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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEAH COOK,

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Plaintiff,

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v.
UNION PACIFIC RAILROAD COMPANY;
CUSA ES, LLC; CUSA CSS LLC; and
DOES 1-50,

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Defendants.

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Case No. 2:10-CV-03091 JAM-CMK
ORDER GRANTING
UNION PACIFIC’S MOTION FOR
JUDGMENT ON THE PLEADINGS

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This matter comes before the Court on Defendant Union Pacific

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Railroad Company’s (“Union Pacific”) Motion for Judgment on the

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Pleadings (Doc. #8).

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asserted against it in the Complaint (“Complaint”, Doc. #1) filed

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by Plaintiff Leah Cook (“Plaintiff”).

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in its “Oppoisition [sic.] to Defendan’t [sic.], Union Pacific

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Railroad Company’s Demurrer (Doc. #11).2

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Union Pacific seeks dismissal of all claims

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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.
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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.
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I.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff is a former employee of Defendant CUSA CSS, LCC

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(“Coach”).

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2008.

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she transported Union Pacific employees by van from their various

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working sites.

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and assaulted based primarily on her physical appearance by Union

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Pacific and Coach employees.

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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

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pervasive harassment based on sex in violation of California

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Government Code § 12900, et seq. (“FEHA”); 2) Intentional

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infliction of emotional distress; 3) Constructive termination in

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violation of public policy; 4) Assault and battery; 5) Negligent

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retention and supervision; and 6) Negligent infliction of emotional

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distress.

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U.S.C. § 1332.

Coach removed the action to this Court based upon 28

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II.
A.

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OPINION

Legal Standard
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Motion for Judgment on the Pleadings

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The principal difference between a Rule 12(b) motion to

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dismiss and a Rule 12(c) judgment on the pleadings is the time of

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filing.

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pleadings are closed – but early enough not to delay trial.”

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Fed.R.Civ.P. 12(c).

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identical, the same standard of review applicable to a Rule 12(b)

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motion applies to its Rule 12(c) analog.”

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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

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Dworkin v. Hustler

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A party may move to dismiss an action for failure to state a

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claim upon which relief can be granted pursuant to Federal Rules of

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Civil Procedure 12(b)(6).

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court must accept the allegations in the complaint as true and draw

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all reasonable inferences in favor of the plaintiff.

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Rhodes, 416 U.S. 232, 236 (1975), overruled on other grounds by

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Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319,

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322 (1972).

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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,

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129 S. Ct. 1937, 1950 (2009), citing Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555 (2007).

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a plaintiff needs to plead “enough facts to state a claim to relief

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that is plausible on its face.”

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Dismissal is appropriate where the plaintiff fails to state a claim

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supportable by a cognizable legal theory.

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Police Department, 901 F.2d 696, 699 (9th Cir. 1990).

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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

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not expressly provide for partial judgment on the pleadings,

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neither does it bar them; it is common to apply Rule 12(c) to

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individual causes of action. See Moran v. Peralta Community College

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District, 825 F.Supp. 891, 893 (N.D.Cal. 1993). “Courts have

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discretion to grant leave to amend in conjunction with 12(c)

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motions, and may dismiss causes of action rather than grant

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judgment.”

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must then decide whether to grant leave to amend. In general, leave

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to amend is only denied if it is clear that amendment would be

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futile and “that the deficiencies of the complaint could not be

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cured by amendment.” Broughton v. Cutter Laboratories, 622 F.2d

Id.

When a court finds the pleadings deficient, it

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458, 460 (9th Cir. 1980) (per curium).
B.

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Claims for Relief
1.

Claim 1: FEHA

Union Pacific argues that Plaintiff fails to state a FEHA

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sexual harassment claim because Union Pacific is not Plaintiff’s

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employer and Plaintiff does not allege Union Pacific negligently

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responded to the alleged harassment by non-supervisorial employees.

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In the Opposition, Plaintiff concedes Union Pacific’s FEHA

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argument.

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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

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intentional infliction of emotional distress (“IIED”) claim because

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the allegedly unlawful conduct was, as a matter of law, outside the

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scope of employment.

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negligent for retaining employees who harassed, assaulted, and

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battered her and, as such, it is liable for the harm that flowed

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from that breach of duty.

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Plaintiff counters that Union Pacific is

An employer is liable for the willful and malicious torts of

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its employees committed in the scope of employment.

John R. v.

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Oakland Unified School District, 48 Cal.3d 438, 447 (Cal. 1989).

