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Battershell v. Sacramento Municipal Utility District

May 4, 2010


The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge


Defendants filed a motion to dismiss Plaintiffs' complaint under Federal Rule of Civil Procedure ("Rule") 12(b)(6) on December 30, 2009. Plaintiffs opposed the motion and attached to their opposition a first amended complaint ("FAC"), indicating how their claims would be amended if they are granted leave to amend. The motion was heard February 22, 2010.

Plaintiffs also filed a "Supplemental Memorandum of Points and Authorities" ("Supplemental Memorandum") two hours before the hearing in which Plaintiffs state they have "obtained a 'right to sue' letter from the California Department of Fair Housing and Employment." (Supplemental Memo. 2:6-8.) Plaintiffs appear to argue that in light of this letter, they should be allowed to amend their complaint to allege a federal claim for "the creation of a hostile work environment." (Id. 3:18-19.) Plaintiffs failed to explain why they did not do what was necessary to obtain a right to sue letter at an earlier date. Further, the timing of their Supplemental Memorandum suggests that Plaintiffs recognized that their pled federal claims are "immaterial and made solely for the purpose of obtaining [federal question] jurisdiction . . ." Bell v. Hood, 327 U.S. 678, 683 (1946). Since no explanation was provided for their late filing, the arguments presented in Plaintiffs' Supplemental Memorandum are disregarded.

Further, only the portion of Defendants' motion challenging Plaintiffs' federal claims is decided since those claims are the basis of federal question jurisdiction, but do not have sufficient substance to state viable federal constitutional claims. Therefore, those claims will be dismissed, and Plaintiffs' state claims will also be dismissed under 28 U.S.C. § 1367(c).


When deciding a Rule 12(b)(6) motion to dismiss, "all well-pleaded factual allegations [are accepted] as true, and construe[d] in the light most favorable to [Plaintiffs]." Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960(9th Cir. 2010). "To avoid a Rule 12(b)(6) dismissal, a complaint . . . must plead 'enough facts to state a claim to relief that is plausible on its face.'" Weber v. Department of Veterans Affairs, 521 F.3d 1061, 1065 (2008)(citing and quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)).

Defendants attached to their motion documents referenced in Plaintiffs' Complaint, which they request be considered. Plaintiffs do not dispute the authenticity of those documents. The documents are a March 20, 2006 Last Chance Agreement entered between Plaintiff Anson Battershell ("Anson") and Defendant Sacramento Municipal Utility District ("SMUD"), a December 5, 2007 SMUD Office Memorandum issued to Anson, a January 30, 2009 SMUD Employee Discussion Log, and a March 19, 2009 SMUD Employee Discussion Log. (Hamzawi Decl. Ex. A-D).

Generally, on a motion to dismiss only "facts that are alleged on the face the complaint or contained in documents attached to the complaint" are considered. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). However, the incorporation by reference doctrine allows the Court to consider "documents, whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." Id. (internal citations and quotations omitted). Therefore, the referenced documents are considered under the incorporation by reference doctrine.


Plaintiffs' challenge employment disciplinary actions to which Plaintiff Anson was subjected, and allege these actions violated their following federal constitutional rights: First and Fourteenth Amendment right to marital and familial association and Fourteenth Amendment right to privacy.

Plaintiffs allege Plaintiff Anson "was required by defendants SMUD and . . . [Distasio]" to sign a March 20, 2006 Last Chance Agreement ("March 20, 2006 LCA") in violation of Plaintiffs' "familial and marital association rights . . . guaranteed by the First and Fourteenth Amendments to the United States Constitution." (Id. ¶ 15). Plaintiffs allege this March 20, 2006 LCA "illegally interfered with and intruded upon Plaintiffs' marital relationship" and therefore is voidable and unenforceable. (Id. ¶¶ 15-16). Plaintiffs further allege that the March 20, 2006 LCA is voidable and unenforceable because Anson "was forced into signing it" "by defendants SMUD and John Distasio" through "intimidation and illegal threats of potential termination of employment." (Id. ¶ 16)

