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Rochelle Wynes, et al v. Kaiser Permanente Hospitals

March 31, 2011


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. Defendants 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 pursuant to Federal Rule of Civil Procedure*fn1 12(b)(6) with respect to both entire claims and as to individual Defendants (ECF No. 36); and (2) a Motion to Strike pursuant to Rule 12(f) (ECF No. 37.)

For the reasons stated below, Defendants' 12(b)(6) Motion to Dismiss is granted in part with leave to amend and Defendants' 12(f) Motion to Strike is also granted in part.


The Department of Fair Employment and Housing ("DFEH") is the agency responsible for receiving and investigating employment discrimination claims in the State of California. For state employment discrimination claims brought under California's Fair Employment and Housing Act ("FEHA"), the aggrieved individual may file a complaint in writing with the DFEH. Cal. Gov't Code § 12960(b). If the DFEH takes no action within 150 days or determines prior to that time that no action will be taken, the individual will be entitled to a right-to-sue letter ("RTS Letter"), which shall be issued by the DFEH upon request. Cal. Gov't Code § 12965(b). A RTS Letter grants that individual the right to bring a civil action against the named employer for the charges listed in the DFEH complaint. The individual shall have one year from the date the RTS letter was issued to file a civil suit against the employer. Id.

The federal agency monitoring employment discrimination claims is the Equal Employment Opportunity Commission ("EEOC"). For claims brought under the Americans with Disabilities Act of 1990 ("ADA") or the Age Discrimination in Employment Act of 1967 ("ADEA"), an aggrieved individual must first exhaust his or her administrative remedies, which requires filing a charge with the EEOC detailing facts underlying the discrimination so that an investigation may begin. 42 U.S.C.A. § 2000e-5(b). Within ten days, the EEOC shall serve notice of the charge on the employer and begin an investigation. Id. The complainant shall have the right to proceed against the employer in a civil action once a charge is either dismissed by the EEOC, or 180 days have passed since it was filed and the Attorney General has not initiated a civil action in the matter. 42 U.S.C.A. § 2000e-5(f)(1). An individual may bring a civil action against the employer on the matters contained in the charge within 90 days after an RTS Letter is issued by the EEOC. Id.

Because of a work-sharing agreement between the two agencies, a complaint filed with the DFEH that alleges federal claims will be deemed filed with the EEOC as well. Reciprocally, a complaint filed with the EEOC alleging state claims will automatically be filed with the DFEH. No plaintiff may proceed with a civil suit before receipt of, or entitlement to, a RTS Letter from either the DFEH or EEOC. ///


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

A. Rochelle Wynes

Plaintiff Wynes is an African American woman who was terminated in March 2009 at 52 years of age after approximately 27 years of employment with Kaiser. Plaintiff Wynes alleges that after complaining about improper patient releases and transfers, she became ill and felt a significant amount of stress from her illness and futile patient advocacy. She took disability leave for approximately one year due to this stress.

Plaintiff Wynes alleges that she experienced harassment and discrimination both before and after her disability leave in the form of false write-ups for minimal or non-existent complaints, fabricated allegations of poor performance, and negative evaluations.

Plaintiff Wynes contends that these actions have been Kaiser's policy for many years and begin once Kaiser formulates a plan to terminate that employee. Two days after her return to the work place after disability leave, Plaintiff Wynes alleges she was suspended without justification and then wrongfully terminated.

On March 24, 2009, Plaintiff Wynes submitted a complaint to the DFEH regarding wrongful termination based upon age, gender, racial, and freedom of association discrimination, including harassment and retaliation claims. That same day, the DFEH issued a Notice of Case Closure and RTS Letter to Plaintiff Wynes. Since receipt of this RTS Letter, Plaintiff Wynes has submitted additional charges to the DFEH regarding racial discrimination and retaliation. Plaintiff Wynes alleges that the DFEH will issue no further RTS Letters to her, and that the one she has covers the subsequent charges submitted to the DFEH. On July 20, 2010, Plaintiff Wynes submitted a further supplement to her DFEH complaint alleging denial of disability benefits. Plaintiff Wynes was notified on August 4, 2010 that her charge of discriminatory treatment regarding the disability plan would also be included within her existing RTS Letter. /// ///

B. Marsha Scribner

Plaintiff Scribner was terminated in November 2008 at 64 years of age after approximately seven years of employment with Kaiser. Plaintiff Scribner alleges she was accosted and battered when Defendant Zayac abruptly, and without cause, pulled head phones off her head. She alleges further that Defendants sent harassing cards to her house with repeated and annoying references to her professional attire, behavior and timeliness. The harassment allegedly continued after she made a complaint to Human Resources. Plaintiff Scribner additionally contends that Defendants manufactured pretextual complaints and write-ups prior to her termination. The reason given for her termination was angering a patient's family on more than one occasion. She alleges that post-termination, Defendants falsely and maliciously asserted she was terminated for cause and bad performance so that she would be denied unemployment benefits. Plaintiff Scribner claims she was replaced by a younger, less qualified woman.

