United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS RE:
DKT. NOS. 15, 16
H. KOH United States District Judge.
Diana Mugno (“Plaintiff”) sues Defendants Hazel
Hawkins Memorial Hospital (“Hazel Hawkins”), San
Benito Health Care District (“the District”), and
Kenneth Underwood (“Underwood”) (collectively,
“Defendants”) for causes of action arising out of
Plaintiff's termination. ECF No. 5 (First Amended
Complaint, or “FAC”). Before the Court is a
motion to dismiss filed by Hazel Hawkins, the District, and
Underwood in his official capacity (collectively, the
“District Defendants”), and a separate motion to
dismiss filed by Underwood in his individual capacity. ECF
Nos. 15, 16. The Court finds these matters suitable for
resolution without oral argument and hereby VACATES the
motions hearing set for June 8, 2017, at 1:30 p.m. Having
considered the parties' submissions, the relevant law,
and the record in this case, the Court hereby GRANTS
Defendants' motions to dismiss.
District is a healthcare district within the state of
California that owns and maintains Hazel
Hawkins. FAC ¶¶ 6, 9, 11. Underwood is
the Chief Executive Officer (“CEO”) of the
District. Id. ¶ 12.
is a registered nurse and was employed by the District as the
Director of Rural Health Clinics. Id. ¶¶
1, 8, 26. Plaintiff was hired in this role on March 11, 2013.
Id. Plaintiff's job duties included
“oversee[ing] the operation of services provided
through the Clinics, ” and “setting policy and
directing, administering, and evaluating programs consistent
with the organization goals and objectives.”
Id. ¶ 28.
March 19, 2016, a male physician, Dr. Herrick, treated a
female patient at a clinic after hours. Id. ¶
32. According to the FAC, the physician instructed the staff
to register the patient, but not to charge the patient.
Id. On March 22, 2016, a male physician's
assistant, Oskar Lizarraga-Davis
(“Lizaarraga-Davis”), treated the same female
patient for a follow up visit, but no charge was generated
for the follow-up visit. Id. ¶ 33. Instead, the
visit was documented as a “telephone encounter.”
Id. On March 29, 2016, Lizarraga-Davis treated the
same female patient and again did not generate charges.
Id. ¶ 34. The treatment was charged as a
“virtual visit.” Id.
March 31, 2016, Plaintiff sent an email to Chief Nursing
Officer Lois Owens (“Owens”), and reported to
Owens the fact that a female patient had been treated after
hours and that no charges were generated. Id. ¶
30. Owens told Plaintiff to email Underwood and Mark Robinson
(“Robinson”), the Chief Financial Officer
(“CFO”) of the District. Id.
reported her complaint to Underwood and Robinson on March 31,
2017. Id. The FAC alleges, presumably incorrectly,
that on March 30, 2016-the day before Plaintiff
allegedly reported her complaint to Underwood and
Robinson-that Robinson left a message for Plaintiff which
indicated that Plaintiff's complaint had been
communicated to Underwood. Id. ¶ 35. Robinson
told Plaintiff that Underwood would discuss Plaintiff's
complaint with Dr. Herrick. Id.
11, 2016, an approximately 4-year old child fell in an exam
room at a clinic while his mother was receiving treatment.
Id. ¶ 36. “The child sustained a
laceration” during the fall and was examined by Dr.
Herrick and physician's assistant Lizarraga-Davis.
Id. The child was observed for approximately 15 to
20 minutes and the mother was informed to follow up with the
child's primary care provider. Id. The incident
was not documented or charted. Id.
