Aronold v. Sutter Health et al
Filing
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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)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DEBORAH RENA ARNOLD,
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2:17-cv-00543-JAM-CKD
Plaintiff,
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No.
v.
SUTTER VALLEY HOSPITALS dba
SUTTER MEDICAL CENTER,
SACRAMENTO, a California
corporation; GUY RICE, an
individual,
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ORDER GRANTING DEFENDANT SUTTER
MEDICAL CENTER, SACRAMENTO’S
MOTION TO DISMISS
Defendants.
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Plaintiff Deborah Rena Arnold sues Sutter Valley Hospitals
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dba Sutter Medical Center, Sacramento (“SMCS”) and Guy Rice
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(collectively, “Defendants”) after Defendant Rice kissed her
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without her consent.
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Defendant SMCS now moves to dismiss two of Plaintiff’s claims.
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Mot., ECF No. 13.
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reasons explained below, the Court grants Defendant SMCS’s
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motion. 1
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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.
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I.
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BACKGROUND
Plaintiff and Defendant Rice are employees at SMCS.
See SAC
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¶¶ 3-4.
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while the two were working.
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incident to Manvel Johnson, her co-worker.
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then informed supervisor Jesse Yablonovsky about this incident
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and other incidents in which Defendant Rice allegedly touched and
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massaged other nurses without their consent.
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about Rice’s unconsented-to kiss with Plaintiff, Defendant SMCS
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In May 2016, Rice kissed Plaintiff, without her consent,
See id. ¶ 8.
suspended him for “several weeks.”
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Plaintiff reported the
Id. ¶ 9.
Id.
Johnson
After learning
See id. ¶ 10.
Rice eventually returned, and when he did SMCS assigned him
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to the same work shifts as Plaintiff.
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lack of professional support and hostility in working with
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[Plaintiff]” to “retaliat[e]” against her for “her initial
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complaint against him.”
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complained to supervisor Christina Walsh about the overlapping
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work shifts, highlighting Rice’s “unprofessional, hostile[,] and
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menacing behavior.”
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filed an administrative complaint with the Department of Fair
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Employment and Housing (“DFEH”).
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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
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worked the same shifts.
Id. ¶ 13.
One day, Rice “began to
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unnecessarily hover and linger around [Plaintiff]” to “menace
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[her] in retaliation of her complaints . . . .”
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later, Plaintiff met with Judy Lesh and Joyce De La Cruz to
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discuss this hovering incident “and the development and
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progression of [Plaintiff’s] prior related complaints.”
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¶ 14.
Id.
A few weeks
See id.
Yet SMCS took “no remedial actions,” so Rice continued
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working the same shifts as Plaintiff.
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See id.
Infuriated by “SMCS’s inaction,” Plaintiff asked DFEH to
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issue a right-to-sue letter, see id. ¶ 15, and it did, id. ¶ 16.
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Plaintiff then filed this lawsuit, 2 bringing some claims against
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only SMCS, some against only Rice, and some against both
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Defendants.
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and negligent infliction of emotional distress (“NIED”) (claim
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four).
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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
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battery (claim five).
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Defendants for sexual harassment and a hostile work environment
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(claim two).
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See id. at 9-12.
And she sues both
See id. at 6-9.
Now before this Court is SMCS’s motion to dismiss
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Plaintiff’s gender discrimination and NIED claims.
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Mot.; Def.’s Mem., ECF No. 13-1.
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II.
See generally
OPINION
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A.
Gender Discrimination Claim
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Plaintiff brings her gender discrimination claim against
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Defendant SMCS under Title VII of the Civil Rights Act of 1964,
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42 U.S.C. § 2000e-2, and California’s Fair Employment and
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Housing Act (“FEHA”), Cal. Gov’t Code § 12940.
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prima facie case for a gender discrimination claim under either
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Title VII or FEHA, a plaintiff must show (1) she belongs to a
To establish a
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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.
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protected class, (2) she was qualified for the position, (3) she
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suffered an adverse employment action, and (4) defendant treated
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similarly situated men more favorably.
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Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002); Guz v.
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Bechtel Nat’l Inc., 24 Cal. 4th 317, 355 (2000) (applying same
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standard for FEHA discrimination claim).
