Aronold v. Sutter Health et al

Filing 18

ORDER signed by District Judge John A. Mendez on 8/2/2017 GRANTING 13 Defendant's Motion to Dismiss with leave to amend; If Plaintiff elects to amend her Second Amended Complaint, she shall file her third amended complaint within 21 days from the date of this Order; Defendants' responsive pleadings are due within 21 days thereafter; But if Plaintiff elects not to amend her SAC, the case will proceed on the following remaining claims: Plaintiff's sexual harassment and hostile work environment claim against both Defendants SMCS and Rice (claim two); Plaintiff's IIED claim against Defendant Rice (claim three); and Plaintiffs battery claim against Defendant Rice (claim five). (Reader, L)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

DEBORAH RENA ARNOLD,

11

14
15

2:17-cv-00543-JAM-CKD

Plaintiff,

12
13

No.

v.
SUTTER VALLEY HOSPITALS dba
SUTTER MEDICAL CENTER,
SACRAMENTO, a California
corporation; GUY RICE, an
individual,

16

ORDER GRANTING DEFENDANT SUTTER
MEDICAL CENTER, SACRAMENTO’S
MOTION TO DISMISS

Defendants.

17
Plaintiff Deborah Rena Arnold sues Sutter Valley Hospitals

18
19

dba Sutter Medical Center, Sacramento (“SMCS”) and Guy Rice

20

(collectively, “Defendants”) after Defendant Rice kissed her

21

without her consent.

22

Defendant SMCS now moves to dismiss two of Plaintiff’s claims.

23

Mot., ECF No. 13.

24

reasons explained below, the Court grants Defendant SMCS’s

25

motion. 1

26

1

27
28

Second Am. Compl. (“SAC”), ECF No. 10-2.

Plaintiff opposes.

Opp’n, ECF No. 15.

For

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 20, 2017. In deciding this motion, the Court
takes as true all well-pleaded facts in the operative complaint.
1

1

I.

2

BACKGROUND

Plaintiff and Defendant Rice are employees at SMCS.

See SAC

3

¶¶ 3-4.

4

while the two were working.

5

incident to Manvel Johnson, her co-worker.

6

then informed supervisor Jesse Yablonovsky about this incident

7

and other incidents in which Defendant Rice allegedly touched and

8

massaged other nurses without their consent.

9

about Rice’s unconsented-to kiss with Plaintiff, Defendant SMCS

10

In May 2016, Rice kissed Plaintiff, without her consent,
See id. ¶ 8.

suspended him for “several weeks.”

11

Plaintiff reported the
Id. ¶ 9.

Id.

Johnson

After learning

See id. ¶ 10.

Rice eventually returned, and when he did SMCS assigned him

12

to the same work shifts as Plaintiff.

13

lack of professional support and hostility in working with

14

[Plaintiff]” to “retaliat[e]” against her for “her initial

15

complaint against him.”

16

complained to supervisor Christina Walsh about the overlapping

17

work shifts, highlighting Rice’s “unprofessional, hostile[,] and

18

menacing behavior.”

19

filed an administrative complaint with the Department of Fair

20

Employment and Housing (“DFEH”).

21

See id.

See id.

He “displayed a

In August 2016, Plaintiff

See id. ¶ 11.

Three months later, Plaintiff

See id. ¶ 12.

Despite Plaintiff’s numerous complaints, she and Rice still

22

worked the same shifts.

Id. ¶ 13.

One day, Rice “began to

23

unnecessarily hover and linger around [Plaintiff]” to “menace

24

[her] in retaliation of her complaints . . . .”

25

later, Plaintiff met with Judy Lesh and Joyce De La Cruz to

26

discuss this hovering incident “and the development and

27

progression of [Plaintiff’s] prior related complaints.”

28

¶ 14.

Id.

A few weeks

See id.

Yet SMCS took “no remedial actions,” so Rice continued
2

1

working the same shifts as Plaintiff.

2

See id.

Infuriated by “SMCS’s inaction,” Plaintiff asked DFEH to

3

issue a right-to-sue letter, see id. ¶ 15, and it did, id. ¶ 16.

