Denning v. Washoe County

Filing 35

ORDER that Washoe County's Motion to Dismiss First Amended Complaint ECF No. 11 is granted in part and denied in part; Clerk directed to strike that portion of Paragraph 18 of the FAC identified in this Order; Washoe County's Motion to S ever ECF No. 6 is granted; Plaintiff Kathleen Denning will proceed separately; Clerk is directed to set up a new civil action and copy all filings from this action; new action will remain assigned to Magistrate Judge William G. Cobb and the unders igned district court judge; Washoe County's Motion to Dismiss ECF No. 7 is denied as moot. Signed by Judge Miranda M. Du on 08/02/2017. (NEF regenerated to notify counsel of new action setup and case no.) (Copies have been distributed pursuant to the NEF - KW)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 9 10 JOHN FINNEGAN, and KATHLEEN DENNING, ORDER Plaintiffs, 11 12 13 Case No. 3:17-cv-00002-MMD-WGC v. WASHOE COUNTY, a political subdivision of the State of Nevada, and DOES I-X, Defendants. 14 15 16 I. SUMMARY 17 This case concerns employment discrimination claims brought by two employees 18 of Washoe County Regional Animal Services (“Washoe County” or “Defendant”). Before 19 the Court is Defendant Washoe County’s Motion to Dismiss (ECF No. 7) and Motion to 20 Dismiss First Amended Complaint (“Motion”) (ECF No. 11). Because Plaintiff’s First 21 Amended Complaint (“FAC”) superseded its prior complaint, the Court denies 22 Defendant’s Motion to Dismiss (ECF No. 7) as moot. 23 The Court has reviewed Plaintiffs’ response to Washoe County’s Motion (ECF 24 No. 12) and Washoe County’s reply (ECF No. 15). For the reasons discussed below, 25 the Motion is granted in part and denied in part. 26 In addition, Washoe County filed a Motion to Sever (ECF No. 6). Having 27 reviewed Plaintiffs’ response (ECF No. 8) and Washoe County’s reply (ECF No. 9), the 28 Court grants the Motion to Sever. 1 II. BACKGROUND 2 Plaintiffs John Finnegan (“Finnegan”) and Kathleen Denning (“Denning”) filed 3 their initial complaint on January 3, 2017. (ECF No. 1.) Plaintiffs then filed their FAC on 4 February 2, 2017. (ECF No. 10.) In the FAC, Finnegan brings two claims under Title VII 5 of the Civil Rights Acts, 42 U.S.C. § 2000e et seq., for a sexually hostile work 6 environment and retaliation. (Id. at 3-7.) Denning brings three claims under the 7 Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and Rehabilitation 8 Act, 28 U.S.C. § 701 et seq., for a hostile work environment, discrimination/failure to 9 accommodate, and retaliation. (Id. at 7-10.) Both Plaintiffs bring a claim for breach of 10 the implied covenant of good faith and fair dealing. (Id. at 11.) The following facts are 11 taken from the FAC. 12 Finnegan began his employment with Washoe County on March 8, 2010. Soon 13 after, his supervisor, Cindy Doak (“Doak”), began to sexually harass him by making 14 sexually inappropriate remarks. Supervisory personnel who worked for Washoe County 15 were aware of at least some of the sexual harassment Doak directed at Finnegan. 16 Because Finnegan did not reciprocate Doak’s advances, Doak then transformed her 17 behavior towards Finnegan into hostility. On or around September 25, 2015, Finnegan 18 made a complaint to Defendant’s Human Resources Department concerning Doak. 19 However, Defendant failed to conduct a thorough investigation or to implement 20 adequate remedial action and, on June 28, 2016, issued findings that Finnegan’s 21 complaint was unsubstantiated.1 Manager Robert Smith (“Smith”), who participated in 22 the investigation of Finnegan’s complaint against Doak, then encouraged Doak to 23 implement retaliatory hostility against Finnegan. For instance, Doak used her 24 supervisory authority to assign Finnegan excessive workloads while other employees 25 did not have sufficient work to perform. Both Doak and Smith also informed other 26 employees that Finnegan had lodged a false complaint against Doak. Finnegan was 27 28 1Both Finnegan’s EEOC charge and Defendant’s Motion state that his complaint against Doak was substantiated. (ECF No. 11-2 at 2; ECF No. 11 at 9.) 2 1 subsequently suspended as a result of this harassment and retaliatory hostility. 