Drevaleva v. Alameda Health System et al

Filing 58

ORDER by Judge Laurel Beeler granting 41 Motion to Dismiss; denying 54 Administrative Motion. The attached order also concerns the Department of Industrial Relations -- Division of Labor Standards Enforcement defendants, and asks the Department's attorneys to take certain action within 14 days of this order. (lblc3S, COURT STAFF) (Filed on 6/7/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division United States District Court Northern District of California 11 12 TATYANA EVGENIEVNA DREVALEVA, Case No. 16-cv-07414-LB Plaintiff, 13 ORDER ON MOTION TO DISMISS v. 14 15 ALAMEDA HEALTH SYSTEM, et al., 16 Defendants. [Re: ECF No. 41] 17 INTRODUCTION 18 1. 19 This is an employment dispute. Plaintiff Tatyana Drevaleva is an electrocardiogram technician 20 who was fired from her position with defendant Alameda Health Systems (AHS) for alleged 21 negligence. She sues AHS mainly for retaliatory discharge; she claims that AHS fired her after she 22 asked about overtime pay, work breaks, and whether she would be transferred to the status of a 23 full-time employee.1 Her initial complaint also sued the California Department of Industrial 24 Relations – Division of Labor Standards Enforcement (―DIR‖ or the ―Department‖), based on that 25 agency‘s investigation of her termination. The Department found insufficient evidence that AHS 26 27 See generally Am. Compl. – ECF No. 40. Record citations refer to material in the Electronic Case File (―ECF‖); pinpoint citations are to the ECF-generated page numbers at the top of documents. 1 28 ORDER — No. 16-cv-07414-LB 1 had fired Ms. Drevaleva wrongfully.2 2 2. 3 4 In March 2017, this court dismissed the plaintiff‘s initial complaint under Rules 12(b)(1) and 5 (6).3 The court held that there was no federal subject-matter jurisdiction and that the plaintiff had 6 failed to state a viable claim against the defendants. It also held that the Department was immune 7 from suit under the Eleventh Amendment to the U.S. Constitution.4 The court gave the plaintiff 8 leave to amend her complaint. She has since done so.5 9 3. 11 United States District Court Northern District of California 10 The new complaint makes only the following significant changes. First, the plaintiff alleges 12 that she has moved from California to New Mexico. Second, she appears not to name the DIR 13 itself.6 Third, she has added five employees of DIR as new, individual defendants. (This, 14 presumably in response to the court‘s observation that the Department could be liable despite 15 Eleventh Amendment immunity ―only upon a showing of personal participation by an individual 16 defendant.‖7) These new defendants have not been served.8 Fourth, and last, the plaintiff 17 ―possibly‖ raises an employment discrimination claim under Title VII of the Civil Rights Act of 18 1964.9 Elsewhere, though, she suggests that national-origin discrimination was not her driving 19 20 21 22 2 The Department treats the DIR and the DLSE as distinct entities. See ECF No. 52 at 2 (¶ 1). That is undoubtedly correct. For present purposes, though, it is unimportant to distinguish between them. This order thus speaks of the two as the unitary ―Department‖ or ―DIR‖ and intends its reasoning and conclusions to apply equally to both. 3 Order – ECF No. 36 at 3–5. 23 4 Id. at 4. 24 5 25 6 See id. at 1–2. 26 7 See Order – ECF No. 36 at 4 (citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)). Am. Compl. – ECF No. 40. References to the ―complaint‖ are to the operative amended complaint unless otherwise noted. 8 27 The court has authorized service on the individual defendants; the U.S. Marshals Service is in the process of executing service. See ECF Nos. 48, 55. The court returns to this point later in the order. 28 9 Am. Compl. – ECF No. 40 at 2. ORDER — No. 16-cv-07414-LB 2 1 grievance against AHS; and she agrees that she cannot state a prima facie Title VII discrimination 2 claim.10 3 4. 