Newfarmer-Fletcher v. County of Sierra et al

Filing 22

ORDER granting 17 Motion to Dismiss signed by Judge John A. Mendez on 2/29/12: If Plaintiff wishes to file a Second Amended Complaint that is in accordance with this order, she must do so within 20 days. Defendants must file a responsive pleading within 20 days after a Second Amended Complaint is filed by Plaintiff, or within 40 days of this order if no amended complaint is filed. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEAN NEWFARMER-FLETCHER,

)
)
Plaintiff,
)
)
v.
)
)
COUNTY OF SIERRA, a California
)
Municipality, SIERRA COUNTY
)
DEPT. OF HUMAN SERVICES/SOCIAL
)
SERVICES DEPARTMENT, a
)
government agency organized and )
existing pursuant to the law and )
policy of the COUNTY OF SIERRA, )
CAROL ROBERTS, Director of the
)
DEPT. OF HUMAN SERVICES, JAMES
)
MARKS, LARRY ALLEN, VAN MADDOX, )
JODI BENSON, CAROL IMAN, and
)
DOES 1-50,
)
)
Defendants.
)

Case No. 2:11-CV-02054 JAM-CKD
ORDER GRANTING DEFENDANTS’
MOTON TO DISMISS

Before the Court is Defendants’ County of Sierra, Sierra

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County Department of Human Services/Social Services Department,

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Carol Roberts (“Roberts”), James Marks (“Marks”), Larry Allen

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(“Allen”), Van Maddox (“Maddox”), and Jodi Benson (“Benson”),

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(collectively “Defendants”), Motion to Dismiss (Doc. #17) the First

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Amended Complaint (“FAC,” Doc. #16) filed by Plaintiff Jean

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Newfarmer-Fletcher (“Plaintiff”).
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Plaintiff opposes the motion

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(Doc. #19).1

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I.

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FACTUAL ALLEGATIONS

According to the FAC, Plaintiff is a social worker employed by

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Sierra County.

In approximately May 2010, Plaintiff alleges that

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she participated in the initiation of a child dependency proceeding

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previously handled by Benson, another social worker at Sierra

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County Health and Human Services.

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prior handling of the case was inaccurate and contained unspecified

Plaintiff believed that Benson’s

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false information.

Plaintiff alleges she reported her findings to

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her direct supervisor, Marks.

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an inappropriate personal relationship with Benson and as a result

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of this relationship, Plaintiff alleges that she was targeted by

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Benson and Marks.

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Roberts, the Director of Health and Human Services in Sierra County

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and Curtis, an unknown party not named in this lawsuit.

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Plaintiff alleges several incidents of harassment, four key events

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are most relevant to this motion: (1) In approximately June 2010,

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Plaintiff alleges that she received telephone calls from her

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clients who asked why Defendant Carol Iman, a union representative

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for California United Homecare Workers Union, was visiting them to

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obtain negative information about her; (2) On or about August 5,

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2010, Plaintiff contends she informed Marks of a problem with a

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court file.

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the court form and breaking confidentiality.

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that the error was assignable to the court and was corrected, but

Plaintiff alleges that Marks was in

Plaintiff alleges she was also harassed by

While

Plaintiff alleges that Marks accused her of forging
Plaintiff contends

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for January 25, 2012.
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Marks failed to acknowledge this fact or apologize to her; (3) On

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or about March 8, 2011, Plaintiff alleges that Marks and Benson

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entered her office and removed files without permission.

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subsequently requested that a lock be installed on her filing

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cabinet.

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following day, the newly installed lock had been broken.

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contends that Marks admitted to breaking the lock; and (4) On or

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about April 8, 2011, Plaintiff alleges that she was forced to

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submit to an alcohol test at the direction of Roberts.

Plaintiff

Plaintiff alleges that when she arrived at work the
Plaintiff

Plaintiff

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alleges that the test occurred at the Sheriff’s Department in a

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room with clear glass windows, visible to the public, and not in

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private.

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Plaintiff’s FAC alleges ten causes of action: (1) Retaliation

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in violation of 42 U.S.C. § 1983; (2) Retaliation in violation of

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California Lab. Code § 1102.5; (3) Invasion of privacy in violation

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of U.S. Const. amend XIV; (4) Due process violation; (5) Slander;

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(6) Intentional infliction of emotional distress; (7) Harassment in

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violation of Govt. Code § 12940; (8) Defamation, in violation of

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Civ. Code § 46(3)-(4); (9) False Light, in violation of Civ. Code

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45 or 48a; and (10) Invasion of privacy- publicity [sic.] placing

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person in false light in public eye, in violation of Civ. Code

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§ 3422; Code of Civ. Proc. § 526.

