, N.D. California
November 14, 2005.
MERCY IHAMA, Plaintiff,
BAYER CORPORATION and DOES 1-20, inclusive, Defendants.
The opinion of the court was delivered by: WILLIAM ALSUP, District Judge
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTION TO DISMISS
In this employment-discrimination action, defendant moves under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss
plaintiff's claims for intentional infliction of emotional
distress and negligent supervision. This order GRANTS IN PART
and DENIES IN PART defendant's motion.
Plaintiff Mercy Ilhama began working for Bayer Corporation
("Bayer") in August 1999 as a Biological Analyst. She has
suffered from sickle cell anemia since birth and requires regular
medical treatment for her condition. Bayer accommodated plaintiff
accordingly, and allowed her to take two days off per month for
such treatment from approximately August 2001 through April 2003
(Compl. ¶¶ 7, 11-12). In April 2003, plaintiff was involved in a
car accident. As a result, she suffered injuries to her left
shoulder and right wrist and took time off from work to recover.
In June 2004, she attempted (unsuccessfully) to return. In so
doing, she provided Bayer with a letter from John Hege, M.D., which
specified various limitations on her work capabilities.[fn*]
The letter also indicated that these restrictions were temporary
and would only apply until January 31, 2005 (id. ¶¶ 14-15).
Bayer failed to discuss the requested accommodations with
plaintiff and terminated her on October 20, 2004 (id. ¶ 16). In
the termination letter, Bayer mischaracterized plaintiff's
accident-related restrictions as "permanent" despite Dr. Hege's
statement to the contrary. Indeed, plaintiff's only permanent
work restriction was to take two days off per month for anemia
treatment just as she had done before the accident occurred
(id. ¶ 17).
On August 25, 2005, plaintiff alleged claims for: (1) unlawful
discrimination on the basis of disability in violation of the
Fair Employment and Housing Act ("FEHA"); (2) failure to
accommodate; (3) failure to engage in interactive process; (4)
intentional infliction of emotional distress; (5) negligent
supervision; and (6) failure to pay wages at the time of the
termination. Four days later, defendant removed the action based
on diversity of citizenship between the parties. On September 25,
it filed a motion to dismiss plaintiff's claims for intentional
infliction of emotional distress and negligent supervision under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defendant
argues that both claims come within the exclusive jurisdiction of
workers' compensation and therefore cannot be adjudicated in
private litigation. It also contends that plaintiff failed to
assert sufficient factual allegations to support such claims.
In her opposition, plaintiff explicitly declined to contest
defendant's motion to dismiss the claim for intentional
infliction of emotional distress. As such, the Court dismisses
this claim. Plaintiff does, however, oppose the motion to dismiss
her claim for negligent supervision. ANALYSIS
Pursuant to Rule 12(b)(1), dismissal is appropriate when the
Court lacks subject-matter jurisdiction. Federal courts generally
lack such jurisdiction over claims arising out of alleged
injuries which are collateral to or derivative of compensable
workplace injuries. More specifically, workers' compensation
provides the exclusive remedy for claims that come within the
"conditions of employment" and arise from acts that constitute
"risk[s] reasonably encompassed within the compensation bargain."
See Shoemaker v. Myers, 52 Cal. 3d 1, 16 (1990).
A motion to dismiss under Rule 12(b)(6) tests for legal
sufficiency of the claims alleged in the complaint. Parks Schl.
of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Such a
motion should not be granted "unless it appears beyond doubt that
the [claimant] can prove no set of facts in support of the claim
that would entitle it to relief." Balistreri v. Pacifica Police
Dept., 901 F.2d 696, 699 (9th Cir. 1990). Dismissal may be
premised "on the lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory."
Ibid. In evaluating a motion to dismiss for failure to state a
claim, all well-pled material allegations are taken as true and
are construed in the light most favorable to the nonmoving party.
Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir.
1. SUBJECT-MATTER JURISDICTION.
Defendant argues that plaintiff's cause of action for negligent
supervision is within the exclusive purview of workers'
compensation. This contention is misguided. The exclusive
jurisdiction provision of the Workers' Compensation Act ("WCA")
does not preempt this action because it arises from conduct that
allegedly violates the FEHA, undermines the public policy of the
state and exceeds the normal risks of employment.
The WCA does not preempt employees' claims arising out of
allegedly discriminatory conduct that violates the FEHA and
exceeds the normal risks of the employment relationship. See,
e.g., City of Moorpark v. Superior Court, 18 Cal. 4th 1143,
1154-55 (1998) (employee's wrongful discharge claim based on
disability discrimination not subject to exclusive jurisdiction
of workers' compensation); Accardi v. Superior Court,
17 Cal. App. 4th 341 (1993) (workers' compensation not the exclusive remedy for emotional distress
claim based on sexual harassment discrimination in violation of
Moreover, where an employer's actions violate California's
established public policy, claims for intentional torts and
negligence arising from those actions are not confined to the
exclusive province of workers' compensation. See Maynard v. City
of San Jose, 37 F.3d 1396, 1405 (9th Cir. 1994) (neither
employee's claim for intentional infliction of emotional distress
nor claim for negligent infliction of emotional distress
preempted because defendant's conduct contravened fundamental
public policy prohibiting retaliation against employees who
oppose or participate in investigation of discriminatory
practices under Government Code § 12940(f)).
