Graciani v. Providence Health & Services et al
Filing
54
ORDER RE MOTION TO DISMISS CLAIM V: Defendants Motion to Dismiss Claim V at Docket 42 is GRANTED as to all Defendants, without prejudice and with leave to amend. Ms. Graciani is accorded 14 days from the date of this order to file an amende d complaint, or a notice that she intends to proceed solely on Claims IIV and VI as to Providence only. If an amended complaint is filed, Defendants are accorded 14 days from the date of its filing to respond. (See Order for details). Signed by Judge Sharon L. Gleason on 04/05/2019. (CME, COURT STAFF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DEBRA RENA GRACIANI,
Plaintiff,
v.
PROVIDENCE HEALTH &
SERVICES – WASHINGTON, et al.,
Case No. 3:18-cv-00087-SLG
Defendants.
ORDER RE MOTION TO DISMISS CLAIM V
Before the Court at Docket 42 is Defendants Providence Health & Services
– Washington (“Providence”), 1 Kelli Rinas, James Efird, Brenda Franz, and James
Blankenship’s (“Defendants”) motion to dismiss Claim V of Plaintiff Debra Rena
Graciani’s Complaint. Ms. Graciani opposed at Docket 46. Defendants replied at
Docket 47. Oral argument was not requested and was not necessary to the Court’s
determination.
BACKGROUND
Ms. Graciani alleges as follows in her Complaint. She “is a registered nurse
with specialized training in dialysis.” Her race is African American. 2 On or about
1
Defendants note that “Providence Health & Services – Washington does business as
Providence Health & Services – Alaska and Providence Anchorage Medical Center.
Both have been misnamed in this litigation as Providence Health & Services.” Docket
42 at 2 n.3.
2
Docket 1 at 2, ¶ 4.
February 17, 2014, Providence hired Ms. Graciani for a part-time position in its
dialysis department. 3 On or about April 16, 2015, Ms. Graciani was hired into a
full-time nurse position in the dialysis department; she alleges she received the
position only after her union “stepped in on her behalf” to prevent Providence from
hiring another person. 4
Ms. Graciani’s Complaint alleges that, initially, nurses’ shifts were scheduled
in a fair manner. 5 Shortly after Ms. Graciani was hired, Mr. Efird, a fellow nurse,
made a derogatory remark to several nurses about African Americans. 6 In late
2014 or early 2015, Mr. Efird was promoted; in his new position, he had authority
to resolve nurses’ scheduling conflicts. 7 Ms. Graciani alleges that throughout
2015, Mr. Efird favored Caucasian nurses, to the detriment of Ms. Graciani, in
scheduling shifts. 8
Ms. Graciani also makes two allegations regarding 2016
scheduling. She asserts that “[s]he was sent home multiple times based on
‘Overstaff’ in 2016 without any regard to the rotation required by the Collective
3
Docket 1 at 2, ¶ 9.
4
Docket 1 at 3, ¶ 13.
5
Docket 1 at 2, ¶ 10.
6
Docket 1 at 2, ¶ 11.
7
Docket 1 at 3, ¶ 12.
8
Docket 1 at 3–5, 7–8, ¶¶ 12, 15, 17, 21, 35, 37–39. Ms. Graciani alleges that in June
2015, Mr. Efird also ordered Ms. Graciani to dialyze a young patient, despite Ms.
Graciani’s inexperience with performing dialysis on children, after the other nurses
refused to dialyze the patient. Docket 1 at 3, ¶ 14.
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Order re Motion to Dismiss Claim V
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Bargaining Agreement.” 9 Ms. Graciani’s Complaint does not identify the person(s)
involved in the decision to send her home. She also alleges that beginning in
August 2016, unspecified “Providence managers began allowing Caucasian
employee Kelly Whitworth, a Patient Care Technician, to set the scheduling for the
dialysis department employees.” 10 Ms. Whitworth is not a named defendant in this
action.
The Complaint also alleges that between June 2015 and October 2016, Ms.
Graciani attended disciplinary meetings and other actions with certain of the
named defendants on multiple occasions. She maintains she was criticized for her
demeanor 11 and was wrongly accused of failing to follow procedures. 12
“On or about June 20, 2016 Ms. Graciani filed a complaint for race
discrimination and retaliation with the Equal Employment Opportunity Commission
(“EEOC”).” 13 “On or about September 27, 2016, Ms. Graciani’s EEOC complaint
was transferred to the Alaska State Commission for Human Rights (“ASCHR”) for
investigation.” 14 Also in September 2016, Ms. Graciani submitted to Providence
9
Docket 1 at 10, ¶ 56.
