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Nora Lavery-Petrash v. Sierra Nevada Memorial Hospital

September 5, 2012


The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior 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," and collectively, "Defendants")*fn1 each move under Federal Rule of Civil Procedure ("Rule") 12(b)(6) for dismissal of all claims in Plaintiff's Second Amended Complaint ("SAC"). Plaintiff Nora Lavery-Petrash ("Plaintiff") filed an opposition brief.


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) ("A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'").


Defendants argue Plaintiff's claims do not contain sufficient factual allegations to alleges actionable claims. Plaintiff's claims concern her employment with Dignity Health. Plaintiff alleges that during her employment, she experienced harassment, a hostile work environment, and retaliation in violation of the California Fair Employment and Housing Act ("FEHA") and Title VII of the Civil Rights Act of 1964 ("Title VII"). Plaintiff also alleges Defendants were negligent in failing to prevent harassment and retaliation.

A. Harassment Claims for Hostile Work Environment

Defendants argue Plaintiff fails to allege actionable claims under FEHA and Title VII for harassment and hostile work environment, since she "fail[s] to plead that she was subjected to harassment based on a particular characteristic, such as age or sex." (Defs.' Mot. ("Mot.") 5:17-18.) Plaintiff counters that "[she] has clearly stated . . . she was discriminated [against] and harassed based on gender/age." (Pl.'s Opp'n ("Opp'n") 9:12-13.)

"[A]n employee claiming harassment based upon a hostile work environment [under FEHA or Title VII] must demonstrate that . . . she was subjected to . . . conduct[] or comments that were (1) unwelcome; (2) because of sex [and/or age]; and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment." Lyle v. Warner Bros. Television Prod., 38 Cal. 4th 264, 278-79 (2006) (internal quotation marks and citations omitted) (noting that the elements for a harassment claim under FEHA and Title VII are the same). "[A] workplace may give rise to liability when it is permeated with discriminatory [sex- and/or age-based] intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. at 279 (internal quotation marks, citation, and alterations in original omitted)).

Plaintiff alleges the following in her SAC concerning her harassment and hostile work environment claims:

Co-worker Mike Olsen opined to Plaintiff that . . . Dewsen "treats women differently." Plaintiff observed that . . . Dewsen harassed her (age 58, gray hair, small build) and co-worker Constance Goodwin (. . . 250 lbs and approximate age 50), but not co-worker Patricia Daniels (approximate age 40 . . . ). [Goodwin], who worked under the Supervision of . . . Dewsen[,] was subsequently fired. Prior to [her] termination . . . , [Goodwin] observed the harassment and discrimination of Plaintiff by . . . Dewsen. . . . Dewsen dictated restrictions as to the duties allowed to certain lab technicians, in particular . . . [Plaintiff]; i.e., he would not allow her to plate the urines or conduct cultures-procedures that he prescribe[d] exclusively to male lab technicians such as Mike Olsen. .

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 Olsen) 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 ...

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