Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Earnest v. San Joaquin General Hospital

United States District Court, E.D. California

March 30, 2017

LILLIE EARNEST, Plaintiff,
v.
SAN JOAQUIN GENERAL HOSPITAL,, Defendants.

          MEMORANDUM AND ORDER

          MORRISON C. ENGLAND JR UNITED STATES DISTRICT JUDGE

         Plaintiff Lillie Earnest brings this action against Defendants San Joaquin General Hospital (“SJGH”), San Joaquin County (“County”), Ann Mooney and Service Employees International Union Local 1021 (“SEIU”), and Defendants Jackie Bagatta, Roberta Schramek, Lynn McClain, Marshay McKnight, Conrad Uy, Doug Peterson, Rolando Cabrerea, Vandana Goswani, Adam Arroyo, and Doe Defendants (the “Individual Defendants”) (collectively, “Defendants”) alleging the following causes of action: (1) civil conspiracy, (2) denial of appeal rights/due process, (3) wrongful termination, (4) breach of a memorandum of understanding (“MOU”), (5) age discrimination, (6) failure to prevent discrimination and harassment in violation of Government Code § 12920 et seq. and 42 U.S.C. § 2000e et seq., (7) interference of business contractual relation, (8) disability discrimination, (9) institutional racism, and (10) intentional infliction of emotional distress. Plaintiff's allegations stem from her employment with and termination from San Joaquin General Hospital, where she was a nursing assistant. Presently before the Court are motions to dismiss by the County Defendant (sued as SJGH) and Schramek (ECF No. 9.), Defendants Mooney and the SEIU (ECF. No. 17), and the Individual Defendants (ECF No. 19), pursuant to Federal Rule of Civil Procedure 12(b)(6).[1] Also before the Court is a motion to strike by the County (SJGH) and Schramek, joined by all other Defendants. For the following reasons, Defendants' Motions to Dismiss are GRANTED, and Plaintiff's First Amended Complaint (“FAC”) is DISMISSED with leave to amend as described below. Defendants' Motion to Strike is also GRANTED in part, as described below.[2]

         BACKGROUND [3]

         The First Amended Complaint (“FAC”) in this case is far from a model of clarity, but the Court has deduced the following from Plaintiff's pleading. ECF No. 6. It appears that the basis for much of Plaintiff's FAC stems from a July 12, 2009, investigation into a workplace complaint against Plaintiff, a 62-year old African-American woman, which Plaintiff claims was mishandled in various ways. See FAC at ¶¶ 36-46. Plaintiff was eventually terminated from her position as a nursing assistant at SJGH on April 17, 2013. At that time, Plaintiff claims she suffered from “a well-documented, bad back and neck, ” had undergone two previous knee surgeries, and had at some point been given a “Lifetime Medical” settlement from a Worker's Compensation claim. FAC at ¶¶ 57, 70.

         Plaintiff claims that her termination was the result of a conspiracy among all Defendants and that she was terminated without receiving any offer of services from the local Employee Assistance Program (“EAP”), any job training, or any “Progressive Discipline techniques.” Plaintiff claims she was forced to work out of class, and that accommodations were not made on account of her age. Plaintiff further claims that she was discriminated against because of her age, disability, and race, and that Plaintiff was denied due process in the course of her termination. It appears Plaintiff alleges that the County and the SEIU entered into a memorandum of understanding (“MOU”) that failed to provide adequate safeguards to part-time employees, who are disproportionately African-American.

         In May of 2013, Plaintiff received notice of a serious discipline hearing informing her of the reasons for her termination, and received an allegedly incomplete discovery packet. Plaintiff was represented by SEIU union representative Defendant Mooney at her hearing, but claims that she was denied the right to have a representative “of her choice.” She further alleges that the investigation leading to her termination was not impartial, and that the Individual Defendants stereotyped her based on her age, disability, and race, and made statements during the investigation in order to get her fired.

         STANDARD

         On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. However, “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.” Id. (internal citations and quotations omitted). A court is not required to accept as true a “legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009) (quoting Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the pleading must contain something more than “a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.”)).

         Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 556 n.3 (internal citations and quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirements of providing not only ‘fair notice' of the nature of the claim, but also ‘grounds' on which the claim rests.” Id. (citing 5 Charles Alan Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain “only enough facts to state a claim to relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Id. However, “[a] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.'” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

         A court granting a motion to dismiss a complaint must then decide whether to grant leave to amend. Leave to amend should be “freely given” where there is no “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to be considered when deciding whether to grant leave to amend). Not all of these factors merit equal weight. Rather, “the consideration of prejudice to the opposing party . . . carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (“Leave need not be granted where the amendment of the complaint . . . constitutes an exercise in futility . . . .”)).

         ANALYSIS

         As a preliminary matter, the Court notes that although Plaintiff cites to various sources of authority throughout her FAC, she has failed to provide the statute or law under which she brings each cause of action (with the exception of her Sixth Cause of Action brought under Cal. Gov. Code § 12920 et seq.), leaving Defendants-and the Court-to guess the basis for each of Plaintiff's claims. Plaintiff has also failed to specify against which Defendant each cause of action is alleged, leaving Defendants-and again the Court-to assume they each must defend against each claim. For each cause of action dismissed with leave to amend below, should Plaintiff decide to file an amended pleading, she must cure the defects described herein by providing the law under which each claim arises and by stating with specificity against which defendant(s) each claim is asserted.

         A. Plaintiff's Tort Claims As To The County And Individual Defendants: First, Third, Seventh, And Tenth Causes Of Action

         Plaintiff's First, Third, Seventh, and Tenth Causes of Action are dismissed as to the County and Individual Defendants because Plaintiff has failed to alleged that she complied with California's Tort Claims Act. Under the Torts Claim Act, a plaintiff cannot bring a tort claim against a public entity (or against a public employee acting in the course of his or her employment) until a written claim has been presented to the public entity and has been acted upon or rejected by the board. Cal. Gov. Code §§ 945.4; 950.2. A plaintiff must file her tort claim within six months of the accrual of the claim and must file a late-claim request within one year. Cal. Gov. Code §§ 911.2; 911.4. Here, Plaintiff's tort claims accrued, at the latest, on the date of her termination: April 17, 2013. Plaintiff therefore would have had to file her tort claim within six months of that date. Because Plaintiff has made no such allegation in her FAC, her tort causes of action must be dismissed. Plaintiff will be given one opportunity to amend with respect to these claims to the extent Plaintiff can allege compliance with and exhaustion of the Tort Claims Act. Absent a specific allegation of exhaustion, however, Plaintiff's tort causes of action will again be dismissed as to the County and the Individual Defendants, this time with prejudice.

         B. Plaintiff's Discrimination Claims Against All Defendants: Fifth, Sixth, Eighth, And Ninth Causes Of Action

         Similarly, Plaintiff's Fifth, Sixth, Eighth, and Ninth[4] Causes of Action alleging various types of discrimination are also time-barred because Plaintiff has failed to allege that she timely exhausted administrative remedies and timely filed her civil complaint. Plaintiff alleges that she exhausted administrative remedies by “timely” filing her discrimination charges against SJGH with the U.S. Equal Employment Opportunity Commission (“EEOC”) and the California Department of Fair Employment and Housing (“DFEH”), but Plaintiff does not provide the date on which those charges were filed. FAC ¶ 4. Plaintiff then states that she received a “letter of determination” (presumably, a right to sue letter) from the EEOC on February 18, 2015, and corrects this date to February 18, 2016 in her Opposition. Pl.'s Opp. ECF No. 25 at 10. Plaintiff filed the present lawsuit on May 19, 2016, ninety-one days after receiving that letter from the EEOC.

         To the extent Plaintiff brings her discrimination-based claims under Title VII, the ADEA, or the ADA, this tardy filing is fatal to her Fifth, Six[5], Eighth, and Ninth Causes of Action. 29 U.S.C. § 626 (a) (a civil action for age discrimination may be brought under the Age Discrimination in Employment Act against the respondent named in the charge within 90 days after date of receipt of such waiver); 42 U.S.C. § 2000e-5 (f)(1) (a person claiming to be discriminated against with respect to her race may initiate a civil action against the respondent named in the charge within 90 days after receiving notice from the EEOC); 42 U.S.C. § 12117(a) (incorporating Title VII's procedures “to any person alleging discrimination on the basis of disability in violation of any provision” of the ADA). Plaintiff's claims arising under these statutes are thus dismissed with prejudice.[6]