4

Plaintiff then filed this lawsuit, 2 bringing some claims against

5

only SMCS, some against only Rice, and some against both

6

Defendants.

7

and negligent infliction of emotional distress (“NIED”) (claim

8

four).

9

infliction of emotional distress (“IIED”) (claim three) and

She sues SMCS for gender discrimination (claim one)

See SAC at 5-6, 10-11.

She sues Rice for intentional

10

battery (claim five).

11

Defendants for sexual harassment and a hostile work environment

12

(claim two).

13

See id. at 9-12.

And she sues both

See id. at 6-9.

Now before this Court is SMCS’s motion to dismiss

14

Plaintiff’s gender discrimination and NIED claims.

15

Mot.; Def.’s Mem., ECF No. 13-1.

16

II.

See generally

OPINION

17

A.

Gender Discrimination Claim

18

Plaintiff brings her gender discrimination claim against

19

Defendant SMCS under Title VII of the Civil Rights Act of 1964,

20

42 U.S.C. § 2000e-2, and California’s Fair Employment and

21

Housing Act (“FEHA”), Cal. Gov’t Code § 12940.

22

prima facie case for a gender discrimination claim under either

23

Title VII or FEHA, a plaintiff must show (1) she belongs to a

To establish a

24
2

25
26
27
28

Plaintiff filed an original complaint, ECF No. 1, but soon
after filed a first amended complaint, ECF No. 4. Having
realized she sued the wrong defendant, Plaintiff requested leave
to voluntarily dismiss the wrong defendant and to file a second
amended complaint replacing it with Defendant SMCS. ECF No. 10.
This Court issued an order granting Plaintiff’s request. ECF No.
11.
3

1

protected class, (2) she was qualified for the position, (3) she

2

suffered an adverse employment action, and (4) defendant treated

3

similarly situated men more favorably.

4

Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002); Guz v.

5

Bechtel Nat’l Inc., 24 Cal. 4th 317, 355 (2000) (applying same

6

standard for FEHA discrimination claim).

7

See Villiarimo v. Aloha

Plaintiff alleges SMCS “discriminated against [her], in

8

terms, conditions, and/or privileges of her employment on the

9

basis of her sex or gender as a female by exposing her to

10

harassment and requiring her to work in a hostile work

11

environment” to which “her male counterparts are not subject.”

12

SAC ¶ 20.

13

The parties dispute whether Plaintiff properly pled this

14

claim.

15

plead an adverse employment action because SMCS did not fire,

16

demote, or make a personnel management decision that adversely

17

affected her.

18

has stated a claim because SMCS gave her an adverse job

19

assignment when it continued to assign Rice to her work shifts.

20

See Opp’n at 6.

21

reporting him and that such retaliation is protected activity.

22

See id. at 8-9.

23

SCMS argues Plaintiff has not, explaining she cannot

See Mem. at 6.

Plaintiff maintains, however, she

Plaintiff adds Rice retaliated against her for

The Court finds that Plaintiff sufficiently pleads the

24

first two elements.

25

protected class, and she is qualified for her position as a

26

registered nurse, as she performs competently, id. ¶ 7.

27
28

As a woman, SAC ¶ 8, she falls within a

As for the third element, an adverse employment action,
“[u]nder both Title VII and the FEHA . . . is one that
4

1

materially affects the compensation, terms, conditions or

2

privileges of employment.”

3

3d 1036, 1054 (E.D. Cal. 2015) (citing Chuang v. Univ. of

4

California Davis, Bd. of Trs., 225 F.3d 1115, 1125 (9th Cir.

5

2000).

6

environment . . . by exposing her to unwelcomed sexual

7

advances,” SAC ¶ 20, and that, although SMCS suspended Rice for

8

the unconsented-to kiss, SMCS continuously reassigned Rice to

9

Plaintiff’s work shifts, notwithstanding her numerous complaints

Sanchez v. California, 90 F. Supp.

Plaintiff asserts SMCS “created and maintained a hostile

10

about Rice’s “unprofessional, hostile and menacing behavior,”

11

id. ¶¶ 10-11, 13.