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See Villiarimo v. Aloha
Plaintiff alleges SMCS “discriminated against [her], in
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terms, conditions, and/or privileges of her employment on the
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basis of her sex or gender as a female by exposing her to
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harassment and requiring her to work in a hostile work
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environment” to which “her male counterparts are not subject.”
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SAC ¶ 20.
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The parties dispute whether Plaintiff properly pled this
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claim.
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plead an adverse employment action because SMCS did not fire,
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demote, or make a personnel management decision that adversely
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affected her.
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has stated a claim because SMCS gave her an adverse job
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assignment when it continued to assign Rice to her work shifts.
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See Opp’n at 6.
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reporting him and that such retaliation is protected activity.
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See id. at 8-9.
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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
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first two elements.
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protected class, and she is qualified for her position as a
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registered nurse, as she performs competently, id. ¶ 7.
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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
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materially affects the compensation, terms, conditions or
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privileges of employment.”
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3d 1036, 1054 (E.D. Cal. 2015) (citing Chuang v. Univ. of
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California Davis, Bd. of Trs., 225 F.3d 1115, 1125 (9th Cir.
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2000).
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environment . . . by exposing her to unwelcomed sexual
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advances,” SAC ¶ 20, and that, although SMCS suspended Rice for
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the unconsented-to kiss, SMCS continuously reassigned Rice to
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Plaintiff’s work shifts, notwithstanding her numerous complaints
Sanchez v. California, 90 F. Supp.
Plaintiff asserts SMCS “created and maintained a hostile
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about Rice’s “unprofessional, hostile and menacing behavior,”
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id. ¶¶ 10-11, 13.
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The Court finds that Plaintiff sufficiently alleges facts
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to support this third element of her claim, i.e. she alleges
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SMCS kept assigning Rice to her work shifts, even after she told
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SMCS about Rice’s continuous hostile and menacing behavior.
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Alvarado v. Fed. Express Corp., No. C 04-0098 SI, 2008 WL
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744819, at *1 (N.D. Cal. Mar. 18, 2008) (“schedule changes and
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job assignment could be ‘materially adverse’ depending on the
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context”) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548
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U.S. 53, 67-69 (2006)).
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But Plaintiff inadequately pleads the fourth element.
See
She
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alleges SMCS “requir[ed] her to work in a hostile environment
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her male counterparts are not subject to.”
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single, conclusory allegation does not suffice.
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Soares v. California, No. 2:16-00128 WBS EFB, 2016 WL 3519411,
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at *1, 4-5 (E.D. Cal. June 28, 2016) (allegation that
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“[s]imilarly situated male colleagues were treated more
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favorably than Plaintiff” or that “[m]ale colleagues were
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SAC ¶ 20.
This
See ANA Maria
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allegedly not subject to similar treatment,” are nothing more
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than “naked assertion[s] devoid of further factual enhancement”)
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(internal quotations and citations omitted).
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identified who at SMCS discriminated against her based on
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gender.
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responsible for the [termination] decision”).
Nor has she
See id. at *5 (complaint “fails to allege who was
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Recognizing these flaws, Plaintiff, in her opposition,
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argues Rice retaliated against her for complaining about him and
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that such retaliation is protected activity.
See Opp’n at 8-9.
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However,
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generally SAC (not once citing Title VII’s or FEHA’s retaliation
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statutory provisions), so she cannot now add it in her
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opposition brief, see Arres v. City of Fresno, No. CV F 10-1628
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LJO SMS, 2011 WL 284971, at *18 (E.D. Cal. Jan. 26, 2011) (“[A]
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complaint is judged based on its allegations, not new facts or
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claims raised in [a Rule 12(b)(6)] opposition.”).
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Plaintiff never alleges a retaliation claim, see
In sum, the Court finds Plaintiff fails to state a gender
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discrimination claim against Defendant SMCS.
The Court,
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however, is not convinced there are no set of facts upon which
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Plaintiff could state such a claim and, so, dismisses it with
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leave to amend.
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2001).
Navarro v. Block, 250 F.3d 729, 732 (9th Cir.
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B.
NIED Claim
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Plaintiff also sues Defendant SMCS for negligent infliction
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of emotional distress.
“NIED is not an independent tort in
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California, but a subset of negligence.”
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cv-01378-JAM-EPG, 2016 WL 2756738, at *6 (citing Burgess v.
