Akin-Taylor v. Srebnik et al

Filing 53

ORDER by Judge Joseph C. Spero denying #37 Motion for Preliminary Injunction (jcslc1, COURT STAFF) (Filed on 10/22/2013) (Additional attachment(s) added on 10/22/2013: #1 Certificate/Proof of Service) (klhS, COURT STAFF).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ADEJUMOKE AKIN-TAYLOR, 7 Case No. 13-cv-00039-JCS Plaintiff, 8 v. ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION 9 KAISER FOUNDATION HEALTH PLAN INC., 10 Defendant. 11 United States District Court Northern District of California Re: Dkt. No. 37 12 13 I. INTRODUCTION Plaintiff, proceeding in pro se, has filed an employment discrimination action against her 14 15 former employer, Defendant Kaiser Foundation Health Plan, Inc. (“KFHP”), asserting claims 16 under Title VII, 42 U.S.C. § 2000e and the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 17 2612. On August 16, 2013, the Court granted Defendant‟s motion to dismiss, dismissing all of 18 Plaintiff‟s claims except her claims for discrimination based on gender, race and national origin 19 under Title VII. No state law claims have been asserted in this case. Presently before the Court is 20 Plaintiff‟s Motion –Preliminary Injunction To Stop Kaiser Foundation Health Plan From 21 Disclosing Employment Termination Or Other Negative Remarks About Plaintiff (“Motion”). 22 The Motion is suitable for determination without oral argument. See Civ. L.R. 7-1(b). For the 23 reasons stated below, the Motion is DENIED. 1 24 II. In the Motion, Plaintiff asks the Court to grant a preliminary injunction against KFHP to 25 26 BACKGROUND prohibit Defendant from “publishing, circulating or distributing information about adverse 27 1 28 The parties have consented to the jurisdiction of a United States magistrate judge pursuant to 28 U.S.C. § 636(c). 1 employment actions it took against Plaintiff pending the outcome of the current employment 2 discrimination lawsuit Plaintiff filed against Defendant.” Motion at 2. Plaintiff cites California 3 Code of Civil Procedure §§ 526(a)(2) & (6) in support of her request. She further states: 4 Plaintiff has been unable to secure a position as a Project Manager even after various successful interviews over the past couple of years, causing Plaintiff significant financial and emotional loss. Plaintiff is of the belief that prospective Employers might be receiving negative information about Plaintiff‟s employment with Defendant. Plaintiff‟s inability to secure another position as a Project Manager will cost irreparable career damage, possibly the loss of lifelong career and significant financial loss to Plaintiff, and continued financial and emotional hardship to Plaintiff. 5 6 7 8 9 Id. Plaintiff has not filed any supporting declarations offering specific facts to show that Kaiser 11 United States District Court Northern District of California 10 has communicated any negative information about Plaintiff to prospective employers. In its Opposition, KFHP asserts injunctive relief is not warranted because Plaintiff has not 12 13 demonstrated that she faces imminent and irreparable harm or that she has no adequate legal 14 remedy, as is required to justify entry of a preliminary injunction. Opposition at 4. KFHP also 15 offers declarations to show that: 1) Kaiser‟s policy is to provide prospective employers only with 16 dates of employment and salary information unless an individual authorizes KFHP, in writing, to 17 provide additional information; and 2) Plaintiff‟s former supervisor, Mark Srebnik, has not 18 received any inquiries about Plaintiff from prospective employers and is aware that if he receives 19 any such inquiry, he should not provide any information about Plaintiff but rather, should refer the 20 inquiry to Kaiser Permanente Human Resources Services Center. See Docket Nos. 46 (Decl. of 21 David Michael Peters, Director of Operations, Kaiser Permanente Human Resources Service 22 Center), 47 (Decl. of Mark Srebnik). KFHP also argues that Cal. Code Civ. Proc. § 526(a)(6) is 23 not applicable. Finally, KFHP requests an award of sanctions against Plaintiff on the basis that 24 Plaintiff refused to withdraw her motion even after KFHP‟s counsel contacted her and informed 25 her of the “deficiencies with her motion.” Opposition at 5-6; see also Docket No. 45 (Broyles 26 Decl.). 27 28 In her Reply brief (styled as an “Opposition to Defendant‟s Declaration and Opposition”), Plaintiff states that she has “legitimate reasons to remain concerned Defendant could publish 2 1 damaging information against her that will negatively impact her career and employment 2 opportunities due to the damaging and false allegations” because Defendant‟s conduct prior to 3 terminating her also went “against its own Human Resources Policy.” Reply at 3. Plaintiff further 4 states that she believes Defendant‟s counsel, Deborah Broyles, is trying to intimidate her because 5 she is not represented by counsel. Id. 6 III. ANALYSIS 7 A. Injunctive Relief 8 A party seeking a preliminary injunction must show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 10 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. 