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Ortega v. University of Pacific

United States District Court, Ninth Circuit

November 14, 2013

JESSICA ORTEGA, Plaintiff,
v.
UNIVERSITY OF THE PACIFIC, et al., Defendants.

ORDER

KIMBERLY J. MUELLER, District Judge.

Defendants University of the Pacific ("UOP") and Howard Chi ("Chi") (collectively "defendants") have filed a motion to dismiss one of plaintiff's seven claims and to strike plaintiff's claim for punitive damages, with a request for a more definite statement as to the dates of some of the alleged conduct. The court ordered the motion submitted on the pleadings and now GRANTS the motion in part and DENIES it in part.

I. BACKGROUND

On July 16, 2013, plaintiff Jessica Ortega ("Ortega") filed a complaint against defendants raising seven causes of actions: (1) sexual harassment and discrimination in violation of 42 U.S.C. § 2000e-2 (Title VII); (2) retaliation in violation of 42 U.S.C. § 2000e-3 (Title VII); (3) sexual harassment in violation of California Government Code § 12940(j) (FEHA); (4) discrimination in violation of California Government Code § 12940(a) (FEHA); (5) retaliation in violation of California Government Code § 12940(h) (FEHA); (6) failure to take steps to prevent harassment and discrimination in violation of California Government Code § 12940(k) (FEHA); and (7) wrongful termination in violation of public policy. Compl., ECF No. 1 at 6-12. The complaint also alleges that the defendants acted maliciously, fraudulently, and oppressively. Id. at 13.

According to the complaint, Ortega worked at the Pacific Dental Clinic of the University of the Pacific School of Dentistry for four years. ECF No. 1 ¶¶ 12-13. Chi, the clinic's director, made many sexually inappropriate comments. Id. ¶ 14. In August 2012, Ortega and three other dental assistants notified their supervisor they were not comfortable with Chi's comments. Id. ¶ 15. Ortega and two other employees met with Sally Coleman, UOP's Associate Director of Human Resources ("H.R."), in September 2012 and complained about Chi's comments. Ortega's supervisor, who was present, claimed Chi's comments were not sexual. Id. ¶ 16. Human Resources did not investigate Ortega's complaints despite a promise to follow up. Id.

In October 2012, Chi began to modify the work duties of the assistants who had complained to H.R., which resulted in a substantial increase in their workload. Id. ¶ 17. When Chi increased their workload again in November 2012, Ortega complained directly to Chi, saying she believed he was retaliating against her for her complaints to H.R. Id. After the November meeting, Ortega returned to H.R. to complain about the retaliation, but Coleman said Chi was allowed to change the work rules. Id. ¶ 18.

In January 2013, Chi announced additional changes to the workloads of the assistants who had complained about him. When Ortega asked about the changes, Chi said her job was at risk because of performance issues but then refused to answer Ortega's questions about her job performance. Id. ¶ 19. Ortega left the meeting to lodge a complaint with H.R., saying "I'm done with this situation." Id. When she arrived at H.R., Coleman said Chi had called to report Ortega had resigned. Ortega protested, but Coleman said Chi controlled whether Ortega still had her job. The next day Ortega was told Chi had decided she could not have her job back. Id. ¶ 20.

II. THE MOTION TO DISMISS

A. Standard for a Motion To Dismiss

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter... to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "labels and conclusions' or a formulaic recitation of the elements of a cause of action.'" Id. (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

In making this context-specific evaluation, this court must construe the complaint in the light most favorable to the plaintiff and accept as true the factual allegations of the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). This rule does not apply to "a legal conclusion couched as a factual allegation, '" Papasan v. Allain, 478 U.S. 265, 286 (1986) (quoted in Twombly, 550 U.S. at 555), nor to "allegations that contradict matters properly subject to judicial notice" or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir. 2001). A court's consideration of documents attached to a complaint or incorporated by reference or matter of judicial notice will not convert a motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003); Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); compare Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002) (noting that even though court may look beyond pleadings on motion to dismiss, generally court is limited to face of the complaint on 12(b)(6) motion).

B. Preliminary Matters

Defendants seek to strike plaintiff's claim for punitive damages under Rule 12(f) of the Federal Rules of Civil Procedure. The Ninth Circuit has held, however, that "Rule 12(f) does not authorize district courts to strike claims for damages on the ground that such claims are precluded as a matter of law." Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010). This court may convert this motion to strike to a motion to dismiss under Rule 12(b)(6) when, as here, it is based on a claim that plaintiff ...


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