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Superior Court, 2 Cal. 4th 1064, 1072 (1992) (elements include
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R. v. Nulick, No. 1:15-
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duty, breach, causation, and damages)).
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“discriminatory conduct towards [her] in subjecting her to sexual
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harassment and a hostile work environment and invading her
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privacy was negligent.”
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claim, arguing (1) Plaintiff cannot claim negligence because she
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alleges intentional discrimination, and (2) California’s Workers’
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Compensation Act (“WCA”) precludes her claim.
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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
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SMCS’s alleged discriminatory conduct, yet “discriminatory
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conduct, by its nature, is intentional, not negligent,” and so
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“[o]ne cannot ‘negligently discriminate’ against another in a
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disparate treatment case like this one because discrimination
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requires proof of discriminatory motive.”
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disagrees.
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prior complaints and “allow[ing] Rice to work on the same
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schedules as [she]” comprise the basis for her NIED claim.
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Opp’n at 11.
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contradicts the SAC, where Plaintiff cites as the basis for her
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claim SMCS’s discriminatory conduct.
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3.
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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
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hand, she identifies negligent conduct that fundamentally caused
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her harm.
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care to prevent and promptly correct any harassing behavior of
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Defendant Guy Rice and unreasonably failed to take preventive or
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corrective opportunities to avoid the harm caused by Defendant
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Guy Rice despite the numerous complaints of [Plaintiff], her co-
See SAC ¶ 36 (“SMCS has failed to exercise reasonable
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workers, and supervisors.”).
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v. UCSD Med. Ctr., 201 F. Supp. 2d 1126, 1131 (S.D. Cal. 2002)
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(to state an NIED claim, a plaintiff “must point to negligent
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conduct that fundamentally caused the harm”) (internal citation
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omitted).
This alone would suffice.
See Tu
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On the other hand, Plaintiff identifies intentional conduct,
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see, e.g., SAC ¶ 35 (SMCS “intentionally and knowingly engaged in
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sexual harassment and/or created and maintained a hostile
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environment for plaintiff”), which does not suffice, see Rascon
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v. Diversified Maint. Sys., No. 1:13-CV-1578 AWI JLT, 2014 WL
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1572554, at *10 (E.D. Cal. Apr. 17, 2014) (“[Defendant’s] actions
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as described in the FAC appear to be intentional acts.
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intentional acts, [Defendant’s] acts are not negligent and cannot
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form the basis of an NIED claim.”).
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Indus., Inc., a case Plaintiff cites, supports this conclusion.
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797 F.2d 727, 738 (9th Cir. 1986) (explaining that “[e]vidence
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that [the employer] intentionally retaliated against [plaintiffs]
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would preclude an assertion that this same intentional action
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constituted negligence”).
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As
Even Miller v. Fairchild
In fact, Plaintiff’s key allegation underpinning her NIED
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claim—SMCS’s “discriminatory conduct” in subjecting her to sexual
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harassment and a hostile work environment was negligent—is also
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problematic, as Plaintiff cites no authority showing
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discriminatory conduct is the kind of negligent conduct
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sufficient to state an NIED claim.
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allegations in Plaintiff’s favor, this Court cannot overlook that
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the basis for Plaintiff’s NIED claim contains allegations about
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intentional conduct, rendering her NIED claim defective. See
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Even after construing the
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Rascon, 2014 WL 1572554 at *10 (citing Tu, 201 F. Supp. 2d at
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1131).
The Court dismisses it with leave to amend. 3
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III.
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ORDER
For the reasons set forth above, the Court GRANTS Defendant
SMCS’s motion to dismiss WITH LEAVE TO AMEND.
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If Plaintiff elects to amend her SAC, she shall file her
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third amended complaint within twenty days from the date of this
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Order.
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amended complaint.
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Defendants’ responsive pleadings are due
within twenty days thereafter.
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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:
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1.
Plaintiff’s sexual harassment and hostile work
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environment claim against both Defendants SMCS and Rice (claim
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two);
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2.
three); and
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3.
Plaintiff’s battery claim against Defendant Rice (claim
five).
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Plaintiff’s IIED claim against Defendant Rice (claim
IT IS SO ORDERED.
Dated: August 2, 2017
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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.
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