MORRISON C. ENGLAND, Jr., District Judge.
Plaintiff Lillie Earnest brings this action against Defendants San Joaquin General Hospital ("SJGH"), San Joaquin County ("County"), Ann Mooney and Service Employees International Union Local 1021 ("SEIU"), and Defendants Jackie Bagatta, Roberta Schramek, Lynn McClain, Marshay McKnight, Conrad Uy, Doug Peterson, Rolando Cabrerea, Vandana Goswani, Adam Arroyo, and Doe Defendants (the "Individual Defendants") (collectively, "Defendants") alleging the following causes of action: (1) civil conspiracy, (2) denial of appeal rights/due process, (3) wrongful termination, (4) breach of a memorandum of understanding ("MOU"), (5) age discrimination, (6) failure to prevent discrimination and harassment in violation of Government Code § 12920 et seq. and 42 U.S.C. § 2000e et seq., (7) interference of business contractual relation, (8) disability discrimination, (9) institutional racism, and (10) intentional infliction of emotional distress. Plaintiff's allegations stem from her employment with and termination from San Joaquin General Hospital, where she was a nursing assistant. Presently before the Court are motions to dismiss by the County Defendant (sued as SJGH) and Schramek (ECF No. 9.), Defendants Mooney and the SEIU (ECF. No. 17), and the Individual Defendants (ECF No. 19), pursuant to Federal Rule of Civil Procedure 12(b)(6).
The First Amended Complaint ("FAC") in this case is far from a model of clarity, but the Court has deduced the following from Plaintiff's pleading. ECF No. 6. It appears that the basis for much of Plaintiff's FAC stems from a July 12, 2009, investigation into a workplace complaint against Plaintiff, a 62-year old African-American woman, which Plaintiff claims was mishandled in various ways.
Plaintiff claims that her termination was the result of a conspiracy among all Defendants and that she was terminated without receiving any offer of services from the local Employee Assistance Program ("EAP"), any job training, or any "Progressive Discipline techniques." Plaintiff claims she was forced to work out of class, and that accommodations were not made on account of her age. Plaintiff further claims that she was discriminated against because of her age, disability, and race, and that Plaintiff was denied due process in the course of her termination. It appears Plaintiff alleges that the County and the SEIU entered into a memorandum of understanding ("MOU") that failed to provide adequate safeguards to part-time employees, who are disproportionately African-American.
In May of 2013, Plaintiff received notice of a serious discipline hearing informing her of the reasons for her termination, and received an allegedly incomplete discovery packet. Plaintiff was represented by SEIU union representative Defendant Mooney at her hearing, but claims that she was denied the right to have a representative "of her choice." She further alleges that the investigation leading to her termination was not impartial, and that the Individual Defendants stereotyped her based on her age, disability, and race, and made statements during the investigation in order to get her fired.
On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party.
Furthermore, "Rule 8(a)(2) . . . requires a showing, rather than a blanket assertion, of entitlement to relief."
A court granting a motion to dismiss a complaint must then decide whether to grant leave to amend. Leave to amend should be "freely given" where there is no "undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment. . . ."
As a preliminary matter, the Court notes that although Plaintiff cites to various sources of authority throughout her FAC, she has failed to provide the statute or law under which she brings each cause of action (with the exception of her Sixth Cause of Action brought under Cal. Gov. Code § 12920 et seq.), leaving Defendants—and the Court—to guess the basis for each of Plaintiff's claims. Plaintiff has also failed to specify against which Defendant each cause of action is alleged, leaving Defendants—and again the Court—to assume they each must defend against each claim. For each cause of action dismissed with leave to amend below, should Plaintiff decide to file an amended pleading, she must cure the defects described herein by providing the law under which each claim arises and by stating with specificity against which defendant(s) each claim is asserted.