12

The Court finds that Plaintiff sufficiently alleges facts

13

to support this third element of her claim, i.e. she alleges

14

SMCS kept assigning Rice to her work shifts, even after she told

15

SMCS about Rice’s continuous hostile and menacing behavior.

16

Alvarado v. Fed. Express Corp., No. C 04-0098 SI, 2008 WL

17

744819, at *1 (N.D. Cal. Mar. 18, 2008) (“schedule changes and

18

job assignment could be ‘materially adverse’ depending on the

19

context”) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548

20

U.S. 53, 67-69 (2006)).

21

But Plaintiff inadequately pleads the fourth element.

See

She

22

alleges SMCS “requir[ed] her to work in a hostile environment

23

her male counterparts are not subject to.”

24

single, conclusory allegation does not suffice.

25

Soares v. California, No. 2:16-00128 WBS EFB, 2016 WL 3519411,

26

at *1, 4-5 (E.D. Cal. June 28, 2016) (allegation that

27

“[s]imilarly situated male colleagues were treated more

28

favorably than Plaintiff” or that “[m]ale colleagues were
5

SAC ¶ 20.

This

See ANA Maria

1

allegedly not subject to similar treatment,” are nothing more

2

than “naked assertion[s] devoid of further factual enhancement”)

3

(internal quotations and citations omitted).

4

identified who at SMCS discriminated against her based on

5

gender.

6

responsible for the [termination] decision”).

Nor has she

See id. at *5 (complaint “fails to allege who was

7

Recognizing these flaws, Plaintiff, in her opposition,

8

argues Rice retaliated against her for complaining about him and

9

that such retaliation is protected activity.

See Opp’n at 8-9.

10

However,

11

generally SAC (not once citing Title VII’s or FEHA’s retaliation

12

statutory provisions), so she cannot now add it in her

13

opposition brief, see Arres v. City of Fresno, No. CV F 10-1628

14

LJO SMS, 2011 WL 284971, at *18 (E.D. Cal. Jan. 26, 2011) (“[A]

15

complaint is judged based on its allegations, not new facts or

16

claims raised in [a Rule 12(b)(6)] opposition.”).

17

Plaintiff never alleges a retaliation claim, see

In sum, the Court finds Plaintiff fails to state a gender

18

discrimination claim against Defendant SMCS.

The Court,

19

however, is not convinced there are no set of facts upon which

20

Plaintiff could state such a claim and, so, dismisses it with

21

leave to amend.

22

2001).

Navarro v. Block, 250 F.3d 729, 732 (9th Cir.

23

B.

NIED Claim

24

Plaintiff also sues Defendant SMCS for negligent infliction

25

of emotional distress.

“NIED is not an independent tort in

26

California, but a subset of negligence.”

27

cv-01378-JAM-EPG, 2016 WL 2756738, at *6 (citing Burgess v.

28

Superior Court, 2 Cal. 4th 1064, 1072 (1992) (elements include
6

R. v. Nulick, No. 1:15-

1

duty, breach, causation, and damages)).

2

“discriminatory conduct towards [her] in subjecting her to sexual

3

harassment and a hostile work environment and invading her

4

privacy was negligent.”

5

claim, arguing (1) Plaintiff cannot claim negligence because she

6

alleges intentional discrimination, and (2) California’s Workers’

7

Compensation Act (“WCA”) precludes her claim.

8
9

SAC ¶ 48.

Plaintiff alleges SMCS’s

SMCS moves to dismiss this

See Mem. at 7-8.

The parties first dispute whether Plaintiff has stated a
claim.

SMCS argues that the basis for Plaintiff’s NIED claim is

10

SMCS’s alleged discriminatory conduct, yet “discriminatory

11

conduct, by its nature, is intentional, not negligent,” and so

12

“[o]ne cannot ‘negligently discriminate’ against another in a

13

disparate treatment case like this one because discrimination

14

requires proof of discriminatory motive.”

15

disagrees.

16

prior complaints and “allow[ing] Rice to work on the same

17

schedules as [she]” comprise the basis for her NIED claim.

