United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS RE: DKT. NO. 24,
PHYLLIS J. HAMILTON United States District Judge.
the court is defendants' motion to dismiss
plaintiff's first amended complaint (“FAC”).
Dkt. 21. The matter is fully briefed and suitable for
decision without oral argument. Accordingly, the hearing set
for May 10, 2017 is VACATED. Having read the parties'
papers and carefully considered their arguments and the
relevant legal authority, the court hereby GRANTS the motion
for the following reasons.
The Prior Related Case
September 12, 2014, pro se plaintiff Jamilah Abdul-Haqq sued
her employer Kaiser Foundation Hospitals and The Permanente
Medical Group for, inter alia, racial discrimination in
violation of Title VII, harassment, disability discrimination
under the Americans with Disabilities Act
(“ADA”), failure to engage in the interactive
process under the California Fair Employment and Housing Act
(“FEHA”), and intentional infliction of emotional
distress (“IIED”). Abdul-Haqq v. Kaiser
Foundation Hospitals et al., No. 4:14-cv-04140-PJH, Dkt.
1. On April 10, 2015, the court dismissed plaintiff's
second amended complaint based on a lack of exhaustion and a
failure to state a cognizable claim. No. 14-4140 Dkt. 68.
Abdul-Haqq appealed the court's decision, and the Ninth
Circuit affirmed on October 4, 2016. No. 14-4140 Dkt. 80.
original complaint in this case was filed on September 23,
2016. Dkt. 1. Plaintiff asserted eight causes of action: (1)
disability discrimination; (2) harassment for having a
disability; (3) IIED; (4) failure to prevent harassment; (5)
failure to prevent discrimination; (6) unauthorized video and
audio recording; (7) retaliation for whistleblowing; and (8)
racial discrimination. Id. Although the complaint
erroneously names “Kaiser Emergency in San
Leandro” as the defendant, the real parties in interest
are Kaiser Foundation Hospitals and The Permanente Medical
Group (collectively, “defendants”).
February 10, 2017, the court dismissed plaintiff's
complaint with leave to amend. Dkt. 20 (the “February
10 order”). The court found that Abdul-Haqq had not
sufficiently alleged exhaustion of her first two claims for
disability discrimination and harassment. Id. at
6-7. The only administrative charge in the record, dated May
4, 2016, alleges that Abdul-Haqq “received a written
warning on or about May 3, 2016 for an incident that happened
five months ago.” Id. at 8. Because the
complaint's allegations were not “like or
reasonably related” to that charge, the court lacked
subject matter jurisdiction because the claims were not
exhausted. Id. The court ordered that any
“amended complaint must plead exhaustion of all ADA,
Title VII and FEHA claims and attach all of the relevant
right to sue letter(s).” Id.
the disability claims were not plausibly pleaded because they
did not allege any specific adverse employment action or that
Abdul-Haqq's anxiety disorder met the statutory
definition of “disability.” The fourth claim for
failure to prevent harassment on the basis of disability was
dismissed for the same reasons. Id. at 10-11.
court dismissed the IIED claim with prejudice because it was
preempted by workers' compensation laws and no
“extreme and outrageous” acts were alleged.
Id. at 9-10. The court ordered that any IIED claim
in the amended complaint must be “based on facts other
than defendants' denial of pre-meeting emails, and based
on events occurring outside of the normal course of the
employer-employee relationship.” Id. at 10.
fifth and eighth claims, sounding in racial discrimination
and failure to prevent racial discrimination, lacked any
supporting factual allegations in the body of the complaint.
The court held that any amended complaint must “(i) set
out any claims for racial discrimination and failure to
prevent harassment based on race separately in the body of
the complaint; (ii) make clear the specific statutory basis
for each of these claims (i.e., Title VII or FEHA); and (iii)
allege supporting facts that, if proven, would plausibly
establish each of the required elements of the claim [and
(iv)] plead that these claims have been exhausted.”
Id. at 12.
sixth claim for “unauthorized video and audio
recording” was dismissed because there is “no
prohibition on unauthorized recording in Title VII, FEHA, or
the ADA, ” and plaintiff did not state any other legal
basis for the claim. Id. at 13. The court ordered
that the amended complaint must state the legal basis for
the seventh claim, for whistleblowing retaliation, was
dismissed because plaintiff had not alleged any specific
adverse employment action, or alleged that defendants'
actions were based on protected activity. Id. at
The FAC's Allegations
March 3, 2017, plaintiff filed her first amended complaint
(“FAC”). Dkt. 21. The FAC brings the same eight
claims, although they are ordered differently and indicate a
specific legal basis for each claim: (1) disability
discrimination in violation of the ADA and FEHA; (2)
harassment for having a disability; (3) IIED; (4) failure to
prevent harassment/hostile work environment under FEHA and
Title VII; (5) unauthorized video and audio recording under
Cal. Penal Code § 647(j)(1); (6) retaliation for
whistleblowing under Cal. Labor Code § 1102.5(b); (7)
failure to prevent discrimination in violation of Title VII
and FEHA; and (8) racial discrimination in violation of Title
relies on her prior related case to allege exhaustion. In
particular, plaintiff claims that the Equal Opportunity
Employment Commission (“EEOC”) and California
Department of Fair Employment and Housing
(“DFEH”) “issued the pertinent Letters of
right to sue” on September 2, 2014, “before the
summons of the first complaint in the related case CV14-04140
PJH.” FAC ¶ 10. The FAC also argues that the
claims are exhausted because plaintiff “has continued
to file charges with the EEOC and DFEH.” FAC
first claim for ADA discrimination, plaintiff alleges that
she suffers from post-traumatic stress disorder
(“PTSD”), which is a disability under the ADA.