10
Docket 1 at 11, ¶ 57.
11
See, e.g., Docket 1 at 4, ¶ 17.
12
See, e.g., Docket 1 at 11, ¶ 62.
13
Docket 1 at 10, ¶ 54.
14
Docket 1 at 11, ¶ 61.
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Order re Motion to Dismiss Claim V
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“an integrity report about the race discrimination and retaliation that she was
facing.” 15
The Complaint alleges that “[o]n or about November 1, 2016 Ms. Graciani
was terminated for allegedly failing to follow proper [patient] handoff protocols . . .
.” 16
Ms. Graciani successfully challenged her termination and was granted
reinstatement. 17 However, her Complaint alleges that “Providence continued to
resist reemploying Ms. Graciani. They would not reinstate her to the dialysis unit.
Ms. Graciani is currently in the ICU unit. Providence did not restore her benefits
and are treating her as a new hire on a 90 day probationary period.” 18
On March 23, 2018, Ms. Graciani filed her Complaint in this Court. 19 She
alleges six claims. Providence is the only named defendant in Claims I–IV. Claims
I–III allege violations of Title VII of the Civil Rights Act of 1964; 20 Claim IV alleges
15
Docket 1 at 11, ¶¶ 59–60.
16
Docket 1 at 12, ¶ 63.
17
Docket 1 at 12, ¶ 64.
18
Docket 1 at 12, ¶ 65.
19
Docket 1.
20
Claim I alleges “disparate treatment in hiring and promotion, compensation and
terms, conditions and privileges of employment.” Docket 1 at 12, ¶¶ 69–70 (emphasis
omitted); 42 U.S.C. § 2000e-2(a)(1). Claim II alleges “disparate treatment in
segregation.” Docket 1 at 13, ¶¶ 71–72 (emphasis omitted); 42 U.S.C. § 2000e-2(a)(2).
Claim III alleges retaliation. Docket 1 at 13, ¶¶ 73–74; 42 U.S.C. § 2000e-3(a).
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a deprivation of equal rights under Section 1981. 21 Claim V alleges a conspiracy
by the four individual Defendants to interfere with Ms. Graciani’s civil rights in
violation of Section 1985(3). 22
Claim VI seeks punitive damages from all
Defendants. 23
In support of Claim V, Ms. Graciani maintains that Ms. Rinas, Mr. Efird, Ms.
Franz, and Mr. Blankenship, acting individually and as agents of Providence,
“engag[ed] in an ongoing campaign of destructive behavior to Ms. Graciani’s
career by issuing a string of vague, unsupported, false and misleading disciplinary
actions against Ms. Graciani” to which nurses of other races were not subjected; 24
“arrang[ed] scheduling practices to favor Caucasian employees in the dialysis unit
to the detriment of [Ms. Graciani,] the African American employee;” 25 “creat[ed]
circumstances under which Providence, through its employees, justified
terminating Ms. Graciani’s employment employee [sic] for an alleged policy
violation that the other nurses of all other represented races use as common
practice and were not terminated” for; 26 and “hinder[ed] and prevent[ed] African
21
Docket 1 at 13–14, ¶¶ 75–76; 42 U.S.C. § 1981.
22
Docket 1 at 14–15, ¶¶ 77–80; 42 U.S.C. § 1985(3). It is unclear whether Ms. Graciani
also intended to include Providence in this claim.
23
Docket 1 at 15, ¶¶ 81–82.
24
Docket 1 at 14, ¶ 78a.
25
Docket 1 at 14, ¶ 78b.
26
Docket 1 at 14–15, ¶ 78c.
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American employees from working in Providence’s dialysis department.” 27 Ms.
Graciani alleges that the individual Defendants “each engaged in one or more acts
personally in furtherance of the conspiracy that were motivated by animus toward
Ms. Graciani as an African American citizen and as a person engaged in protected
activity,” and that Ms. Graciani “was injured in her property interest in her career
with Providence and deprived of rights and privileges of equal employment[.]” 28
On October 9, 2018, Defendants filed the instant motion to dismiss Claim
V. 29
LEGAL STANDARDS
I. Motions to Dismiss
Defendants move to dismiss Claim V of Ms. Graciani’s Complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6) and the Supreme Court's interpretation
27
Docket 1 at 15, ¶ 78d.