Plaintiff's First, Third, Seventh, and Tenth Causes of Action are dismissed as to the County and Individual Defendants because Plaintiff has failed to alleged that she complied with California's Tort Claims Act. Under the Torts Claim Act, a plaintiff cannot bring a tort claim against a public entity (or against a public employee acting in the course of his or her employment) until a written claim has been presented to the public entity and has been acted upon or rejected by the board. Cal. Gov. Code §§ 945.4; 950.2. A plaintiff must file her tort claim within six months of the accrual of the claim and must file a late-claim request within one year. Cal. Gov. Code §§ 911.2; 911.4. Here, Plaintiff's tort claims accrued, at the latest, on the date of her termination: April 17, 2013. Plaintiff therefore would have had to file her tort claim within six months of that date. Because Plaintiff has made no such allegation in her FAC, her tort causes of action must be dismissed. Plaintiff will be given one opportunity to amend with respect to these claims to the extent Plaintiff can allege compliance with and exhaustion of the Tort Claims Act. Absent a specific allegation of exhaustion, however, Plaintiff's tort causes of action will again be dismissed as to the County and the Individual Defendants, this time with prejudice.
Similarly, Plaintiff's Fifth, Sixth, Eighth, and Ninth
To the extent Plaintiff brings her discrimination-based claims under Title VII, the ADEA, or the ADA, this tardy filing is fatal to her Fifth, Six
Under the FEHA, California Government Code § 12960 et seq., a plaintiff typically has one year from the date of the allegedly unlawful act to file a complaint with the DFEH. Once the DFEH issues a right to sue notice, plaintiff has one year from the date of the notice to file a civil complaint. Cal. Gov. Code § 12965(b). It is possible that Plaintiff filed her claim with the DFEH within one year of her termination, and subsequently filed the pending civil suit within one year of issuance of a right to sue notice from the DFEH
Additionally, because the SEIU and Defendant Mooney were not the named respondents of the EEOC or DFEH complaints allegedly submitted by Plaintiff, Plaintiff's FEHA claims against those Defendants fail for this additional reason and are dismissed with final leave to amend.
Defendants Mooney and the SEIU additionally claim that Plaintiff's Third, Fourth, and Seventh Causes of Action should be dismissed because they fall within the exclusive initial jurisdiction of the Public Employment Relations Board ("PERB"). "A complaint alleging any violation of [the Meyer-Milias-Brown Act (MMBA)] . . . shall be processed as an unfair practice charge by [PERB]." Cal. Gov. Code § 3509. Under the MMBA, "unions owe a duty of fair representation of their members, and this requires them to refrain from representing their members arbitrarily, discriminatorily, or in bad faith."
Though Plaintiff's allegations are not entirely clear, it seems Plaintiff broadly alleges that Defendants Mooney and the SEIU negotiated a discriminatory contract with the County, conspired with the other Defendants to have Plaintiff terminated, and— presumably in the furtherance of that conspiracy—represented her in bad faith. Plaintiff's arguments to the contrary are not compelling. Thus, to the extent Plaintiff's Third, Fourth, and Seventh Causes of Action against Mooney and the SEIU intend to allege that the SEIU provided inadequate representation to Plaintiff, those claims are dismissed with leave to amend for failure to plead exhaustion under the PERB. To the extent Plaintiff intended to allege otherwise with regard to Mooney and the SEIU, Plaintiff's claims are nonetheless dismissed for failure to state a claim upon which relief can be granted, and Plaintiff may amend those claims to more precisely state a cause of action against those defendants.
Additionally, the SEIU and Mooney cannot be held liable under Plaintiff's causes of action predicated on an employment relationship because Plaintiff was not an employee of the SEIU.
