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Abdul-Haqq v. Kaiser Emergency In San Leandro

United States District Court, N.D. California

May 1, 2017



          PHYLLIS J. HAMILTON United States District Judge.

         Before 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.


         A. The Prior Related Case

         On 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.

         B. Procedural History

         The 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”).

         On 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.

         Alternatively, 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.

         The 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.

         The 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.

         The 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 this claim.

         Lastly, 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 13-14.

         C. The FAC's Allegations

         On 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 VII.

         Plaintiff 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 ¶¶ 24-25.

         On the 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.

         Another 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 ¶¶ 47-48.

         Although 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.

         On the 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 ¶ 56.

         On the 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.

         The 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”, “condescending” behavior, “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.

         The 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.

         The 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 ...

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