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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KATHY STONE, 12 2:14-cv-00689-JAM-DAD Plaintiff, 13 14 No. v. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SEVERN TRENT SERVICES, INC., a Pennsylvania corporation, 15 Defendant. 16 17 This matter is before the Court on Defendant Severn Trent 18 Services, Inc.’s (“Defendant”) Motion to Dismiss (Doc. #6) the 19 seventh cause of action in Plaintiff Kathy Stone’s (“Plaintiff”) 20 Complaint (Doc. #1). 1 21 (“Opposition”) (Doc. #9). Plaintiff opposed the motion Defendant filed a reply (Doc. #11). 22 I. 23 Plaintiff began her employment with Defendant in 2013. 24 25 FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND Comp. ¶¶ 3-5. She alleges that in mid-2013, Defendant “commenced 26 27 28 1 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. 1 1 a plan, scheme or design” to damage her reputation as a manager 2 and with customers by criticizing her work. 3 received a written code of conduct warning on July 29, 2013 that 4 Plaintiff alleges “falsely state[d] that Plaintiff had violated 5 the company’s code of conduct.” 6 applied for a promotion and was denied in substantial part 7 because of her sex. 8 employment, Defendant created and allowed to exist a sexually 9 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 10 the basis of her sex. 11 attempted to report the harassment by her co-workers, Defendant 12 retaliated against her. 13 Id. ¶ 25. Plaintiff alleges that when she Id. ¶ 35. Plaintiff was injured in an automobile accident during her 14 employment with Defendant while “travelling between sites 15 requiring her supervision.” 16 this injury “caused her to suffer severe, disabling, physical 17 injury,” and interfered with her ability to concentrate and “work 18 in a pain-free environment.” 19 its actions, retaliated against her for filing a worker’s 20 compensation claim in violation of California Labor Code section 21 132a (“§ 132a”). Comp. ¶ 46. Id. Plaintiff alleges that She claims that Defendant, by Id. ¶¶ 45-50. 22 Plaintiff filed the Complaint on March 14, 2014, alleging 23 seven causes of action: (1) Sex Discrimination; (2) Refusal to 24 Promote in Violation of Public Policy; (3) Sexual Harassment; 25 (4) Violation of Government Code § 12940(i); (5) Retaliation for 26 Reporting Harassment; (6) Violation of Government Code § 12950; 27 and (7) Retaliation for Filing a Worker’s Compensation Claim. 28 /// 2 1 2 II. OPINION Defendant contends the Court should dismiss the seventh 3 cause of action, based on alleged retaliation for filing a 4 worker’s compensation claim, because it fails to state a claim 5 upon which relief can be granted. 6 the claim pursuant to § 132a. 7 that the Workers’ Compensation Appeals Board (“WCAB”) is the 8 exclusive forum for bringing such claims under § 132a. 9 pp. 2, 4-5. 10 MTD at p. 2. Comp. ¶¶ 45-50. Plaintiff brings Defendant argues MTD at In her Opposition to the motion, Plaintiff first asks the 11 Court to resolve the “tension” between Dutra v. Mercy Medical 12 Center Mt. Shasta, 209 Cal.App.4th 750 (2012) (“Dutra”) and City 13 of Moorpark v. Superior Court of Ventura County, 18 Cal. 4th 1143 14 (1998) (“Moorpark”). 15 to Fretland V. County of Humboldt, 69 Cal.App.4th 1478 16 (“Fretland”) and the text of an amendment to the Fair Employment 17 and Housing Act (“FEHA”), Government Code § 12940(h). 18 this, she argues she can bring her claim for retaliation based on 19 § 132a. 20 Plaintiff then includes a lengthy citation Based on Section 132a proscribes retaliation by an employer against 21 an employee who has filed or has made known their intention to 22 file a worker’s compensation claim. 23 claims under its provisions “are to be instituted by filing an 24 appropriate petition with the appeals board.” 25 “vested with full power, authority, and jurisdiction to try and 26 determine finally all matters specified in [§ 132a] subject only 27 to judicial review.” 28 Section 132a provides that The WCAB is § 132a. The Supreme Court of California has held that § 132a “does 3 1 not provide an exclusive remedy and does not preclude an employee 2 from pursuing FEHA and common law wrongful discharge remedies.” 3 Moorpark, 18 Cal. 4th at 1158. 4 5 6 7 8 9 10 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 11 expressly address, a claim under § 132a must be brought to the 12 WCAB; the WCAB is the exclusive forum for claims under § 132a. 13 See Dutra, 209 Cal.App.4th at 756; Steiner v. Verizon Wireless, 14 2:13-CV-1457-JAM-KJN, 2014 WL 202741, at *3-4 (E.D. Cal. 2014) 15 (§ 132a claim “falls under the exclusive jurisdiction of the 16 Workers' Compensation Appeals Board”); Capote v. CSK Auto, Inc., 17 12-CV-02958-JST, 2014 WL 1614340, at *12 (N.D. Cal. 2014). 18 simultaneously true that § 132a does not provide the exclusive 19 remedy for the conduct and resulting harm alleged by Plaintiff 20 here, and does not preclude her from “pursuing FEHA and common 21 law [] remedies.” 22 words, although a § 132a claim is not an injured party’s 23 exclusive remedy, the WCAB is the “exclusive forum for pursuing a 24 section 132a claim.” 25 FEHA are viable and not precluded by § 132a as stated in 26 Fretland. 27 brought her worker’s compensation retaliation claim solely under 28 § 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 4 1 of action is improperly brought before it. 2 Court grants Defendant’s Motion to Dismiss with prejudice. Accordingly, the 3 4 5 III. ORDER For the reasons set forth above, the Court GRANTS 6 Defendant’s Motion to Dismiss Plaintiff’s seventh cause of action 7 for worker’s compensation retaliation pursuant to § 132a with 8 prejudice. 9 10 IT IS SO ORDERED. Dated: July 30, 2014 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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