ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
Re: Dkt. Nos. 16, 17, 18
PHYLLIS J. HAMILTON, District Judge.
Before the court is defendants' motion to dismiss pro se plaintiff Abdul-Haqq's complaint. Dkt. 16. The court finds that the matter is suitable for decision without oral argument. Accordingly, the hearing set for February 15, 2016 is VACATED. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby DISMISSES the complaint, but grants Abdul-Haqq leave to file an amended complaint.
A. The Prior Related Case
This is an employment discrimination dispute. In a prior related case,
B. The Complaint's Allegations
The complaint in this matter was filed on September 23, 2016. Dkt. 1. Plaintiff has captioned the defendants as "Kaiser Emergency in San Leandro, a part of The Permanente Medical Group," but the real parties in interest are Kaiser Foundation Hospitals and The Permanente Medical Group (collectively, "defendants"). Plaintiff's allegations are similar to her earlier complaint, but the new complaint focuses on more recent events in her workplace. The alleged incidents largely occurred in Kaiser Permanente's San Leandro emergency department.
Abdul-Haqq asserts eight causes of action: (1) disability discrimination; (2) harassment for having a disability; (3) intentional infliction of emotional distress; (4) failure to prevent harassment; (5) failure to prevent discrimination; (6) unauthorized video and audio recording; (7) retaliation for whistleblowing; and (8) racial discrimination. Two of these claims—failure to prevent discrimination and racial discrimination—are referenced only in the case caption, but not actually alleged in the body of the complaint. The complaint is generally vague, conclusory, unclear and devoid of specific names, incidents, dates, and events. The bulk of the factual allegations seem to be directed to the disability discrimination and harassment claims.
Abdul-Haqq's complaint describes herself as a victim of "deceptive management practices [occurring] consistently through her employment." Compl. ¶ 11. Abdul-Haqq has an anxiety disorder, and in January 2015 she informed her employers of unspecified "triggers" that exacerbate her anxiety. Compl. ¶¶ 13, 20. This information also included her "functional limitations," and that Abdul-Haqq is "uncomfortable with her ex-Assistant Nurse Manager Treye Gaustand." Compl. ¶ 21.
Plaintiff alleges that defendants have failed to take her triggers into consideration and to accommodate her disability. Compl. ¶ 14. On the contrary, defendants have "made sure" that plaintiff experiences "all triggers that cause her anxiety." Compl. ¶ 32. In particular, Abdul-Haqq has requested "effective communication with her managers." Compl. ¶ 16. However, this request was not resolved, forcing plaintiff to file a workers' compensation claim. Compl. ¶ 17. Ignoring plaintiff's "functional limitations" decreases her ability to "communicate effectively." Compl. ¶ 22. Plaintiff further alleges that "doctors and other staff" were "verbally aggressive" to her in 2015. Compl. ¶ 23. Defendants continue to "ignore" her "complaints of mistreatment by doctors and deceptive managerial practices."
Plaintiff alleges that defendants have also made "false allegations" against her, placed her on a work schedule without confirming it with her, refused to pay her for FMLA leave, and sought to "sabotage" her nursing career and employment. Compl. ¶ 24. These actions exacerbated her disability. Compl. ¶ 25.
In December 2015 and March 2016, plaintiff again "gave details" to defendants of what she needed to prevent triggers of her anxiety. Compl. ¶ 32. Defendants denied her requests and refused to put the denial of her requests in writing. Compl. ¶ 33. Plaintiff describes the emergency room as "chaotic," but states that the environment itself does not cause her symptoms; rather, it is the "deceptive managerial practices" that are the problem. Compl. ¶ 30.
To support her emotional distress claim, Abdul-Haqq argues that defendants were "on notice" that she "was experiencing exacerbating of symptoms." Compl. ¶ 35. Abdul-Haqq made a request to them "five times" to have "all topics" for any meeting "in writing and emailed" in advance, to no avail.
To support her failure to prevent harassment claim, plaintiff describes several doctors who have engaged in "aggressive behavior towards staff." Compl. ¶¶ 36-37. Despite the complaints of nurses, defendants have "allowed" these doctors to transfer from Haywood to Fremont, and now San Leandro.
To support her unauthorized recording claim, Abdul-Haqq alleges that "cameras with audio and motion sensing capability are in the facility in areas of expected privacy," allegedly to "intimidat[e]" the staff. Compl. ¶ 42. The cameras are located in "the break room and the patient care areas inside the emergency room."
To support her retaliation for whistleblowing claim, Abdul-Haqq alleges that "in early May" (presumably 2016), she filed a complaint about "continued deceptive managerial practices." Compl. ¶ 43. "Now," the same doctors she accused are "writing patient care concerns" about her.
C. The Instant Motion to Dismiss and Plaintiff's Reponses
Defendants' motion to dismiss urges that all claims in the complaint must be dismissed for failure to state a claim and/or failure to exhaust administrative remedies. In the alternative, defendants request that Abdul-Haqq be ordered to provide a more definite statement of her claims pursuant to Federal Rule of Civil Procedure 12(e). Dkt. 16.