Here, plaintiff's claim arises out of conduct that allegedly
constituted disability discrimination, went beyond the normal
risks of employment and violated established public policy of the
state. Plaintiff has pled that defendant denied her request to
return to work in June 2004, failed to meet and confer with her
in good faith in response to her request for accommodations,
neglected to accommodate her disability from June 2004 through
October 2004 and terminated her in October 2004. Such conduct
allegedly constituted disability discrimination in violation of
the FEHA because plaintiff claims that she was capable of
performing the essential duties of her job at the time it
occurred (Compl. ¶ 22). She has also pled that defendant had a
duty to protect her from such unlawful conduct, failed to fulfill
this duty in neglecting to supervise their employees and that
their failure proximately caused her injury which resulted in
damages (id. ¶¶ 16, 27-32, 35-39, 52-54, 56). Furthermore,
California's public policy officially proscribes defendant's
alleged unlawful conduct. California Government Code section
12940(k) provides that it is unlawful "[f]or an employer . . . to
fail to take all reasonable steps necessary to prevent
discrimination and harassment from occurring." Section 12940(m)
provides that it is "unlawful for an employer . . . to fail to
make reasonable accommodation for the known physical or mental
disability of an applicant or employee." Section 12940(n)
proscribes an employer's "fail[ure] to engage in a timely, good
faith, interactive process with the employee . . . to determine
the effective reasonable accommodations, if any, in response to a
request for reasonable accommodation by an employee . . . with a known physical or
mental disability or known medical condition." The California
Supreme Court has stated:
The FEHA broadly announces the public policy of this
state that it is necessary to protect and safeguard
the right and opportunity of all persons to seek,
obtain, and hold employment without discrimination or
abridgment on account of . . . physical disability. .
City of Moorpark, 18 Cal. 4th at 1161 (internal citation
omitted). As such, plaintiff has alleged that defendant's
negligent supervision constituted discriminatory conduct in
violation of the FEHA that transgressed the ordinary risks of the
employment relationship and the public policy of the state.
Furthermore, the fact that plaintiff alleged that defendant
violated both FEHA and common law does not preclude plaintiff
from pursuing both claims. See Stevenson v. Superior Court,
16 Cal. 4th 880
, 902 (1997). Thus, workers' compensation is not the
exclusive remedy for her claim.
2. LEGAL SUFFICIENCY OF THE CLAIM.
Defendant further argues that plaintiff's complaint is bereft
of sufficient factual pleadings to support her claim for
negligent supervision. This argument fails. Plaintiff has alleged
sufficient facts to state such a claim.
Providing the statutory basis for negligence claims, California
Civil Code § 1714(a) states that "[e]veryone is responsible . . .
for an injury occasioned to another by his or her want of
ordinary skill or care in the management of his or her property
or person." In order to establish an action for negligence, one
must demonstrate that: (1) the defendant had a legal duty to
conform to a standard of conduct to protect the plaintiff; (2)
the defendant failed to meet this standard of conduct; (3) the
defendant's failure was the proximate or legal cause of the
resulting injury; and (4) the plaintiff was damaged as a result.
Ladd v. County of San Mateo, 12 Cal. 4th 913, 917 (1996).
Plaintiff has pled these elements. In the complaint, plaintiff
alleged that defendant had a duty to protect her from their
supervisors' unlawful conduct under the FEHA and California's
official public policy that it knew had occurred. She also pled
that defendant failed to fulfill this duty. Specifically, she
averred that defendant failed to take reasonable steps to prevent discrimination from occurring, accommodate her from July through
October 2004 and meet and confer with her about her request for
accommodation during that period. Moreover, she alleged that
defendant failed to prevent, supervise or penalize such conduct.
According to plaintiff, these failures proximately caused her to
suffer injury prior to and including her termination, which
resulted in damages (Compl. ¶¶ 46-56). Thus, plaintiff has pled
sufficient facts which would entitle her to relief for negligent
Defendant's motion to dismiss is GRANTED with respect to the
cause of action for intentional infliction of emotional distress
and DENIED with respect to the cause of action for negligent
IT IS SO ORDERED.
[fn*] Dr. Hege's letter noted that plaintiff was restricted from
activities requiring her to: lift more than ten pounds; perform
repetitive reaching overhead; power grip items; squat
repetitively; climb; crawl; and work overtime. Dr. Hege also
notified Bayer that plaintiff could not work more than three days
and 24 hours per week (Compl. ¶ 15).
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