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)

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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

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