2 Finnegan also states that on May 3, 2016, one of the Assistant District Attorneys for 3 Defendant implicitly threatened him with retaliatory discipline if he refused to allow 4 himself to be interviewed by an investigator who had the ability to subsequently testify 5 against him. 6 Denning suffers from epilepsy. After Smith learned Denning suffered from 7 epilepsy, he commenced a course of harassment against her, including: telling her she 8 could not perform her job duties because of her disability; refusing to accommodate her 9 need to adjust to medication by requiring her to work nights and declining to give her 10 dispatcher support; openly referring to her as crazy; refusing to speak with and 11 generally shunning her; informing other employees that she had epilepsy and implicitly 12 encouraging those employees to engage in hostility against Denning based on that fact; 13 telling other employees Denning was unable to perform her job duties because of her 14 disability; telling other employees to stay away from her; subjecting her to excessive 15 scrutiny; attempting to ostracize and belittle her; threatening to terminate her and 16 subjecting her to unnecessary investigations; and maintaining a secret and separate 17 personnel file on her and informing her and others of the existence of this file. Denning 18 was also subjected to abusive questioning by Defendant’s Human Resources personnel 19 regarding the specifics of her disability as well as to an unwarranted and retaliatory 20 investigation regarding contact with the District Attorney’s office. Denning complained of 21 Smith’s actions but those complaints were ignored or trivialized. Denning informed 22 Defendant of Smith’s actions, but Defendant refused to properly investigate his conduct 23 or discipline him. Cumulatively, Defendant failed to implement timely, adequate 24 remedial action sufficient to address the harassment of Denning. 25 III. MOTION TO DISMISS 26 A. Legal Standard 27 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which 28 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must 3 1 provide “a short and plain statement of the claim showing that the pleader is entitled to 2 relief.” Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 3 While Rule 8 does not require detailed factual allegations, it demands more than “labels 4 and conclusions” or a “formulaic recitation of the elements of a cause of action.” 5 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555.) “Factual 6 allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 7 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual 8 matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 9 (internal citation omitted). 10 In Iqbal, the Supreme Court clarified the two-step approach district courts are to 11 apply when considering motions to dismiss. First, a district court must accept as true all 12 well-pleaded factual allegations in the complaint; however, legal conclusions are not 13 entitled to the assumption of truth. Id. at 678-79. Mere recitals of the elements of a 14 cause of action, supported only by conclusory statements, do not suffice. Id. at 678. 15 Second, a district court must consider whether the factual allegations in the complaint 16 allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the 17 plaintiff’s complaint alleges facts that allow a court to draw a reasonable inference that 18 the defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does 19 not permit the court to infer more than the mere possibility of misconduct, the complaint 20 has “alleged—but it has not show[n]—that the pleader is entitled to relief.” Id. at 679 21 (internal quotation marks omitted). When the claims in a complaint have not crossed the 22 line from conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. 23 at 570. Moreover, a complaint must contain either direct or inferential allegations 24 concerning “all the material elements necessary to sustain recovery under some viable 25 legal theory.” Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 26 745 F.2d 1101, 1106 (7th Cir. 1989) (emphasis in original)). 