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To hold an employer liable for an employee’s tort of IIED,

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Plaintiff must prove that she is a victim of sexual harassment,

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that the harasser is an employee of Union Pacific, and that the

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harasser was acting within the scope of his employment.

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v. San Pedro Peninsula Hospital, 214 Cal.App.3d 590, 618 (Cal. App.

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Ct. 2d 1989).

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the outrageous behavior element of a cause of action for IIED.

See Fisher

If properly pled, sexual harassment will constitute

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Id.

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The issue is whether Union Pacific employees acted within the

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scope of their employment.

Union Pacific relies on Farmers

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Insurance Group v. County of Santa Clara, 11 Cal. 4th 992, 1007

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(Cal. 1995).

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the general principles of the respondeat superior doctrine in

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actions by third persons against the employer for the torts of the

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employee.

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despite the fact that sexually harassing acts were committed

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“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

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“inappropriate touchings were motivated for strictly personal

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reasons unrelated to . . . the performance of any other duty

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[related to the harasser’s job].”

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Court added that the “misconduct was not reasonably necessary to

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[the harasser’s] comfort, convenience, health, and welfare while at

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work.

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performance of his duties or those of his victims.”

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Therefore, the sexual misconduct was held to be outside the scope

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of employment and the employer was not liable to a third party for

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the actions of its employee.

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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

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their legs against hers, sent her personal texts, described the

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ways [they] wanted to have sex with her, forcibly pressed her

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against a van and kissed her, and smelled her hair.

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essentially, the same type of conduct the California Supreme Court

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determined was outside the scope of employment in Farmers.

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at 998 (employee admitted conduct such as touching one female's

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thighs, slapping another's buttocks, telling the females he wanted

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to “eat pussy” and “butt fuck” them, and telling one female he was
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This is,

See Id.

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supervising that she would have to “give him head” to complete her

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training).

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Because those torts were personal in nature, “mere presence at

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the place of employment and attendance to occupational duties prior

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or subsequent to the offense will not give rise to a cause of

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action against the employer under the doctrine of respondeat

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superior.”

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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

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undisputed and no conflicting inferences are possible.

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1019.

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inferences are possible, the Court finds, as a matter of law,that

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the Union Pacific employees acted outside the scope of employment.

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Accordingly, Union Pacific’s motion for judgment on the pleadings

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for Plaintiff’s IIED claim (Claim 2) is GRANTED WITH PREJUDICE.

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Because the facts are undisputed and no conflicting

3.

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Id. at

Constructive Termination in Violation of Public
Policy

Union Pacific argues that it cannot be liable to Plaintiff for

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wrongful termination as a matter of law because Plaintiff cannot

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state a valid FEHA claim, Union Pacific was not Plaintiff’s

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employer, and Plaintiff does not allege Union Pacific was aware she

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was being subjected to intolerable working conditions.

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concedes the constructive termination claim in the Opposition.

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Therefore, Union Pacific’s motion for judgment on the pleadings for

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Plaintiff's constructive termination in violation of public policy

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claim (Claim 3) is GRANTED WITH PREJUDICE.

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4.

Plaintiff

Assault and Battery

Union Pacific argues that Plaintiff does not state a viable
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assault and battery claim because the alleged wrongful acts were

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outside the scope of employment and the claim is barred by the

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statute of limitations.

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passing reference to section 213 of the Second Restatement of

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Agency, presumably to argue that Union Pacific should be liable for

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assault and battery under an agency theory.

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concedes that some of the alleged incidents took place outside the

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statute of limitations, Plaintiff alleges there were additional

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incidents that took place during the statute of limitations that

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In Plaintiff’s Opposition, she makes a

While Plaintiff

were not identified in the Complaint.
Under the doctrine of respondeat superior, an employer is

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vicariously liable for the torts of its employees that are

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committed within the scope of employment.

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Newhall Memorial Hospital,12 Cal.4th 291, 296 (Cal. 1995). Under

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the agency theory, “[a]n employer is liable for an assault and

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battery committed by an employee where the employment in some way

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involves the risk of force used against third persons, the act is

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connected with the employment, and the act is not motivated by

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independent personal malice.”

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ed. 2005) Agency and Employment, § 186, p. 237.

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Lisa M. v. Henry Mayo

Witkin, Summary of Cal. Law (10th

As discussed supra, the Union Pacific employees’ alleged

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actions occurred outside the scope of employment.

