Foster v. Community Hospital of The Monterey Peninsula et al

Filing 18

ORDER GRANTING 5 DEFENDANTS' MOTION TO DISMISS. Signed by Judge Jeremy Fogel on 8/26/2011. (jflc2, COURT STAFF) (Filed on 8/30/2011)

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**E-Filed 8/30/2011**

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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ALYCE FOSTER,

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Plaintiff,

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Case No. 11-cv-01679 JF (HRL)
ORDER1 GRANTING DEFENDANTS’
MOTION TO DISMISS

v.
[Re: Docket No. 5]
COMMUNITY HOSPITAL OF THE
MONTEREY PENINSULA, LAURA WILLIAMS,
and ARTHUR MCKENZIE,

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Defendants.

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Defendants Community Hospital of Monterey Peninsula (“Community”), Laura

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Williams, and Arthur McKenzie move pursuant to Fed. Rs. of Civ. Pro. 12(b)(1) and 12(b)(6) to

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dismiss the complaint filed by Plaintiff Alyce Foster (“Foster”). The Court has considered the

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moving and responding papers and the oral arguments presented at the hearing on July 1, 2011.

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For the reasons discussed below, the motion will be granted, without prejudice as to Foster’s race

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discrimination claim against Community and with prejudice as to Williams and McKenzie.

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This disposition is not designated for publication in the official reports.

Case No. 11-cv-01679 JF (HRL)
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
(JFEX2)

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I. BACKGROUND

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The complaint alleges the following facts. Foster, an African-American woman, has been

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employed by Community for the past five years. Compl. 1:18-22, 2:11-17. Prior to the events

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giving rise to this lawsuit, she worked as a unit receptionist and performed exclusively clerical

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work. Compl. 2:17-22. Foster was the only African-American in her unit. Compl. 2:12-13.

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Community knew when it hired her that Foster had a pre-existing back injury. Compl. 2:22-24.

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On December 3, 2009, Community opened an overflow unit called Garden West. Compl.

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3:3. That evening, Foster volunteered to assist the registered nurses by turning down beds and

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ensuring that patients had gowns and bed basins. Compl. 3:3-7. While moving an overweight

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patient, Foster re-injured her lower back and went to the emergency room for treatment. Compl.

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3:9-11.

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Pursuant to company policy, Foster filed a workers’ compensation claim. Compl. 3:12-

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13. She stayed home for one week and upon her return to work was restricted to light duty.

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Compl. 3:13-14. Foster did not receive compensation for the week that she was required to stay

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home, despite the fact that she had filed a claim with the Human Resources Department (“HR”).

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Compl. 3:12-16.

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On December 10, 2009, Williams, the nurse manager, called Foster and told her to report

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to HR. Compl. 3:17-19. Foster met with Williams and an HR Administrator, McKenzie, and

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they offered Foster a voluntary layoff, which she refused. Compl. 3:19-23. The next day, at

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HR’s request, Foster signed an agreement not to lift patients. Compl. 4:2-3. On that same day,

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McKenzie sent Foster a letter stating that the unit reception position would be merged with the

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certified nursing assistant position starting on January 4, 2010. Compl. 4:3-6. Because she was

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on restricted duty, Foster could not qualify for the new position. Compl. 4:6-8.

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On December 30, 2009, Williams and McKenzie allegedly forced Foster to take medical

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leave. Compl. 4:17-18. Foster began treatment, which consisted routine examinations and

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physical therapy, in April 2010. Compl. 4:24-5:2. On February 16, 2011, Foster was diagnosed

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with a torn ligament in her right hip; she continues to experience pain and numbness in her leg

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and may require surgery. Compl. 5:3-6.
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Case No. 11-cv-01679 JF (HRL)
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
(JFEX2)

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On April 30, 2010, Foster was allowed to return to work, but she was not restored to her

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unit receptionist position, despite the fact that the position was open. Compl. 5:6-11. Instead,

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she was assigned to the float pool, and her duties are limited to answering phones and monitoring

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security cameras. Compl. 5:7-13. Foster earns only $18.89 per hour at her new position, rather

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than the $24.12 per hour that she earned as a unit receptionist. Compl. 5:18-19. She is a part-

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time employee and no longer has benefits because she works only sixteen hours per pay period,

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as opposed to the eighty hours per pay period that she worked as a unit receptionist. Compl.