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II.

OPINION

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A.

Legal Standard

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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 Rule of

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Civil Procedure 12(b)(6).

In considering a motion to dismiss, the
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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 (1974), 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.

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

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

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

Scheuer v.

Assertions that are mere “legal conclusions,” however,
Ashcroft v. Iqbal,

To survive a motion to dismiss, a

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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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Twombly, 550 U.S. at 570.

Balistreri v. Pacifica

Upon granting a motion to dismiss for failure to state a

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claim, the court has discretion to allow leave to amend the

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complaint pursuant to Federal Rule of Civil Procedure 15(a).

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“Dismissal with prejudice and without leave to amend is not

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appropriate unless it is clear . . . that the complaint could not

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be saved by amendment.”

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316 F.3d 1048, 1052 (9th Cir. 2003).

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B.

Eminence Capital, L.L.C. v. Aspeon, Inc.,

Claims for Relief
1.

Causes of Action Against Defendants Allen and Maddox

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Defendants argue that the FAC is devoid of any facts or

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conduct attributable to Allen or Maddox, Personnel Directors for

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the County of Sierra, other than vague assertions that they

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permitted unlawful activities to exist.

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Allen and Maddox, by their position as duel Personnel Managers, had

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a duty over all County personnel, of implementation and oversight
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Plaintiff counters that

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of all county policies, state and federal law, and the duty to make

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sure all departments are in compliance of said policies and laws.

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Plaintiff fails to identify any facts in the FAC that would

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establish a cognizable claim against Allen or Maddox.

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Plaintiff alleges that Allen and Maddox were supervisors, her

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claims are based on respondeat superior and vicarious liability.

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However, there is no respondeat superior or vicarious liability in

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Section 1983 claims.

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Cir. 1989).

Because

See Taylor v. List, 880 F.2d 1040, 1045 (9th

Moreover, concerning the state law claims, Allen and

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Maddox are not responsible for the actions of other employees as a

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matter of law.

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Motion to Dismiss all causes of action against Allen and Maddox is

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GRANTED WITH PREJUDICE.

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///

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2.

Cal. Govt. Code § 820.8.

Accordingly, Defendants’

County of Sierra

Defendants argue that since Plaintiff cannot establish an

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underlying constitutional violation against the individual

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defendants, her causes of action against the County of Sierra must

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fail.

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Los Angeles v. Heller, 475 U.S. 796 (1986) (per curium), a civil

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rights damages action in which the Supreme Court held that since a

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jury found that the defendant police officer did not inflict a

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constitutional injury on the plaintiff, there was no basis for

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liability against the city and the members of the police

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commission.

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Defendants, without providing any analysis, rely on City of

Plaintiff does not oppose Defendants’ arguments.

Here, Plaintiff might be able to plead constitutional

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violations against the individual defendants.

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claim against the County of Sierra, as a public entity it may be
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However, to state a

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held liable only for a constitutional violation that was caused by

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a policy, custom or practice of the public entity.

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of Social Services, 436 U.S. 658, 691 (1978).

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violation, Plaintiff must allege that the entity’s policy or custom

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must have been the “moving force” behind the alleged deprivation.

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See Monell, 436 U.S. at 694.

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unconstitutional incident, without more, cannot bind a

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municipality.

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(1985).

Monell v. Dept.

To plead a Monell

Moreover, an isolated,

City of Oklahoma City v. Tuttle, 471 U.S. 808, 823

Plaintiff does not allege a Monell-type claim or provide

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any opposition to the County of Sierra’s argument that it should be

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dismissed from this lawsuit.

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cognizable legal claims against the County of Sierra, the Court

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GRANTS WITH PREJUDICE Defendants’ Motion to Dismiss the County of

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Sierra.

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3.

Accordingly, because there are no

Invasion of Privacy

One type of constitutionally-protected privacy interest is

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“the individual interest in avoiding disclosure of personal

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matters. . . .”

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(internal quotations omitted).

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alleges that Marks and Benson entered her office without permission

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and went through her personal items.

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indicate how this alleged trespass constitutes a constitutional

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claim for invasion of privacy or how Defendants disclosed whatever

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personal information they allegedly found in her office.