28
Docket 1 at 15, ¶¶ 79–80.
29
Docket 42. On April 4, 2018, the Court issued an order requiring that parties include
with any motion to dismiss “a notice of certification of conferral indicating that the parties
have conferred to determine whether an amendment could cure a deficient pleading,
and have been unable to agree that the pleading is curable by a permissible
amendment.” Docket 3 (Order re Motion to Dismiss). Defendants include a certification
of conferral with the instant motion. Docket 42 at 7–8. Ms. Graciani maintains that “[n]o
[t]rue [c]onferral [t]ook [p]lace” because Defendants’ attempt to confer “only mentioned
the statute of limitations defense and contained the wrong time limitations period.”
Docket 46 at 13–15. The Court finds that Defendants satisfied the Court’s April 4, 2018
order when they “attempted to narrow the issues raised in this motion prior to filing this
motion by emailing Plaintiff’s Counsel and providing legal citations for the Defendants’
position concerning the statute of limitations.” Docket 42 at 7; see also Docket 47 at 7–
8.
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of that rule in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. 30 “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” 31 This inquiry requires
a court to “draw on its judicial experience and common sense.” 32 When reviewing
a Rule 12(b)(6) motion, a court considers only the complaint and other pleadings,
documents incorporated into the pleadings by reference, and matters on which a
court may take judicial notice. 33
When a motion to dismiss for failure to state a claim is granted, a court
“should freely give leave [to amend the complaint] when justice so requires.” 34
II. Section 1985
The United States Supreme Court has held that “Section 1985(3) may not
be invoked to redress violations of Title VII.” 35 The statute was enacted with a
narrow purpose:
30
Docket 42 at 3–4 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), Ashcroft v.
Iqbal, 556 U.S. 662 (2009)).
31
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570 (2007)).
32
Iqbal, 556 U.S. at 679.
33
Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1061 (9th Cir. 2008)
(citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).
34
Fed. R. Civ. P. 15(a)(2).
35
Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 378 (1979) (“If a
violation of Title VII could be asserted through § 1985(3), a complainant could avoid
most if not all of the[] detailed and specific provisions of [Title VII]. Section 1985(3)
expressly authorizes compensatory damages; punitive damages might well follow. The
plaintiff or defendant might demand a jury trial. The short and precise time limitations of
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The central theme of the bill's proponents was that the Klan and others
were forcibly resisting efforts to emancipate [African Americans] and
give them equal access to political power. The predominate purpose
of § 1985(3) was to combat the prevalent animus against [African
Americans] and their supporters. 36
To maintain a Section 1985 claim, “the plaintiff must allege and prove four
elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; and (3) an act in furtherance of
the conspiracy; (4) whereby a person is either injured in his person or property or
deprived of any right or privilege of a citizen of the United States.” 37 In addition to
satisfying these four elements, a plaintiff must also demonstrate that the violation
of her civil rights was motivated by “some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators’ action.” 38
“A claim
under [§ 1985] must allege facts to support the allegation that defendants
Title VII would be grossly altered. Perhaps most importantly, the complaint could
completely bypass the administrative process, which plays such a crucial role in the
scheme established by Congress in Title VII.” Id. at 375-376) (footnote omitted).
36
United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S.
825, 836–37 (1983).
37
United Bhd., 463 U.S. at 828–29 (citing 42 U.S.C. § 1985(3); Griffin v. Breckenridge,
403 U.S. 88, 102–103 (1971)).
38
Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992).
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conspired together. A mere allegation of conspiracy without factual specificity is
insufficient.” 39
III. The Statute of Limitations and Tolling Standard
For federal laws that were enacted prior to December 1, 1990 and that lack
a limitations period, “the settled practice has been to adopt a local time limitation
as federal law if it is not inconsistent with federal law or policy to do so. In 42
U.S.C. § 1988, Congress has implicitly endorsed this approach with respect to
claims enforceable under the Reconstruction Civil Rights Acts.” 40 Therefore, the
Court will look to the statutes of limitations in Alaska regarding Claim V. 41
39
Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988)
(reversing district court’s dismissal with prejudice of § 1985 claim for prior unlawful
arrest, strip search, and prosecution because although “amended complaint contain[ed]
legal conclusions but no specification of any facts to support the claim of conspiracy,”
district court “should have advised” defendant of deficiency in pleading).