FAC ¶ 30. Abdul-Haqq has explained her
“limitations that cause triggers” to management.
FAC ¶ 31. In particular, “acknowledgment and
communication of her complaints are important to reduce [her]
symptoms.” FAC ¶ 33. Nonetheless, defendants
“ignored her accommodation request and her triggers,
” resulting in “several fact-finding meetings
that lead to uncontrollable symptoms.” FAC ¶¶
31, 33. To show discrimination, Abdul-Haqq relies on emails
“sent and received from defendants” attached as
Exhibit B. FAC ¶ 34.
accommodation plaintiff requested is that she “cannot
be pre-booked without proper notification to work on her days
off.” FAC ¶ 38. Plaintiff was also “forced
to work above safe [nurse-to-patient] ratios, which caused
her anxiety.” Id. Defendants ignored her
“patient safety concerns, ” which caused
“mental anguish.” FAC ¶ 40. Plaintiff
alleges that other nurses at Kaiser have also been
“humiliated for having a disability.” FAC
the first claim is for disability discrimination, this
section contains several factual allegations that appear to
pertain to other causes of action. Abdul-Haqq alleges that
she was ‘treated worse” than “others that
are non-black” as well as “those without the need
for accommodation.” FAC ¶ 34. Plaintiff alleges
that she was “warned” not to make complaints
about Dr. Baker. FAC ¶ 35. Abdul-Haqq also references an
“assault” by Josh Cortney, which was not
investigated, after she “complained about being
recorded without consent.” FAC ¶¶ 39, 42. She
alleges that Cortney brings a gun to work, but it was
Abdul-Haqq who received a written warning for this incident.
FAC ¶ 46. She alleges that Human Resources did not act
quickly enough on her FMLA requests. FAC ¶¶ 45, 49.
disability harassment claim, plaintiff has explained to
defendants that “preventable chaotic environments cause
her stress.” FAC ¶ 53. For example, Debbie
Carrillo, a manager, once assigned Abdul-Haqq “to take
a stroke alert patient when she has four patients already,
” creating an unsafe nurse-to-patient ratio. FAC ¶
54. This is a form of “horizontal violence” that
causes plaintiff “undue emotional distress.” FAC
¶ 55. Plaintiff “needed an accommodation” to
cope with her distress but “defendant denied her
request and refused to put the denial in writing.” FAC
IIED claim, plaintiff alleges that the claim is not preempted
by workers' compensation because defendants' actions
were “intentional and egregious.” FAC ¶ 58.
Plaintiff repeatedly requested that “things that are
going to be discussed in any fact-finding [or other] meeting
needs to be [put] in writing” and emailed to Abdul-Haqq
in advance. FAC ¶ 59. Moreover, defendants took
“three months to submit” plaintiff's
workers' compensation claim, and Abdul-Haqq was told in a
fact-finding meeting that she was “not allowed to file
any more complaints.” FAC ¶ 60. These
“malicious” actions caused plaintiff to take
disability leave. FAC ¶ 62.
fourth claim alleges both a hostile work environment and
failure to prevent harassment based on race and disability
under Title VII and FEHA. Abdul-Haqq alleges that several
doctors have “alienat[ed] black and Hispanic
staff” by “snatching gloves”,
“bully[ing]”, and an incident involving a medical
instrument thrown “in the direction of a nurse.”
FAC ¶ 65. Nonetheless, defendants “allowed”
these doctors to transfer from Haywood to Fremont, and now to
San Leandro. FAC ¶ 66. Plaintiff complained about these
doctors, but the doctors retaliated by raising “patient
care concerns” against Abdul-Haqq. FAC ¶ 67.
fifth claim for unauthorized recording is now based on
California Penal Code section 647(j)(1), a criminal statute
defining “disorderly conduct.” Plaintiff alleges
that “cameras with audio and motion sensing
capabilities” are in the “break room and patient
areas inside the emergency room.” FAC ¶ 70.
Plaintiff complained to defendants “about suspected
recording of conversations” and was given a
“written warning.” FAC ¶ 71.
sixth claim is for retaliation for whistleblowing in
violation of California Labor Code section 1102.5(b).
Plaintiff alleges that in “[l]ate August, ” she
“reported” defendants to the NLRB. FAC ¶ 73.
Following that, she was called in for several fact-finding
meetings. Id. Abdul-Haqq was also called in for