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Accordingly, Defendants’ Motion to Dismiss Plaintiff’s third cause

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of action for invasion of privacy is GRANTED WITH LEAVE TO AMEND.

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In the amended complaint, Plaintiff must state with greater

In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999)
Plaintiff’s third cause of action

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Plaintiff’s claim does not

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specificity how her invasion of privacy claim is a violation of her

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constitutional right to privacy.

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4.

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Due Process Violations

Defendants argue that Plaintiff’s fourth cause of action

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alleging a due process violation fails to identify the type of

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protected life, liberty, or property interest of which she was

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deprived.

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Plaintiff lost her job as a result of the alcohol screening, or

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even that she was disciplined.

Defendants argue that there are no facts to suggest that

Furthermore, Defendants argue that

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even if Plaintiff had been disciplined in some way following the

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alcohol screening, she admits that due process was available

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through the County personnel grievance process, but she chose not

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to pursue it because she believed that it would be biased against

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her.

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alcohol test without notice and without reasonable suspicion in

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violation of Sierra County Personnel Code 3.12.

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Personnel Code 3.12(e)(“Code 3.12(e)”) requires employees to submit

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“to reasonable and appropriate alcohol testing . . .

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are reasons to believe that drug or alcohol use has occurred and/or

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is adversely affecting job performance.”

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Plaintiff counters that she was required to submit to the

Sierra County

when there

Plaintiff’s reliance on the Sierra County Personnel Code is

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unpersuasive.

Plaintiff provides the language of Code 3.12(e) and

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summarily concludes that her rights were violated.

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argue, Plaintiff must allege more.

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possesses a liberty or property interest, Board of Regents of State

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Colleges v. Roth, 408 U.S. 564 (1972); (2) she was deprived of that

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interest by government action; Gilbert v. Homar, 520 U.S. 924

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(1997), and (3) the deprivation occurred without adequate notice
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As Defendants

She must allege (1) she

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and an opportunity to be heard.

Id.

In addition to failing to plead the due process elements,

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Plaintiff admits that due process was available though the County

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personnel grievance process, but she chose not to pursue it because

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she believed it would be biased against her.

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grievance process existed satisfies due process, even though

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Plaintiff chose not to avail herself of it.

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Meyers, 964 F.2d 948, 951 (9th Cir. 1992), the Ninth Circuit held

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that a plaintiff was not denied due process even though the

The fact that a

In Armstrong v.

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plaintiff’s union decided not to pursue the arbitration process and

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plaintiff would have had to pay the costs of arbitration.

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Plaintiff did not even engage the grievance procedure.

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Here,

Because Plaintiff does not properly allege any of the elements

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for a due process violation or allege how she was denied due

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process even though she chose not to avail herself of the grievance

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procedures, Defendants’ Motion to Dismiss Plaintiff’s fourth cause

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of action alleging due process violations is GRANTED WITH LEAVE TO

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AMEND.

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process cause of action only if she can plead the elements of the

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violation and allege how she was denied due process despite

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voluntarily foregoing the grievance process.

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In the amended complaint, Plaintiff can maintain this due

5.

Slander

Defendants move to dismiss Plaintiff’s fifth cause of action
for slander.
A slander that falls within the first four
subdivisions of Civil Code section 46 is slander per
se and require[s] no proof of actual damages. A
slander that does not fit into those four subdivisions
is slander per quod, and special damages are required
for there to be any recovery for that slander.

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Regalia v. The Nethercutt Collection, 172 Cal.App.4th 361, 367

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(Cal. Ct.App.2d 2009) (internal citations omitted).

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to slander per se, the trial court decides if the alleged statement

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falls within Civil Code section 46, subdivisions (1) through (4).

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It is then for the trier of fact to determine if the statement is

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defamatory.”

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se generally involve “statements that reflect on the integrity and

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competence of the plaintiff, the clearest being allegations of

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unethical activity or incompetence.”

Id. at 368-69.

“With respect

Statements that are not slander per

Id. at 369.

“[T]he

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disparagement must be more than general defamation of the victim's

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character, it must go to a characteristic particularly relevant to

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the victim's occupation.”

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Id.

Plaintiff’s FAC includes general allegations that some

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Defendants stated that she was incompetent.

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however, do not support a claim for slander per se.

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Plaintiff does not allege a slander per quod claim because she does

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not plead the requisite special damages required to maintain such a

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claim.

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Court will, however, grant plaintiff one final opportunity to try

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to properly plead this claim. In the amended complaint, Plaintiff

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must allege with more specificity the statements that she contends

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are defamatory and identify how she has been damaged by those

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statements.

