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Wynes v. Kaiser Permanente Hospitals

August 12, 2010


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

The dispute arises over the termination of Plaintiffs by Defendant employer on alleged grounds of age and disability discrimination. Kaiser Permanente Hospitals, Kaiser Permanente, Inc., Ruby Gartrell, Luann Lemay, Henry Amos, Maria Zayac, Barbara Voors, and Cornelius Stewart ("Defendants") have now filed concurrent motions: (1) a Motion to Dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. Proc.*fn1 12(b)(6) with respect to both entire claims and as to individual defendants; and (2) a Motion to Strike certain aspects of Plaintiffs' Complaint pursuant to Rule 12(f).

Following a review of the implicated statutes and an application of the relevant case law, Defendants' 12(b)(6) Motion to Dismiss is GRANTED with leave to amend and Defendants' 12(f) Motion to Strike is also GRANTED.


Plaintiffs Rochelle Wynes, Carmela Ray, Linda Baerresen, and Marsha Scribner ("Plaintiffs") were registered nurses employed by Kaiser Foundation Hospitals for a significant length of time before they were terminated in 2008 and 2009.*fn3 At the time of their termination, Plaintiffs were employed as senior discharge planners (also referred to as "patient care coordinators"). All named Plaintiffs are over 40 years of age.*fn4

Plaintiff Scribner was terminated in November, 2008 when she was 64 years of age. Plaintiff Ray was terminated in February, 2009. Plaintiff Baerresen was terminated in October, 2008 at 59 years of age. Plaintiff Wynes was terminated in March, 2009 at 52 years of age.

According to Plaintiffs, they each made a charge of employment discrimination with the California Department of Fair Employment and Housing ("DFEH" or "Department"), the state agency responsible for receiving and investigating employment discrimination claims under California law, and concurrently with the Equal Employment Opportunity Commission ("EEOC" or "Commission") within 180 days of the alleged unlawful employment practice they allege. On March 24, 2009, the DFEH issued a notice of case closure and right-to-sue letter to Plaintiff Wynes on March 24, 2009 and the Complaint was filed within one year of that date as required by statute. Since receiving the right-tosue letter, Plaintiff Wynes has submitted additional charges to the DFEH which has yet to result in an investigation or a right-to-sue letter.

The remaining Plaintiffs have filed employment discrimination charges with the DFEH but have not yet received case closure notices. More specifically, Plaintiff Baerresen submitted charges to DFEH on September 25, 2009 alleging age, race, and disability discrimination and the matter remains under investigation; Plaintiff Scribner submitted charges to DFEH on June 30, 2009 alleging age discrimination and the matter is still under investigation; and Plaintiff Ray submitted charges to DFEH in March, 2010 alleging ethnic and age discrimination and the matter has yet to be investigated.

Plaintiffs filed their Complaint on March 23, 2010 alleging numerous state and federal claims: (1) wrongful termination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; (2) violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq.; (3) discrimination and retaliation by individual defendants in violation of federal and state law; (4) wrongful termination in violation of public policy; (5) intentional infliction of emotional distress; (6) breach of contract; (7) (unnumbered in Complaint) violation of the Lilly Ledbetter Fair Pay Act of 2009 ("Act"), Pub. L. 111-2, §§ 2-5, 123 Stat. 5 (2009); (8) violations of the provisions of the Employee Retirement Income Security Act of 1974 ("ERISA"), Pub. L. 93-406, 88 Stat. 829 (1974); and (9) assault and battery against Defendant Maria Zayac. Plaintiffs' Complaint also implicates § 701 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(3). This Court must now determine whether: (1) Plaintiffs have asserted sufficient factual allegations to survive Defendants' Motion to Dismiss; and (2) the cited language in the Complaint is relevant to the dispute.


A. Motion to Dismiss

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party.

Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the...claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitlement to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (internal citations and quotations omitted). Factual allegations must be enough to raise a right to relief above the speculative level. Id. at 555 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) ("The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action").

If the court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. The court should "freely give[]" leave to amend when there is no "undue delay, bad faith[,] dilatory motive on the part of the movant,...undue prejudice to the opposing party by virtue of...the amendment, [or] futility of the amendment...." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).

B. Motion to Strike

The Court may strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "(T)he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial...." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (rev'd on other grounds Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)) (internal citations and quotations omitted). Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question. Id.


A. Motion to Dismiss

Defendants filed a 12(b)(6) Motion to Dismiss attacking:

(1) Plaintiffs' ADEA claims with respect to individual claimants for failure to exhaust administrative remedies; (2) Plaintiffs' ADA claims against individual defendants as well as arguing that Plaintiffs failed to satisfy the statutory requirements to bring a civil suit; (3) Plaintiffs' discrimination and retaliation charges against individual defendants; (4) Plaintiffs' wrongful termination charge; (5) Plaintiffs' cause of action under the Lilly Ledbetter Pay Act; and (6) Plaintiffs' cause of action under ERISA. (Defs.' Mem. of P & A in Support of Mot. to Dismiss at 1). A review of the implicated federal statutes and the applicable case law reveal that Defendants have the prevailing argument.

1. ADEA Claims

Defendants allege that Plaintiffs Ray, Baerresen, and Scribner have not exhausted the statutorily required administrative remedies. (Defs.' Mem. of P & A in Support of Mot. to Dismiss 2). Plaintiffs assert that charges of employment discrimination were filed concurrently with the DFEH as well as with the EEOC within 180 days of the discovery of the commission of the unlawful employment practices. (Complaint ¶ 9). Moreover, Plaintiffs contend that they are now opting to waive their rights under the California Fair Housing and Employment Act, Cal. Gov. Code §§ 12900-12996, and proceed in the instant litigation presumably under 29 U.S.C. § 626(f). (Pls.' Opp. to Mot. to Dismiss 2). That action, however, does not correct the deficiencies in the Complaint.

In California, an individual who first files a complaint with the DFEH must file the same charge with the EEOC within 300 days of the alleged unlawful practice. 29 U.S.C. § 626(d)(1)(B); Bean v. Crocker Nat. Bank, 600 F.2d 754 (9th Cir. 1979).

It is important to note that the Supreme Court has concluded that filing a timely charge with the EEOC is not a prerequisite to suit in federal court, but rather, "is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).

Under California law, an aggrieved individual alleging workplace discrimination must exhaust administrative remedies before he or she may bring a civil suit. Cal. Gov't Code § 12960(b). In order to satisfy this requirement, the individual must file a verified complaint with DFEH within one year of the alleged workplace discrimination and obtain notice from the Department of the right-to-sue. Cal. Gov't Code § 1260(d). This letter may be obtained upon the request of the complainant or by the DFEH upon completion of its investigation. Cal. Gov't Code § 1265(b). Such a letter is a prerequisite to commencing civil litigation under the FEHA. See, e.g., Denny v. Universal City Studios, Inc., 10 Cal. App. 4th 1226 (1992). Federal courts overseeing litigation implicating the FEHA have reached the same conclusion. See, e.g., Davenport v. Board of Trustees of State Center Community College Dist., 654 F. Supp. 2d. 1073, 1088 (E.D. Cal. 2009) (holding that, to bring a civil action under FEHA, the aggrieved person must exhaust the administrative remedies provided by California law).

The ADEA provides a cause of action for aggrieved individuals as defined by the suit; however, such a right terminates upon the commencement of an action by the EEOC.

29 U.S.C. ยง 626(c)(1). Additionally, the ADEA establishes that, if the charges are dismissed or otherwise terminated by the Commission, it must then notify the complainant who may then commence a ...

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