Cook v. Union Pacific Railroad Company et al

Filing 14

ORDER signed by Judge John A. Mendez on 5/13/11 ORDERING Union Pacific's Motion for Judgment on the Pleadings for the FEHA Claim (Claim 1), the IIED claim (Claim 2), the constructive termination claim (Claim 3), the assault and battery claim (Cl aim 4), and the NIED claim (Claim 6) is GRANTED WITH PREJUDICE.The negligent retention and supervision claim (Claim 5) is DISMISSED WITH LEAVE TO AMEND. Plaintiff shall file her First Amended Complaint within twenty (20) days of the date of this Order.(Matson, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LEAH COOK, 12 Plaintiff, 13 14 15 v. UNION PACIFIC RAILROAD COMPANY; CUSA ES, LLC; CUSA CSS LLC; and DOES 1-50, 16 Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. 2:10-CV-03091 JAM-CMK ORDER GRANTING UNION PACIFIC’S MOTION FOR JUDGMENT ON THE PLEADINGS 17 This matter comes before the Court on Defendant Union Pacific 18 19 Railroad Company’s (“Union Pacific”) Motion for Judgment on the 20 Pleadings (Doc. #8). 21 asserted against it in the Complaint (“Complaint”, Doc. #1) filed 22 by Plaintiff Leah Cook (“Plaintiff”). 23 in its “Oppoisition [sic.] to Defendan’t [sic.], Union Pacific 24 Railroad Company’s Demurrer (Doc. #11).2 25 26 27 28 Union Pacific seeks dismissal of all claims 1 Plaintiff opposes the motion1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L. R. 230(g). The hearing was scheduled for March 23, 2011. 2 The Court notes that this is a federal case, not a state court case. The motion before the Court is a judgment on the pleadings, not a demurrer. 1 1 2 I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff is a former employee of Defendant CUSA CSS, LCC 3 (“Coach”). 4 2008. 5 she transported Union Pacific employees by van from their various 6 working sites. 7 and assaulted based primarily on her physical appearance by Union 8 Pacific and Coach employees. 9 Plaintiff began working for Coach on or about August She was employed as a Crew Transport driver. Specifically, Plaintiff alleges that she was harassed, battered, Plaintiff alleges six causes of action: 1) Severe and 10 pervasive harassment based on sex in violation of California 11 Government Code § 12900, et seq. (“FEHA”); 2) Intentional 12 infliction of emotional distress; 3) Constructive termination in 13 violation of public policy; 4) Assault and battery; 5) Negligent 14 retention and supervision; and 6) Negligent infliction of emotional 15 distress. 16 U.S.C. § 1332. Coach removed the action to this Court based upon 28 17 18 19 II. A. 20 OPINION Legal Standard 1. Motion for Judgment on the Pleadings 21 The principal difference between a Rule 12(b) motion to 22 dismiss and a Rule 12(c) judgment on the pleadings is the time of 23 filing. 24 pleadings are closed – but early enough not to delay trial.” 25 Fed.R.Civ.P. 12(c). 26 identical, the same standard of review applicable to a Rule 12(b) 27 motion applies to its Rule 12(c) analog.” 28 Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). A motion for judgment on the pleadings occurs “[a]fter the “Because the motions are functionally 2 Dworkin v. Hustler 1 A party may move to dismiss an action for failure to state a 2 claim upon which relief can be granted pursuant to Federal Rules of 3 Civil Procedure 12(b)(6). 4 court must accept the allegations in the complaint as true and draw 5 all reasonable inferences in favor of the plaintiff. 6 Rhodes, 416 U.S. 232, 236 (1975), overruled on other grounds by 7 Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 8 322 (1972). 9 are not entitled to the assumption of truth. In considering a motion to dismiss, the Scheuer v. Assertions that are mere “legal conclusions,” however, Ashcroft v. Iqbal, 10 129 S. Ct. 1937, 1950 (2009), citing Bell Atlantic Corp. v. 11 Twombly, 550 U.S. 544, 555 (2007). 12 a plaintiff needs to plead “enough facts to state a claim to relief 13 that is plausible on its face.” 14 Dismissal is appropriate where the plaintiff fails to state a claim 15 supportable by a cognizable legal theory. 