13, 2016, Plaintiff received an email from the child's
primary care provider. Id. ¶ 37. The primary
care provider expressed frustration that she was not told
about what happened to the child prior to the child's
appointment. Id. After receiving this email,
Plaintiff checked the child's charts and noticed that the
child's fall had not been documented. Id. ¶
same day, May 13, 2016, Plaintiff telephoned Chief Nursing
Officer Owens and reported the failure to chart the
child's fall. Id. ¶ 39. Plaintiff
thereafter called Lizarraga-Davis and requested that
Lizarraga-Davis please document the incident in the
child's records. Id. Plaintiff told
Lizarraga-Davis that the failure to document was “a
risk and liability incident.” Id. Later that
day, on May 13, 2016, Plaintiff noted that the requested
chart documentation had been entered. Id. ¶ 41.
days after [Plaintiff] reported her complaints” to
Owens, Dr. Herrick resigned his position as Director of the
Family Clinics. Id. ¶ 40.
June 15, 2016 to June 24, 2016, Plaintiff conducted a survey
of mid-level medical providers at the clinic regarding
process improvements. Id. ¶ 42. Plaintiff
received positive comments about her performance from the
survey. Id. Plaintiff also consistently received
positive annual evaluations. Id. ¶ 43.
27, 2016, Plaintiff received a telephone call at her home
from Owens. Id. ¶ 44. Owens told Plaintiff that
Owens had met with Underwood. Id. According to
Owens, Underwood “stated that [Plaintiff] was the
problem that made it difficult to hire a new medical
director, and that [Plaintiff] was a problem with the
providers in the clinic.” Id. ¶ 44. Owens
told Plaintiff that Underwood “had made a decision to
restructure the clinics, and that there would now not be a
need for a nurse director.” Id. Owens told
Plaintiff that Underwood said that the reorganization
“might take place as early as July 1, 2016.”
Id. Plaintiff asked Owens whether Underwood's
statement to Owens meant that Plaintiff's position would
be eliminated, and Owens replied “Yes, Probably.”
Id. ¶ 45. According to the FAC, “[t]his
campaign to eliminate [Plaintiff's] position started in
May 2016, right after she notified the CFO and CEO of the
complaints about unsafe patient care and conditions that
occurred in one of the clinics and culminated in her
termination.” Id. ¶ 45.
was terminated on October 11, 2016. Id. ¶ 26.
According to the FAC, Underwood “identified and
targeted only women employees who had raised and reported
complaints of substandard and unsafe patient care to be
terminated during the ‘restructuring.'”
Id. ¶ 46. “No male providers'
positions were identified for elimination in the CEO's
new restructure.” Id.
11, 2016, Plaintiff filed an administrative tort claim with
the County of San Benito's board of supervisors.
Id. ¶ 21. The County of San Benito rejected
Plaintiff's tort claim on August 25, 2016. Id.
also filed complaints with California's Department of
Fair Employment and Housing (“DFEH”) and the
Equal Employment Opportunity Commission (“EEOC”).
Id. ¶ 20. On September 19, 2016, the DFEH and
EEOC issued Plaintiff right to sue letters. Id.
December 1, 2016, Plaintiff filed a complaint in this Court
against Hazel Hawkins, San Benito Health Care District, the
County of San Benito, and Underwood, in both his individual
and official capacities. ECF No. 1. On December 12, 2016,
Plaintiff filed the FAC. See FAC.
alleges 19 causes of action. Counts One through Five allege
§ 1983 causes of action relating to Defendants'
termination of Plaintiff in retaliation for Plaintiff
exercising her First Amendment right to free speech. See
Id. ¶¶ 47-121. Counts Six through Thirteen
raise § 1983 causes of action related to Defendants'
termination of Plaintiff in violation of the Fourteenth
Amendment. Id. ¶¶ 122-247. Count Fourteen
alleges that the District Defendants violated Title VII by
discriminating against Plaintiff on the basis of her gender.
Id. ¶¶ 269-78. Count Fifteen alleges
retaliation in violation of California Health and Safety Code
§ 1278.5. Id. ¶¶ 280-83. Count
Sixteen alleges retaliation in violation of California Labor
Code § 1101. Id. ¶¶ 284-94. Count
Seventeen alleges negligence in violation of California
Government Code § 815.2. Id. ¶¶
295-08. Count Eighteen alleges discrimination in violation of
the Fair Housing and Employment Act (“FEHA”),
California Government Code § 12940, against the
District. Id. ¶¶ 309-24. Finally, Count
Nineteen alleges intentional infliction of emotional distress
against only Underwood, presumably in his individual
capacity. Id. ¶¶ 325-28.
