PHYLLIS J. HAMILTON, District Judge.
Before the court is defendants' motion to dismiss plaintiff's first amended complaint ("FAC"). Dkt. 21. The matter is fully briefed and suitable for decision without oral argument. Accordingly, the hearing set for May 10, 2017 is VACATED. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motion for the following reasons.
On September 12, 2014, pro se plaintiff Jamilah Abdul-Haqq sued her employer Kaiser Foundation Hospitals and The Permanente Medical Group for, inter alia, racial discrimination in violation of Title VII, harassment, disability discrimination under the Americans with Disabilities Act ("ADA"), failure to engage in the interactive process under the California Fair Employment and Housing Act ("FEHA"), and intentional infliction of emotional distress ("IIED").
The original complaint in this case was filed on September 23, 2016. Dkt. 1. Plaintiff asserted eight causes of action: (1) disability discrimination; (2) harassment for having a disability; (3) IIED; (4) failure to prevent harassment; (5) failure to prevent discrimination; (6) unauthorized video and audio recording; (7) retaliation for whistleblowing; and (8) racial discrimination.
On February 10, 2017, the court dismissed plaintiff's complaint with leave to amend. Dkt. 20 (the "February 10 order"). The court found that Abdul-Haqq had not sufficiently alleged exhaustion of her first two claims for disability discrimination and harassment.
Alternatively, the disability claims were not plausibly pleaded because they did not allege any specific adverse employment action or that Abdul-Haqq's anxiety disorder met the statutory definition of "disability." The fourth claim for failure to prevent harassment on the basis of disability was dismissed for the same reasons.
The court dismissed the IIED claim with prejudice because it was preempted by workers' compensation laws and no "extreme and outrageous" acts were alleged.
The fifth and eighth claims, sounding in racial discrimination and failure to prevent racial discrimination, lacked any supporting factual allegations in the body of the complaint. The court held that any amended complaint must "(i) set out any claims for racial discrimination and failure to prevent harassment based on race separately in the body of the complaint; (ii) make clear the specific statutory basis for each of these claims (i.e., Title VII or FEHA); and (iii) allege supporting facts that, if proven, would plausibly establish each of the required elements of the claim [and (iv)] plead that these claims have been exhausted."
The sixth claim for "unauthorized video and audio recording" was dismissed because there is "no prohibition on unauthorized recording in Title VII, FEHA, or the ADA," and plaintiff did not state any other legal basis for the claim.
Lastly, the seventh claim, for whistleblowing retaliation, was dismissed because plaintiff had not alleged any specific adverse employment action, or alleged that defendants' actions were based on protected activity.
On March 3, 2017, plaintiff filed her first amended complaint ("FAC"). Dkt. 21. The FAC brings the same eight claims, although they are ordered differently and indicate a specific legal basis for each claim: (1) disability discrimination in violation of the ADA and FEHA; (2) harassment for having a disability; (3) IIED; (4) failure to prevent harassment/hostile work environment under FEHA and Title VII; (5) unauthorized video and audio recording under Cal. Penal Code § 647(j)(1); (6) retaliation for whistleblowing under Cal. Labor Code § 1102.5(b); (7) failure to prevent discrimination in violation of Title VII and FEHA; and (8) racial discrimination in violation of Title VII.
Plaintiff relies on her prior related case to allege exhaustion. In particular, plaintiff claims that the Equal Opportunity Employment Commission ("EEOC") and California Department of Fair Employment and Housing ("DFEH") "issued the pertinent Letters of right to sue" on September 2, 2014, "before the summons of the first complaint in the related case CV14-04140 PJH." FAC ¶ 10. The FAC also argues that the claims are exhausted because plaintiff "has continued to file charges with the EEOC and DFEH." FAC ¶¶ 24-25.
On the first claim for ADA discrimination, plaintiff alleges that she suffers from post-traumatic stress disorder ("PTSD"), which is a disability under the ADA. FAC ¶ 30. Abdul-Haqq has explained her "limitations that cause triggers" to management. FAC ¶ 31. In particular, "acknowledgment and communication of her complaints are important to reduce [her] symptoms." FAC ¶ 33. Nonetheless, defendants "ignored her accommodation request and her triggers," resulting in "several fact-finding meetings that lead to uncontrollable symptoms." FAC ¶¶ 31, 33. To show discrimination, Abdul-Haqq relies on emails "sent and received from defendants" attached as Exhibit B. FAC ¶ 34.
Another accommodation plaintiff requested is that she "cannot be pre-booked without proper notification to work on her days off." FAC ¶ 38. Plaintiff was also "forced to work above safe [nurse-to-patient] ratios, which caused her anxiety."