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fails to state a claim against Union Pacific for assault and

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battery.

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Thus, Plaintiff

Additionally, even if Plaintiff had properly stated a claim,

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the only allegation against Union Pacific that could be considered

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assault and battery occurred in August 2008, which is clearly

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outside the applicable two year statute of limitations.
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See Cal.

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Code of Civ. Pro. § 335.1. Accordingly, Union Pacific’s motion for

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judgment on the pleadings for the assault and battery claim (Claim

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4) is GRANTED WITH PREJUDICE.

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5.

Negligent Retention and Supervision

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Union Pacific argues that Plaintiff does not adequately allege

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that Union Pacific was aware that the alleged harassers had the

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propensity to act unlawfully without further supervision.

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Plaintiff counters that she pled she was harassed, assaulted, and

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battered by employees of Union Pacific during her employment, Union

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Pacific knew or should have known of this conduct, and it failed to

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take steps necessary to address it and/or prevent it.

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“When the harasser is a nonsupervisory employee, employer

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liability turns on a showing of negligence (that is, the employer

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knew or should have known of the harassment and failed to take

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appropriate corrective action).”

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Cal.4th 686, 707 (Cal. 2009).

Roby v. McKesson Corp., 47

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Plaintiff makes only one reference to a Union Pacific

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supervisor being aware of any harassment against Plaintiff by a

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nonsupervisory employee and that incident did not have to do with

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sexual harassment, but instead related to driver safety.

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that a Union Pacific supervisor allegedly overheard a conversation

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about an incident relating to driver safety did nothing to put

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Union Pacific on notice that Plaintiff was being subjected to

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sexual harassment.

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Pacific was aware of sexual harassment and that it failed to take

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steps necessary to address it or prevent it.

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claim for negligent supervision and retention (Claim 5) is

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DISMISSED WITH LEAVE TO AMEND.

The fact

Plaintiff must allege facts to show that Union

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Accordingly, the

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6.

Negligent Infliction of Emotional Distress

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Defendant argues that Plaintiff’s negligent infliction of

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emotional distress (“NIED”) claim fails because a negligence claim

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cannot be based on intentional conduct, the alleged tortuous

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conduct was outside the scope of employment, the claim is

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duplicative of Plaintiff’s negligent retention or supervision

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claim, and Plaintiff does not allege that any Union Pacific

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employee threatened her with physical injury.

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that she properly pled that Union Pacific was negligent in

Plaintiff argues

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retaining its employees who harassed, assaulted, and battered

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Plaintiff and, accordingly, Union Pacific is liable for the harm

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that flowed from that breach of duty.

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“[T]here is no independent tort of negligent infliction of

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emotional distress.

The tort is negligence, a cause of action in

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which a duty to plaintiff is an essential element.”

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Firestone Tire & Rubber Co., 6 Cal.4th 965, 984 (Cal. 1993)

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(internal citations omitted).

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based on the contention that Union Pacific was negligent in

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retaining its employees who harassed, assaulted, and battered

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Plaintiff, the NIED cause of action is duplicative of the fifth

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cause of action and fails as a matter of law.

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G.B. v. Chico Unified School District, No. 2:07-cv-926-GEB-CMK,

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2008 WL 3835731, *5 (E.D.Cal. Aug. 14, 2008)(dismissing NIED claim

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as a separate cause of action because it is duplicative of the

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negligence claim, but allowing plaintiff to plead emotional

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distress damages due to defendants’ negligence).

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Union Pacific’s motion for judgment on the pleadings for the NIED

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claim (Claim 6) is GRANTED WITH PREJUDICE. Plaintiff will be

Potter v.

Since Plaintiff’s NIED claim is

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See T.B. ex rel.

Accordingly,

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allowed to seek recovery of emotional distress damages under her

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fifth cause of action if the claim is properly pled in the amended

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complaint.

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III. ORDER

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For the reasons set forth above,

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Union Pacific’s Motion for Judgment on the Pleadings for the

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FEHA Claim (Claim 1), the IIED claim (Claim 2), the constructive

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termination claim (Claim 3), the assault and battery claim (Claim

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4), and the NIED claim (Claim 6) is GRANTED WITH PREJUDICE.
The negligent retention and supervision claim (Claim 5) is

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DISMISSED WITH LEAVE TO AMEND. Plaintiff shall file her First

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Amended Complaint within twenty (20) days of the date of this

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Order.

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IT IS SO ORDERED.

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Dated: May 13, 2011

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JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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