40
Wilson v. Garcia, 471 U.S. 261, 266–67 (1985) (footnote omitted) (holding that
Section 1983 claim was properly subject to state statute of limitations for personal injury
actions); see also 42 U.S.C. § 1988(a) (“The jurisdiction in civil and criminal matters
conferred on the district courts by the provisions of titles 13, 24, and 70 of the Revised
Statutes for the protection of all persons in the United States in their civil rights, and for
their vindication, shall be exercised and enforced in conformity with the laws of the
United States, so far as such laws are suitable to carry the same into effect; but in all
cases where they are not adapted to the object, or are deficient in the provisions
necessary to furnish suitable remedies and punish offenses against law, the common
law, as modified and changed by the constitution and statutes of the State wherein the
court having jurisdiction of such civil or criminal cause is held, so far as the same is not
inconsistent with the Constitution and laws of the United States, shall be extended to
and govern the said courts in the trial and disposition of the cause, and, if it is of a
criminal nature, in the infliction of punishment on the party found guilty.”).
41
Although the statute of limitations is an affirmative defense, its applicability may be
considered in ruling on a motion to dismiss. In Rivera v. Peri & Sons Farms, Inc., 735
F.3d 892, 902 (9th Cir. 2013), the Ninth Circuit held:
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“[W]hen a federal statute is deemed to borrow a State's limitations period,
the State's tolling rules are ordinarily borrowed as well . . . .” 42 Alaska has “adopted
a three-part test for equitable tolling: (1) the alternative remedy must give notice to
the defendant; (2) there must not be prejudice to the defendant; and (3) the plaintiff
must have acted reasonably and in good faith.” 43 “[T]he statute of limitations is
tolled only for those who initially pursue their rights in a judicial or quasi-judicial
governmental forum.” 44
The farmworkers are correct to note that plaintiffs ordinarily need not “plead on
the subject of an anticipated affirmative defense.” United States v. McGee, 993
F.2d 184, 187 (9th Cir. 1993). When an affirmative defense is obvious on the
face of a complaint, however, a defendant can raise that defense in a motion to
dismiss. See Cedars–Sinai Med. Ctr. v. Shalala, 177 F.3d 1126, 1128–29 (9th
Cir.1999) (citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure: Civil § 1357 (3d ed. 1998) (“A complaint showing that the governing
statute of limitations has run on the plaintiff's claim for relief is the most common
situation in which the affirmative defense appears on the face of the pleading and
provides a basis for a motion to dismiss under Rule 12(b)(6)....”)). In this case,
the statute of limitations issues are apparent on the face of the complaint. The
district court, therefore, was correct to address them.
42
Heimeshoff v. Hartford Life & Acc. Ins. Co., 571 U.S. 99, 116 (2013); see also
Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 464 (1975) (“In virtually all statutes of
limitations the chronological length of the limitation period is interrelated with provisions
regarding tolling, revival, and questions of application. In borrowing a state period of
limitation for application to a federal cause of action, a federal court is relying on the
State's wisdom in setting a limit, and exceptions thereto, on the prosecution of a closely
analogous claim.”).
43
Solomon v. Interior Reg'l Hous. Auth., 140 P.3d 882, 884 (Alaska 2006) (citing
Gudenau & Co. v. Sweeney Ins., Inc., 736 P.2d 763, 768 (Alaska 1987)).
44
Gudenau, 736 P.2d at 768.
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DISCUSSION
I. The Applicable Statute of Limitations; Tolling
Defendants maintain that the applicable statute of limitations for Claim V is
AS 9.10.070(a), which provides as follows:
Except as otherwise provided by law, a person may not bring an action
. . . (2) for personal injury or death, or injury to the rights of another
not arising on contract and not specifically provided otherwise; . . . (5)
upon a liability created by statute, other than a penalty or forfeiture;
unless the action is commenced within two years of the accrual of the
cause of action. 45
Ms. Graciani responds that Claim V lies in contract, which is subject to Alaska’s
three-year statute of limitations. 46
Ms. Graciani cites to AS 9.10.070(a)(2)’s
exclusion of actions arising under contract. 47
Defendants contend in their reply
45
Docket 42 at 4–5 (citing AS 9.10.070(a)(2), which provides that “[e]xcept as otherwise
provided by law, a person may not bring an action . . . for personal injury or death, or
injury to the rights of another not arising on contract and not specifically provided
otherwise”).