Although the first claim is for disability discrimination, this section contains several factual allegations that appear to pertain to other causes of action. Abdul-Haqq alleges that she was `treated worse" than "others that are non-black" as well as "those without the need for accommodation." FAC ¶ 34. Plaintiff alleges that she was "warned" not to make complaints about Dr. Baker. FAC ¶ 35. Abdul-Haqq also references an "assault" by Josh Cortney, which was not investigated, after she "complained about being recorded without consent." FAC ¶¶ 39, 42. She alleges that Cortney brings a gun to work, but it was Abdul-Haqq who received a written warning for this incident. FAC ¶ 46. She alleges that Human Resources did not act quickly enough on her FMLA requests. FAC ¶¶ 45, 49.
On the disability harassment claim, plaintiff has explained to defendants that "preventable chaotic environments cause her stress." FAC ¶ 53. For example, Debbie Carrillo, a manager, once assigned Abdul-Haqq "to take a stroke alert patient when she has four patients already," creating an unsafe nurse-to-patient ratio. FAC ¶ 54. This is a form of "horizontal violence" that causes plaintiff "undue emotional distress." FAC ¶ 55. Plaintiff "needed an accommodation" to cope with her distress but "defendant denied her request and refused to put the denial in writing." FAC ¶ 56.
On the IIED claim, plaintiff alleges that the claim is not preempted by workers' compensation because defendants' actions were "intentional and egregious." FAC ¶ 58. Plaintiff repeatedly requested that "things that are going to be discussed in any fact-finding [or other] meeting needs to be [put] in writing" and emailed to Abdul-Haqq in advance. FAC ¶ 59. Moreover, defendants took "three months to submit" plaintiff's workers' compensation claim, and Abdul-Haqq was told in a fact-finding meeting that she was "not allowed to file any more complaints." FAC ¶ 60. These "malicious" actions caused plaintiff to take disability leave. FAC ¶ 62.
The fourth claim alleges both a hostile work environment and failure to prevent harassment based on race and disability under Title VII and FEHA. Abdul-Haqq alleges that several doctors have "alienat[ed] black and Hispanic staff" by "snatching gloves", "condescending" behavior, "bully[ing]", and an incident involving a medical instrument thrown "in the direction of a nurse." FAC ¶ 65. Nonetheless, defendants "allowed" these doctors to transfer from Haywood to Fremont, and now to San Leandro. FAC ¶ 66. Plaintiff complained about these doctors, but the doctors retaliated by raising "patient care concerns" against Abdul-Haqq. FAC ¶ 67.
The fifth claim for unauthorized recording is now based on California Penal Code section 647(j)(1), a criminal statute defining "disorderly conduct." Plaintiff alleges that "cameras with audio and motion sensing capabilities" are in the "break room and patient areas inside the emergency room." FAC ¶ 70. Plaintiff complained to defendants "about suspected recording of conversations" and was given a "written warning." FAC ¶ 71.
The sixth claim is for retaliation for whistleblowing in violation of California Labor Code section 1102.5(b). Plaintiff alleges that in "[l]ate August," she "reported" defendants to the NLRB. FAC ¶ 73. Following that, she was called in for several fact-finding meetings.
The seventh and eighth claims are for racial discrimination under Title VII and failure to prevent racial discrimination under FEHA and Title VII. Abdul-Haqq alleges that she filed "several complaints regarding verbally abusive doctors" and managers, but none of her complaints were investigated. FAC ¶ 77. Plaintiff alleges that "disciplinary actions" at Kaiser's San Leandro facility are worse for blacks than whites and Asians, pointing to her August 29, 2016 suspension for not following an ICU protocol. FAC ¶ 80. In contrast, Nickolus D. Salazar, a non-African American, "almost killed someone" by giving an incorrect dosage but only received a one-day suspension.
Paragraph 86 of the FAC briefly raises new issues based on California Labor Code § 132(a) (prohibiting discrimination based on filing a claim for workers' compensation) and 29 C.F.R. § 825.220 (prohibiting interference with FMLA rights). Such new claims were not permitted under the court's February 10 order. Dkt. 20 at 14.
Pursuant to the court's instructions, the FAC attaches five right-to-sue letters. FAC Ex. A. The first is from DFEH and dated May 4, 2016, regarding DFEH Charge No. 392812-226430. Dkt. 22-1 at 6. This letter relates to a May 4, 2016 administrative charge in which plaintiff complains of discrimination, harassment, and retaliation because she was "given written [warning] for an incident that happen[ed] 5 months" ago.