18

Opp’n at 11.

19

contradicts the SAC, where Plaintiff cites as the basis for her

20

claim SMCS’s discriminatory conduct.

21

3.

22

Id. at 7.

Plaintiff

She argues SMCS’s “failure to properly handle” her

See

In response, SMCS contends this argument

See Reply, ECF No. 16, at

The basis for Plaintiff’s NIED claim is unclear.

On the one

23

hand, she identifies negligent conduct that fundamentally caused

24

her harm.

25

care to prevent and promptly correct any harassing behavior of

26

Defendant Guy Rice and unreasonably failed to take preventive or

27

corrective opportunities to avoid the harm caused by Defendant

28

Guy Rice despite the numerous complaints of [Plaintiff], her co-

See SAC ¶ 36 (“SMCS has failed to exercise reasonable

7

1

workers, and supervisors.”).

2

v. UCSD Med. Ctr., 201 F. Supp. 2d 1126, 1131 (S.D. Cal. 2002)

3

(to state an NIED claim, a plaintiff “must point to negligent

4

conduct that fundamentally caused the harm”) (internal citation

5

omitted).

This alone would suffice.

See Tu

6

On the other hand, Plaintiff identifies intentional conduct,

7

see, e.g., SAC ¶ 35 (SMCS “intentionally and knowingly engaged in

8

sexual harassment and/or created and maintained a hostile

9

environment for plaintiff”), which does not suffice, see Rascon

10

v. Diversified Maint. Sys., No. 1:13-CV-1578 AWI JLT, 2014 WL

11

1572554, at *10 (E.D. Cal. Apr. 17, 2014) (“[Defendant’s] actions

12

as described in the FAC appear to be intentional acts.

13

intentional acts, [Defendant’s] acts are not negligent and cannot

14

form the basis of an NIED claim.”).

15

Indus., Inc., a case Plaintiff cites, supports this conclusion.

16

797 F.2d 727, 738 (9th Cir. 1986) (explaining that “[e]vidence

17

that [the employer] intentionally retaliated against [plaintiffs]

18

would preclude an assertion that this same intentional action

19

constituted negligence”).

20

As

Even Miller v. Fairchild

In fact, Plaintiff’s key allegation underpinning her NIED

21

claim—SMCS’s “discriminatory conduct” in subjecting her to sexual

22

harassment and a hostile work environment was negligent—is also

23

problematic, as Plaintiff cites no authority showing

24

discriminatory conduct is the kind of negligent conduct

25

sufficient to state an NIED claim.

26

allegations in Plaintiff’s favor, this Court cannot overlook that

27

the basis for Plaintiff’s NIED claim contains allegations about

28

intentional conduct, rendering her NIED claim defective. See
8

Even after construing the

1

Rascon, 2014 WL 1572554 at *10 (citing Tu, 201 F. Supp. 2d at

2

1131).

The Court dismisses it with leave to amend. 3

3

III.

4
5

ORDER

For the reasons set forth above, the Court GRANTS Defendant
SMCS’s motion to dismiss WITH LEAVE TO AMEND.

6

If Plaintiff elects to amend her SAC, she shall file her

7

third amended complaint within twenty days from the date of this

8

Order.

9

amended complaint.

10

Defendants’ responsive pleadings are due

within twenty days thereafter.

11
12

No new causes of action may be included in the third

But if Plaintiff elects not to amend her SAC, the case will
proceed on the following remaining claims:

13

1.

Plaintiff’s sexual harassment and hostile work

14

environment claim against both Defendants SMCS and Rice (claim

15

two);

16
17

2.

three); and

18
19

3.

Plaintiff’s battery claim against Defendant Rice (claim

five).

20
21

Plaintiff’s IIED claim against Defendant Rice (claim

IT IS SO ORDERED.
Dated: August 2, 2017

22
23
24
25
26
27
28

3

The parties also dispute whether the WCA preempts Plaintiff’s
NIED claim. See Mem. at 7-8; Opp’n at 11-12. Given this
dismissal, the Court need not discuss preemption.
9