United States District Court, N.D. California, Oakland Division
DR. SCOTT TANNER, an individual, Plaintiff,
KAISER FOUNDATION HEALTH PLAN, INC., a California corporation, KAISER FOUNDATION HOSPITALS, a California corporation, NORTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, INC., a California corporation, and DOES 1-50, Defendants.
ORDER GRANTING MOTION TO DISMISS
SAUNDRA BROWN ARMSTRONG Senior United States District Judge
Scott Tanner (“Plaintiff”) filed the instant pro
se action against his former employers Kaiser Foundation
Health Plan, Inc., Kaiser Foundation Hospitals, and The
Permanente Medical Group, Inc. (“TPMG, ”
erroneously sued as Northern California Permanente Medical
Group, Inc.) (collectively, “Kaiser” or
“Defendants”). Plaintiff seeks to rescind his
employment separation agreement with Kaiser, including the
comprehensive release of claims contained therein. Upon
rescinding the same, Plaintiff further seeks to prosecute
claims for wrongful termination, discrimination, and
parties are presently before the Court on Defendants’
Motion to Dismiss Plaintiff’s Amended Complaint,
pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt.
37. Having read and considered the papers filed in connection
with this matter and being fully informed, the Court hereby
GRANTS Defendants’ motion, for the reasons stated
below. The Court, in its discretion, finds this matter
suitable for resolution without oral argument. See
Fed.R.Civ.P. 78(b); N.D. Cal. Civ. R. 7-1(b).
2000, Plaintiff began working for the Kaiser Permanente
Outpatient Pharmacy Department. First Am. Compl.
(“FAC”) ¶ 14, Dkt. 33. Plaintiff served as a
staff pharmacist, a lead pharmacist, a pharmacist supervisor,
and finally, in late 2010, as Pharmacist-In-Charge at
Kaiser’s Manteca location. Id.
allegations of Plaintiff’s 56-page FAC (like his
69-page original complaint) are profuse and discursive. In
brief, between 2010 and 2012, Plaintiff was allegedly subject
to harassment, discrimination, and retaliation at work. FAC
¶¶ 14-66. Plaintiff is a white male, over the age
of 40, with an undisclosed “physiological serious
health condition/physical disability.” Id.
¶¶ 88, 94, 103. During the relevant period,
Kaiser’s pharmacy staff in Manteca was 85-90% Asian,
female, and under the age of forty. Id. ¶ 103.
According to Plaintiff, he suffered adverse employment
consequences based on his color, gender, and age, as well as
his disability, for which Defendants allegedly failed to
provide adequate accommodation. Id. ¶¶ 90,
94-95, 103-104, 115-116.
addition, Plaintiff asserts that he suffered harassment and
retaliation based on the aforementioned factors (i.e., his
color, gender, age, and disability), as well as for
“[his] complaints about [other employees’]
misconduct affecting patient safety and care.” FAC
¶ 123. Among other allegations of misconduct, Plaintiff
claims that Defendants failed to respond to reports of
unlawful drug diversion (i.e., theft) and drug furnishing
irregularities (i.e., pharmacist errors). Id. ¶
125. Plaintiff also alleges that Defendants failed to take
all reasonable steps to prevent further discrimination and
harassment. Id. ¶¶ 133, 135.
Plaintiff alleges that Kaiser engages in unlawful business
practices. FAC ¶ 151. According to Plaintiff,
Defendants: (1) did not adequately compensate him and others
like him; (2) did not allocate sufficient funds for
“community benefit expenditures”; and (3) earned
profits through 501(c)(3) tax-exempt entities, and then
funneled said profits to its related for-profit entities,
such as TPMG. Id. ¶¶ 141-157.
November 15, 2012, after a purported two-year campaign
against Plaintiff by his co-workers, which allegedly included
verbal abuse, interference with his work performance, and
exacerbation of his health condition, FAC ¶¶ 26-32,
Kaiser suspended Plaintiff from work, id.
¶¶ 33-35. Kaiser stated that the suspension
“was [a] non-punitive investigation, ” and
reduced Plaintiff’s salary by 50%. Id.
Plaintiff alleges that Kaiser did not inform him of the
reason for the suspension. Id.
suspended, Plaintiff received materials regarding the 2012
Employee Choice Program (“ECP”). FAC ¶ 37.
ECP was a “voluntary separation incentive
program” that Kaiser offered to various employees in
Northern California. Request for Jud. Not.