27 /// 28 /// 4 1 B. Failure to Exhaust Administrative Remedies 2 Defendant argues that Plaintiffs’ FAC must be dismissed because the allegations 3 in the FAC go beyond the scope of the allegations detailed in Plaintiffs’ respective Equal 4 Employment Opportunity Commission (“EEOC”) complaints, and therefore Plaintiffs 5 have failed to exhaust their administrative remedies or state a claim for relief. The Court 6 disagrees. 7 To the extent Plaintiffs attempt to bring claims under Title VII and the ADA, they 8 must first have exhausted their administrative remedies. See Josephs v. Pac. Bell, 443 9 F.3d 1050, 1061 (9th Cir. 2006) (a plaintiff must file administrative charge before filing 10 ADA suit in federal court); Lyons v. England, 307 F.3d 1092, 1103 (9th Cir. 2002) (“a 11 plaintiff is required to exhaust his or her administrative remedies before seeking 12 adjudication of a Title VII claim”). Exhaustion of administrative remedies requires that 13 the complainant file a timely charge with the EEOC, thereby allowing the agency time to 14 investigate the charge. See 42 U.S.C. § 12117; 42 U.S.C. § 2000ff–6. 15 In assessing whether a claim was brought before the EEOC, “[i]ncidents of 16 discrimination not included in an EEOC charge may not be considered by a federal 17 court unless the new claims are like or reasonably related to the allegations contained in 18 the EEOC charge.” Green v. Los Angeles Cnty. Superintendent of Sch., 883 F.2d 1472, 19 1475–76 (9th Cir.1989) (internal quotation marks and citation omitted). Additionally, the 20 district court may only hear charges that are “within the scope of an EEOC investigation 21 that reasonably could be expected to grow out of the allegations.” Leong v. Potter, 347 22 F.3d 1117, 1122 (9th Cir.2003). A plaintiff's claims are reasonably related to allegations 23 in the charge “to the extent that those claims are consistent with the plaintiff's original 24 theory of the case,” as reflected in the plaintiff's factual allegations and his assessment 25 as to why the employer's conduct is unlawful. B.K.B. v. Maui Police Dept., 276 F.3d 26 1091, 1100 (9th Cir. 2002). The court construes the EEOC charges “‘with utmost 27 liberality since they are made by those unschooled in the technicalities of formal 28 pleading.’” B.K.B., 276 F.3d at 1100 (internal quotation marks and citation omitted). 5 1 In the EEOC charge,2 Denning selected the “continuing action” box as well as the 2 “retaliation” and “disability” boxes, and stated that generally she is “subjected to different 3 terms and conditions of employment.” (ECF No. 11-1 at 2.) From these facts, the Court 4 finds that the allegations in the FAC concerning a course of conduct of discrimination 5 based on Denning’s disability reasonably relate to the EEOC charge, including any 6 subsequent failures to accommodate that may have resulted after the October 1 to 7 November 15, 2015, time frame.3 However, because Denning filed her complaint with 8 the EEOC on April 5, 2016 (ECF No. 11 at 5; ECF No. 11-1 at 1), she may not bring up 9 acts of discrimination that occurred prior to 300 days before that date. 4 See Shea v. City 10 & Cnty. of San Francisco, 57 F. App’x 740, 741 (9th Cir. 2003); see also 42 U.S.C. § 11 12117(a) (stating that under the ADA, by reference to 42 U.S.C. § 2000e-5(e)(1), an 12 aggrieved party must file a complaint within either 180 or 300 days after an alleged 13 unlawful employment practice has occurred). 14 In his EEOC charge, Finnegan marked the boxes for “continuing action,” 15 “retaliation,” and “sex.” (ECF No. 11-2 at 2.) His charge focuses on Doak’s course of 16 alleged sexual harassment, identifies examples of her retaliatory acts, mentions his 17 concerns that his complaints against Doak weren’t adequately addressed, and claims 18 that his being placed on disciplinary leave was an indirect result of Doak’s harassment. 19 The allegations in the FAC that go beyond the charge concern a threat of disciplinary 20 21 22 23 24 25 26 27 28 2Plaintiffs do not object to the EEOC charges filed as exhibits by Defendant. (See ECF No. 12 at 1.) Because the FAC asserts that Plaintiffs filed the EEOC charges and relies on the charges to allege that they have exhausted their administrative remedies (ECF No. 10 at 1), the Court may consider this document in ruling on Defendant’s Motion. See Lee v. Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). 3To the extent that Defendant contends Denning is making a blatant misrepresentation in the FAC when she states that Defendant refused to accommodate her needs to adjust to medication by requiring her to work nights (ECF No. 11 at 6), the Court finds that the other allegations in the FAC allow it to construe “working nights” as working closing shifts. (See ECF No. 10 at 10.) So construed, the Court disagrees with Defendant that Denning failed to meet her duty of candor to the Court by referring to closing shifts ending in the evening or at night as her “working nights.” 4The Court will not consider facts concerning acts of discrimination that occurred before the alleged onset date stated by Denning in the EEOC charge (October 1, 2015) as any discrimination prior to this date is time-barred. 6 1 action from the Assistant District Attorney based on Finnegan’s refusal to participate in 2 the investigation into his sexual harassment complaint against Doak. Because these 3 allegations relate to the theory espoused in his EEOC charge that he was harassed and 4 retaliated against upon the basis of his sex, these allegations reasonably relate to the 5 EEOC charge. While Defendant asks the Court to strike the paragraphs (Paragraphs 13 6 and 14) concerning these allegations (ECF No. 11 at 10), the purpose of a 12(b)(6) 7 motion is not for the Court to strike selected portions of a plaintiff’s complaint. Thus, 8 although the allegations in these paragraphs of the FAC may not amount to acts of 9 discrimination or adverse employment action under Title VII, Finnegan is still permitted 10 to include them. 11 C. 12 Defendant contends that Denning has failed to state a claim for hostile work 13 Denning’s Hostile Work Environment Claim environment under the ADA. (ECF No. 11 at 7-8.) 14 To sufficiently allege a claim for hostile work environment,5 a plaintiff must show 15 that the “workplace [was] permeated with discriminatory intimidation . . . that [was] 16 sufficiently severe or pervasive to alter the conditions of [her] employment and create an 17 abusive working environment.” Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 18 2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (internal quotation 19 marks omitted). “The working environment must both subjectively and objectively be 20 perceived as abusive.” Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995). 21 Relevant to the inquiry is the frequency, severity, and level of interference with work 22 performance; however, the court must use a totality of the circumstances test to 23 determine whether a plaintiff’s allegations state a colorable claim. Brooks, 229 F.3d at 24 923-24 (citing Harris, 510 U.S. at 23). “When assessing the objective portion of a 25 plaintiff’s claim, we assume the perspective of the reasonable victim.” Id. at 924 (citing 26 27 28 5Because the Ninth Circuit has implicitly found that a hostile work environment claim exists under the ADA, see Brown v. City of Tucson, 336 F.3d 1181, 1189-90 (9th Cir. 2003), the Court utilizes the legal framework of a hostile work environment claim under Title VII for its analysis. 7 1 Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991)). “An employer is liable for a hostile 2 environment created by a plaintiff's co-worker if it knew or should have known about the 3 misconduct and failed to take prompt and effective remedial action.” Westendorf v. W. 4 Coast Contractors of Nev., Inc., 712 F.3d 417, 421 (9th Cir. 2013) (internal quotation 5 marks and citation omitted). 