The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Previously pending on this court's law and motion calendar for March 15, 2012, were defendant A. Teichert & Son, Inc.'s ("Teichert") motion to dismiss and motion to strike, filed February 6, 2012. Larry Kazanjian appeared for defendant. Plaintiffs appeared telephonically in pro se.
This should be the final time the claims in plaintiff's ever-changing complaint should be reviewed by this court. At this juncture, the court can only find that plaintiff is manipulating the anti-discrimination laws to substitute for state law claims which are otherwise barred by workers compensation exclusivity. For various other reasons as well, including administrative limitations and statute of limitations reasons, the two existing claims (Title VII and 42 U.S.C. § 1981), and the one most recently added (ADA), should be dismissed without leave to amend.
Concise Factual Background
While the undersigned will later review allegations of the Second Amended Complaint in detail, the underlying factual background can be concisely stated. Plaintiff claims he was working as a certified heavy equipment operator in May, 2004, when a co-worker intentionally bumped into him using another machine while plaintiff was operating a scraper, causing neck and back injuries. Although plaintiff reported the incident to his foreman, the foreman did not file an incident report, and the co-worker was not trained or disciplined. (SAC ¶10.) The SAC alleges multiple incidents of similar improper behavior by co-workers which caused plaintiff injury, but for which Teichert allegedly took no action. (Id. at ¶¶ 11 - 15.) Eventually, plaintiff was so injured from being rammed on three separate occasions that his last day of work was July 11, 2005. (Id. at ¶ 14.)
Plaintiff thereupon commenced upon a lengthy journey in workers compensation proceedings, although plaintiff never alleges when these proceedings officially commenced, or when they officially ended, at least administratively. Suffice it to say that as the years went by plaintiff became increasingly discouraged by the results of various doctor's evaluations, his lawyer's alleged misfeaseance and adverse decisions. This discouragement was eventually transmuted into a belief that all involved in the workers compensation proceedings, his lawyer, the opposition, medical personnel, and eventually the administrative law judge himself, were engaged in a conspiracy of sorts to deny him benefits.
Plaintiff commenced this action on February 3, 2012 alleging only state claims related to the tractor bumping incidents, and the perceived unfairness in the workers compensation proceedings. This filing was quickly followed by the First Amended Complaint, adding a claim for "discrimination." This claim simply incorporated the previous allegations (having nothing to do with discrimination), added an allegation of Romanian "race" (assuming such is an ethnic group as opposed to merely a political demarcation), and concluded that all of the above was caused by "racial" discrimination on the part of the employer Teichert in violation of 42 U.S.C. 2000e et seq and 42 U.S.C § 1981 (discrimination in employment contract). The other defendants in the non-discrimination claims included lawyers and insurers in the workers compensation process, a doctor who performed an evaluation, and the administrative law judge himself.
Various motions to dismiss were made. All of the state claims were dismissed on the basis of workers compensation exclusivity or immunity. Plaintiff Elisabeth Ungureanu's one claim, a consortium claim, was dismissed without leave to amend. Plaintiff was given leave to amend the discrimination claims (Title VII and § 1981) against Teichert only in order to allege some discriminatory nexus for the events which befell plaintiff. See Findings and Recommendations dated October 13, 2011 and Order adopting the Findings dated December 22, 2011.
Despite having his state law claims dismissed without leave to amend, plaintiff realleged these claims in the Second Amended Complaint (SAC). Although Elizabeth Ungureanu remains a captioned plaintiff, the SAC does not contain any claims pertaining to her. Paragraphs 24 and 25 of the (SAC) did expand upon his discrimination claims -- plaintiff was claiming a hostile work environment due to jokes about his Romanian ancestry made by co-workers and a first line supervisor. The Americans with Disabilities Act (ADA Title I) added claim was based on the sole allegation that co-workers called him a "bobblehead," on account of plaintiff's "moving his head constantly due to the pain in the neck." SAC at ¶ 21. This was the sum total of the ADA allegations. The ensuing lengthy recitation of events which befell plaintiff in the workers compensation proceedings was similar to what had been alleged in the past, but with an added tag line that the events demonstrated that "discrimination continued."
The undersigned will dispense with repeating the standards on a motion to dismiss as those were fully set forth in the October 13, 2011 Findings and need not be repeated.
A. The Court's Jurisdiction
Despite this court's previous advisement that there was federal question jurisdiction, (28 U.S.C. § 1331), based on two employment discrimination claims, plaintiffs continue to invoke diversity jurisdiction. As all state law claims were dismissed by the previous findings and recommendations, diversity (28 U.S.C. § 1332), is no longer a necessary or proper basis for jurisdiction in this case.
In the previous findings and recommendations, plaintiffs' claims for
negligent hiring, negligent supervision, negligent retention, fraud, and unfair
business practices were dismissed without leave to amend.*fn1
The "law of the case" doctrine provides that the decisions on
legal issues made in a case "should be followed unless there is
substantially different evidence ... new controlling authority, or the
prior decision was clearly erroneous and would result in injustice."
Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392 (9th Cir.
1981); see also Waggoner v. Dallaire, 767 F.2d 589, 593 (9th Cir.
1985), cert. denied, 475 U.S. 1064 (1986); Thomas v. Bible, 983 F.2d
152, 155 (9th Cir.1993). Therefore, these claims are precluded by the
law of the case. They will not be revisited and will be dismissed.
C. Plaintiff Elizabeth Ungureanu
The previous findings and recommendations dismissed Elizabeth's loss of consortium claim without leave to amend because there were no state law claims remaining from which she could derive her loss of consortium claim. As previously stated, there is no federal free standing loss of consortium for the statutory discrimination claims. Barker v. Halliburton, 645 F.3d 297, 300 (5th Cir. 2011). Therefore, Elizabeth should remain dismissed from this action as the only claim which she might have maintained was dismissed. See also Thomas v. Bible, 983 F.2d 152, 155 (9th Cir.1993) (law of the case doctrine).
The SAC includes discrimination claims that appear to be brought not only under Title VII and 42 U.S.C. § 1981, but now, also the Americans With Disabilities Act. Plaintiff, whose claims are based on his Romanian ancestry, as well as his physical disabilities as a result of defendant's alleged actions, alleges violations by Teichert both during his employment, and during the workers' compensation proceedings.
As before, the SAC is divided into two temporal phases: the on-the-job events, and the workers compensation proceedings. The motion to dismiss involves assertions of both administrative and court filing untimeliness, and the Noerr-Pennington Doctrine.
The issues raised by these three claims are outlined here.
Title VII Claim: (1) Alleged violations in the workplace -- whether plaintiff timely exhausted his claims; and whether his claim was tolled during the pendency of the workers' compensation proceedings; (2) Alleged violations during workers' compensations proceedings --
(a) whether plaintiff exhausted these claims; (b) whether the allegations sufficiently relate discrimination; and (c) whether the Noerr-Pennington doctrine precludes these claims in any event.
42 U.S.C. § 1981 Claim: (1) Alleged workplace violations -- (a) whether this claim is barred by the statute of limitations; and (b) whether equitable tolling applies during the time plaintiff was pursuing workers' compensation remedies; (2) Violations during workers' compensations proceedings -- a) whether § 1981 applies to such proceedings; (b) whether the allegations sufficiently relate to discrimination violative of § 1981, and (c) whether the NoerrPennington doctrine precludes these claims.
ADA Claim: limited to alleged workplace violations only -- whether this claim was timely exhausted, and whether ...