(“RJN”), Ex. 1(A) at p. 2, Dkt. 38. ECP offered
eligible employees an opportunity to terminate their
employment voluntarily in exchange for severance pay and
medical/dental coverage. Id. On December 23, 2012,
Plaintiff executed a Separation Agreement and General Release
(the “Separation Agreement”) to take advantage of
ECP. FAC ¶ 38; RJN, Ex. 1 at p. 1, 7.
Separation Agreement includes a provision entitled
“Complete Release of Claims, ” which released
Defendants from all claims of any kind arising out of or
related to Plaintiff’s employment and/or termination.
RJN, Ex. 1 at p. 3. The release
includes, but is not limited to, all claims based in tort or
contract, or under any federal, state, or local statute,
ordinance, or common law, including, but not limited to, the
Age Discrimination in Employment Act [“ADEA”],
Title VII of the Civil Rights Act [“Title VII”],
the Americans with Disabilities Act [“ADA”], the
California Fair Employment and Housing Act
[“FEHA”], or any claim of discrimination,
harassment, breach of contract or public policy, wrongful or
retaliatory discharge and all claims for compensation,
vacation, attorney’s fees, wrongful denial of insurance
and employee benefits.
Id. Plaintiff’s employment terminated
effective February 11, 2013, and he received 16 weeks of
severance pay totaling $45, 558.78, plus other benefits.
Id. at p. 1-2.
now alleges that he executed the Separation Agreement under
duress, menace, and/or undue influence, and therefore, that
he is entitled to rescind the agreement. FAC ¶¶
67-86. With regard to duress, Plaintiff alleges that several
factors--Kaiser’s refusal to accommodate his health
condition, his suspension (with 50% reduction in pay), and
the risk of termination--induced him to sign the Separation
Agreement. Id. ¶¶ 69-74. With regard to
menace, Plaintiff further alleges that he signed the
Separation Agreement “to escape” ongoing
harassment and threats that he endured at work and/or from
his coworkers. Id. ¶¶ 75-82. Finally, with
regard to undue influence, Plaintiff alleges that, because of
his health condition and the aforementioned hostile work
environment, he suffered a weakness of spirit that rendered
him unable to exercise independent judgment when executing
the Separation Agreement. Id. ¶¶ 83-86.
April 21, 2015, Plaintiff filed suit against Defendants in
state court, alleging claims for: (1) Unlawful Attainment of
Invalid Separation Agreement; (2) Age Discrimination in
Violation of ADEA and FEHA; (3) Disability Discrimination in
Violation of ADA and FEHA; (4) Race, Color, Gender, and
National Origin Discrimination in Violation of Title VII and
FEHA; (5) Failure to Accommodate Disability; (6) Retaliation;
(7) Failure to Prevent Discrimination, Harassment or
Retaliation; (8) Unlawful Business Practices; and (9)
Constructive Discharge in Violation of Public Policy. Dkt. 1.
Defendants removed the instant action to this Court based on
federal-question jurisdiction. Id.
26, 2015, Defendants filed a motion to dismiss the Complaint,
arguing that Plaintiff: (1) failed to allege facts sufficient
to support a claim for rescission of the Severance Agreement,
and (2) had released all remaining claims under that
agreement. Dkt. 6. On December 3, 2015, the Court granted
Defendant’s motion. Order, Dkt. 32. The Court found
that Plaintiff failed to state facts sufficient to support a
claim for rescission of the Separation Agreement, which, in
turn, barred any cause of action arising out of his
employment and termination. The Court further held that, with
the exception of the eighth cause of action for unlawful
business practices, Plaintiff’s claims arose entirely
out of his employment and termination. With regard to the
eighth cause of action, Plaintiff appeared to predicate the
claim on violations of both the California Labor Code
(“CLC”) and the Internal Revenue Code
(“IRC”). The Court found that (1) the Separation
Agreement served as a bar to Plaintiff’s claim insofar
as it arose out of alleged CLC violations, and (2) Plaintiff
lacked standing to raise the claim insofar as it arose out of
alleged IRC violations. The Court granted Plaintiff leave to
amend his claims, except for the ninth cause of action for
constructive discharge, which is time-barred.
December 16, 2015, Plaintiff filed the operative First
Amended Complaint, re-alleging the first through eighth
causes of action. Dkt. 33. Thereafter, Defendants filed the
instant Motion to Dismiss Plaintiff’s Amended
Complaint. Dkt. 37. The motion is fully briefed and ripe for