6 Denning states that as a result of the “course of hostility and retaliatory hostility, 7 integrally linked to her epilepsy,” she has suffered “emotional distress and associated 8 symptoms, fear and apprehension of loss of her employment and loss of enjoyment of 9 life[.]” (ECF No. 10 at 10.) This demonstrates that, subjectively, Denning found the 10 harassment to be so severe that it altered her work environment. Objectively, the FAC 11 lists various forms of discrimination based on Denning’s disability, including isolation 12 from and ostracism by her fellow employees, failure to provide additional support for her 13 shifts, threats of termination, and excessive scrutiny. Cumulatively, these various 14 actions sufficiently allege a working environment permeated by hostility and 15 discriminatory intimidation based on Denning’s disability. Moreover, the FAC alleges 16 that Defendant’s remedial action was inadequate and therefore ineffective. The Court 17 therefore finds that Denning has alleged a colorable claim for hostile work environment 18 under the ADA. 19 D. 20 Defendant argues that the FAC’s allegations that Denning asked for new and 21 different accommodations that she did not receive are beyond the scope of the EEOC 22 charge. (ECF No. 11 at 8-9.) The Court disagrees. Denning’s Remaining Claims 23 In the EEOC charge, Denning states that she asked for an accommodation on or 24 around October 1, 2015, and was told by Smith that receiving an accommodation 25 “would not be an issue.” (ECF No. 11-1 at 2.) However, the charge does not state if the 26 accommodation was actually granted or how long the accommodation lasted. 27 Therefore, any subsequent failures to accommodate based on the same or a similar 28 issue would not be beyond the scope of the EEOC charge. Moreover, despite 8 1 Defendant’s contention that the FAC misrepresents that Denning did not receive an 2 accommodation based on the October 1, 2015, request (ECF No. 11 at 8), the Court 3 must accept as true all allegations in the FAC, including those of a failure to 4 accommodate Denning’s disability at some point in time. Therefore, the Court denies 5 Defendant’s Motion on Denning’s remaining claims. 6 E. Breach of the Implied Covenant of Good Faith and Fair Dealing 7 Defendant contends that the FAC’s allegations regarding the implied covenant of 8 good faith and fair dealing are a “bare bones recitation of the elements of such a claim” 9 without “any facts to support such a claim.” (ECF No. 11 at 11.) The Court agrees. 10 In order to state a claim for breach of the implied covenant of good faith and fair 11 dealing, a plaintiff must allege the existence of a contract and facts demonstrating that 12 the defendant performed the contract in a manner that is unfaithful to the purpose of the 13 contract or the justified expectations of the plaintiff. Perry v. Jordan, 900 P.2d 335, 338 14 (Nev. 1995) (citing Hilton Hotels v. Butch Lewis Prods., 808 P.2d 919, 923 (Nev. 1991)). 15 Plaintiffs fail to identify a contract for which the implied covenant of good faith and fair 16 dealing has been breached. Instead, the FAC states that Defendant owed an “implied 17 duty of good faith and fair dealing by virtue of the contractual employment relationship 18 which exists between defendant and plaintiffs.” (ECF No. 10 at 11.) This statement fails 19 to make clear whether Plaintiffs are employed by way of a particular employment 20 contract. Plaintiffs also fail to assert facts as to how Defendant acted in bad faith in 21 fulfilling its contractual allegations beyond the FAC’s assertion that Defendant breached 22 this duty through its “conduct, statements and omissions described [in the FAC].” (Id.) 23 The Court therefore dismisses this claim without prejudice. 24 F. 25 The FAC contains additional facts not found in the original complaint concerning 26 27 28 Facts Occurring After Filing of Original Complaint an incident occurring in late January 2017. Specifically, the FAC states: For instance, in late January, 2017, defendant notified plaintiff of the imminent killing of a dog, Sonny, which plaintiff had taken a special interest in and had successfully improved its behavior, and eligibility for 9 1 adoption. Sonny was scheduled for adoption by an interested citizen. Nonetheless, defendant deliberately and unnecessarily killed Sonny, after taking the unusual step of calling plaintiff in for the purpose of notifying him in advance of the killing. Upon information and belief, defendant notified plaintiff for the purposes of inflicting emotional distress upon plaintiff and/or attempting to elicit an angry response from plaintiff for the purpose of creating a basis for discipline against plaintiff. Upon information and belief, Manager Smith has made statements to the effect he intends to intensify the harassment