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5:18-23.

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On February 22, 2010, Foster filed a claim with the California Department of Fair

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Employment and Housing (“DFEH”). Compl. 6:3-6. Although she expressed concern with

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respect to both race and disability discrimination during her intake interview, her written claim

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alleged only disability discrimination. Decl. of Damon Ex. 2 at 1; Req. for Judicial Notice Ex.

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A. The actual claim form, which also was deemed to have been filed with the United States

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Equal Employment Opportunity Commisssion (“EEOC”), specifically alleged employment

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discrimination under the Americans with Disabilities Act (“ADA”). Compl. 6:6-7; Req. for

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Judicial Notice Ex. B. On December 17, 2010, DFEH issued a right to sue letter. Compl. 6:8-9.

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On January 12, 2011, the EEOC issued a dismissal and notice of rights. Compl. 6:12-14.

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II. LEGAL STANDARD

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A complaint may be dismissed for “lack of subject-matter jurisdiction.” Fed. R. Civ. P.

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12(b)(1). Under Rule 12(b)(1), the defendant may facially or factually attack jurisdiction. Safe

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Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Defendants assert a factual

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attack, arguing that Foster did not exhaust her administrative remedies. Defs.’ Mot. to Dismiss at

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5-6. In the context of a 12(b)(1) motion, a defendant may submit evidence to attack the

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jurisdictional allegations in the complaint. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.

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1989). In response, a plaintiff must present evidence to establish that the court has subject matter

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jurisdiction. Id.

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A court may dismiss a complaint for “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). Only where the complaint lacks a “cognizable legal theory or
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Case No. 11-cv-01679 JF (HRL)
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
(JFEX2)

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sufficient facts to support a cognizable legal theory” is Rule 12(b)(6) dismissal appropriate.

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Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A complaint

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may be dismissed for failure to state a claim if the plaintiff fails to plead “enough facts to state a

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claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127

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S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim has “facial plausibility” when enough facts are

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pled to allow a court to draw a reasonable inference that the defendant is liable for the alleged

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misconduct. Id. at 556. Allegations of material fact must be taken as true and construed in the

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light most favorable to the nonmoving party. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct.

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1843, 23 L.Ed.2d 404 (1969). A court need not accept as true conclusory allegations,

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unreasonable inferences, legal characterizations, or unwarranted deductions of fact. Clegg v.

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Cult Awareness Network, 18 F.3d 752, 754-755 (9th Cir. 1994).

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A court must grant an opportunity to amend unless it is clear that the complaint cannot be

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cured. Lucas v. Dep’t of Corr., 66 F.3d 245, 248-49 (9th Cir. 1995). In determining whether to

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dismiss a complaint, a court considers “the presence or absence of undue delay, bad faith,

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dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to

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the opposing party and futility of the proposed amendment.” Moore v. Kayport Package Exp.,

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Inc., 885 F.2d 531, 538 (9th Cir. 1989). When amendment would be futile, dismissal may be

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appropriate. Dumas v. Kipp, 90 F.3d 386, 389 (9th Cir. 1996).

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III. DISCUSSION

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The instant complaint alleges that Defendants engaged in discriminatory conduct based

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on Foster’s race.2 Compl. 2:11-14. Foster claims that she is the only African-American in her

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unit at Community, and that Defendants removed her from her unit receptionist position, reduced

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her hourly pay, and cut her work hours. Id.

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A. Exhaustion Doctrine

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Defendants contend that Foster failed to exhaust her administrative remedies with respect

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Defendants do not seek dismissal of Foster’s disability discrimination claim against
Community.
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Case No. 11-cv-01679 JF (HRL)
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
(JFEX2)

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to a claim of racial discrimination. Defs.’ Mot. to Dismiss at 5-6. As noted above, Foster’s

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adminstrative claim was limited to disability discrimination, and the administrative actions taken

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by the DFEH and EEOC make no reference to race.