4 The new complaint is otherwise essentially identical to the initial complaint. With the 5 6 clarification and, to some degree, the enlargements provided by her opposition brief, the plaintiff 7 seems to bring claims under the following laws and theories:  Title VII discrimination 9  Fair Labor Standards Act 10  Occupational Safety & Health Act 11 United States District Court Northern District of California 8  Labor–Management Relations Act 12  National Labor Relations Act 13  Federal due process 14  California Labor Code 15  California Industrial Welfare Commission Wage Order 2001-4 16  Meyers-Milias–Brown Act (Cal. Gov‘t Code §§ 3500–11) 17  Libel 18  Fraud11 19 She also appears to seek punitive damages.12 20 5. 21 Defendant AHS now moves to dismiss the amended complaint under Rules 12(b)(1) and (6).13 22 23 Defendant DIR has not so moved; but, in a case-management statement, it suggests that the new 24 complaint does not name the Department itself as a defendant, and asks that it be ―dismissed from 25 10 Opp. – ECF No. 47 at 26. 11 For all these, see ECF No. 47 at 28–30. 27 12 Id. at 34–35. 28 13 ECF No. 41. 26 ORDER — No. 16-cv-07414-LB 3 1 this case.‖14 2 6. 3 The court grants AHS‘s motion. The plaintiff states no viable federal claim against AHS. This 4 5 court therefore lacks subject-matter jurisdiction over the claims asserted against this defendant. Turning to the DIR defendants: The new complaint indeed seems not to name the Department 6 7 itself as a defendant. Both the complaint‘s caption and its narrative description of the litigants 8 names the individual ―officials‖ of the DIR, but not the Department itself.15 Furthermore, the 9 plaintiff has not shown that DIR itself can be liable in the face of Eleventh Amendment immunity. Even if the Department itself is a target of the amended complaint, then, any claims against it 11 United States District Court Northern District of California 10 remain dismissed under the court‘s previous order. The plaintiff‘s recent move to New Mexico means that she apparently has diversity 12 13 jurisdiction over the individual DIR-employee defendants. See infra, Analysis, Part 2. As noted 14 above (supra, note 8), the court has ordered service on the individual defendants, but the U.S. 15 Marshals Service has not yet effected that service. Normally in such cases, the pro se plaintiff 16 provides the marshals with service addresses for the defendants. The plaintiff here seems to have 17 provided the address of the DLSE‘s Oakland office.16 The court is not certain that this qualifies as 18 an adequate service address. The court will, in any case, follow up with the Marshals Service on 19 the status of serving the new defendants. The court is not prepared to address whether the plaintiff 20 alleges a viable claim against the new defendants without their responsive input. With respect to 21 the individual DIR–DLSE defendants, the court asks the Department for the clarification described 22 at the end of this order. 23 24 25 26 14 ECF No. 52 at 2 (¶ 1). 27 15 Compare Compl. – ECF No. 1 at 1 with Am. Compl. – ECF No. 40 at 1–2. 28 16 See ECF No. 55. ORDER — No. 16-cv-07414-LB 4 ANALYSIS 1 2 1. Federal-Question Jurisdiction 3 1.1 General Observations 4 The plaintiff has not shown that this court can exercise federal-question jurisdiction (under 28 5 6 U.S.C. § 1331) over the claims that she brings against AHS. The plaintiff‘s opposition brief cites a host of federal statutes. But these mostly are 7 inapplicable on their face. The plaintiff cites laws dealing with jurisdiction over voting-rights 8 cases (28 U.S.C. § 1343(a)(4)), or describing a general limitation on the federal courts‘ 9 jurisdiction to enter injunctions in labor disputes (29 U.S.C. § 101), and so on. Suffice it to say that the vast majority of these laws simply do not apply here. Moreover, the plaintiff has not 11 United States District Court Northern District of California 10 shown how her allegations trigger any of the cited statutes. The cited laws thus provide no basis 12 for federal-question jurisdiction in this case. 13 Even allowing for the latitude that is granted pro se litigants, a plaintiff cannot simply list a 14 welter of federal statutes (see ECF No. 47 at 5) and then flatly claim that these ―are applicable‖ to 15 establish federal-question jurisdiction. 