11 United States District Court Northern District of California 9 Natural Res. Def. Council, 555 U.S. 7, 20 (2008).2 Plaintiff has not shown that she is likely to 12 suffer irreparable harm and therefore the Court need not reach the other requirements. She does 13 not dispute that Defendant‟s official policy is to provide only dates of employment and salary 14 information to prospective employers unless it has obtained written authorization allowing it to 15 provide additional information; rather, she is concerned that Defendant will not follow its official 16 policies in light of Defendant‟s conduct prior to her termination. Plaintiff‟s concern, by itself, is 17 not sufficient to show that Defendant is likely to engage in the conduct Plaintiff seeks to enjoin, 18 especially in light of the sworn declarations provided by Defendant that both set forth its policy 19 and show that Plaintiff‟s former supervisor is aware of the policy and intends to adhere to it. 20 Therefore, entry of a preliminary injunction is not warranted. 21 B. Sanctions 22 Defendant requests an award of its fees incurred in opposing Plaintiff‟s motion. That 23 request is not well taken. As a preliminary matter, KFHP has not complied with Civil Local Rule 7-8(a), which 24 25 26 27 28 2 Plaintiff seeks a preliminary injunction under Cal. Code Civ. Proc. §§ 526(a)(2) & (6). Although Defendant does not challenge Plaintiff‟s reliance on state law in support of her request for injunctive relief, the Court finds no basis for applying the state law standard in this case, given that jurisdiction is based on a federal question and there are no state law claims in this action. Even if Plaintiff‟s request were governed by state law, however, the Court would reach the same result. 3 requires that any request for sanctions must be separately filed. See also Fed. R. Civ. P. 11(c) (2) 2 (“A motion for sanctions must be made separately from any other motion”). In addition, 3 Defendant has not identified the source of authority upon which it bases its request. In particular, 4 it cites Civil Local Rule 1-4, which provides that “[f]ailure by counsel or a party to comply with 5 any duly promulgated local rule or any Federal Rule may be a ground for imposition of any 6 authorized sanction,” but does not cite any specific local or Federal Rule that it alleges has been 7 violated. Defendant‟s reliance on Faretta v. California, 422 U.S. 806, 834 n. 46 (1975) is also 8 misplaced. In the footnote cited by Defendant, the Supreme Court noted that while a criminal 9 defendant has a right to conduct his or her own defense, that right is not “a license not to comply 10 with relevant rules of procedural and substantive law” and “[t]hus, whatever else may or may not 11 United States District Court Northern District of California 1 be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain 12 that the quality of his own defense amounted to a denial of „effective assistance of counsel.‟” The 13 comment in Faretta has no bearing on whether the Court should award sanctions in this case. Finally, assuming Defendant‟s request is based on Rule 11 of the Federal Rules of Civil 14 15 Procedure,3 the Court would not award sanctions based on the showing made by Defendant even if 16 its request had been properly made. The evidence indicates that while Plaintiff‟s Motion lacks 17 3 18 19 20 21 22 23 24 25 26 27 28 Rule 11, provides, in relevant part, as follows: (a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name – or by a party personally if the party is unrepresented. . . (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper – whether by signing, filing, submitting, or later advocating it – an attorney or unrepresented party certifies that to the best of the person‟s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. 4 1 merit, it was not brought for any improper purpose. Nor is it so obviously frivolous or lacking in 2 factual support that sanctions are appropriate in light of Plaintiff‟s pro se status. 3 IV. 4 5 6 7 CONCLUSION Plaintiff‟s request for a preliminary injunction is DENIED. Defendant‟s request for sanctions is DENIED. IT IS SO ORDERED. Dated: October 22, 2013 8 9 10 United States District Court Northern District of California 11 ______________________________________ JOSEPH C. SPERO United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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