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Nora Lavery-Petrash v. Sierra Nevada Memorial Hospital

March 26, 2012


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


Defendants David Witthaus ("Witthaus"), Arthur Dewsen ("Dewsen"), Annalise O'Connor ("O'Connor"), and James Heard ("Heard") (collectively referred to as "individual Defendants"), and Dignity Health ("Dignity Health")*fn1 each move under Federal Rule of Civil Procedure ("Rule") 12(b)(6) for dismissal of Plaintiff's harassment, retaliation, negligence, and intentional infliction of emotional distress ("IIED") claims; or, in the alternative, for a more definite statement of these claims under Rule 12(e). The motions challenge the sufficiency of Plaintiff's second, third and fourth claims in Plaintiff's First Amended Complaint ("FAC"). Plaintiff Nora LaveryPetrash ("Plaintiff") opposes the motions. //


A. Rule 12(b)(6)

Decision on Defendants' Rule 12(b)(6) dismissal motion requires determination of "whether the complaint's factual allegations, together with all reasonable inferences, state a plausible claim for relief." Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054 (9th Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50 (2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

When determining the sufficiency of a claim, "[w]e accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the non-moving party[; however, this tenet does not apply to] . . . legal conclusions . . . cast in the form of factual allegations." Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (citation and internal quotation marks omitted). "Therefore, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Id. (citation and internal quotation marks omitted); see also Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555 (2007)) ("A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'").

B. Rule 12(e)

"A [Rule] 12(e) motion is proper only where the complaint is so vague or ambiguous that the opposing party cannot respond . . . ." Doyle v. Ill. Cent. R.R. Co., No. CV F 08-0971, 2009 WL 224895, at *2 (E.D. Cal. Jan. 29, 2009) (internal quotation marks and citation omitted). "A court will deny the motion where the complaint is specific enough to apprise the defendant of the substance of the claim being asserted." Id. (internal quotation marks and citation omitted).


Plaintiff alleges in the FAC that Defendants "discriminated against [her] on the basis of [her] sex and age" during her employment with the Sierra Nevada Memorial Hospital in Grass Valley, California, "from June 24, 2009[.]" (First Amended Compl. ("FAC") ¶¶ 4 & 7.) The following comprise the crux of Plaintiff's allegations:

Plaintiff [was] forced to continue to work with co-worker [Dewsen] after . . . reporting . . . his constant and ongoing harassment of her (yelling, screaming, threatening), despite her request to work with another technician (Mike Olson) in another area of the laboratory when [Dewsen] was working the same shift as Plaintiff. . . . When Plaintiff was forced to work with [Dewsen], approximately 90 [percent] of her 40 hour work week, . . . [Dewsen] would physically hover over her, refuse to assist her if he believed she need[ed] assistance, and then commence to scream, yell and threaten her. . . . Co-worker Mike Olson opined to Plaintiff that [Dewsen] "treats women differently." Plaintiff observed that [Dewsen] harassed her (age 58 . . .) and co-worker Constance Goodwin (. . . approximate age 50), but not co-worker Patricia Daniel (approximate age 40 . . .)[.] (FAC ¶ 18(a).)

Plaintiff also alleges she "was threatened [with] insubordination by her supervisor, [Witthaus], and then written up in July[] 2009[] by [Witthaus] for 'spreading malicious gossip,' based on a meeting where Plaintiff was present in her capacity . . . as union steward on behalf of another employee (male)[.]" (FAC ¶ 8.) Plaintiff alleges this "write-up" was referenced in her May 2010 performance evaluation, which was her "first negative performance evaluation in seven years of employment." (FAC ¶ 9.) Plaintiff also alleges she received a written warning in July 2010 after other employees reported to Witthaus and O'Connor (Dignity Health's human resources director), that Plaintiff was not using certain laboratory equipment. (FAC ¶ 18(b).) Plaintiff alleges Witthaus notified her "in mid-September[] 2010 . . . that she was subject to a 90 day performance re-evaluation[,] . . . [which] resulted in another negative performance evaluation." (FAC ¶ 18(c)-(d).)

Plaintiff further alleges she "brought the acts of harassment and retaliation to the attention of her supervisors, as well as Human Resources, on many occasions." (FAC ¶ 22.) Plaintiff alleges "Defendants' intent, by reason of the harassment and refusal to take any action to relieve Plaintiff of [harassment], was to pressure her to resign from her position of employment." (FAC ¶ 19.)

The dismissal motion challenges the following three claims: Plaintiff's second claim, in which she alleges Defendants harassed and retaliated against her based on her sex and age; Plaintiff's third claim, in which she alleges that Defendants negligently caused her damages by breaching their duty to protect her from harassment; and ...

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