16 Police Department, 901 F.2d 696, 699 (9th Cir. 1990). 17 To survive a motion to dismiss, Twombly, 550 U.S. at 570. Balistreri v. Pacifica While Rule 12(c) of the Federal Rules of Civil Procedure does 18 not expressly provide for partial judgment on the pleadings, 19 neither does it bar them; it is common to apply Rule 12(c) to 20 individual causes of action. See Moran v. Peralta Community College 21 District, 825 F.Supp. 891, 893 (N.D.Cal. 1993). “Courts have 22 discretion to grant leave to amend in conjunction with 12(c) 23 motions, and may dismiss causes of action rather than grant 24 judgment.” 25 must then decide whether to grant leave to amend. In general, leave 26 to amend is only denied if it is clear that amendment would be 27 futile and “that the deficiencies of the complaint could not be 28 cured by amendment.” Broughton v. Cutter Laboratories, 622 F.2d Id. When a court finds the pleadings deficient, it 3 1 2 458, 460 (9th Cir. 1980) (per curium). B. 3 4 Claims for Relief 1. Claim 1: FEHA Union Pacific argues that Plaintiff fails to state a FEHA 5 sexual harassment claim because Union Pacific is not Plaintiff’s 6 employer and Plaintiff does not allege Union Pacific negligently 7 responded to the alleged harassment by non-supervisorial employees. 8 In the Opposition, Plaintiff concedes Union Pacific’s FEHA 9 argument. 10 11 12 Accordingly, Union Pacific’s motion for judgment on the pleadings for the FEHA claim (Claim 1) is GRANTED WITH PREJUDICE. 2. Intentional Infliction of Emotional Distress Union Pacific argues that Plaintiff cannot state an 13 intentional infliction of emotional distress (“IIED”) claim because 14 the allegedly unlawful conduct was, as a matter of law, outside the 15 scope of employment. 16 negligent for retaining employees who harassed, assaulted, and 17 battered her and, as such, it is liable for the harm that flowed 18 from that breach of duty. 19 Plaintiff counters that Union Pacific is An employer is liable for the willful and malicious torts of 20 its employees committed in the scope of employment. John R. v. 21 Oakland Unified School District, 48 Cal.3d 438, 447 (Cal. 1989). 22 To hold an employer liable for an employee’s tort of IIED, 23 Plaintiff must prove that she is a victim of sexual harassment, 24 that the harasser is an employee of Union Pacific, and that the 25 harasser was acting within the scope of his employment. 26 v. San Pedro Peninsula Hospital, 214 Cal.App.3d 590, 618 (Cal. App. 27 Ct. 2d 1989). 28 the outrageous behavior element of a cause of action for IIED. See Fisher If properly pled, sexual harassment will constitute 4 Id. 1 The issue is whether Union Pacific employees acted within the 2 scope of their employment. Union Pacific relies on Farmers 3 Insurance Group v. County of Santa Clara, 11 Cal. 4th 992, 1007 4 (Cal. 1995). 5 the general principles of the respondeat superior doctrine in 6 actions by third persons against the employer for the torts of the 7 employee. 8 despite the fact that sexually harassing acts were committed 9 “during . . . work hours at the [place of employment],” the In Farmers, the California Supreme Court discusses See Id. at 1003. The California Supreme Court held that 10 “inappropriate touchings were motivated for strictly personal 11 reasons unrelated to . . . the performance of any other duty 12 [related to the harasser’s job].” 13 Court added that the “misconduct was not reasonably necessary to 14 [the harasser’s] comfort, convenience, health, and welfare while at 15 work. 16 performance of his duties or those of his victims.” 17 Therefore, the sexual misconduct was held to be outside the scope 18 of employment and the employer was not liable to a third party for 19 the actions of its employee. 20 Id. at 1007. Furthermore, the Nor was it precipitated by a work-related dispute over the Id. Id. at 1009. Plaintiff alleges that various Union Pacific employees rubbed 21 their legs against hers, sent her personal texts, described the 22 ways [they] wanted to have sex with her, forcibly pressed her 23 against a van and kissed her, and smelled her hair. 24 essentially, the same type of conduct the California Supreme Court 25 determined was outside the scope of employment in Farmers. 