United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
DISMISS Re: ECF No. 46
TIGAR United States District Judge
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.
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.
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.
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.
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. ¶¶
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.”
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.
Lery now moves to dismiss both claims against him. ECF No.
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).
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 ...