16 The plaintiff‘s complaint is 37 pages long — and is attached to 315 pages of exhibits. It is not 17 the court‘s job to search this large filing to find the viable claim or claims that may trigger federal- 18 question jurisdiction. It is the plaintiff‘s burden to usefully show the court how allegations in her 19 complaint trigger jurisdiction under any given statute. She generally has not done that. The court 20 limits its discussion here to those parts of the plaintiff‘s complaint and brief that are minimally 21 tractable: which is to say, to those allegations, laws, and arguments that suggest possible federal- 22 question jurisdiction. 23 24 1.2 Title VII – Employment Discrimination 25 This appears to be the only new federal statute that the plaintiff cites. It is unclear, though, 26 whether she even means to assert such a claim. Her complaint says that she ―possibly‖ brings a 27 28 ORDER — No. 16-cv-07414-LB 5 1 Title VII claim.17 Her opposition brief likewise calls this a ―possibl[e]‖ claim.18 In the same 2 equivocal vein, the plaintiff says that her grievance with AHS was not ―primar[il]y‖ about 3 national-origin discrimination.19 Assume that the plaintiff did mean to advance a Title VII claim. 4 Having been pointed to the basic requisites of such a claim, the plaintiff now concedes that she 5 cannot state a prima facie claim under the governing test of McDonnell–Douglas Corp. v. Green, 6 411 U.S. 792 (1973).20 This ―possible‖ claim thus does not secure federal-question jurisdiction. 7 1.3 Fair Labor Standards Act (FLSA) 9 The plaintiff fleetingly invokes the federal Fair Labor Standards Act (FLSA), specifically 10 citing 29 U.S.C. §§ 207, 215–16. There are numerous fatal deficiencies in any claim that she 11 United States District Court Northern District of California 8 might bring under the FLSA laws that she cites. For example, her factual allegations show that she 12 has no viable FLSA overtime-compensation claim. The overtime statute that she cites applies 13 when an employee works more than 40 hours in a week. 29 U.S.C. § 207(a)(1). Yet the plaintiff 14 alleges that she worked 36-hour weeks.21 Furthermore, under her own factual narrative, before 15 being fired the plaintiff did not file a ―complaint‖ or institute a ―proceeding‖ that would trigger 29 16 U.S.C. § 215. Nor does the complaint suggest a viable claim under FLSA regulation 29 C.F.R. 17 § 785.18.22 That regulation notes that short breaks are ―common in industry‖ and ―must be 18 counted as hours worked‖ without being ―offset against other working time.‖ 29 C.F.R. § 785.18. 19 The regulation does not compel employers to provide such breaks. And the plaintiff herself alleges 20 that an employment agreement, not a federal law, obligated AHS to provide such breaks. If Ms. 21 Drevaleva has a federal claim for breach of an employment contract, then it must be one of two 22 things. If her contract is an individual one, between her and AHS, then her claim would be under 23 24 17 Am. Compl. – ECF No. 40 at 2. 25 18 ECF No. 47 at 28. 19 Id. at 26. 20 Id. 27 21 Am. Compl. – ECF No. 40 at 5. 28 22 See id. at 7. 26 ORDER — No. 16-cv-07414-LB 6 1 state law for breach of contract. If she claims that AHS was in breach of a collective-bargaining 2 agreement, then her claim might be under § 301(a) of the Labor–Management Relations Act 3 (LMRA) — except that, as discussed below, the LMRA does not apply to public entities such as 4 AHS. In any case, she has no obvious claim under 29 C.F.R. 785.18. Finally, holding other 5 problems aside, the FLSA claims that might be relevant here are generally subject to a two- or 6 three-year time bar (29 U.S.C. § 255) that the plaintiff‘s December 2016 initial complaint failed to 7 meet.23 8 1.4 The Labor–Management Relations Act (LMRA) and National Labor Relations Act (NLRA) Do Not Govern Public Employers 10 It is beyond serious dispute that AHS is a public agency. Its genesis statute declares it to be 11 United States District Court Northern District of California 9 just that. See Cal. Health & Safety Code § 101850(a)(2(C).24 Ms. Drevaleva charges AHS with 12 denying her ―affiliation to the Union‖ and thus violating 29 U.S.C. § 157 of the NLRA.25 Neither 13 the NLRA nor the LMRA applies to AHS. Governmental entities are excepted from the NLRA. 14 E.g., Saipan Hotel Corp. v. N.L.R.B., 114 F.3d 994, 997 (9th Cir. 1997) (citing 29 U.S.C. 15 § 152(2)). ―The LMRA,‖ for its part, ―is the comprehensive federal labor law, which, by its terms, 16 is applicable only to labor relations in the private sector.‖ Santa Clara Valley Transp. Auth. v. Rea, 17 140 Cal. App. 4th 1303, 1307 (2006). ―[P]ublic entities are not ‗employers‘ within the meaning of 18 [this] federal law.‖ Santa Clara Valley Transp. Auth. v. Rea, 140 Cal. App. 4th 1303, 1308 (2006) 19 (citing 29 U.S.C.§ 152(2)). These statutes do not provide the plaintiff with federal-question 20 jurisdiction. 21 22 1.5 Occupational Safety and Health Act (OSHA) 23 The plaintiff‘s discussion under the federal Occupational Safety and Health Act (OSHA) is 24 without merit. See ECF No. 47 at 9–10. Nothing in the complaint alleges an OSHA violation. No 25 26 23 See Order – ECF No. 36 at 4. 27 24 Strictly speaking, the statute uses AHS‘s previous name: the Alameda County Medical Center. 28 25 Am. Compl. – ECF No. 40 at 3. ORDER — No. 16-cv-07414-LB 7 factual allegation suggests that this is an occupational-safety case. And none of the specific laws 2 that the plaintiff cites — 29 U.S.C. §§ 651, 654, 662; 29 C.F.R. § 1977.11 — gives this court 3 federal-question jurisdiction through OSHA. For example, section 662 gives the federal district 4 courts over injunctive petitions brought by the Secretary of Labor. Section 651 is a Congressional 5 statement of findings and of public policy in the field of ―safe and healthful working conditions.‖ 6 29 U.S.C. § 651(b). It is not a grant of jurisdiction, does not create a private right of action, and 7 does not address anything that is going on in the plaintiff‘s complaint. The regulation that the 8 plaintiff repeatedly cites (29 C.F.R. § 1977.11) relates to retaliation for giving ―testimony.‖ 9 Nothing in the complaint suggests that AHS retaliated against the plaintiff for giving testimony. 10 Furthermore, any complaint under § 1977.11 must be made within 30 days of the violation — a 11 United States District Court Northern District of California 1 time bar that the plaintiff‘s own allegations show that she cannot meet. There is no federal- 12 question jurisdiction in this case through OSHA. 13 14 1.6 Due Process — 14th Amendment 15 The federal-question discussion now switches from AHS to the individual DIR defendants. 16 The plaintiff claims that, in how they investigated her grievance against AHS, the DIR-employee 17 defendants violated her right to due process under the Fourteenth Amendment to the U.S. 18 Constitution.26 This claim is lodged against the new individual defendants only ―in their personal 19 capacities.27 The plaintiff does not raise a due-process claim against AHS or the DIR itself.28 20 In connection with this claim the plaintiff cites 28 U.S.C. §§ 1343 and 1357. Neither statute 21 relates to anything going on in this case. If her due-process claim rests only on these statutes, there 22 is no merit to it. 23 On the basis of the material before it, though, the court thinks that a response from the 24 individual defendants is necessary before it addresses whether Ms. Drevaleva has a minimally 25 26 26 See Am. Compl. – ECF No. 40 at 27. 27 27 Id. at 27–29. 28 28 See id. ORDER — No. 16-cv-07414-LB 8 1 viable due-process claim against any of the DIR–DLSE employees. As of this writing, again, 2 although the court has ordered service of process, these defendants have not yet been served. 