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Nora Lavery-Petrash v. Sierra Nevada Memorial Hospital; James (Jim) Heard

December 12, 2011

NORA LAVERY-PETRASH,
PLAINTIFF,
v.
SIERRA NEVADA MEMORIAL HOSPITAL; JAMES (JIM) HEARD;
DAVID WITTHAUS; ARTHUR DEWSEN; ANNALISE O'CONNOR,
DEFENDANTS.



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

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

Defendants moves for dismissal of Plaintiff's Complaint under Federal Rule of Civil Procedure ("Rule") 12(b)(6), and in the alterative for a more definite statement of Plaintiff's intentional tort claim under Rule 12(e). (ECF No. 9.) Plaintiff Nora Lavery-Petrash ("LaveryPetrash") filed an opposition brief. (ECF No. 13.)

Lavery-Petrash sues Defendants Catholic Healthcare West (argued by Defendants to have been erroneously sued as Sierra Nevada Memorial Hospital), James Heard, David Witthaus, Arthur Dewson and Annalise O'Connor, alleging the following claims in her Complaint: (1) "Employment Discrimination"; (2) "Intentional Tort"; (3) "General Negligence"; and (4) "Intentional Infliction of Emotional Distress" ("IIED"). This is an employment discrimination case in which Lavery-Petrash alleges sex and age discrimination claims, and that she was subjected to a hostile work environment, and to retaliation.

For the reasons stated below, Defendants' motion to dismiss is granted in part and denied in part. Since Defendants' motion to dismiss Lavery-Petrash's intentional tort claim is granted, Defendants' motion for a more definite statement of this claim need not be addressed.

I. LEGAL STANDARD

Dismissal under Rule 12(b)(6) is appropriate only where the complaint either 1) lacks a cognizable legal theory, or 2) lacks factual allegations sufficient to support a cognizable legal theory. Balistreri v. Pac. Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To avoid dismissal, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007).

In deciding a Rule 12(b)(6) dismissal motion, the material allegations of the complaint are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. See al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 555, 557). "In sum, for a complaint to survive a motion to dismiss, the nonconclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

II. ALLEGATIONS IN COMPLAINT

Lavery-Petrash alleges in a conclusory manner that each Defendant discriminated against her based on her sex and age by "treating [her] differently from that of male employees and younger female employees, in retaliation for Plaintiff's involvement as a union steward, and [because] Plaintiff[] fil[ed] . . . grievances to Defendants for their discriminatory treatment of her." (Compl. p.6.)

Further, Lavery-Petrash alleges in her Complaint: she was "required to continue working with a co-worker [after she] . . . report[ed] his harassment of her (yelling and screaming); [b]eing threatened [with] insubordination, and then written up in July, 2009, for 'spreading malicious gossip'[;]" she was given her "first negative performance evaluation in seven years;" she received a written warning for failure to use a laboratory machine when none of the other employees who experienced the same problem received such a warning; she received a second "negative performance evaluation;" and she was denied "the opportunity to interview for [a] new position" as a supervisor even though she "applied and believed [she was] qualified[.]" Id. p.10. Lavery-Petrash further alleges "Defendants' intent, by reason of the ongoing harassment and refusal to take any action to relieve Plaintiff of same, was to pressure her to resign from her position of employment." Id.

III. DISCUSSION

A. Title VII/Age Discrimination/FEHA Claims

1. Individual capacity claims

Defendants argue that since "individuals cannot be held liable for discrimination under either Title VII or the FEHA, Plaintiff's claims against Defendants Heard, Witthaus, Dewson and O'Connor should ...


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