The March 20, 2006 LCA discusses the finding of an investigator "that Anson sexually harassed and threatened" fellow SMUD employee Jane Agatep ("Agatep"). (Hamzawi Decl., Ex. A). The March 20, 2006 LCA also discusses two days on which Agatep was threatened by Plaintiff Marcia Battershell ("Marcia"), Anson's wife, after Anson was accused of sexually harassing Agatep. (Id.) Specifically, "on January 26, 2006, [Marcia] unexpectedly visited Agatep's [work] cubicle, exhibiting angry and threatening behavior. Later that afternoon [Anson] asked Ms. Agatep to come with [him] to a conference room wherein [Agatep] was subjected to an angry rant by [Anson's] wife on [Anson's] cell phone, including charges that . . . [Agatep] was having an affair with [Anson], threats that [Marcia] would return to the office to 'read [Agatep] the riot act.'" (Id.) "Ms. Agatep finally left the room when she heard [Marcia] ask about [Agatep's] marital status and [asked Agatep] to provide personal information about her relationship with her ex-husband." (Id.) On February 28, 2006, Anson "again requested information from Ms. Agatep about her ex-husband, and she again refused to provide it." (Id.) "Later that same day, [Anson] returned to Ms. Agatep's cubicle and told her that [his] wife was threatening to come into the office, to 'read [Agatep] the riot act.'" (Id.) Anson was disciplined and removed from his "organizational assignment, in order to preclude [him] from having future business need to contact or interact with Ms. Agatepas part of [his] job duties." (Id.) "In addition, [his] continued employment [was] subject to [the LCA]," and Anson was warned that violation of the LCA or "any other District policy" would result in "additional discipline up to and including termination of . . . employment." (Id.) The March 20, 2006 LCA with SMUD required Anson to: instruct [Marcia] not to contact or attempt to contact or communicate with . . . Agatep at anytime and [to instruct] that [Marcia] is not to come to [SMUD] facilities without prior approval of a management official[;] . . . . [and to] take whatever steps are necessary to prevent further contact or interaction between [him]self, [Marcia], or [his] representatives and . . . Agatep. (Id.)

Plaintiffs also allege that Defendants SMUD, Clifton Lewis, John Distasio, and Michael Wirsch issued Anson a December 5, 2007 SMUD Office Memorandum ("December 5, 2007 OM") "in retaliation for [Anson's] attempts to rectify the violation of [his] rights to familial association caused by the [March 20, 2006, LAC]." (Id. ¶ 18). The December 5, 2007 OM discusses the March 20, 2006 LCA and is based on Anson's conduct occurring since March 20, 2006, that allegedly "breach[ed] the spirit, if not the letter, of [the] agreement." (Hamzawi Decl. Ex. B) The December 5, 2007 OM discusses Anson's request on November 28, 2007, in which he "sought permission for [Marcia] to attend a [SMUD] sponsored employee holiday party," which a supervisor disapproved, and which resulted in an argument between Anson and the supervisor and Marcia contacting the SMUD Board president. (Id.) The December 5, 2007 OM also discusses an incident on September 27, 2007, when Marcia attended an employee safety meeting on SMUD facilities without the approval of a management official. (Id.) Due to these incidents, Anson was instructed to "take whatever steps are necessary to prevent any contact or interaction with Ms. Agatep by [him], [Marcia], or [his] representatives" and to "instruct [Marcia] not to contact or attempt to contact or communicate with Ms. Agatep at any time." (Id.)(emphasis in the original.) "Furthermore, [Anson] [was] [instructed] to inform [Marcia] that she [was] barred from [SMUD] facilities, meetings, and employee functions under any circumstances." (Id.) Further, Anson was warned that failure to fully comply with the terms and conditions of the March 20, 2006 LCA and the direction of the December 5, 2007 OM could result in a finding of insubordination and termination. (Id.)

Plaintiffs allege Defendants subsequently issued Anson a SMUD Employment Discussion Log on January 30, 2009, ("January 30, 2009 EDL") "in retaliation for [Anson's] exercise of his religious beliefs[] and . . .for . . . pursuing his rights to familial and marital association in his employment with [SMUD][,]" requiring Anson to "log . . . all his activities at . . . .SMUD and to report those activities to his supervisor." (Id. ΒΆ 19.) Plaintiffs' conclusory reference to retaliation based on ...

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