         Under the FEHA, California Government Code § 12960 et seq., a plaintiff typically has one year from the date of the allegedly unlawful act to file a complaint with the DFEH. Once the DFEH issues a right to sue notice, plaintiff has one year from the date of the notice to file a civil complaint. Cal. Gov. Code § 12965(b). It is possible that Plaintiff filed her claim with the DFEH within one year of her termination, and subsequently filed the pending civil suit within one year of issuance of a right to sue notice from the DFEH[7], but Plaintiff has not alleged she received any notice at all from the County, conspired with the other Defendants to have Plaintiff terminated, and- presumably in the furtherance of that conspiracy-represented her in bad faith. Plaintiff's arguments to the contrary are not compelling. Thus, to the extent Plaintiff's Third, Fourth, and Seventh Causes of Action against Mooney and the SEIU intend to allege that the SEIU provided inadequate representation to Plaintiff, those claims are dismissed with leave to amend for failure to plead exhaustion under the PERB. To the extent Plaintiff intended to allege otherwise with regard to Mooney and the SEIU, Plaintiff's claims are nonetheless dismissed for failure to state a claim upon which relief can be granted, and Plaintiff may amend those claims to more precisely state a cause of action against those defendants.

         Additionally, the SEIU and Mooney cannot be held liable under Plaintiff's causes of action predicated on an employment relationship because Plaintiff was not an employee of the SEIU. See Thomas v. Bodnar, 126 Fed.Appx. 828, 830 (9th Cir. 2005). Consequently, Plaintiff's First and Third Causes of Action, alleging conspiracy and wrongful termination, are dismissed without leave to amend as to Defendants Mooney and the SEIU. See Khajavi v. Feather River Anesthesia Medical Group, 84 Cal.App.4th 32, 55 (2000) (“a nonemployer defendant-who cannot commit the tort of wrongful discharge . . . can have no liability for a conspiracy to wrongfully discharge the employee”).

         C. Plaintiff's Claims Against Defendants Mooney And The SEIU

         Defendants Mooney and the SEIU additionally claim that Plaintiff's Third, Fourth, and Seventh Causes of Action should be dismissed because they fall within the exclusive initial jurisdiction of the Public Employment Relations Board (“PERB”). “A complaint alleging any violation of [the Meyer-Milias-Brown Act (MMBA)] . . . shall be processed as an unfair practice charge by [PERB].” Cal. Gov. Code § 3509. Under the MMBA, “unions owe a duty of fair representation of their members, and this requires them to refrain from representing their members arbitrarily, discriminatorily, or in bad faith.” Paulsen v. Local No. 856 of Intern. Broth. of Teamsters, 193 Cal.App.4th 823, 830 (2011) (quoting Hussey v. Operating Engineers Local Union No. 3, 35 Cal.App. 4th1213 (1995)).

         Though Plaintiff's allegations are not entirely clear, it seems Plaintiff broadly alleges that Defendants Mooney and the SEIU negotiated a discriminatory contract with the County, conspired with the other Defendants to have Plaintiff terminated, and- presumably in the furtherance of that conspiracy-represented her in bad faith. Plaintiff's arguments to the contrary are not compelling. Thus, to the extent Plaintiff's Third, Fourth, and Seventh Causes of Action against Mooney and the SEIU intend to allege that the SEIU provided inadequate representation to Plaintiff, those claims are dismissed with leave to amend for failure to plead exhaustion under the PERB. To the extent Plaintiff intended to allege otherwise with regard to Mooney and the SEIU, Plaintiff's claims are nonetheless dismissed for failure to state a claim upon which relief can be granted, and Plaintiff may amend those claims to more precisely state a cause of action against those defendants.

         Additionally, the SEIU and Mooney cannot be held liable under Plaintiff's causes of action predicated on an employment relationship because Plaintiff was not an employee of the SEI U.See Thomas v. Bodnar, 126 Fed.Appx. 828, 830 (9th Cir. 2005). Consequently, Plaintiff's First and Third Causes of Action, alleging conspiracy and wrongful termination, are dismissed without leave to amend as to Defendants Mooney and the SEI U.See Khajavi v. Feather River Anesthesia Medical Group, 84 Cal.App.4th 32, 55 (2000) (“a nonemployer defendant-who cannot commit the tort of wrongful discharge . . . can have no liability for a conspiracy to wrongfully discharge the employee”).

         D. Plaintiff's Claims Against The ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.