On June 30, 2009, Plaintiff Scribner submitted a complaint to the DFEH and EEOC regarding age discrimination. A year later she requested cessation of the investigation and issuance of a Notice of Right to Sue. In July 2010, the EEOC duly issued a "Dismissal and Notice of Rights" as to her administrative complaint. /// /// /// ///

C. Linda Baerresen

Plaintiff Baerresen was employed as a discharge planner, and is of Chinese and Hawaiian ancestry. She was terminated in October 2008 at 59 years of age. Prior to termination, she was being treated by in-house psychiatrists for what she alleges was severe emotional abuse from a hostile work environment. Upon her return to work, she claims she was not given accommodation for her disability, and thereafter, she alleges she was discharged abruptly and without reason. Plaintiff Baerresen alleges false write-ups in order to force her to retire or to justify Kaiser's eventual wrongful termination. Baerresen claims she was terminated while absent and being treated due to the extreme stress and harassment she was experiencing.

On September 25, 2009, Plaintiff Baerresen submitted charges to DFEH alleging age, race, and disability discrimination. On October 5, 2009, a letter was sent to Plaintiff Baerresen, though she has no memory of receiving it. Plaintiffs submitted a Supplement to the First Amended Complaint in the instant civil matter (ECF No. 35) to allege receipt of such a letter from the DFEH. Plaintiffs' Supplement to the First Amended Complaint as written is unclear, however, as to whether this was a RTS letter or some other communication from the DFEH. At the time of filing the DFEH complaint, Plaintiff Baerresen was seeking an investigation rather than a RTS letter. /// /// ///

D. Ruth Simpson

Plaintiff Simpson is a woman of African and Jamaican descent, and was terminated after more than 20 years of employment with Kaiser. For part of 2008, she was on disability leave due to the stress of a hostile work environment and was treated by an in-house psychiatrist. Prior to disability leave, Plaintiff Simpson alleges Defendants issued pretextual write-ups, gave her assignments that were designed for failure, unevenly assigned chores out of line with her seniority and position, and engaged in unfair scheduling.

While on disability leave, Plaintiff Simpson alleges she was treated by Kaiser physicians who told her at the time that she had a cardiac condition related to her stress. She claims Defendants did not offer accommodation upon her return to work. One of the few African Americans in management, Plaintiff Simpson alleges that she was told she would not be promoted further because of her age, and that Kaiser wanted younger people who were more malleable to have those positions. In 2009, Plaintiff Simpson submitted a complaint to the DFEH and EEOC regarding race, age, and disability resulting in forced retirement. On September 22, 2010, a RTS Letter was issued by the EEOC for these charges. /// /// /// /// ///

E. Plaintiffs' Joint Civil Complaint

Plaintiffs filed their First Amended Complaint ("FAC") with the court on December 20, 2010 alleging numerous state and federal claims. Plaintiffs further added to their FAC by filing a Supplement to the First Amended Complaint ("Supplement") on December 28, 2010 containing additional information regarding Plaintiffs Baerresen, Scribner, and Simpson. Defendants move to dismiss the following claims: (1) first claim for wrongful termination in violation of ADEA as to individual Defendants;

(2) second claim for violations of the ADA by Defendant Kaiser; (3) fourth claim for discrimination and retaliation by Defendant Kaiser in violation of federal and state law, and public policy;

(4) fifth claim for wrongful termination in violation of public policy by both Defendant Kaiser and individual Defendants; (5) sixth claim for intentional infliction of emotional distress; and

(6) seventh claim for breach of contract against both Defendant Kaiser and individual Defendants.

Defendants additionally move to strike portions of Plaintiffs' FAC including: (1) impertinent statements regarding allegations that can be addressed only by the National Labor Relations Board under the National Labor Relations Act;

(2) improper reference to "Kaiser Roseville" as it has no essential relationship to Plaintiffs' claims for relief; and

(3) immaterial reference to inadmissible decision of the California Unemployment Insurance Appeals Board awarding Plaintiff Scribner benefits. ///


A. Rule 12(b)(6) 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). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," to "give the defendant fair notice of what the...claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and quotations omitted). Though "a complaint attacked by a Rule 12(b)(6) motion" need not contain "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." Id. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 2869 (1986)). A plaintiff's "factual allegations must be enough to raise a right to relief above the speculative ...

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