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Nepomuceno v. Cherokee Medical Services, LLC

United States District Court, Ninth Circuit

October 16, 2013

ROBERTO NEPOMUCENO, Plaintiff,
v.
CHEROKEE MEDICAL SERVICES, LLC, Defendant.

ORDER DENYING MOTION TO DISMISS

BARRY TED MOSKOWITZ, Chief District Judge.

Defendant Cherokee Medical Services, LLC ("CMS" or "Defendant") has filed a motion to dismiss Plaintiff's Complaint. For the reasons discussed below, Defendant's motion is DENIED.

I. BACKGROUND

On March 18, 2013, Plaintiff Roberto Nepomuceno ("Plaintiff") commenced this action. Plaintiff alleges that he worked for six years as a Pharmacy Technician for CMS at the Balboa Naval Hospital. (Compl. ¶ 5.) Plaintiff identifies his supervisor as CMS Human Resources Manager, Sy Simmons. (Id.)

In late 2011, Plaintiff was informed that his Common Access Card ("CAC") would expire by December 2011, and that Plaintiff had to obtain a new security clearance to renew his CAC. (Compl. ¶ 5.) CMS told Plaintiff that CMS would process Plaintiff's new security clearance. (Id.) On or about November 22, 2011, Mr. Simmons told Plaintiff that there was a problem with the security clearance due to the fact that Plaintiff was a dual citizen of the United States and the Philippines, where he was born. (Compl. ¶ 6.)

Plaintiff took immediate steps to remedy the security clearance issue. Based on information he received, Plaintiff understood that if he surrendered his passport and signed a memorandum stating that he was willing to renounce his dual citizenship if asked to do so, he could obtain security clearance. (Compl. ¶ 7.) Therefore, on or about November 2, 2011, Plaintiff sent his Phillippines passport, a copy of his U.S. Naturalization Certificate, and a signed memorandum to Donna Nowak, Credential Manager with CMS. (Compl. ¶ 8.) Meanwhile, Plaintiff kept Mr. Simmons apprised regarding his efforts to obtain the security clearance. (Id.)

On December 10, 2011, when Plaintiff arrived to work, he noticed he was not on the schedule. (Compl. ¶ 8.) Plaintiff's on-site federal GS supervisor told him that the paperwork was still being processed and that he should go home and come back to work on December 12, 2011. (Id. at ¶ 9.) On December 12, 2011, Plaintiff called his Federal GS supervisor, who told him that CMS had already replaced him. (Id.) Plaintiff then called Mr. Simmons, who explained that CMS had already replaced Plaintiff by the time they found out about his efforts to rectify the security issue. (Id.)

Plaintiff alleges that CMS never submitted the proper paperwork to obtain security clearance for Plaintiff because of Plaintiff's dual citizenship and the fact that he was born in the Phillippines. (Compl. ¶ 12.) Plaintiff alleges that CMS's actions were substantially motivated by Plaintiff's national origin. (Id.)

Plaintiff also alleges that during his employment with CMS, one of his federal supervisors threatened to fire him on at least two occasions because he was speaking Tagalog in the workplace. (Compl. ¶ 11.) Plaintiff informed Mr. Simmons of these incidents, but Mr. Simmons never did anything in response. (Id.)

Plaintiff asserts the following claims: (1) continuing race, national origin, and/or ancestry discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq.; (2) continuing race, ancestry, national origin and/or color discrimination in violation of Cal. Gov't Code § 12940 et seq.; and (3) failure to prevent unlawful harassment in violation of Cal. Gov't Code § 12940 et seq.

II. DISCUSSION

CMS moves to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1), (2), and (6). As discussed below, the Court is not persuaded by CMS's arguments in favor of dismissal.

A. Sovereign Immunity

CMS contends that the Court lacks jurisdiction over the Title VII and Fair Employment Housing Act ("FEHA") claims because CMS is an arm of the Cherokee Nation tribe and is ...


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