Foster v. Community Hospital of The Monterey Peninsula et al, No. 5:2011cv01679 - Document 18 (N.D. Cal. 2011)
Court Description: 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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F o s t e r v . C o m 1 m u n i t y HD oo **E-Filed 8/30/2011** 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 ALYCE FOSTER, 13 Plaintiff, 14 15 16 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, 17 Defendants. 18 19 Defendants Community Hospital of Monterey Peninsula (“Community”), Laura 20 Williams, and Arthur McKenzie move pursuant to Fed. Rs. of Civ. Pro. 12(b)(1) and 12(b)(6) to 21 dismiss the complaint filed by Plaintiff Alyce Foster (“Foster”). The Court has considered the 22 moving and responding papers and the oral arguments presented at the hearing on July 1, 2011. 23 For the reasons discussed below, the motion will be granted, without prejudice as to Foster’s race 24 discrimination claim against Community and with prejudice as to Williams and McKenzie. 25 26 27 28 1 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) D o c 1 I. BACKGROUND 2 The complaint alleges the following facts. Foster, an African-American woman, has been 3 employed by Community for the past five years. Compl. 1:18-22, 2:11-17. Prior to the events 4 giving rise to this lawsuit, she worked as a unit receptionist and performed exclusively clerical 5 work. Compl. 2:17-22. Foster was the only African-American in her unit. Compl. 2:12-13. 6 Community knew when it hired her that Foster had a pre-existing back injury. Compl. 2:22-24. 7 On December 3, 2009, Community opened an overflow unit called Garden West. Compl. 8 3:3. That evening, Foster volunteered to assist the registered nurses by turning down beds and 9 ensuring that patients had gowns and bed basins. Compl. 3:3-7. While moving an overweight 10 patient, Foster re-injured her lower back and went to the emergency room for treatment. Compl. 11 3:9-11. 12 Pursuant to company policy, Foster filed a workers’ compensation claim. Compl. 3:12- 13 13. She stayed home for one week and upon her return to work was restricted to light duty. 14 Compl. 3:13-14. Foster did not receive compensation for the week that she was required to stay 15 home, despite the fact that she had filed a claim with the Human Resources Department (“HR”). 16 Compl. 3:12-16. 17 On December 10, 2009, Williams, the nurse manager, called Foster and told her to report 18 to HR. Compl. 3:17-19. Foster met with Williams and an HR Administrator, McKenzie, and 19 they offered Foster a voluntary layoff, which she refused. Compl. 3:19-23. The next day, at 20 HR’s request, Foster signed an agreement not to lift patients. Compl. 4:2-3. On that same day, 21 McKenzie sent Foster a letter stating that the unit reception position would be merged with the 22 certified nursing assistant position starting on January 4, 2010. Compl. 4:3-6. Because she was 23 on restricted duty, Foster could not qualify for the new position. Compl. 4:6-8. 24 On December 30, 2009, Williams and McKenzie allegedly forced Foster to take medical 25 leave. Compl. 4:17-18. Foster began treatment, which consisted routine examinations and 26 physical therapy, in April 2010. Compl. 4:24-5:2. On February 16, 2011, Foster was diagnosed 27 with a torn ligament in her right hip; she continues to experience pain and numbness in her leg 28 and may require surgery. Compl. 5:3-6. 2 Case No. 11-cv-01679 JF (HRL) ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (JFEX2) 1 On April 30, 2010, Foster was allowed to return to work, but she was not restored to her 2 unit receptionist position, despite the fact that the position was open. Compl. 5:6-11. Instead, 3 she was assigned to the float pool, and her duties are limited to answering phones and monitoring 4 security cameras. Compl. 5:7-13. Foster earns only $18.89 per hour at her new position, rather 5 than the $24.12 per hour that she earned as a unit receptionist. Compl. 5:18-19. She is a part- 6 time employee and no longer has benefits because she works only sixteen hours per pay period, 7 as opposed to the eighty hours per pay period that she worked as a unit receptionist. Compl. 8 5:18-23. 