MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT Doc. # 34
This is a civil rights action pursuant to Title VII of the Civil Rights Act of 1964 for damages and equitable relief by pro se plaintiff Wanda Al-Raheem ("Plaintiff") against defendant Covenant Care ("Defendant"). Currently before the court is Defendant's motion to dismiss Plaintiff's Second Amended Complaint ("SAC"). For the reasons that follow, Defendant's motion will be granted.
Plaintiff's original complaint and first amended complaint were dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on October 3, 2011, and on June 11, 2012, respectively. Plaintiff's First Amended Complaint was dismissed with regard to all claims asserted therein with prejudice except that leave to amend to plead a claim for disparate treatment was granted. The currently operative Second Amended Complaint ("SAC") was filed on July 9, 2012. Plaintiff continues to represent herself in this action. Defendant's motion to dismiss was filed on July 20, 2012. As of this writing, no opposition to Defendant's motion to dismiss has been filed.
Plaintiff's SAC is a much trimmed-down version of the previous complaints. Although there is nothing in the SAC that conflicts with Plaintiff's prior allegations, the allegations in the SAC are focused on the single claim for relief that Plaintiff was allowed to amend in the court's memorandum opinion and order of June 11, 2012; the claim of disparate treatment in violation of section 703(a)(1) of Title VII, 42 U.S.C. § 2000e(a)(1). The facts of this case have been set out in the court's previous decisions and need not be repeated here in their entirety. Primarily, what Plaintiff's SAC does is clarify to a considerable extent the work relationship between the three major actors. At the time relevant to this action Plaintiff was the Business Office Manager ("BOM") for the Covenant Care Turlock Nursing Rehabilitation facility ("TNR"). Michael Darouze was the Executive Director ("ED") of the facility and Toni Perkins is described as a "regional accounts receivable consultant," who is apparently a full-time employee of the corporate headquarters.
Plaintiff alleges that Perkins, in her role as regional accounts receivable consultant, was assigned to act as a "resource" to several nursing care facilities belonging to the corporation in the central valley area. According to the SAC, Perkins had authority to recommend firing or other disciplinary action to the ED but presumably lacked authority to undertake such measures on her own. The BOM did not report to Perkins but was apparently required to work with Perkins to address the backlog of accounts receivable dating back some four years. Plaintiff's SAC describes the tension between Plaintiff and Perkins as arising from a difference of opinion as to the time required to correct the 4-year back log while keeping current with newly incoming receivables. It was Plaintiff's opinion that it would be possible to correct and bill up to about 150 of the old claims per eight hour day and still maintain current accounts receivable. Perkins demanded Plaintiff process in excess of 300 claims in one day. Doc. # 33 at 3:14-19. Plaintiff's SAC alleges that White BOM's were not required to process over 300 claims per day. Plaintiff is African-American.
Plaintiff next alleges, somewhat confusingly, that she was directed by Perkins to correct and re-bill some 500 Medicare claims dating back four years. Plaintiff alleges she was directed by Perkins to accomplish the corrections to the Part A claims in one day and to accomplish the corrections to the Part B claims in one day despite telling Perkins that it would be unreasonable to think that anyone could "clean up over 500 plus part B claims in one day, while at the same time, preparing for a month end close." Doc. # 33 at 4:1-2. Plaintiff alleges that the ED was apprized of Plaintiff's objections to Perkins' demands but did nothing to intervene. Plaintiff alleges she was subject to constant nagging by Perkins and alleges that other, non-African-American BOM's in the central valley did not receive similar treatment.
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly"). While a court considering a motion to dismiss must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the pleading in the light most favorable to the party opposing the motion, and resolve factual disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ("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"). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Iqbal").
The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:
"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well- pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."
Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1950).
While Plaintiff's original complaint alleged what the court interpreted as a claim of discrimination under Title VII under a theory of disparate treatment, Plaintiff's First Amended Complaint did not. Consequently, the observations the court made with regard to the requirements of pleading a claim on the ground of disparate treatment were set forth in the court's order of October 3, 2011, dismissing Plaintiff's original complaint (the "October 3 Order"). In that order, the court pointed out two areas of deficiency that are relevant to this discussion. First, the court noted the elements of a disparate treatment claim as discussed above and opined that the court could not derive facts from the complaint sufficient to support those elements. Second, the court observed it lacked information regarding the work ...