Stone v. Severn Trent Services, Inc.

Filing 12

ORDER signed by Judge John A. Mendez on 7/30/2014 ORDERING 6 the Court GRANTS Defendant's Motion to Dismiss Plaintiff's seventh cause of action for worker's compensation retaliation pursuant to Sec 132a with prejudice. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KATHY STONE,

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2:14-cv-00689-JAM-DAD

Plaintiff,

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No.

v.

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

SEVERN TRENT SERVICES, INC.,
a Pennsylvania corporation,

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Defendant.
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This matter is before the Court on Defendant Severn Trent

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Services, Inc.’s (“Defendant”) Motion to Dismiss (Doc. #6) the

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seventh cause of action in Plaintiff Kathy Stone’s (“Plaintiff”)

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Complaint (Doc. #1). 1

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(“Opposition”) (Doc. #9).

Plaintiff opposed the motion
Defendant filed a reply (Doc. #11).

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I.

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Plaintiff began her employment with Defendant in 2013.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Comp. ¶¶ 3-5.

She alleges that in mid-2013, Defendant “commenced

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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 June 18, 2014.
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a plan, scheme or design” to damage her reputation as a manager

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and with customers by criticizing her work.

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received a written code of conduct warning on July 29, 2013 that

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Plaintiff alleges “falsely state[d] that Plaintiff had violated

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the company’s code of conduct.”

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applied for a promotion and was denied in substantial part

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because of her sex.

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employment, Defendant created and allowed to exist a sexually

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hostile environment and discriminated against and harassed her on

Id.

Id. ¶¶ 10-11.

Id. ¶ 5.

Plaintiff

Plaintiff alleges that she

She alleges that during her

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the basis of her sex.

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attempted to report the harassment by her co-workers, Defendant

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retaliated against her.

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Id. ¶ 25. Plaintiff alleges that when she

Id. ¶ 35.

Plaintiff was injured in an automobile accident during her

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employment with Defendant while “travelling between sites

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requiring her supervision.”

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this injury “caused her to suffer severe, disabling, physical

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injury,” and interfered with her ability to concentrate and “work

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in a pain-free environment.”

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its actions, retaliated against her for filing a worker’s

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compensation claim in violation of California Labor Code section

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132a (“§ 132a”).

Comp. ¶ 46.

Id.

Plaintiff alleges that

She claims that Defendant, by

Id. ¶¶ 45-50.

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Plaintiff filed the Complaint on March 14, 2014, alleging

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seven causes of action: (1) Sex Discrimination; (2) Refusal to

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Promote in Violation of Public Policy; (3) Sexual Harassment;

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(4) Violation of Government Code § 12940(i); (5) Retaliation for

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Reporting Harassment; (6) Violation of Government Code § 12950;

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and (7) Retaliation for Filing a Worker’s Compensation Claim.

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II.

OPINION

Defendant contends the Court should dismiss the seventh

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cause of action, based on alleged retaliation for filing a

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worker’s compensation claim, because it fails to state a claim

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upon which relief can be granted.

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the claim pursuant to § 132a.

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that the Workers’ Compensation Appeals Board (“WCAB”) is the

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exclusive forum for bringing such claims under § 132a.

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pp. 2, 4-5.

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MTD at p. 2.

Comp. ¶¶ 45-50.

Plaintiff brings
Defendant argues

MTD at

In her Opposition to the motion, Plaintiff first asks the

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Court to resolve the “tension” between Dutra v. Mercy Medical

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Center Mt. Shasta, 209 Cal.App.4th 750 (2012) (“Dutra”) and City

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

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(1998) (“Moorpark”).

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to Fretland V. County of Humboldt, 69 Cal.App.4th 1478

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(“Fretland”) and the text of an amendment to the Fair Employment

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and Housing Act (“FEHA”), Government Code § 12940(h).

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this, she argues she can bring her claim for retaliation based on

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§ 132a.

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Plaintiff then includes a lengthy citation

Based on

Section 132a proscribes retaliation by an employer against

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an employee who has filed or has made known their intention to

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file a worker’s compensation claim.

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claims under its provisions “are to be instituted by filing an

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appropriate petition with the appeals board.”

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“vested with full power, authority, and jurisdiction to try and

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determine finally all matters specified in [§ 132a] subject only

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to judicial review.”

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Section 132a provides that

The WCAB is

§ 132a.

The Supreme Court of California has held that § 132a “does
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not provide an exclusive remedy and does not preclude an employee

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from pursuing FEHA and common law wrongful discharge remedies.”

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Moorpark, 18 Cal. 4th at 1158.

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However, § 132a includes:

. . . limitations on its scope and remedy that prevent
it from being the basis of a common law cause of
action. The statute establishes a specific procedure
and forum for addressing a violation. It also limits
the remedies that are available once a violation is
established. Allowing plaintiff to pursue a tort
cause of action based on a violation of section 132a
would impermissibly give her broader remedies and
procedures than that provided by the statute.
Dutra, 209 Cal. App. 4th at 756.
As Defendant has argued and Plaintiff has failed to

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expressly address, a claim under § 132a must be brought to the

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WCAB; the WCAB is the exclusive forum for claims under § 132a.

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See Dutra, 209 Cal.App.4th at 756; Steiner v. Verizon Wireless,

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2:13-CV-1457-JAM-KJN, 2014 WL 202741, at *3-4 (E.D. Cal. 2014)

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(§ 132a claim “falls under the exclusive jurisdiction of the

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Workers' Compensation Appeals Board”); Capote v. CSK Auto, Inc.,

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12-CV-02958-JST, 2014 WL 1614340, at *12 (N.D. Cal. 2014).

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simultaneously true that § 132a does not provide the exclusive

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remedy for the conduct and resulting harm alleged by Plaintiff

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here, and does not preclude her from “pursuing FEHA and common

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law [] remedies.”

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words, although a § 132a claim is not an injured party’s

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exclusive remedy, the WCAB is the “exclusive forum for pursuing a

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section 132a claim.”

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FEHA are viable and not precluded by § 132a as stated in

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Fretland.

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brought her worker’s compensation retaliation claim solely under

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§ 132a.

Moorpark, 18 Cal. 4th at 1158.

Id.

It is

In other

Specifically, similar claims under

69 Cal.App.4th at 1485-86.

Here, Plaintiff has

As a result, the Court finds Plaintiff’s seventh cause
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of action is improperly brought before it.

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Court grants Defendant’s Motion to Dismiss with prejudice.

Accordingly, the

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III.

ORDER

For the reasons set forth above, the Court GRANTS

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Defendant’s Motion to Dismiss Plaintiff’s seventh cause of action

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for worker’s compensation retaliation pursuant to § 132a with

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prejudice.

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IT IS SO ORDERED.
Dated: July 30, 2014

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