26 at 998 (employee admitted conduct such as touching one female's 27 thighs, slapping another's buttocks, telling the females he wanted 28 to “eat pussy” and “butt fuck” them, and telling one female he was 5 This is, See Id. 1 supervising that she would have to “give him head” to complete her 2 training). 3 Because those torts were personal in nature, “mere presence at 4 the place of employment and attendance to occupational duties prior 5 or subsequent to the offense will not give rise to a cause of 6 action against the employer under the doctrine of respondeat 7 superior.” 8 9 Id. at 1005 (internal citations omitted). Ordinarily, the scope of employment presents a question of fact, but it becomes a question of law when the facts are 10 undisputed and no conflicting inferences are possible. 11 1019. 12 inferences are possible, the Court finds, as a matter of law,that 13 the Union Pacific employees acted outside the scope of employment. 14 Accordingly, Union Pacific’s motion for judgment on the pleadings 15 for Plaintiff’s IIED claim (Claim 2) is GRANTED WITH PREJUDICE. 16 Because the facts are undisputed and no conflicting 3. 17 18 Id. at Constructive Termination in Violation of Public Policy Union Pacific argues that it cannot be liable to Plaintiff for 19 wrongful termination as a matter of law because Plaintiff cannot 20 state a valid FEHA claim, Union Pacific was not Plaintiff’s 21 employer, and Plaintiff does not allege Union Pacific was aware she 22 was being subjected to intolerable working conditions. 23 concedes the constructive termination claim in the Opposition. 24 Therefore, Union Pacific’s motion for judgment on the pleadings for 25 Plaintiff's constructive termination in violation of public policy 26 claim (Claim 3) is GRANTED WITH PREJUDICE. 27 28 4. Plaintiff Assault and Battery Union Pacific argues that Plaintiff does not state a viable 6 1 assault and battery claim because the alleged wrongful acts were 2 outside the scope of employment and the claim is barred by the 3 statute of limitations. 4 passing reference to section 213 of the Second Restatement of 5 Agency, presumably to argue that Union Pacific should be liable for 6 assault and battery under an agency theory. 7 concedes that some of the alleged incidents took place outside the 8 statute of limitations, Plaintiff alleges there were additional 9 incidents that took place during the statute of limitations that 10 11 In Plaintiff’s Opposition, she makes a While Plaintiff were not identified in the Complaint. Under the doctrine of respondeat superior, an employer is 12 vicariously liable for the torts of its employees that are 13 committed within the scope of employment. 14 Newhall Memorial Hospital,12 Cal.4th 291, 296 (Cal. 1995). Under 15 the agency theory, “[a]n employer is liable for an assault and 16 battery committed by an employee where the employment in some way 17 involves the risk of force used against third persons, the act is 18 connected with the employment, and the act is not motivated by 19 independent personal malice.” 20 ed. 2005) Agency and Employment, § 186, p. 237. 21 Lisa M. v. Henry Mayo Witkin, Summary of Cal. Law (10th As discussed supra, the Union Pacific employees’ alleged 22 actions occurred outside the scope of employment. 23 fails to state a claim against Union Pacific for assault and 24 battery. 25 Thus, Plaintiff Additionally, even if Plaintiff had properly stated a claim, 26 the only allegation against Union Pacific that could be considered 27 assault and battery occurred in August 2008, which is clearly 28 outside the applicable two year statute of limitations. 7 See Cal. 1 Code of Civ. Pro. § 335.1. Accordingly, Union Pacific’s motion for 2 judgment on the pleadings for the assault and battery claim (Claim 3 4) is GRANTED WITH PREJUDICE. 