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Devlyn v. Lassen Municipal Utility District

August 5, 2010

CONNIE DEVLYN, PAUL GLAU AND KRSTO KNEVICH, PLAINTIFFS,
v.
LASSEN MUNICIPAL UTILITY DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Through the present action Plaintiffs Connie Devlyn, Paul Glau, and Krsto Knenevich ("Plaintiffs") collectively allege twenty causes of action against Defendant Lassen Municipal Utility District ("Defendant") for wrongful conduct alleged to have been committed in the course of their employment by Defendant. Presently before the Court is Defendant's Motion to Dismiss Plaintiffs' First Amended Complaint in its entirety.

Specifically, Defendant moves to dismiss Plaintiffs' first, second, third, fourth, fifth, seventh, eighth, eleventh, twelfth, fourteenth, fifteenth, eighteenth, and nineteenth claims for relief for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Defendant concurrently moves to dismiss Plaintiffs' second, fifth, sixth, seventh, eighth, ninth, tenth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, and twentieth claims for relief for failure to state a claim upon which relief may be granted pursuant to 12(b)(6). Additionally, pursuant to Federal Rule of Civil Procedure 12(f), Defendant moves to strike the portion of Plaintiffs' prayer for relief seeking penalties under California Labor Code § 1102.5.

For the reasons set forth below, Defendant's Motions are denied in part and granted in part.*fn1

BACKGROUND*fn2

A. Connie Devlyn

Plaintiff Connie Devlyn ("Devlyn") has been employed by Defendant since 1975. She alleges that she has been subject to a hostile work environment throughout her career because of her gender.

Devlyn states that her co-workers routinely engaged in overtly sexual conduct such as posting photographs of nude women in her work area, leaving sexually oriented magazines in the restroom, making sexual comments and suggestions to her, and performing mock sex in front of her on other male employees or on a training dummy. Her male co-workers are also said to have committed various pranks including coming into her office to pass gas, hanging a purple bra in the break room after she endured surgery for breast cancer, hiding a dead skunk in her work area, and tying the emergency exit door to her work area shut.

Devlyn states she repeatedly reported the misconduct to management but they failed to take adequate action. Instead, Devlyn alleges that her manager ignored her reports and attempted to intimidate her into not filing a Complaint. An investigation was conducted, but Devlyn believes it was cursory. The investigator found Devlyn's claims to be without merit.

Devlyn states Defendant later retaliated against her for her complaints by diminishing her working conditions and relocating her to a less safe work area. She eventually complained to the California Department of Fair Employment and Housing and the Equal Employment Opportunity Commission. In February 2009, she received a right to sue letter.

B. Paul Glau

Plaintiff Paul Glau ("Glau") worked as a Facilities Manager for Defendant from 1991 until December 31, 2009. Glau states that in that time he opposed the campaign of sexual harassment against a fellow employee (Devlyn) and provided a statement to management in support of her complaints.

In May 2008, Glau began to suspect that excess levels of toxic substances were present at one of Defendant's work sites. He reported his findings but reviewing officials determined that Glau had mistaken the scientific notations reflecting the contamination levels. No corrective action was taken.

Glau contends that subsequent to his reports of contamination and his statement regarding the sexual harassment claim, Defendant retaliated against him by taking away his company vehicle, withholding information from him, and assigning him lesser work than the executive job responsibilities previously given to him.

Defendant also proposed Glau's termination. However when an internal investigator found termination to be unwarranted, Glau alleges that a General Manager told him that if he did not retire by the end of 2009 he would be fired. Glau agreed to retire on December 31, 2009. He asserts that his retirement was a constructive discharge.

C. Krsto Knezevich

Plaintiff Krsto Knezevich ("Knezevich") has worked for Defendant since 1997. During that time he served as a subordinate under co-Plaintiff Paul Glau. As part of his duties, Knezevich states he participated in reporting suspected high levels of toxic substances present at one of Defendant's work sites. Knezevich alleges that he also opposed the sexual harrasment of a co-worker (Devlyn) and he submitted a statement in support of her complaints.

As a result of these actions, Knezevich alleges that Defendant retaliated against him by wrongfully issuing him a written reprimand and assigning him lesser more dangerous tasks with reduced potential for promotion. Knezevich asserts that these tasks resulted in him being injured and now unable to work.

On the basis of the aforesaid conduct by Defendant and Defendant's employees, Plaintiffs collectively filed suit, alleging twenty causes of action.

STANDARD

A. Motion to Dismiss Pursuant to Rule 12(b)(1)

In moving to dismiss for lack of subject matter jurisdiction pursuant to Rule 12 (b)(1), the challenging party may either make a "facial attack" on the allegations of jurisdiction contained in the complaint or can instead take issue with subject matter jurisdiction on a factual basis ("factual attack").

Thornhill Publishing Co. v. General Tel. & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). If the motion constitutes a facial attack, the court must consider the factual allegations of the complaint to be true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981); Mortensen, 549 F.2d at 891. If the motion constitutes a factual attack, however, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 891).

If the court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. Generally, leave to amend should be denied only if it is clear that the deficiencies of the complaint cannot be cured by amendment. ...


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