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Foster points out, however, that the DFEH interviewer noted expressly that Foster

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claimed she had been “harassed because of [her] race (African-American) and disability (back

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injury) and in retailiation for filing a worker’s (sic) compensation claim.” Decl. of Damon Ex. 2

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at 4. In the intake notes, the interviewer wrote that Foster’s protected class was “disability.”

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Decl. of Damon Ex. 2 at 5. Foster explains the interviewer filled out the claim form, which she

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then signed. Decl. of Foster at 5.

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A plaintiff must file a complaint with the EEOC before bringing a Title VII action. 42

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U.S.C. § 2000e-5(f)(1).3 A federal court lacks subject matter jurisdiction if the plaintiff does not

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exhaust her administrative remedies. Equal Employment Opportunity Comm’n v. Farmers Bros.

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Co., 31 F.3d 891, 899 (9th Cir. 1994). The jurisdictional scope of a Title VII claim depends on

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the scope of the EEOC charge and investigation. Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir.

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1990).

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A federal court may not consider incidents of discrimination that were not reviewed by

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the EEOC unless the new claim is “like or reasonably related to the allegations in the EEOC

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charge.” Oubichon v. N. Am. Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973) (citation

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omitted). In analyzing an EEOC charge, the court must “construe the charge liberally,” Sosa,

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920 F.2d at 1456, because requiring an employee to “return to the state agency every time he

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claims a new instance of discrimination... would erect a needless procedural barrier.” Oubichon,

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482 F.2d at 571. Jurisdiction is not limited to the actual EEOC investigation but may include

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claims that “‘can reasonably be expected to grow out of the charge of discrimination.’” Id.

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(citation omitted).

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Here, it appears that Foster has exhausted her administrative remedies with respect to a

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[W]ithin ninety days after the giving of such notice a civil action may be brought against
the respondent named in the charge... by the person claiming to be aggrieved. 42 U.S.C. §
2000e-5(f)(1).
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Case No. 11-cv-01679 JF (HRL)
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
(JFEX2)

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claim of disability discrimination, but not with respect to a claim of race discrimination. Even

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assuming that Foster intended to assert claims for both types of discrimination, it is undisputed

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that the administrative agency investigated only the disability claim. Indeed Foster received

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written notice that the EEOC would investigate her employment discrimination charge under the

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Americans with Disabilities Act (“ADA”), and not Title VII. Req. for Judicial Notice Ex. B.

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Disability discrimination is not reasonably related to race discrimination because “[t]he

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two claims involve totally different kinds of allegedly improper conduct, and investigation into

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one claim would not likely lead to investigation of the other.” Rodriguez v. Airborne Express,

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265 F.3d 890, 897 (9th Cir. 2001). Foster’s Title VII claim is not a logical outgrowth of her

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ADA claim. When a plaintiff alleges a different theory of discrimination, it does not matter that

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the charge arises from the same event. Shah v. Mt. Zion Hosp. & Med. Ctr., 642 F.2d 268, 271-

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72 (9th Cir. 1981).

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B. Individual Liability

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Williams and McKenzie argue that they should be dismissed from this action because

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Foster has failed to state a claim against them. Individual employees and supervisors cannot be

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held personally liable for employment discrimination under Title VII. Holly D. v. Cal. Inst. of

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Tech., 339 F.3d 1158, 1179 (9th Cir. 2003). Additionally, a plaintiff may sue only the defendants

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named in the EEOC charge. Sosa, 920 F.2d at 1458. Neither Williams nor McKenzie were

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named in Foster’s DFEH and EEOC complaints.

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IV. ORDER

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The motion to dismiss is GRANTED, without prejudice as to Foster’s race discrimination

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claim and with prejudice as to Williams and McKenzie. Community shall file its answer with

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respect to Foster’s disability discrimination claim within twenty (20) days of the date of this

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order.

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IT IS SO ORDERED.

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DATE: 8/26/2011
JEREMY FOGEL
United States District Judge

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Case No. 11-cv-01679 JF (HRL)
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
(JFEX2)