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Those allegations,
Furthermore,

Therefore, this cause of action must be dismissed. The

While the Court is granting Plaintiff leave to amend this

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claim, it GRANTS WITH PREJUDICE Defendants’ Motion to Dismiss

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Roberts, Allen and Maddox from the slander cause of action.

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discussed supra, all claims have been dismissed against Allen and

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Maddox.

There is also no basis for liability against Roberts
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As

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pursuant to Government Code § 820.8 (“a public employee is not

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liable for an injury caused by the act or omission or another

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person.”).

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6.

Intentional Infliction of Emotional Distress

California courts have generally held that where an employee

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is injured within the scope of employment, and where that harm does

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not constitute a violation of public policy, worker's compensation

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provides the exclusive means of tort recovery.

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Moorpark v. Superior Court of Ventura Cnty., 18 Cal.4th 1143, 1161

See City of

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(Cal. 1998).

From the allegations in the sixth cause of action of

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Plaintiff’s FAC, it is clear Plaintiff’s emotional distress claim

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arises out of her employment with Sierra County.

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the facts alleged, “the alleged wrongful conduct . . . occurred at

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the worksite, in the normal course of the employer-employee

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relationship, and therefore workers' compensation is plaintiffs'

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exclusive remedy for any injury that may have resulted.”

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v. Regents of University of Cal., 44 Cal.4th 876, 902 (Cal. 2008).

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Plaintiff’s cause of action would be viable if she could plead that

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the intentional infliction of emotional distress is a violation of

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public policy.

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conduct that “contravenes public policy [or] that exceeds the risks

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inherent in the employment relationship.”

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kinds of conduct at issue (e.g., discipline or criticism) are a

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normal part of the employment relationship.

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may be characterized as intentional, unfair or outrageous, it is

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nevertheless covered by the workers' compensation exclusivity

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provisions.”

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held that even in employee whistleblower cases, intentional

Thus, based on

Miklosy

To plead that, Plaintiff would have had to allege

Id.

Id.

However, “[t]he

Even if such conduct

Furthermore, the California Supreme Court has

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infliction of emotional distress claims are barred by the

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exclusivity provisions.

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(Cal. 1990).

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infliction of emotional distress claim is barred by the exclusivity

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provisions, the Court GRANTS WITH PREJUDICE Defendants’ Motion to

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Dismiss the sixth cause of action alleging intentional infliction

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of emotional distress.

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Shoemaker v. Myers, 52 Cal. 3d. 1, 25

Accordingly, because Plaintiff’s intentional

Harassment under FEHA

Plaintiff alleges in her seventh cause of action that

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Defendants sexually harassed her because she reported an

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unwarranted intrusion of the department in a case and a reasonable

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woman in Plaintiff’s circumstances would have considered the work

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environment to be hostile and abusive, in violation of the

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California Fair Employment and Housing Act (“FEHA”), Gov. Code

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§ 12940.

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California's FEHA, an employee must show that “the harassing

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conduct was severe enough or sufficiently pervasive to alter the

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conditions of employment and create a work environment that

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qualifies as hostile or abusive to employees because of their sex.

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There is no recovery for harassment that is occasional, isolated,

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sporadic, or trivial.”

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2009).

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harassed because of her sex; from the FAC it is clear that no facts

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exist to support a claim for harassment under FEHA.

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action as pled in the FAC is based on the allegations that

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plaintiff was harassed because of what she reported, not because

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she was a member of a protected class.

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to amend this claim would be futile, the Court GRANTS Defendants’

To prevail on a hostile work environment claim under

Hughes v. Pair, 46 Cal.4th 1035, 1043 (Cal.

Plaintiff does not provide any allegations that she was

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This cause of

Since any further attempt

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Motion to Dismiss the seventh cause of action WITH PREJUDICE.
8.

Defamation

To state a claim for defamation (either libel or slander),

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Plaintiff must establish “the intentional publication of a

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statement of fact that is false, unprivileged, and has a natural

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tendency to injure or which causes special damage.”

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Maldonado, 72 Cal.App.4th 637, 645 (Cal.Ct.App.1d 1999); Cal. Civ.

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Code §§ 45-46. Publication means “communication to a third person

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who understands the defamatory meaning of the statement and its

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application to the person to whom reference is made.”

Smith v.

Id.

Under California law, the defamatory statement must be

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specifically identified, and the plaintiff must plead the substance

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of the statement.