Beyond the reasons for dismissal set forth in sections A and B above, Plaintiff's First, Third, Fifth, Eighth, and Ninth Causes of Action as against the Individual Defendants are dismissed without leave to amend. As set forth in Defendants' moving papers, only an employer—not individuals—can be subject to liability for wrongful termination (First and Third Causes of Action),
Plaintiff's Second Cause of Action alleges a violation of her due process/appeal rights. Under
Plaintiff's Fourth Cause of Action alleges a breach of the MOU between the County and the Union. Plaintiff's claim for breach appears to allege that Defendants Bagatta (Director of Nursing, presumably acting on behalf of the County) and Mooney (SEIU Representative, presumably acting in her capacity as such) breached the MOU by denying Plaintiff (1) the representative of her choice at her disciplinary action hearing, (2) opportunities for EAP, (3) FMLA benefits, and (4) the opportunity to file a grievance. Plaintiff offers no facts in support of these conclusions, and her claim for breach against Bagatta, Mooney, the County, and the SEIU is therefore dismissed with leave to amend. To the extent Plaintiff brings this cause of action against the Individual Defendants aside from Defendants Bagatta and Mooney, Plaintiff has not indicated anywhere that the individuals breached the MOU in any way. Plaintiff will be given one opportunity to amend with respect to these Individual Defendants should Plaintiff wish to clarify her claim, if any, against them.
Plaintiff's Tenth Cause of Action alleges intentional infliction of emotional distress. In addition to dismissal based on failure to comply with the Tort Claims Act requirements as stated above, Plaintiff fails to plead facts sufficient to state a claim for relief as to all defendants. Specifically, a claim for intentional infliction of emotional distress requires extreme and outrageous conduct by defendants, an intention to cause or a reckless disregard for the causing of emotional distress, and severe emotional suffering.
Defendants additionally move to dismiss Plaintiff's first, third, and sixth requests for relief, requesting (1) a decree that the disciplinary actions section of the MOU is unconstitutional and should be stricken from the agreement; (2) a decree providing a specific definition of Institutional Racism; and (3) punitive damages, respectively. Plaintiff has provided no support for her position that the requested decrees are proper, nor has she alleged any facts supporting an award of punitive damages. Defendants' motion to dismiss Plaintiff's first, third, and sixth requests for relief is GRANTED with leave to amend.
Lastly, Defendants move to strike portions of Plaintiff's FAC under Federal Rule of Civil Procedure 12(f) on grounds that Plaintiff's FAC contains impertinent, immaterial, and scandalous allegations that confuse the issues and prejudice Defendants. Under Rule 12(f), the Court may strike material that is redundant, immaterial, impertinent, or scandalous, for the "purpose of streamlining the ultimate resolution of the action and focusing the jury's attention on the real issues in the case."
As to the former, Defendants argue that Plaintiff's statements are scandalous because they are intended to inflame the reader and prejudice Defendants, painting them—and government entities generally—as inherently racist, regardless of the facts of Plaintiff's specific case. Defendants additionally argue that Plaintiff's general allegations regarding racism are impertinent and immaterial because they are not necessary to the resolution of Plaintiff's claims. As such, inclusion of such statements will confuse the issues, waste resources, and prejudice Defendants. Plaintiff argues that motions to strike are generally disfavored. In this instance, Defendants have the better argument. Though some background information may be relevant and helpful to the reader, the Court agrees that Plaintiff's many references to historical racism are not material to resolving the matters at issue, are inflammatory against Defendants, and serve only to confuse the issues and waste resources. Defendants' motion to strike is therefore granted in part, as outlined below.
As to Defendants' second ground for striking portions of Plaintiff's FAC, Defendants argue that Plaintiff's FAC "is littered with extraneous citations to various legal authorities" that are irrelevant and immaterial to Plaintiff's claims. The Court agrees. Defendants' motion to strike as to Plaintiff's impertinent legal citations is granted in part, as outlined below.
Should Plaintiff choose to amend her complaint as provided above, the following shall nonetheless be stricken from any amended complaint:
For the reasons stated above, Defendants' motions to dismiss are GRANTED (ECF Nos. 9, 17, and 19). Plaintiff's FAC is DISMISSED with leave to amend, as provided above.
IT IS SO ORDERED.