3 * * * 4 The court lacks subject-matter jurisdiction over the claims against AHS. The complaint against 5 6 AHS is consequently dismissed without prejudice. 7 8 2. Diversity Jurisdiction — Individual DIR–DLSE Employees Diversity jurisdiction presents a more nuanced issue. The court did not have diversity 9 jurisdiction over the original defendants (AHS and DIR) and would not have it over those entities 11 United States District Court Northern District of California 10 now. By contrast, the court apparently can exercise diversity jurisdiction over the newly added 12 defendants. In opposing the motion to dismiss, the plaintiff writes: ―I was a resident of California since 13 14 2004 to April 2nd, 2017 . . . . When I filed my first complaint, I was not diverse from defendants 15 AHS and DIR who both resided in California. When I moved to New Mexico on April 2nd, 2017, 16 I became fully diverse from defendants AHS and officers of DIR.‖29 This statement correctly recognizes that the plaintiff was not diverse from the defendants when 17 18 she filed her original complaint, so that there was no federal jurisdiction under 28 U.S.C. § 1332. 19 In suggesting that her April 2017 move to New Mexico cured that jurisdictional defect, however, 20 the plaintiff errs. Diversity jurisdiction depends on the ―state of things‖ when the initial complaint is filed. E.g., 21 22 Grupo Dataflux v. Atlas Global Group LP, 541 U.S. 567, 574–75 (2004); Morongo Band of 23 Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). That the 24 plaintiff changed her residence before filing an amended complaint does not change this ―time of 25 filing‖ rule; diversity jurisdiction still depends on the facts that existed when the plaintiff filed her 26 original complaint. See, e.g., Grupo Dataflux, 541 U.S. at 574–75. 27 28 29 ECF No. 47 at 11 (emphasis removed). ORDER — No. 16-cv-07414-LB 9 The only relevant deviation from this rule concerns the newly added defendants. With respect 1 2 to the individual DIR employees that the plaintiff has added in her amended complaint, diversity 3 jurisdiction depends on the facts as they stood when the amended complaint was filed. China 4 Basin Props., Ltd. v. Allendale Mut. Ins. Co., 818 F. Supp. 1301, 1302 (N.D. Cal. 1992); see Lewis 5 v. Lewis, 358 F.2d 495, 502 (9th Cir. 1966) (no jurisdiction over new defendants where plaintiff‘s 6 pre-amendment change of residence destroyed complete diversity). With respect to the continuing 7 defendant, AHS, then, there is not complete diversity. There is not complete diversity despite the 8 plaintiff‘s move to New Mexico. See Grupo Dataflux, 541 U.S. at 574–75. With respect to the 9 new defendants, however, there is complete diversity. The plaintiff‘s New Mexico residence at the time of the amendment here controls — and obviously makes her diverse from the California- 11 United States District Court Northern District of California 10 based individual defendants.30 A leading treatise, citing the Ninth Circuit‘s decision in Lewis, 12 supra, explains the matter in terms that apply exactly here: 16 [A]lthough a party‘s post-filing change of citizenship is irrelevant with respect to the diversity of the original parties, it is relevant with respect to new parties. For example, if a plaintiff changes citizenship and then amends the complaint to add a new defendant against whom no claims were made in the original complaint, diversity between the plaintiff and the new defendant will be based on the plaintiff’s citizenship at the time of the amendment. 17 15 D. Coquillette et al., Moore’s Federal Practice § 102.16[2][b][ii] (2015 ed.) (citing Lewis, 358 18 F.2d at 502) (emphases added).31 13 14 15 The amount in controversy is alleged to be greater than $75,000. Thus, there is apparent 19 20 diversity jurisdiction over any viable claim that the plaintiff brings against the new defendants. See 21 China Basin Properties, 818 F. Supp. at 1302; Lewis, 358 F.2d at 502. 