of both plaintiffs in response to the filing of this federal case. 2 3 4 5 6 7 (ECF No. 10 at 6-7.) An amended complaint may not add facts that occurred after the 8 date that the original complaint was filed. See Fresno Unified School Dist. v. K.U. ex rel. 9 A.D.U., 980 F. Supp. 2d 1160, 1174 (E.D. Cal. 2013) (“An amended complaint under 10 Rule 15(a) permits the party to add claims or to allege facts that arose before the 11 original complaint was filed.”) (emphasis added). Therefore, the Court orders that this 12 portion of Paragraph 18 be stricken from the FAC. 13 IV. MOTION TO SEVER 14 Federal Rule of Civil Procedure 20(a) allows plaintiffs to join in a single action if 15 “they assert any right to relief jointly . . . with respect to or arising out of the same 16 transaction, occurrence, or series of transactions or occurrences,” and if “any question 17 of law or fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a). 18 Washoe County contends that Plaintiffs fail to meet Rule 20(a)’s first prong because 19 Finnegan’s claims relate to a discrimination based on his sex and because Denning’s 20 claims relate to discrimination based on her disability, which are completely unrelated. 21 (ECF No. 6 at 2-3.) Although misjoinder alone “is not a ground for dismissing an action,” 22 a court “may at any time, on just terms, add or drop a party.” Visendi v. Bank of Am., 23 N.A., 733 F.3d 863, 870 (9th Cir. 2013) (quoting Fed. R. Civ. P. 21). District courts have 24 discretion in determining whether to drop a party. See Rush v. Sport Chalet, Inc., 779 25 F.3d 973, 974 (9th Cir. 2015) (reviewing the district court’s decision to sever under Rule 26 21 for abuse of discretion). 27 The Court agrees with Washoe County that each Plaintiff raises unrelated claims 28 arising from distinct series of occurrences. Plaintiffs argue that both sets of claims are 10 1 against Robert Smith, who orchestrated retaliatory hostility against them and is the 2 “primary actor in both cases.” (ECF No. 8 at 2.) However, the FAC distinguishes 3 Finnegan’s claims from Denning’s claims. Finnegan’s claims are against Washoe 4 County for failing to adequately investigate his claims of sexual harassment and 5 retaliation by Cindy Doak. By contrast, Denning’s claims are based on Smith 6 orchestrating and leading other employees to engage in various forms of harassment, 7 ostracism, and disparate treatment against Denning based on her disability. According 8 to the FAC, Smith played only a minor role in the alleged retaliation against Finnegan by 9 encouraging Doak to continue to engage in retaliation and by informing other 10 employees that Finnegan lodged a false complaint against Doak. (ECF No. 10 at 3.) 11 Moreover, Smith played no role in the alleged sexual harassment of Finnegan, which is 12 the basis for Finnegan’s claims of a hostile work environment and retaliation under Title 13 VII. Thus, the only similarity between the Plaintiffs’ claims is that they are both against 14 Washoe County. The Court therefore finds that severing this action into two separate actions is 15 16 appropriate. 17 V. CONCLUSION 18 The Court notes that the parties made several arguments and cited to several 19 cases not discussed above. The Court has reviewed these arguments and cases and 20 determines that they do not warrant discussion as they do not affect the outcome of 21 Washoe County’s motions. 22 It is therefore ordered that Washoe County’s Motion to Dismiss First Amended 23 Complaint (ECF No. 11) is granted in part and denied in part. The Clerk is instructed to 24 strike that portion of Paragraph 18 of the FAC identified in this Order. 25 Washoe County’s Motion to Sever (ECF No. 6) is granted. Plaintiff Kathleen 26 Denning will proceed separately. The Clerk is hereby directed to set up a new civil 27 action and copy all filings from this action. The new action will remain assigned to 28 Magistrate Judge William G. Cobb and the undersigned district court judge. 11 1 2 It is also ordered that Washoe County’s Motion to Dismiss (ECF No. 7) is denied as moot. 3 4 DATED THIS 2nd day of August 2017. 5 6 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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