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1216 (C. D. Cal.2004).

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standards, “general allegations of the defamatory statements” that

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do not identify the substance of what was said are insufficient.

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See Silicon Knights, Inc. v. Crystal Dynamics, Inc., 983 F.Supp.

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1303, 1314 (N.D. Cal. 1997) (holding that “the words constituting a

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libel or slander must be specifically identified, if not pleaded

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verbatim”).

Jacobson v. Schwarzenegger, 357 F.Supp.2d 1198,
Even under the liberal federal pleading

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In her eighth cause of action, Plaintiff alleges that

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Defendants published the fact that Plaintiff was subjected to an

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alcohol test by releasing that information to local newspapers and

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co-workers.

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clients, but she does not allege what Defendants told the clients.

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Plaintiff’s claim includes an admission that she took the blood

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alcohol test so any reference to such a test is true and therefore

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cannot form the basis of her claim for slander.

Plaintiff alleges that Defendants contacted current

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See Cal. Civ. Code

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§ 46 (requiring that a “false and unprivileged” communications be

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made to support a cause of action).

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claim centers on a true statement, this claim fails as a matter of

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law and any further amendment would be futile.

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GRANTS Defendants’ Motion to Dismiss the eighth cause of action for

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defamation WITH PREJUDICE.

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9.

Because Plaintiff’s defamation

Thus, the Court

False Light

Plaintiff pleads her ninth cause of action for false light
under California Civil Code sections 45 and 48a.

Civil Code

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section 45 provides: “Libel is a false and unprivileged publication

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by writing, printing, . . . which has a tendency to injure [the

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plaintiff] in [her] occupation.”

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her claim on the alcohol test, which, as discussed supra, is a true

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fact.

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under Civil Code § 45.

Civ. Code § 45.

Plaintiff bases

Accordingly, Plaintiff fails to state a cognizable claim

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Civil Code § 48a concerns damages against publishers of

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newspapers or radio broadcasts that contain libelous or slanderous

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statements.

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Code § 48 is inapplicable.

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Defendants’ Motion to Dismiss Plaintiff’s ninth cause of action for

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false light.

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10.

Since none of the Defendants are publishers, Civil
Thus, the Court GRANTS WITH PREJUDICE

Invasion of Privacy - Publicly Placing Person in
False Light in Public Eye

Plaintiff baes her tenth cause of action for invasion of

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privacy and placing a person in a false light in a public eye on

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California Civil Code section 3422 and California Code of Civil

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Procedure section 526.

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forms of injunctive relief – a form of relief Plaintiff does not

Both of the cited codes pertain to various

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seek in this case.

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National Collegiate Athletic Assn., 7 Cal. 4th 1, 36-37 (Cal. 1994)

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and essentially argues that Defendants violated her California

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constitutional right to privacy. This claim, however, does not

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include sufficient factual allegations demonstrating such a

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violation. Moreover, since the facts pled in the FAC do not support

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plaintiff’s third claim for invasion of privacy or ninth claim for

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false light, this tenth claim must fail as well. The Court, will,

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however, grant plaintiff one final opportunity to try to properly

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In the Opposition, Plaintiff cites to Hill v.

plead this cause of action.

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III. ORDER

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For the reasons set forth above,

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The Court GRANTS WITH PREJUDICE Defendants’ Motion to Dismiss:

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(1)

all causes of action against Allen and Maddox;

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(2)

all causes of action against the County of Sierra;

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(3)

Defendant Carol Roberts, from the fifth cause of action

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alleging slander;
(4)

the sixth cause of action alleging intentional infliction

of emotional distress;

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(5)

the seventh cause of action alleging harassment;

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(6)

the eighth cause of action for defamation; and

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(7)

the ninth cause of action for false light

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The Court GRANTS WITH LEAVE TO AMEND Defendants’ Motion to

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Dismiss:

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(1)

the third cause of action for invasion of privacy;

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(2)

the fourth cause of action for due process violations;

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(3)

the fifth cause of action for slander; and

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(4)

the tenth cause of action for invasion of privacy –

publicly placing person in false light in public eye.
If Plaintiff wishes to file a Second Amended Complaint that is

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in accordance with this order, she must do so within 20 days.

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Defendants must file a responsive pleading within 20 days after a

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Second Amended Complaint is filed by Plaintiff, or within 40 days

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of this order if no amended complaint is filed.

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IT IS SO ORDERED.
Dated:

February 29, 2012

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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