22 23 24 25 26 27 28 30 For now, the court assumes that the individual defendants are California residents. Subject-matter jurisdiction can be tested at any stage in a lawsuit, of course, so if this assumption proves wrong, there will be opportunities to revisit the jurisdictional holding. 31 Cases have mostly dealt with the roughly converse situation: Where the post-filing addition of a party destroys diversity jurisdiction. The implication for this discussion being that, in such cases, diversity (at least for claims against the new party) is tested at the time of amendment. See, e.g., Owen Equip. Erection Co. v. Kroger, 437 U.S. 365 (1978); Am. Fiber & Finishing, Inc. v. Tyco Healthcare Grp., LP, 362 F.3d 136, 140–41 (1st Cir. 2004). ORDER — No. 16-cv-07414-LB 10 1 2 3 4 5 3. State-Law Claims The lack of subject-matter jurisdiction bars the court from making any finding or ruling on the state-law claims asserted against the dismissed defendant, AHS. With respect to the DIR–DLSE itself, again, the plaintiff appears not to name it in her new complaint and thus to have dropped the Department from this lawsuit. 6 The plaintiff has established diversity (and possibly federal-question) jurisdiction for her 7 claims against the newly added DIR-employee defendants. To the extent that her state-law claims 8 are lodged against the individual DIR defendants, some further thoughts might guide future 9 proceedings in this case. The Department‘s status as a governmental entity has several important effects on the 11 United States District Court Northern District of California 10 plaintiff‘s claims. First, a damages suit cannot be maintained against a public entity or its 12 employees unless the complainant has first filed a timely written claim with the defendant and the 13 latter has rejected this claim. See generally Cal. Gov‘t Code §§ 900.4, 905. The plaintiff does not 14 allege that she presented her claims to the DIR before suing it or its employees. 15 Second, some of the laws that the plaintiff most centrally invokes — sections of the California 16 Labor Code, and the Industrial Welfare Commission‘s Wage Order 2001-4 — do not apply to 17 public entities. See Cal. Correctional Peace Officers Ass’n v. State of Cal., 188 Cal. App. 4th 646 18 (2010) (I.W.C. wage orders); Johnson v. Arvin–Edison Water Storage Dist., 174 Cal. App. 4th 729 19 (2009) (labor code); Curcini c. County of Alameda, 164 Cal. App. 4th 629 (2008) (same). 20 21 Finally, California law forbids awarding punitive damages against public entities. Cal. Gov‘t Code § 818. * * * 22 23 CONCLUSION 24 25 This court does not have subject-matter jurisdiction of the claims against defendant AHS. The 26 claims against AHS are therefore dismissed without prejudice. The plaintiff does not seem to 27 name the DIR–DLSE itself in her new complaint. Under the court‘s previous order, then, there are 28 no remaining claims in this lawsuit against the DIR itself. The court cannot now say whether the ORDER — No. 16-cv-07414-LB 11 1 plaintiff states viable due-process and state-law claims against the newly added, individual DIR- 2 employee defendants. Those questions are better addressed after the new defendants have 3 responded to the amended complaint — including making any argument on diversity jurisdiction. 4 In these circumstances, the court asks the Department to do the following: Within 14 days of the 5 date of this order, file a short status update explaining whether: (1) DIR‘s counsel will also be 6 representing the individual defendants; and, if DIR‘s attorneys will represent the new defendants, 7 (2) whether those defendants will consent to magistrate jurisdiction. 8 9 The court denies the plaintiff‘s ―administrative motion to request missing documents.‖ See (ECF No. 54.) This disposes of ECF Nos. 41 and 54. 11 United States District Court Northern District of California 10 IT IS SO ORDERED. 12 Dated: June 7, 2017 ______________________________________ LAUREL BEELER United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER — No. 16-cv-07414-LB 12

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