Instead of responding to defendant's motion, plaintiff has filed a "Notice of Request for Production of Documents." Dkt. 17. This filing appears to be a request for discovery from defendants. A few days later, plaintiff filed a document captioned "Attention Clerks — Documents in Related Case." Dkt. 18. This document "request[s]" that the briefing on the motion to relate the current case to Abdul-Haqq's prior related case be "moved over" or copied to the current case's docket.
Plaintiff's "Notice of Request for Production of Documents" (Dkt. 17) is DENIED. Plaintiff cannot seek discovery unless and until she has stated a cognizable claim for relief. As discussed below, she has not yet done so. Plaintiff's "request" to the Clerk that the briefing on the motion to relate this case to her prior case be "moved over" (Dkt. 18) is also DENIED. Motions to relate cases are filed and briefed in the lower-numbered case under the Local Rules,
A. Legal Standard
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.
Federal Rule of Civil Procedure 12(e) permits a party to move for a more definite statement when a pleading "is so vague or ambiguous that the party cannot reasonably prepare a response." Fed. R. Civ. P. 12(e). "A Rule 12(e) motion is proper only where the complaint is so indefinite that the defendant cannot ascertain the nature of the claim being asserted and therefore cannot reasonably be expected to frame a proper response."
As an initial matter, the complaint is defective because it fails to make clear the statutory basis for each of the claims. Instead, Abdul-Haqq only asserts
1. Claims 1 and 2: Discrimination and Harassment on the Basis of Disability
Plaintiff's first and second claims allege discrimination and harassment based on her disability. No specific statutory authority is given for each claim. Because disability is not a protected class under Title VII,
As to the exhaustion issue, Title I of the ADA incorporates the enforcement procedures of Title VII. 29 U.S.C. § 12117(a). To establish federal subject matter jurisdiction for an ADA employment discrimination claim, a plaintiff must file an administrative charge with the EEOC or other appropriate state agency—such as the California Department of Fair Employment and Housing ("DFEH")—before commencing an action. 42 U.S.C. § 2000e-5(f)(1);
Similarly, under FEHA, employees must exhaust their administrative remedies by filing an administrative 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;
No right-to-sue letter from either the EEOC or DFEH is attached to the complaint. Instead, the complaint alleges in a conclusory fashion that plaintiff has "exhausted" her Title VII and FEHA remedies, and that the EEOC and DFEH "have issued the pertinent Letters of Right to Sue." Compl. ¶ 2. There is no allegation, even a conclusory one, that Abdul-Haqq exhausted her ADA claims.
Defendants have submitted a May 4, 2016 administrative charge that, to their knowledge, is the only charge filed by Abdul-Haqq since January 2015. This administrative charge is almost completely devoid of factual detail. Plaintiff alleges in a conclusory fashion that she was discriminated, retaliated against, and harassed based on "disability, engagement in protected activity, family care of medical leave [and] race." Defs.' Mot. Ex. A. The only specific fact alleged in the charge is that Abdul-Haqq received a written warning on or about May 3, 2016 for an incident that happened five months ago.
Administrative charges must be construed "with utmost liberality since they are made by those unschooled in the technicalities of formal pleading."
On the current record, the court cannot find that Abdul-Haqq has sufficiently pleaded exhaustion of her disability discrimination and harassment claims. These claims must therefore be dismissed for lack of subject matter jurisdiction because they are not "like or reasonably related" to the only administrative charge in the record.
Moreover, even assuming that these claims were exhausted, the complaint does not state a claim for disability discrimination or harassment. Under both FEHA and the ADA, to prove discrimination based upon a disability, plaintiff must allege that (1) she suffers from a qualifying disability; (2) was qualified for the job, i.e., able to perform its essential functions with reasonable accommodation; and (3) was subjected to an adverse employment action because of her disability.
Abdul-Haqq's allegations do not plausibly allege these elements. First, although Abdul-Haqq alleges that she suffers from an anxiety disorder, Compl. ¶ 13, it is not clear from the facts alleged whether this is an "impairment that substantially limits one or more [her] major life activities." 42 U.S.C. § 12102(1)(A). Second, the complaint does not make clear what particular adverse employment action(s) Abdul-Haqq was subjected to. An "adverse employment action is one that materially affect[s] the compensation, terms, conditions, or privileges . . . of employment."
2. Claim 3: Intentional Infliction of Emotional Distress
Abdul Haqq's third claim is for intentional infliction of emotional distress ("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.
Abdul-Haqq's IIED claim is based on a single paragraph in the complaint. Plaintiff alleges that she requested "five times" that defendants have "all topics" for meetings "in writing and emailed" to her in advance. Compl. ¶ 35. Because defendants did not accommodate her request, Abdul-Haqq could not focus or effectively communicate.