46
Docket 46 at 5 (citing Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 459–60 (1975)
(“[Section] 1981 . . . on its face relates primarily to racial discrimination in the making
and enforcement of contracts. Although this Court has not specifically so held, it is well
settled among the federal Courts of Appeals—and we now join them—that [§] 1981
affords a federal remedy against discrimination in private employment on the basis of
race.”) (footnote omitted); see also AS 9.10.053 (“Unless the action is commenced
within three years, a person may not bring an action upon a contract or liability, express
or implied, except as provided in AS 09.10.040, or as otherwise provided by law, or,
except if the provisions of this section are waived by contract.”).
47
Docket 46 at 5.
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that AS 9.10.070(a)(2) does apply to Ms. Graciani’s claim because it lies in tort,
rather than contract. 48
The Court need not reach the issue of the applicability of AS 9.10.070(a)(2)
to Claim V. AS 9.10.070(a)(5) provides a two-year statute of limitations for actions
based “upon a liability created by statute, other than a penalty or forfeiture[.]” Ms.
Graciani brings Claim V under a statute: Section 1985(3). Therefore, a two-year
statute of limitations applies to that claim. Ms. Graciani filed her Complaint on
March 23, 2018. Unless the statute of limitations is tolled, she cannot maintain a
claim for alleged violations of Section 1985(3) that occurred prior to March 23,
2016 unless those alleged violations are part of an actionable continuing violation
that did not cease prior to that date. 49
Ms. Graciani maintains that the statute of limitations is equitably tolled under
Gudenau & Co. v. Sweeney Insurance, Inc. because on June 20, 2016, she
initiated an administrative remedy with the EEOC that was later transferred to the
48
Docket 47 at 4 (citing Johnson v. Ry. Exp. Agency, Inc., 421 U.S. at 458 n.2.
49
Ms. Graciani maintains that “[a]t the time Mr. Efird, Ms. Rinas and Ms. Franz began
the campaign to develop a foundation for the termination, they did not inform Ms.
Graciani that the end result of their actions would be to terminate her employment.”
Docket 46 at 5 (citing RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1058 (9th Cir.
2002)). RK Ventures held that, in the Section 1983 context, the statute of limitations
“begins to run when the cause of action accrues, which is when the plaintiffs know or
have reason to know of the injury that is the basis of their action.” RK Ventures, 307
F.3d at 1058. It is unclear from the face of the Complaint when, or even if, Ms. Graciani
is alleging that the named Defendants conspired to cause her employment to be
terminated.
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Alaska State Commission for Human Rights. 50 Ms. Graciani’s Complaint filed in
this Court does not specify when these administrative proceedings ceased.
The first prong of Gudenau’s equitable tolling test requires that a plaintiff’s
“alternative remedy [] give notice to the defendant.” 51 Ms. Graciani’s Complaint
fails to establish that she filed her EEOC complaint against any individual
Defendant, 52 and so the Complaint does not adequately allege that any individual
Defendant had notice that Ms. Graciani was asserting a claim against that
Defendant when she initiated the EEOC proceedings. Therefore, Ms. Graciani has
not plausibly alleged facts that would permit the statute of limitations to be tolled
as to any individual Defendant.
As to Ms. Rinas and Mr. Efird, the Complaint does not contain any
allegations that either of these Defendants engaged in any wrongdoing at any time
50
Docket 1 at 10, ¶¶ 54, 61; see also Docket 46 at 7 (citing Gudenau & Co. v. Sweeney
Ins., Inc., 736 P.2d 763, 768 (Alaska 1987)).
51
Solomon v. Interior Reg'l Hous. Auth., 140 P.3d 882, 884 (Alaska 2006) (citing
Gudenau & Co. v. Sweeney Ins., Inc., 736 P.2d 763, 768 (Alaska 1987)).
52
See generally Docket 1. The Court takes judicial notice of the fact that the applicable
statute does not allow for the filing of an EEOC complaint against an individual
employee. See 42 U.S.C. § 2000e-5(b) (referring to an aggrieved person’s filing a
charge with the EEOC “alleging that an employer, employment agency, labor
organization, or joint labor-management committee controlling apprenticeship or other
training or retraining, including on-the-job training programs, has engaged in an unlawful
employment practice”); see also Harris v. Cty. of Orange, 682 F.3d 1126, 1131–32 (9th
Cir. 2012) (quoting Fed. R. Evid. 201(b)) (“[T]he court may judicially notice a fact that is
not subject to reasonable dispute because it: (1) is generally known within the court's
territorial jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.”).