February 14, 2017, the County of San Benito filed a motion to
dismiss the FAC. ECF No. 12. On February 15, 2017, the
District Defendants filed a motion to dismiss. ECF No. 15
(“Dist. Def Mot.”). On February 15, 2017,
Underwood, in his individual capacity, filed a motion to
dismiss. ECF No. 16 (“Underwood Mot.”).
February 28, 2017, Plaintiff filed a notice of voluntary
dismissal of the County of San Benito. ECF No. 20. On that
same day, the Court dismissed the County of San Benito and
denied as moot the County of San Benito's motion to
dismiss the FAC. ECF No. 21.
March 1, 2017, Plaintiff filed an opposition to the District
Defendants' motion to dismiss. ECF No. 22 (“Pl.
Opp.”). Plaintiff did not file an opposition to
Underwood's motion to dismiss.
March 8, 2017, Defendants filed replies. ECF Nos. 28
(“Dist. Def. Reply”); ECF No. 29
Motion to Dismiss Under Rule 12(b)(6)
to Federal Rule of Civil Procedure 12(b)(6), a defendant may
move to dismiss an action for failure to allege “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged. The plausibility standard is not
akin to a ‘probability requirement, ' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal citation omitted).
purposes of ruling on a Rule 12(b)(6) motion, the Court
“accept[s] factual allegations in the complaint as true
and construe[s] the pleadings in the light most favorable to
the nonmoving party.” Manzarek v. St. Paul Fire
& Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.
2008). However, a court need not accept as true allegations
contradicted by judicially noticeable facts, Shwarz v.
United States, 234 F.3d 428, 435 (9th Cir. 2000), and a
“court may look beyond the plaintiff's complaint to
matters of public record” without converting the Rule
12(b)(6) motion into one for summary judgment, Shaw v.
Hahn, 56 F.3d 1128, 1129 (9th Cir. 2011). Mere
“conclusory allegations of law and unwarranted
inferences are insufficient to defeat a motion to
dismiss.” Adams v. Johnson, 355 F.3d 1179,
1183 (9th Cir. 2004).
Leave to Amend
Court concludes that a motion to dismiss should be granted,
it must then decide whether to grant leave to amend. Under
Rule 15(a) of the Federal Rules of Civil Procedure, leave to
amend “shall be freely given when justice so requires,
” bearing in mind “the underlying purpose of Rule
15 . . . [is] to facilitate decision on the merits, rather
than on the pleadings or technicalities.” Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citation
omitted). Nonetheless, a district court may deny leave to
amend a complaint due to “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” See
Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522,
532 (9th Cir. 2008).
move to dismiss all 19 claims asserted in the FAC. The Court
first addresses the causes of action under § 1983, and
then addresses the causes of action under Title VII and FEHA.
Court then addresses the remaining state causes of action
against the District Defendants, and finally the Court
addresses the intentional infliction of emotional distress
claim asserted against Underwood in his individual capacity.
Section 1983 Causes of Action (Counts One through
asserts in Counts One through Thirteen claims under §
1983. Defendants move to dismiss Plaintiff's § 1983
claims on three primary bases. First, Defendants contend that
Counts One through Five, which allege § 1983 claims
based on violation of Plaintiff's First Amendment rights,
fail to state a claim because Plaintiff's alleged speech
is not constitutionally protected. Second, Defendants contend
that Counts Six through Thirteen, which allege § 1983
claims based on violation of Plaintiff's Fourteenth
Amendment rights, fail to state a claim because Plaintiff has
no constitutionally protected property interest in her
employment. Third, Defendants contend that all of
Plaintiff's § 1983 causes of action fail for ...