Dismissal of this claim is appropriate for two independent reasons. First, it does not plausibly state a claim for IIED because defendants' alleged behavior was not "extreme and outrageous." Second, the claim is preempted by California's exclusive workers' compensation remedy because the alleged infliction of emotional distress "occurred at the worksite, in the normal course of the employer-employee relationship."
Because amendment would be futile based on the facts alleged in the complaint, this claim is dismissed WITH PREJUDICE. If plaintiff wishes to include an IIED claim in her amended complaint, it must be based on facts other than defendants' denial of pre-meeting emails, and based on events occurring outside of the normal course of the employer-employee relationship.
3. Claim 4: Failure to Prevent Harassment on the Basis of Disability
In her fourth claim, plaintiff complains that she was subjected to a "difficult environment" in her employment, including "unprofessional" and "abusive" behavior by certain doctors. Compl. ¶¶ 36, 40-41. However, a difficult work environment, standing alone, does not give rise to a cause of action under Title VII, FEHA, or the ADA. Rather, the alleged harassment must be made based on some protected trait, such as race, sex, or disability.
Under FEHA, California Government Code § 12940(k) provides that it is an unlawful employment practice for an employer "to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." Cal. Gov't Code § 12940(k). The California Supreme Court has stated that FEHA "makes it a separate unlawful employment practice" for an employer to violate § 12940(k).
Plaintiff's fourth claim must be dismissed for the same reasons as the first and second claims. It is not clear that Abdul-Haqq has exhausted her administrative remedies with respect to this claim, and the complaint does not plausibly allege that she was subjected to harassment because of her disability.
4. Claims 5 and 8: Failure to Prevent Harassment; Racial Discrimination
Abdul-Haqq does not allege
Title VII makes it unlawful for an employer to "discriminate against any individual with respect to" the "terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). To establish a prima facie case of discrimination based on race, plaintiff must allege that (1) she is a member of a protected class; (2) she was qualified for her position and performing her job satisfactorily; (3) she experienced an adverse employment action; and (4) similarly situated individuals outside the protected class were treated more favorably, or other circumstances surrounding the adverse employment action that give rise to an inference of discrimination.
It is not clear whether Abdul-Haqq's "harassment" claims are attempts to assert a claim for a hostile work environment under Title VII, or made under FEHA. The required elements for a failure to prevent harassment claim under FEHA are discussed above. If Abdul-Haqq instead seeks to make a claim under Title VII for a hostile work environment, plaintiff must allege that she (1) was subjected to verbal or physical conduct because of a protected trait; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.
If plaintiff wishes to pursue these two claims, her 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 compliant; (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. Plaintiff must additionally plead that these claims have been exhausted.
5. Claim 6: Unauthorized Video and Audio Recording
Plaintiff's sixth claim is for "unauthorized video and audio recording." Only a single paragraph of facts is alleged in support of this claim. Abdul-Haqq alleges that defendants have put cameras in "areas of expected privacy" as an intimidation tactic. Compl. ¶ 42. Specifically, the alleged cameras are located in "the break room and the patient care areas inside the emergency room."
This claim must be dismissed because plaintiff does not state the legal basis for the claim. There is no prohibition on unauthorized recording in Title VII, FEHA, or the ADA, so plaintiff has not pleaded any violation of the only statutes that she cites in the complaint. To the extent that plaintiff wishes to make a claim for unauthorized recording under the common law, the California constitution, or some other law, she must make that clear in her amended complaint.
6. Claim 7: Retaliation for Whistleblowing
Plaintiff's seventh claim asserts "retaliation for whistleblowing." Again, it is not clear whether this claim is made under Title VII, the ADA, or FEHA. To state a prima facie claim for retaliation under Title VII, a plaintiff must allege that (1) she engaged in a protected activity, (2) suffered an adverse employment action, and (3) there was a causal link between the plaintiff's protected activity and the adverse employment action.
Plaintiff's failure to identify the specific statutory or other legal basis for this claim is sufficient to require dismissal with leave to amend. Moreover, plaintiff's complaint does not sufficiently allege retaliation. As an initial matter, is it not obvious what specific adverse employment action is the subject of the retaliation claim. Abdul-Haqq appears to rely on the fact that doctors that she complained about "are now writing patient care concerns" about her. Compl. ¶ 43. Without more supporting detail, the court is unable to determine whether this action materially affects the conditions of employment.
Assuming that Abdul-Haqq clarifies the adverse action that she allegedly suffered, she must also allege facts that, if true, make it plausible that the defendants' actions were taken
Plaintiff must make clear the statutory basis for the retaliation claim in her amended complaint. If the claim is based on the ADA, Title VII or FEHA, plaintiff must additionally plead that the claim has been exhausted. In any case, plaintiff must plausibly allege all of the elements of a retaliation claim.
For the foregoing reasons, Abdul-Haqq's complaint is DISMISSED with leave to amend. If plaintiff chooses to file an amended complaint, she must do so by