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after early December 2015. 53
Therefore, Defendants’ motion to dismiss Ms.
Graciani’s Claim V will be granted as to Ms. Rinas and Mr. Efird on this basis,
without prejudice and with leave to amend.
Ms. Franz and Mr. Blankenship are alleged to have conspired against Ms.
Graciani through September 1, 2016. Their alleged actions from March 23, 2016
forward fall within the applicable two-year limitations period.
II. The Sufficiency of Ms. Graciani’s Allegations in Claim V Against Ms. Franz,
Mr. Blankenship, and Providence
Defendants assert that Ms. Graciani has failed to adequately allege each if
the following two elements of a Section 1985 claim: a conspiracy and an act in
furtherance of the conspiracy. 54
Ms. Graciani responds that, as to the presence of a conspiracy, “[t]he
complaint contains multiple references to each of the co-conspirators actions and
their concerted activity that are known so far,” but that “discovery will be needed
to elucidate the actions that Ms. Graciani was not privy to[.]” 55
She further
maintains that she “does not need to prove [that the alleged co-conspirators] all
acted together at the same time. She only has to show ‘two or more’ acted, and
53
Docket 1 at 8, ¶¶ 38–39.
54
Docket 42 at 6–7 (citing Docket 1 at 2–12, ¶¶ 11–28, 33, 36–37, 43, 51–52, 57, 62–
63).
55
Docket 46 at 12 (citing Docket 1 at 4–11, 14–15, ¶¶ 17–21, 29, 31–32, 35, 38–41, 46–
47, 49–50, 55–58, 78–80).
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that ‘one or more persons engaged therein do or cause to be done, any act in
furtherance of the conspiracy, whereby another is injured . . . .’” 56 Ms. Graciani
asserts that, as to acts taken in furtherance of the conspiracy, “[t]here are specific
facts pled for every single one of the[] areas of injury she suffered that implicate
two or more [co-conspirators] acting together.” 57 As to the injury Ms. Graciani
suffered, she maintains that “each of the preliminary disciplinary actions [preceding
her termination] was not actionable in and of itself. Each served a purpose to chip
away at Ms. Graciani’s employment record.” 58
a. Ms. Franz and Mr. Blankenship
The Complaint alleges the following incidents within the limitations period
involving Ms. Franz:
• On or about April 1, 2016, Ms. Graciani received her performance appraisal,
which Ms. Franz had created. The appraisal noted “no problems” with Ms.
Graciani’s work, “[b]ut it was highly critical of [Ms. Graciani’s] communication
and referenced the disciplinary actions taken [against Ms. Graciani] with
respect to communication.” 59
• On or about May 2, 2016, Ms. Franz was at a meeting at which Ms. Graciani
“was questioned about an interaction with a nurse during a dialysis taking
place in the ICU” and at which “Mr. Blankenship and Ms. Graciani discussed
56
Docket 46 at 13 (citing 42 U.S.C. § 1985(3)).
57
Docket 46 at 13 (citing Docket 1 at 4–11, 14–15, ¶¶ 17–21, 29, 31–32, 35, 38–41, 46–
47, 49–50, 55–58, 78–80).
58
Docket 46 at 9.
59
Docket 1 at 9–10, ¶ 48.
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several interactions with nurses and patients, including accusations brought
by nurse Mario S[.]” 60
• In May 2016, Ms. Franz investigated Ms. Graciani’s allegation that nurse
Mario S. had engaged in unwelcome physical contact with Ms. Graciani.
“The investigation culminated in a memo issued to all Providence dialysis
employees stating that hugging people without permission is not acceptable
workplace behavior. Upon knowledge and belief, Mario S. was not
disciplined for his behavior, nor did he ever apologize to Ms. Graciani.” 61
• On or about June 21, 2016, Ms. Franz attended a meeting that was for “the
purpose of confronting Ms. Graciani about another interaction with a nurse
and patient.” 62
• On or about September 1, 2016, Ms. Franz attended a meeting at which Ms.
