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Gutierrez v. Permanente

United States District Court, E.D. California

May 29, 2018




         Plaintiff Arthur Gutierrez (“Plaintiff”), a former employee of Defendant Kaiser Permanente (“Kaiser”), seeks redress from Kaiser through the present action for his alleged wrongful termination. In addition to alleging various claims for discrimination, retaliation, wrongful termination and intentional infliction of emotional distress against Kaiser, Plaintiff also asserts that Kaiser breached the applicable union collective bargaining agreement (“CBA”) by discharging Plaintiff without just cause and by failing to resolve his grievances in a timely manner.

         Kaiser now moves to dismiss Plaintiff's Fourth and Eighth Causes of Action alleged in Plaintiff's operative Second Amended Complaint (“SAC”) for failure to state a viable claim under Federal Rule of Civil Procedure 12(b)(6).[1] According to Kaiser, those causes of action, for negligence and for intentional infliction of emotional distress, respectively, are preempted by Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a). In addition, Kaiser moves to strike, pursuant to Rule 12(f), the punitive damages allegations contained in the SAC on grounds that Plaintiff has failed to adequately plead his entitlement to such damages. As set forth below, Kaiser's Motions to Dismiss and to Strike are GRANTED.[2]


         Plaintiff was employed as a Patient Care Technician at Kaiser between 2003 and 2015. In that capacity, he was a member of Service Employees International-United Healthcare Workers West (“SEIU-UHW” or “the Union”), and his employment with Kaiser was subject to the CBA.

         In September 2014, Plaintiff began working at Kaiser's Outpatient Unit facility located in Vacaville, California. According to the SAC, he worked alongside two registered nurses, Erica Ulshoeffer and Patricia Adams, at the Outpatient Unit. Ulshoeffer was of African-American descent and Adams was Caucasian.[4] Based on his interactions with Adams, Plaintiff believed Adams was prejudiced against non-Caucasian employees.

         In approximately May 2015, Plaintiff states that he witnessed Adams forcefully and intentionally push Ulshoeffer out of her way, and he believed Adams did this because Ulshoeffer is African American. Ulshoeffer complained to Kaiser supervisor William Bordessa about what had occurred. Despite the complaint being lodged, Plaintiff alleges that Bordessa continued to schedule the three employees to work together, allegedly in contravention of both the CBA and Kaiser's own protocols and procedures regarding workplace harassment and violence. SAC, ¶¶ 15-16, 31.

         Although both Bordessa and another Kaiser employee interviewed Plaintiff about the assault, and while Plaintiff claims he told both individuals that he saw Adams intentionally push Ulshoeffer, Plaintiff states that Adams was never disciplined for the incident. Instead, in approximately June or July 2015, shortly after Plaintiff was questioned about the assault, Plaintiff states he was falsely accused by Adams of sexual harassment. Plaintiff believes that Kaiser personnel told Adams about the statements he had made concerning her alleged assault on Ulshoeffer and that Adams concocted fraudulent sexual harassment claims against Plaintiff in retaliation for those statements.

         On or about August 3, 2015, Plaintiff was called into a meeting with a Kaiser Human Resources EEO Investigation Specialist to discuss Adams' sexual harassment claim. Two union representatives were also present. Plaintiff claims he was asked a series of misleading and confusing questions[5] by the Kaiser Investigation Specialist, but that he told all present at the meeting that he had never engaged in sexually inappropriate conduct towards Adams or any other Kaiser employee. Id. at ¶ 24.

         After the aforementioned meeting, Plaintiff was not contacted by any further Kaiser or Union representatives concerning Adam's claim and was never placed on administrative leave. On or around December 18, 2015, however, Plaintiff was called into a meeting with his supervisor, Bordessa, and a representative of Kaiser's Human Resources Department. Plaintiff brought his Union shop steward, Jose Balibrea, to the meeting where Plaintiff was given a letter informing him that Kaiser had decided to terminate his employment based on the EEO investigation and Plaintiff's alleged breach of Kaiser policies. Plaintiff asked Bordessa to divulge what policies and procedures justified his termination, and he avers here that Bordessa's refusal to do so violated the CBA. Plaintiff further claims that despite the passage of two years a grievance he filed against Kaiser on the day of his termination has not been fully processed.

         Plaintiff believes he was terminated in retaliation for telling Bordessa that he had witnessed Adams intentionally push Ulshoeffer. Id. at ¶ 36. Plaintiff also alleges that he was discriminated and retaliated against and wrongfully terminated by Kaiser due to his race and national origin inasmuch as both he and Ulshoeffer, two non-Caucasian Kaiser employees, were subjected to termination after they reported an assault by Adams, who is Caucasian. Id. at ¶¶ 36-37. Plaintiff claims that this conduct violated not only the CBA, but also Kaiser's own policies and pertinent provisions of California law, including the Fair Employment and Housing Act, Cal. Gov't Code § 12940, (“FEHA”) and the Whistleblower Protection Act, Cal. Labor Code § 1102.5, et al. Id. at ¶ 55.


         A. Motion To Dismiss

         On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. However, “a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (internal citations and quotations omitted). A court is not required to accept as true a “legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief above ...

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