The next letter is from the EEOC and dated May 17, 2016, regarding DFEH Charge No. 39812-140282/EEOC Charge No. 37A-2015-01564. Dkt. 22-2 at 2. The underlying March 6, 2015 charge concerned allegations that plaintiff "was denied a transfer" for "no reason."
The third letter is from DFEH and dated November 18, 2014, regarding EEOC Charge No. 555-2015-00139C. Dkt. 22-2 at 9. The attached charge, DFEH No. 392812-134134, alleges that plaintiff "was denied FMLA" leave because Matthew Kiyoi did not submit a form "in August and October."
The fourth letter is from DFEH and dated September 2, 2014, regarding EEOC Charge No. 55-2014-00830. Dkt. 22-2 at 18. The underlying charge alleges racial discrimination and retaliation because "on or about June 2, 2014, I was subjected to a bias[ed] investigation and my complaints were not investigated."
The fifth letter is from DFEH and dated November 19, 2014, regarding EEOC Charge No. 555-2013-00190C. Dkt. 22-3 at 2. The underlying charge alleges that plaintiff "complained of unethical practices" that were not adequately investigated.
On April 1, 2017, during the briefing on defendants' motion to dismiss, plaintiff filed a document captioned "motion to leave due to medical treatment." Dkt. 27. Plaintiff states that she "wishes to leave to seek medical treatment. Abdul-Haqq is on disability and currently being treated." Defendants did not file a response to this motion.
It is not clear what relief plaintiff seeks from this motion. To the extent that plaintiff is seeking leave of court to pursue medical treatment, the court DENIES the motion because no leave of court is necessary. Nonetheless, the court encourages plaintiff to seek appropriate medical treatment.
To the extent that plaintiff is seeking to stay this case while she receives treatment, the court DENIES the motion because a stay is inappropriate. The court has inherent power to stay proceedings in the interests of fairness and efficiency for the court, counsel, and litigants.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal sufficiency of the claims alleged in the complaint.
A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient facts to support a cognizable legal theory.
Legally conclusory statements, not supported by actual factual allegations, need not be accepted by the court.
As in their previous motion, defendants move to dismiss the discrimination and harassment claims based on plaintiff's failure to exhaust administrative remedies and/or state a cognizable claim. Dismissal of the other causes of action is urged based on failure to state a claim, or the lack of any right to a private civil action. The court finds that defendants' arguments have merit, because plaintiff has not cured these flaws in her complaint despite the prior opportunity to amend.
Plaintiffs' first, second, fourth, seventh, and eighth claims can be analyzed as a group.
Title I of the ADA incorporates the enforcement procedures of Title VII. 29 U.S.C. § 12117(a). Thus, to establish federal subject matter jurisdiction for an employment discrimination claim based on the ADA or Title VII, plaintiff must file an administrative charge with the EEOC or other appropriate state agency, such as DFEH, before commencing an action. 42 U.S.C. § 2000e-5(f)(1);
If the agency dismisses the charge and issues a right-to-sue letter, a claimant typically has ninety days "after the giving of such notice" to file a civil action against her employer. 42 U.S.C. § 2000e-5(f)(1);
Similarly, under FEHA, employees must exhaust their administrative remedies by filing a complaint with DFEH within one year of the alleged unlawful employment action, and obtain a notice of right to sue. Cal. Gov't Code § 12960;
Administrative charges must be construed "with utmost liberality since they are made by those unschooled in the technicalities of formal pleading."
The court's prior order instructed Abdul-Haqq to attach all relevant right-to-sue letters to the FAC in order to show exhaustion. Although the FAC includes a number of letters from DFEH and the EEOC, only two—the ones dated May 4, 2016 and May 17, 2016—could possibly be the basis for this suit. All of the other letters are from 2014. Any complaint based on these 2014 right-to-sue letters would be untimely because this suit was brought on September 23, 2016, more than 90 days after the "giving" of the right-to-sue notice under Title VII, and more than one year after the receipt of the right-to-sue notice under FEHA. 42 U.S.C. § 2000e-5(f)(1); Cal. Gov't Code § 12965(b). The 2014 right-to-sue letters explicitly informed Abdul-Haqq of these time limits.
That leaves the right-to-sue letters dated May 4, 2016 and May 17, 2016. Because Abdul-Haqq did not bring this suit until September 23, 2016, more than more than 90 days after the "giving" of these right-to-sue notices, plaintiff's Title VII and ADA claims based on these letters are not timely. The FEHA claims, however, would be timely as they were brought within one year of the 2016 right-to-sue notices.
