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Lau v. Wong

United States District Court, Ninth Circuit

May 20, 2013

KAREN LAU, Plaintiff,
v.
ERIC WONG, Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT [Re: ECF No. 5]

LAUREL BEELER, Magistrate Judge.

INTRODUCTION

Plaintiff Karen Lau, an employee of the Social Security Administration ("SSA"), sought, in California Superior Court, a restraining order against her supervisor, Defendant Eric Wang.[1] Notice of Removal, Exh. 1 ("Request"), ECF No. 1 at 6-12.[2] Mr. Wang removed the case to federal court. Notice of Removal, ECF No. 1 at 1-4. The facts underlying Ms. Lau's request for a restraining order request suggest claims for employment discrimination, hostile work environment, and harassment claims in addition to claims arising in tort. See Request, ECF No. 1 at 6-12. Mr. Wang now moves dismiss himself as a improper defendant and to dismiss Ms. Lau's claims under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction or, alternatively, under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Motion, ECF No. 5. Pursuant to Civil Local Rule 7-1(b), the court finds this matter suitable for determination without oral argument and vacates the June 6, 2013 hearing. Upon consideration of the parties' filings and the record in this case, the court GRANTS Mr. Wang's motion to dismiss.

STATEMENT

Ms. Lau is a claims representative at the San Francisco Mission branch office of the SSA. Arcilla Declaration, ECF No. 5-1, § 4. Mr. Wang, an operations supervisor in the same office, is Ms. Lau's first-level supervisor. Id. Ms. Lau alleges that, from July 2012 through September 2012, Mr. Wang committed various acts in the workplace that caused her to feel "emotional[]... distress and psychological[] disturb[ance]." Request, ECF No. 1 at 8. Specifically, Ms. Lau alleges:

§ In July 2012, Mr. Wang ordered her into a room and allowed her to "sit down on a broken chair." Id. at 12. In addition, he ordered her into his office every morning for reasons not clear to her, and berated her throughout the month by calling her "stupid." Id.

§ On the morning of August 31, 2012, Mr. Wang approached her and demanded "[at the] top of his lung[s]" to see her. Id. at 8. Ms. Lau does not specify what Mr. Wang said or did on this occasion, but explains that his "demeanor" appeared "belligerent" and "abusive" and his "words" and "actions" were "intimidating and violent." Id. She felt "scared and fearful" and subsequently suffered various physical symptoms ("excruciating abdominal pain, headache, and chest pain") of emotional distress. Id. As a result, she requested three days off work to seek treatment for her "pain and suffering" at Kaiser Hospital. Id. at 8, 12. Following her return to work in early September 2012, Mr. Wang "kept following [her] to the manager's office." Id. at 12. She subsequently filed a police report against him later that week. Id.

§ On September 11, 2012, Mr. Wang stood within 24 inches of her and angrily demanded to see her. Id. at 8. Mr. Wang threw a "reprimand letter" in the direction of her "vaginal area" and demanded that she sign it. Id. Forty-five minutes after that encounter, Mr. Wang formally issued her the reprimand letter with her signature appended. Id. Ms. Lau reports that Mr. Wang's course of conduct has caused her to "feel threatened" and suffer from "acute stress disorder related to work stress" that has manifested in an array of symptoms ("post traumatic stress disorder, chest pain, neck pain, abdominal pain, [and] leg sore[ness]"). Id.

On September 26, 2012, Ms. Lau went on a leave of absence from work and did not specify a return date. Arcilla Decl., ECF No. 5-1, § 4. On September 28, 2012, she called the SSA's Civil Rights and Equal Opportunity ("CREO") Office and left a message about filing an equal employment opportunity ("EEO") complaint against Mr. Wang. Id., § 5. On October 5, 2012, an EEO counselor responded to her request by email, id. § 6, but Ms. Lau was unable to respond to the counselor because of her leave from work, id. § 7. From October 5-9, 2012, a CREO manager arranged to meet with Ms. Lau in his office in Richmond, California to discuss her EEO claims. Id. § 8. Ms. Lau, however, did not appear for her appointment with the CREO manager and did not schedule another appointment. Id.

On February 5, 2013, Ms. Lau filed a request for a civil harassment restraining order against Mr. Wang in California Superior Court alleging the facts discussed above. Request, ECF No. 1 at 6-12. She asked the Superior Court to require that Mr. Wang stay at least 50 yards away from her person, home, workplace, school, and vehicle. Id. On February 6, 2013, the Superior Court denied her request until it could hear the matter on February 22, 2013. Notice of Removal, Exh. 2 ("Restraining Order"), ECF No. 1 at 14-22.

The SSA received notice of this matter on February 15, 2013, and the United States Attorney's Office received notification of this matter from the SSA on February 19, 2013. Notice of Removal, ECF No. 1, § 5. On February 21, 2013, the United States Attorney's Office removed this matter to this court, Notice, ECF No. 1, and in support of its Notice of Removal, certified on behalf of the Attorney General that Mr. Wang was acting within the course and scope of his employment with the SSA with respect to Ms. Lau's allegations. Id. § 7; Certification Pursuant to 28 U.S.C. § 2679(d) ("Certification"), ECF No. 3.

On February 28, 2013, Mr. Wang moved to dismiss this matter. Motion, ECF No. 5. Around the time her opposition was due, Ms. Lau filed the following documents: (1) a document titled "Sexual Harassment Historical Accounts in Chronological Events"; (2) an "EEO Counselor's Report" dated April 22, 2013; (3) a letter from Ms. Lau to SSA EEO Manager Nelson Arcilla dated April 5, 2013; (4) a "Claim for Disability Insurance Benefits - Doctor's Certificate"; (5) a San Francisco Police Department Incident Report; and (6) a "Standard Grievance Form" dated August 10, 2012. See ECF Nos. 27-32.

Further events are described in the EEO Counselor's Report and the Sexual Harassment Historical Accounts in Chronological Events. On April 2, 2013, Ms. Lau contacted the Equal Employment Opportunity ("EEO") office and was interviewed by an EEO counselor in connection with her claims against Defendant. EEO Counselor's Report, ECF No. 28 at 1. Ms. Lau complained of harassment and sex discrimination. Id. at 2. Specifically, she complained that on December 24, 2011, her supervisor yelled at her, and on June 20, 2012, he called her "stupid." Id. at 3. She also said that her supervisor told her to be more positive and open-minded when it comes to feedback, but that he had a mean and angry demeanor. Id. She also states that "she never followed through" with her initial EEO complaint, but is now requesting traditional EEO counseling because she is "in better condition." Id. And in the "Sexual Harassment Historical Accounts in Chronological Events, " Ms. Lau alleges that on a number of occasions from December 2011 through September 2012, Mr. Wang yelled at her and/or engaged in other discriminatory practices. See Sexual Harassment Historical Accounts in Chronological Events, ECF No. 27 at 1-7.

Mr. Wang filed a reply in which he argues that none of the additional information Mr. Lau provided undermines the arguments he ...


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