Graciani was accused of violating a nonexistent Providence policy that
prohibited fragranced hand creams. 63
Claim V includes the following allegations within the limitations period related
to Mr. Blankenship:
• On or about May 2, 2016, Mr. Blankenship, along with Ms. Franz, was at a
meeting at which Ms. Graciani “was questioned about an interaction with a
nurse during a dialysis taking place in the ICU” and at which “Mr.
Blankenship and Ms. Graciani discussed several interactions with nurses
and patients, including accusations brought by nurse Mario S[.]” 64
• “On or about May 4, 2016 Mr. Blankenship issued a disciplinary action
against Ms. Graciani for communication issues.” 65
60
Docket 1 at 10, ¶ 49.
61
Docket 1 at 10, ¶¶ 51–53.
62
Docket 1 at 10, ¶ 55.
63
Docket 1 at 11, ¶ 58.
64
Docket 1 at 10, ¶ 49.
65
Docket 1 at 10, ¶ 50.
Case No. 3:18-cv-00087-SLG, Graciani v. Providence Health & Services, et al.
Order re Motion to Dismiss Claim V
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• On or about June 21, 2016, Mr. Blankenship attended a meeting which had
“the purpose of confronting Ms. Graciani about another interaction with a
nurse and patient.” 66
• On or about September 1, 2016, Mr. Blankenship attended a meeting at
which Ms. Graciani was accused of violating a nonexistent Providence policy
regarding fragranced hand creams. 67
In Webb v. County of El Dorado, the Eastern District of California addressed
a motion to dismiss that challenged the sufficiency of Section 1985 conspiracy
allegations in the employment context. The plaintiff in that case, a woman in her
early 50s, alleged that her employer and two of its managers had conspired to
violate her civil rights based on her age and gender. She was appointed to the IT
Director position in the El Dorado County Information Technology Department,
only to be demoted and later denied the position during a competitive application
process. After her demotion, the Chief Technology Officer (“CTO”) told her he
thought she was older than her 51 years, asked her about her retirement plans,
and in one instance suggested that she change positions within the County. When
the plaintiff complained to another supervisor that the CTO’s statements were
improperly motivated by the plaintiff’s age and gender, the supervisor “brushed
aside” the CTO’s actions and accused the plaintiff of being “overly sensitive.” The
supervisor subsequently engaged in multiple meetings regarding hiring an IT
Director, and the supervisor changed the requirements for the IT Director position
66
Docket 1 at 10, ¶ 55.
67
Docket 1 at 11, ¶ 58.
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Order re Motion to Dismiss Claim V
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to include a college degree—which the plaintiff did not have. Later, the County
offered the IT Director job to a man younger than the plaintiff who did not have a
college degree. 68
The district court held that the complaint’s allegations “fall short of
establishing at this stage any agreement or plan to deprive [the plaintiff] of her
rights based on her gender,” and that “[n]o connection is pled between the various
meetings and the promotion of” the younger man. “Without more, [the plaintiff]
does not plausibly allege the existence of a conspiracy.” 69 Accordingly, the district
court dismissed the plaintiff’s Section 1985 claim with leave to amend. 70
The Webb court’s analysis appears to merge the first two elements of a
Section 1985 conspiracy claim. 71 In Webb, the district court concluded that “[t]o
the extent the defendants planned or agreed to do anything during the meetings
alleged, it was to change the County IT Department’s management structure, as
well as to speak generally about [the plaintiff’s] position as IT Director.” 72 Similarly,
68
Webb v. Cty. of El Dorado, No. 2:15-CV-01189-KJM-EFB, 2015 WL 9480956, at *1–3
(E.D. Cal. Dec. 29, 2015).
69
Id. at *7.
70
Id.
71
Id. at *6 (quoting Scott v. Ross, 140 F.3d 1275, 1284 (9th Cir. 1998)). The Ross
Court’s analysis of Section 1985(3) also merged the first two elements of that Section.
Ross, 140 F.3d at 1284. The Court considers these first two elements together
throughout this order.
72
Webb, 2015 WL 9480956, at *7.
Case No. 3:18-cv-00087-SLG, Graciani v. Providence Health & Services, et al.
