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Savin v. City and County of San Francisco

United States District Court, N.D. California

June 22, 2017

KATHARINE SAVIN, Plaintiff,
v.
CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS Re: ECF No. 46

          JON S. TIGAR United States District Judge

         Before the Court is Defendant Bruce Lery's motion to dismiss Plaintiff's first amended complaint. ECF No. 46. The Court will grant the motion in part and deny it in part.

         I. BACKGROUND

         Plaintiff Katharine Savin began working as a medical social worker at San Francisco General Hospital in February 2015. First Amended Complaint (“FAC”), ECF No. 39, ¶ 15. During her employment, Savin was assigned to the palliative care unit, which consisted of physicians, nurses, social workers, and a member of the clergy. Id. Father Bruce Lery was the clergy member assigned to the unit. Id. In that capacity, “he provided counseling and support services to patients of all faiths” and “his duties were not primarily religious in nature.” Id. Defendants Dr. Heather Harris and Dr. Anne Kinderman supervised the unit. Id.

         Savin alleges that “Father Lery repeatedly and consistently engaged in sexual harassment towards Plaintiff in the workplace” during her employment with San Francisco General Hospital. Id. ¶ 18. Specifically, she alleges that Father Lery “told her that they would make a ‘cute couple' and invited her on a ‘date' to a ‘romantic' location.” Id. ¶ 19. She further alleges that “[h]e consistently touched Plaintiff's shoulders, back, and thighs in the workplace, and [] made several comments about Plaintiff's physical appearance and clothes.” Id. Plaintiff alleges that “Father Lery hugged and held Plaintiff for an unreasonable amount of time when he would greet her in the workplace, ” and that “[o]n more than one occasion, he placed his hands on her shoulders, and said, ‘I love you so much.'” Id. ¶¶ 24, 20. She also alleges that “Father Lery grabbed [her] by the collar of her shirt in the workplace.” Id. ¶ 21. Once, “[d]uring a team photograph, Father Lery placed his hands and fingers on Plaintiff's bare skin under her shirt, just above her breast, in an alleged attempt to help her ‘tuck' her collar in.” Id. ¶ 22. “When Father Lery placed his hands down Plaintiff's shirt, he whispered to Plaintiff, ‘I hope it is ok that I am doing this.'” Id. ¶ 23. “Plaintiff immediately objected and asked that he stop.” Id. “On another occasion, Father Lery asked Plaintiff to come back to his private office, so that he could give her a back and shoulder massage.” Id. ¶ 25. Plaintiff declined. Id.

         Plaintiff reported the conduct to her supervisors on two different occasions. When she verbally reported the conduct to Defendants Dr. Harris and Dr. Kinderman, Dr. Harris replied, “Not again!” Id. ¶ 28. The Defendants took no steps to investigate or to address the misconduct at that time. Id. Plaintiff reported the conduct again, this time via email, to Defendants Dr. Harris and Dr. Kinderman. Id. ¶ 29. Defendant Dr. Harris responded by calling Plaintiff on her cell phone and “urg[ing] Plaintiff not to report the incident.” Id. Dr. Harris also “demanded that Plaintiff cover up the email that she had sent.” Id. Defendants told Plaintiff that they “want to protect everyone on [the] team, including Father Bruce, ” and they instructed Plaintiff not to “put anything like this in writing again.” Id.

         In June 2015, San Francisco General Hospital's human resources department contacted Savin to inform her that another nurse on the palliative care team had complained about Father Lery's sexual harassment. Id. ¶ 30. In total, Plaintiff alleges that “at least three other female employees of San Francisco General Hospital made sexual harassment complaints against Father Lery.” Id. ¶ 27. “[T]he hospital directors asked Plaintiff to attend a meeting to explain what happened with Father Lery, ” and the hospital's human resources department asked Plaintiff to participate in an investigation. Id. ¶ 31. Plaintiff filed a formal written complaint with the hospital's human resources department, but the department later informed Plaintiff “that there was nothing that they could do to discipline Father Lery, as Defendants claimed he was not a ‘City' employee.” Id. ¶¶ 31˗32.

         Plaintiff alleges that she was subjected to retaliation after she filed her formal complaint with the hospital's human resources department. Id. ¶ 35. Specifically, she alleges that Defendants “fail[ed] to properly and reasonably accommodate her medical condition and disability, thus subjecting Plaintiff to constructive termination . . . ” Id. Plaintiff further alleges that, “when [she] made job inquiries in her field, Defendants actively interfered with Plaintiff's efforts” and “mischaracterized Plaintiff's qualifications and work.” Id. ¶¶ 35˗38. Plaintiff made a retaliation complaint to the human resources department, which conducted an investigation and found that her complaints were “substantiated, ” but nonetheless “refused to provide Plaintiff with a copy of the investigation report or determination letter, unless she agreed to a ‘resolution' of the matter.” Id. 39˗40.

         Based on the above conduct, Plaintiff brings several federal and state law claims against the City and County of San Francisco, the Archdiocese of San Francisco, Father Lery, Dr. Harris, and Dr. Kinderman. Id. ¶¶ 41˗82. She asserts two claims against Defendant Father Lery, both of which are relevant for purposes of the present motion to dismiss. First, she brings a claim against Father Lery under 42 U.S.C. § 1983 for deprivation of her constitutional rights to privacy, free speech, and right to petition under the First and Fourteenth Amendments to the United States Constitution. Id. ¶¶ 41˗46. Second, she brings a claim against Father Lery under California's Fair Employment and Housing Act (“FEHA”) for sexual harassment. Id. ¶¶ 59˗65. She seeks relief in the form of actual damages, punitive damages, and injunctive relief. Id. at 17.

         Father Lery now moves to dismiss both claims against him. ECF No. 46.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” While a complaint need not contain detailed factual allegations, facts pleaded by a plaintiff must be “enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter that, when accepted as true, states a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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.” Id. While this standard is not a probability requirement, “where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal quotation marks omitted). In determining whether a plaintiff has met this plausibility standard, the Court must accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). “Although leave to amend should be given freely, a district court may dismiss without leave where a plaintiff's proposed amendments would fail to cure the pleading deficiencies and amendment would be futile.” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011).

         III. DISCUSSION

         Father Lery moves to dismiss both of Plaintiff's claims against him on the following grounds: (1) Plaintiff has not alleged facts to establish that he was acting under color of law, as required to state a claim under 42 U.S.C. § 1983; and (2) Father Lery is exempt from liability under FEHA because he is an employee of a religious corporation, the Archdiocese of San Francisco. ECF No. 46 at 2. Father Lery also argues that Plaintiff's allegations would require “this Court to make an impermissible adjudication of what ...


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