4 5. Negligent Retention and Supervision 5 Union Pacific argues that Plaintiff does not adequately allege 6 that Union Pacific was aware that the alleged harassers had the 7 propensity to act unlawfully without further supervision. 8 Plaintiff counters that she pled she was harassed, assaulted, and 9 battered by employees of Union Pacific during her employment, Union 10 Pacific knew or should have known of this conduct, and it failed to 11 take steps necessary to address it and/or prevent it. 12 “When the harasser is a nonsupervisory employee, employer 13 liability turns on a showing of negligence (that is, the employer 14 knew or should have known of the harassment and failed to take 15 appropriate corrective action).” 16 Cal.4th 686, 707 (Cal. 2009). Roby v. McKesson Corp., 47 17 Plaintiff makes only one reference to a Union Pacific 18 supervisor being aware of any harassment against Plaintiff by a 19 nonsupervisory employee and that incident did not have to do with 20 sexual harassment, but instead related to driver safety. 21 that a Union Pacific supervisor allegedly overheard a conversation 22 about an incident relating to driver safety did nothing to put 23 Union Pacific on notice that Plaintiff was being subjected to 24 sexual harassment. 25 Pacific was aware of sexual harassment and that it failed to take 26 steps necessary to address it or prevent it. 27 claim for negligent supervision and retention (Claim 5) is 28 DISMISSED WITH LEAVE TO AMEND. The fact Plaintiff must allege facts to show that Union 8 Accordingly, the 1 6. Negligent Infliction of Emotional Distress 2 Defendant argues that Plaintiff’s negligent infliction of 3 emotional distress (“NIED”) claim fails because a negligence claim 4 cannot be based on intentional conduct, the alleged tortuous 5 conduct was outside the scope of employment, the claim is 6 duplicative of Plaintiff’s negligent retention or supervision 7 claim, and Plaintiff does not allege that any Union Pacific 8 employee threatened her with physical injury. 9 that she properly pled that Union Pacific was negligent in Plaintiff argues 10 retaining its employees who harassed, assaulted, and battered 11 Plaintiff and, accordingly, Union Pacific is liable for the harm 12 that flowed from that breach of duty. 13 “[T]here is no independent tort of negligent infliction of 14 emotional distress. The tort is negligence, a cause of action in 15 which a duty to plaintiff is an essential element.” 16 Firestone Tire & Rubber Co., 6 Cal.4th 965, 984 (Cal. 1993) 17 (internal citations omitted). 18 based on the contention that Union Pacific was negligent in 19 retaining its employees who harassed, assaulted, and battered 20 Plaintiff, the NIED cause of action is duplicative of the fifth 21 cause of action and fails as a matter of law. 22 G.B. v. Chico Unified School District, No. 2:07-cv-926-GEB-CMK, 23 2008 WL 3835731, *5 (E.D.Cal. Aug. 14, 2008)(dismissing NIED claim 24 as a separate cause of action because it is duplicative of the 25 negligence claim, but allowing plaintiff to plead emotional 26 distress damages due to defendants’ negligence). 27 Union Pacific’s motion for judgment on the pleadings for the NIED 28 claim (Claim 6) is GRANTED WITH PREJUDICE. Plaintiff will be Potter v. Since Plaintiff’s NIED claim is 9 See T.B. ex rel. Accordingly, 1 allowed to seek recovery of emotional distress damages under her 2 fifth cause of action if the claim is properly pled in the amended 3 complaint. 4 5 III. ORDER 6 For the reasons set forth above, 7 Union Pacific’s Motion for Judgment on the Pleadings for the 8 FEHA Claim (Claim 1), the IIED claim (Claim 2), the constructive 9 termination claim (Claim 3), the assault and battery claim (Claim 10 11 4), and the NIED claim (Claim 6) is GRANTED WITH PREJUDICE. The negligent retention and supervision claim (Claim 5) is 12 DISMISSED WITH LEAVE TO AMEND. Plaintiff shall file her First 13 Amended Complaint within twenty (20) days of the date of this 14 Order. 15 16 IT IS SO ORDERED. 17 18 19 Dated: May 13, 2011 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 10

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