Order re Motion to Dismiss Claim V
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Ms. Graciani’s allegations against Ms. Franz and Mr. Blankenship in Claim V fail
to meet the first two elements of a Section 1985 conspiracy claim. Claim V fails to
plausibly allege how these two Defendants planned or agreed to do anything
during the meetings to violate Ms. Graciani’s civil rights because of her race;
rather, the concerns raised during the meetings appear to focus on Ms. Graciani’s
workplace performance, not her race. 73
In short, Ms. Graciani does not allege
facts to support the allegation that Ms. Franz and Mr. Blankenship conspired
together to violate Ms. Graciani’s civil rights because of Ms. Graciani’s race.
Ms. Graciani has also not adequately alleged that any actions taken by Ms.
Franz and Mr. Blankenship meet the third element of Section 1985—that they were
taken “in furtherance of the [alleged] conspiracy.” 74
Rather, each of these
Defendant’s alleged actions appear to have been taken to support Providence’s
workplace culture and productivity.
Finally, as to the fourth element of Section 1985, Ms. Graciani alleges that
she was “injured in [her] person or property or deprived of any right or privilege of
a citizen of the United States” when she was removed from her position. 75 She
73
See, e.g., Docket 1 at 9–10, ¶ 48.
74
United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S.
825, 828–29 (1983) (citing 42 U.S.C. § 1985(3); Griffin v. Breckenridge, 403 U.S. 88,
102–103 (1971)).
75
United Bhd., 463 U.S. at 828–29 (1983) (citing 42 U.S.C. § 1985(3); Griffin v.
Breckenridge, 403 U.S. at 102–103.
Case No. 3:18-cv-00087-SLG, Graciani v. Providence Health & Services, et al.
Order re Motion to Dismiss Claim V
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concedes in her briefing that “each of the preliminary disciplinary actions
[preceding her termination] was not actionable in and of itself. Each served a
purpose to chip away at Ms. Graciani’s employment record.” 76 But Ms. Graciani
has not plausibly alleged that either Ms. Franz or Mr. Blankenship was involved in
a conspiracy that caused her to be terminated, as the events involving each of
these named Defendants are not alleged to have caused the termination. 77
Ms. Graciani has failed “to ‘state a claim to relief that is plausible on its face’”
as to either Ms. Franz or Mr. Blankenship. 78 Based on the foregoing, Defendants’
motion to dismiss Ms. Graciani’s Claim V will be granted as to each of these
Defendants, without prejudice and with leave to amend.
b. Providence
It is not entirely clear whether Plaintiff intended to name Providence as a
Defendant in Claim V. Ms. Graciani’s only reference to Providence in Claim V is
that the individual Defendants acted “as agents under authority provided by
defendant Providence[.]” 79 Assuming Ms. Graciani intended to name Providence
in this claim, the Court assumes without deciding that the intracorporate conspiracy
76
Docket 46 at 9.
77
Docket 1 at 11–12, ¶¶ 62–63.
78
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
79
Docket 1 at 14, ¶ 78.
Case No. 3:18-cv-00087-SLG, Graciani v. Providence Health & Services, et al.
Order re Motion to Dismiss Claim V
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doctrine would not bar a Section 1985(3) claim against Providence. 80 Because
Ms. Graciani has failed to state a claim as to any individual Defendant, any
conspiracy claim that she may have intended to assert against Providence also
fails.
Based on the foregoing, Defendants’ motion to dismiss Claim V as to
Providence, without prejudice and with leave to amend.
CONCLUSION
In light of the foregoing, Defendants’ Motion to Dismiss Claim V at Docket
42 is GRANTED as to all Defendants, without prejudice and with leave to amend.
Ms. Graciani is accorded 14 days from the date of this order to file an amended
complaint, 81 or a notice that she intends to proceed solely on Claims I–IV and VI
as to Providence only. If an amended complaint is filed, Defendants are accorded
14 days from the date of its filing to respond.
DATED this 5th day of April, 2019 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
80
See Mustafa v. Clark County Sch. Dist, 157 F.3d 1169, 1181 (9th Cir. 1998). See also
Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017).
81
Local Civil Rule 15.1(a) (D. Alaska) (“A party moving to amend a pleading must attach
the proposed amended pleading as an exhibit to the motion. The proposed amended
pleading must clearly indicate how it differs from the pleading it amends, by bracketing
or striking through the text to be deleted and underlining the text to be added. The
proposed amended pleading must not incorporate by reference any prior pleading,
including exhibits.”).
Case No. 3:18-cv-00087-SLG, Graciani v. Providence Health & Services, et al.
Order re Motion to Dismiss Claim V
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