9 On February 22, 2010, Foster filed a claim with the California Department of Fair 10 Employment and Housing (“DFEH”). Compl. 6:3-6. Although she expressed concern with 11 respect to both race and disability discrimination during her intake interview, her written claim 12 alleged only disability discrimination. Decl. of Damon Ex. 2 at 1; Req. for Judicial Notice Ex. 13 A. The actual claim form, which also was deemed to have been filed with the United States 14 Equal Employment Opportunity Commisssion (“EEOC”), specifically alleged employment 15 discrimination under the Americans with Disabilities Act (“ADA”). Compl. 6:6-7; Req. for 16 Judicial Notice Ex. B. On December 17, 2010, DFEH issued a right to sue letter. Compl. 6:8-9. 17 On January 12, 2011, the EEOC issued a dismissal and notice of rights. Compl. 6:12-14. 18 II. LEGAL STANDARD 19 A complaint may be dismissed for “lack of subject-matter jurisdiction.” Fed. R. Civ. P. 20 12(b)(1). Under Rule 12(b)(1), the defendant may facially or factually attack jurisdiction. Safe 21 Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Defendants assert a factual 22 attack, arguing that Foster did not exhaust her administrative remedies. Defs.’ Mot. to Dismiss at 23 5-6. In the context of a 12(b)(1) motion, a defendant may submit evidence to attack the 24 jurisdictional allegations in the complaint. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 25 1989). In response, a plaintiff must present evidence to establish that the court has subject matter 26 jurisdiction. Id. 27 28 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 3 Case No. 11-cv-01679 JF (HRL) ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (JFEX2) 1 sufficient facts to support a cognizable legal theory” is Rule 12(b)(6) dismissal appropriate. 2 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A complaint 3 may be dismissed for failure to state a claim if the plaintiff fails to plead “enough facts to state a 4 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 5 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim has “facial plausibility” when enough facts are 6 pled to allow a court to draw a reasonable inference that the defendant is liable for the alleged 7 misconduct. Id. at 556. Allegations of material fact must be taken as true and construed in the 8 light most favorable to the nonmoving party. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 9 1843, 23 L.Ed.2d 404 (1969). A court need not accept as true conclusory allegations, 10 unreasonable inferences, legal characterizations, or unwarranted deductions of fact. Clegg v. 11 Cult Awareness Network, 18 F.3d 752, 754-755 (9th Cir. 1994). 12 A court must grant an opportunity to amend unless it is clear that the complaint cannot be 13 cured. Lucas v. Dep’t of Corr., 66 F.3d 245, 248-49 (9th Cir. 1995). In determining whether to 14 dismiss a complaint, a court considers “the presence or absence of undue delay, bad faith, 15 dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to 16 the opposing party and futility of the proposed amendment.” Moore v. Kayport Package Exp., 17 Inc., 885 F.2d 531, 538 (9th Cir. 1989). When amendment would be futile, dismissal may be 18 appropriate. Dumas v. Kipp, 90 F.3d 386, 389 (9th Cir. 1996). 19 III. DISCUSSION 20 The instant complaint alleges that Defendants engaged in discriminatory conduct based 21 on Foster’s race.2 Compl. 2:11-14. Foster claims that she is the only African-American in her 22 unit at Community, and that Defendants removed her from her unit receptionist position, reduced 23 her hourly pay, and cut her work hours. Id. 24 A. Exhaustion Doctrine 25 Defendants contend that Foster failed to exhaust her administrative remedies with respect 26 27 28 2 Defendants do not seek dismissal of Foster’s disability discrimination claim against Community. 4 Case No. 11-cv-01679 JF (HRL) ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (JFEX2) 1 to a claim of racial discrimination. Defs.’ Mot. to Dismiss at 5-6. As noted above, Foster’s 2 adminstrative claim was limited to disability discrimination, and the administrative actions taken 3 by the DFEH and EEOC make no reference to race. 4 Foster points out, however, that the DFEH interviewer noted expressly that Foster 5 claimed she had been “harassed because of [her] race (African-American) and disability (back 6 injury) and in retailiation for filing a worker’s (sic) compensation claim.” Decl. of Damon Ex. 2 7 at 4. In the intake notes, the interviewer wrote that Foster’s protected class was “disability.” 8 Decl. of Damon Ex. 2 at 5. Foster explains the interviewer filled out the claim form, which she 9 then signed. Decl. of Foster at 5. 10 A plaintiff must file a complaint with the EEOC before bringing a Title VII action. 42 11 U.S.C. § 2000e-5(f)(1).3 A federal court lacks subject matter jurisdiction if the plaintiff does not 12 exhaust her administrative remedies. Equal Employment Opportunity Comm’n v. Farmers Bros. 13 Co., 31 F.3d 891, 899 (9th Cir. 1994). The jurisdictional scope of a Title VII claim depends on 14 the scope of the EEOC charge and investigation. Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 15 1990). 16 A federal court may not consider incidents of discrimination that were not reviewed by 17 the EEOC unless the new claim is “like or reasonably related to the allegations in the EEOC 18 charge.” Oubichon v. N. Am. Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973) (citation 19 omitted). In analyzing an EEOC charge, the court must “construe the charge liberally,” Sosa, 20 920 F.2d at 1456, because requiring an employee to “return to the state agency every time he 21 claims a new instance of discrimination... would erect a needless procedural barrier.” Oubichon, 22 482 F.2d at 571. Jurisdiction is not limited to the actual EEOC investigation but may include 23 claims that “‘can reasonably be expected to grow out of the charge of discrimination.’” Id. 24 (citation omitted). 25 Here, it appears that Foster has exhausted her administrative remedies with respect to a 26 27 28 3 [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). 5 Case No. 11-cv-01679 JF (HRL) ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (JFEX2) 1 claim of disability discrimination, but not with respect to a claim of race discrimination. Even 2 assuming that Foster intended to assert claims for both types of discrimination, it is undisputed 3 that the administrative agency investigated only the disability claim. Indeed Foster received 4 written notice that the EEOC would investigate her employment discrimination charge under the 5 Americans with Disabilities Act (“ADA”), and not Title VII. Req. for Judicial Notice Ex. B. 6 Disability discrimination is not reasonably related to race discrimination because “[t]he 7 two claims involve totally different kinds of allegedly improper conduct, and investigation into 8 one claim would not likely lead to investigation of the other.” Rodriguez v. Airborne Express, 9 265 F.3d 890, 897 (9th Cir. 2001). Foster’s Title VII claim is not a logical outgrowth of her 10 ADA claim. When a plaintiff alleges a different theory of discrimination, it does not matter that 11 the charge arises from the same event. Shah v. Mt. Zion Hosp. & Med. Ctr., 642 F.2d 268, 271- 12 72 (9th Cir. 1981). 13 B. Individual Liability 14 Williams and McKenzie argue that they should be dismissed from this action because 15 Foster has failed to state a claim against them. Individual employees and supervisors cannot be 16 held personally liable for employment discrimination under Title VII. Holly D. v. Cal. Inst. of 17 Tech., 339 F.3d 1158, 1179 (9th Cir. 2003). Additionally, a plaintiff may sue only the defendants 18 named in the EEOC charge. Sosa, 920 F.2d at 1458. Neither Williams nor McKenzie were 19 named in Foster’s DFEH and EEOC complaints. 20 IV. ORDER 21 The motion to dismiss is GRANTED, without prejudice as to Foster’s race discrimination 22 claim and with prejudice as to Williams and McKenzie. Community shall file its answer with 23 respect to Foster’s disability discrimination claim within twenty (20) days of the date of this 24 order. 25 IT IS SO ORDERED. 26 DATE: 8/26/2011 JEREMY FOGEL United States District Judge 27 28 6 Case No. 11-cv-01679 JF (HRL) ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (JFEX2)
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