Regardless, even assuming that all of the claims were timely, the 2016 right-to-sue letters do not establish that plaintiff has exhausted the discrimination and harassment claims asserted in the FAC. The May 4 letter relates to administrative charge DFEH No. 392812-226430, in which Abdul-Haqq complains that she was given a written warning for an incident that happened five month ago. Dkt. 22-1 at 10. The May 17 letter relates to administrative charge DFEH No. 39812-140292, in which Abdul-Haqq complains of being denied a transfer from Antioch to San Leandro. Dkt. 22-1 at 5-6.
None of the discrimination and harassment claims in the FAC are "like or reasonably related" to these administrative charges.
For these reasons, the court finds that it lacks subject matter jurisdiction over the discrimination and harassment claims because they have not been exhausted.
Alternatively, the discrimination and harassment claims must be dismissed for failure to state a claim, for reasons similar to those stated in the court's February 10 order, which is incorporated by reference.
The burden-shifting format established in
Under
The FAC does not plausibly plead the elements of discrimination or harassment based on race or disability. On the disability discrimination claims (claims 1 and 2), plaintiff does not allege any specific adverse employment action. Abdul-Haqq mentions "fact-finding meetings," a written warning, being scheduled to work without proper notice, and not receiving pre-meeting emails. It is not clear how these actions "materially affect the compensation, terms, conditions, or privileges . . . of employment."
On the hostile work environment claim (claim 4), Abdul-Haqq alleges various unprofessional and "bully[ing]" behaviors by certain doctors. However, a difficult work environment is not in itself a violation of Title VII or FEHA. To be actionable, the harassment must be based on some protected trait, such as race, sex, or disability.
The racial discrimination claim (claim 8) does allege an adverse employment action: Abdul-Haqq's August 29, 2016 suspension for violating an ICU protocol. FAC ¶ 80. However, although Abdul-Haqq alleges that Asian and white nurses were also suspended for different infractions, this does not plausibly show that African-American nurses were treated less favorably than similarly-situated nurses.
The fourth and seventh claims are for failure to prevent discrimination and harassment. These claims fail because plaintiff has not sufficiently pleaded that any protected harassment or discrimination occurred.
Abdul Haqq's third claim is for IIED. The elements of IIED in California are (1) extreme and outrageous conduct by the defendant, with (2) the intention of causing, or reckless disregard of the probability of causing, emotional distress, which (3) actually and proximately causes (4) plaintiff's severe or extreme emotional distress.
As the court has already held, defendants' denial of pre-meeting emails is not "extreme and outrageous" behavior, and does not state a claim for IIED. Dkt. 20 at 9-10. The FAC adds allegations that defendants delayed processing and submission of plaintiff's FMLA and workers' compensation forms, and scheduled her to work without adequate notification. These alleged actions do not describe "extreme and outrageous" behavior on the part of defendants, and therefore do not state a claim for IIED.
Moreover, the IIED claim is preempted by workers' compensation exclusivity because the alleged actions that caused emotional distress "occurred at the worksite, in the normal course of the employer-employee relationship."
Plaintiff's fifth claim for "unauthorized recording" relies on California Penal Code section 647(j)(1). This provision defines the misdemeanor of "disorderly conduct" to reach a "person who looks through a hole or opening, into . . . the interior of a bedroom, bathroom, changing room, . . . [or] any other area in which the occupant has a reasonable expectation of privacy." Cal. Penal Code § 674(j)(1).
However, as plaintiff concedes, this statute does not provide for a private right of action. Opp'n at 9. Moreover, Abdul-Haqq has not plead any violation of this criminal statute, because defendants are not alleged to have "looked through a hole or opening" when they allegedly recorded her.
To establish a
Abdul-Haqq's claim is based on the allegation that she "reported" defendants to the NLRB whistleblower department. FAC ¶ 73. The only adverse action alleged is that plaintiff was "called in for another fact-finding meeting."
Plaintiff also alleges that fact-finding meetings closely followed her "calling off FMLA." FAC ¶ 74. To the extent that Abdul-Haqq is seeking to make a new claim for FMLA retaliation—a claim found nowhere in her original complaint—plaintiff was not permitted to make new claims per the court's prior order. Dkt. 20 at 14.
For the foregoing reasons, defendants' motion is GRANTED, and plaintiff's FAC is dismissed without leave to amend. Because plaintiff has already been afforded an opportunity to amend the complaint, but failed to cure its deficiencies despite the clear instructions of the court, the dismissal is WITH PREJUDICE.
The clerk shall close the file.
