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Dirks v. Permanente Medical Group

April 29, 2010

MARGARET ANN DIRKS, PLAINTIFF,
v.
THE PERMANENTE MEDICAL GROUP, INC.; AND DOES 1 THROUGH 5, INCLUSIVE, DEFENDANT.



ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

This matter comes before the Court on Defendant The Permanente Medical Group, Inc.'s ("Defendant's") Motion to Dismiss Plaintiff Margaret Dirks' ("Plaintiff's") Complaint ("Complaint") pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes the motion.*fn1 For the reasons stated below, Defendant's Motion is GRANTED in part and DENIED in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

On or about October 2002, Plaintiff began working at Defendant's appointment and advice call center ("call center"). Pl's Compl. 2:5. During her tenure at the call center, Plaintiff alleges that she gradually began to experience health problems, including headaches, dizziness, mental confusion/inability to concentrate, tight/burning throat, cough, burning eyes and nose, tight chest, nausea, loss of balance, loss of hair, and difficulty breathing. Pl's Compl. 2-3:6. Plaintiff's symptoms allegedly began daily upon entering the call center, increased during work hours, then immediately subsided upon leaving the building. Pl's Compl. 3:7. However, Plaintiff alleges that some residual symptoms remained throughout the evening and into the next day, but gradually cleared over time. Id. On several occasions, Plaintiff informed her employer regarding her difficulty breathing, which forced her to leave work. Pl's Compl. 3:8.

Plaintiff made numerous complaints to various managers about how the building's condition affected her health. Pl's Compl. 3:8. Plaintiff asserts that Defendant's management scowled and rolled their eyes at Plaintiff and told Plaintiff that the problem only existed with her. Pl's Compl. 4:9. However, Plaintiff alleges that other employees were experiencing similar symptoms from the call center. Pl's Compl. 3:7.

In response to these complaints, Defendant moved Plaintiff's desk location several times in the call center. Pl's Compl. 4:10. Defendant did not allow Plaintiff to telecommute or relocate to another building. Pl's Compl. 4:11.

Plaintiff's symptoms allegedly became more severe in 2008. Pl's Compl. 3:7. Thus, on October 2, 2008, Plaintiff saw Judy Dyke, Nurse Practitioner, who determined that Plaintiff's health condition was caused by environmental factors at work. Pl's Compl. 5:13. To treat the symptoms, Ms. Dyke suggested in a note to Defendant that Plaintiff be provided a Hepa filter at work.

Id. Defendant ignored the note. Id.

On October 20, 2008, Plaintiff resigned from her employment. Pl's Compl. 5:14. Plaintiff's written resignation stated that her back problem was a basis for resignation, and added that although she intended to work through October 2008, the toxic fumes in the workplace and the lack of response by management made work unbearable and a health risk. Id.

After Plaintiff resigned, a third party called Plaintiff on behalf of Defendant for an exit interview. Pl's Compl. 5:15. When Plaintiff was asked whether she would sue Defendant due to the working conditions, Plaintiff responded "yes." Id.

Subsequently, Plaintiff applied for positions in Oregon and San Diego. Id. Plaintiff was not hired at either facility. Id.

Plaintiff timely filed two complaints with the Department of Fair Employment and Housing ("DFEH"). Her first complaint filed on September 15, 2009 alleged that Defendant failed to reasonably accommodate her disability. Pl's Opp. Exh. 1. On October 29, 2009, Plaintiff filed a second complaint alleging that she was retaliated against for her disability. Pl's Opp. Exh. 2. Plaintiff immediately received a right to sue letter for each complaint. Id.

The action was filed in Sacramento County Superior Court on October 30, 2009 (Case No. 32-2009-00062358). On December 7, 2009, the action was removed to this Court based on diversity of citizenship pursuant to 28 U.S.C. § 1332.

II. OPINION

A. Legal Standard

A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1975), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

In general, the court may not consider materials other than the facts alleged in the complaint when ruling on a motion to dismiss. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). The court may, however, consider additional materials if the plaintiff has alleged their existence in the complaint and if their authenticity is not disputed. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Here, Plaintiff attached two documents to her Opposition to the Motion to Dismiss: Plaintiff's Complaint and Right to Sue Letter issued by the DFEH on September 15, 2009, and Plaintiff's Complaint ...


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