Opinion
No. CIV. 05-CV-1099-FCD-KJM.
July 20, 2006
This matter comes before the court on defendants' motion to dismiss plaintiff Deborah Henson's third amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff includes additional claims in her complaint, which the court interprets as a motion for leave to amend pursuant to Rule 15(a). For the reasons set forth below, defendants' motion to dismiss is GRANTED in part and DENIED in part, and plaintiff's motion for leave to amend is GRANTED in part and DENIED in part.
All further references to a "Rule" are to the Federal Rules of Civil Procedure.
Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. Local Rule 78-230(h).
BACKGROUND
In April of 2003, plaintiff submitted her resume to the California Merit Systems Board for consideration for the position of supervisor or director of a Child Protective Services ("CPS") division. (Pl.'s Third Am. Compl. ("TAC") ¶ 16, filed March 27, 2006.) Thereafter, plaintiff was contacted by Margaret Crosby to interview for the position of CPS Supervisor in defendant Lassen County ("Lassen"). (TAC ¶ 17.) After plaintiff interviewed for the position, she was offered the job by defendant Crosby, Lassen's Deputy Director of Health and Human Services. (TAC ¶¶ 18-19.) Before accepting the position, plaintiff informed Crosby that she was in remission from panic/anxiety disorder and that such condition could recur if more than ordinary levels of stress were involved in her position at CPS. (TAC ¶ 20.)Plaintiff commenced employment on May 12, 2003, relying on Crosby's assurances that CPS was in good order and provided health insurance benefits to its managerial employees while on disability leave. (TAC ¶¶ 34, 25-28, 30.) However, plaintiff later learned that CPS was subject to a grand jury investigation and was in a state of non-compliance with the California Department of Social Services. (TAC ¶¶ 40.) This was not disclosed to plaintiff during her interview process; rather defendants Crosby and Margolies, Lassen's Personnel Director, intentionally withheld this information from plaintiff. (TAC ¶¶ 9, 26-27.) Plaintiff later learned that CPS was understaffed by more than half of its required full-time employees, which dictated that plaintiff work between 70 and 80 hours per week. (TAC ¶¶ 37-38.)
Plaintiff was promoted to Director of CPS in November 2003. (TAC ¶ 45.) Around the same time, plaintiff completed her 6-month probationary period and became a permanent employee. (TAC ¶ 48.) Shortly after she was promoted, a coworker, Deanna Bovee, lodged a female-on-female sexual harassment complaint against plaintiff. (TAC ¶ 57.) During this time, plaintiff also became the subject of sexually-orientated slurs by members of CPS staff. (TAC ¶ 49.) In early January 2004, plaintiff demanded that action be taken regarding the allegedly false sexual harassment claim filed against her. (TAC ¶ 58.) Although Bovee's allegation was recanted, no action was taken to remedy such accusations or clear plaintiff's name. (TAC ¶¶ 59-61.) In addition, these allegations were investigated by Jim Jackson in March and April 2004. (TAC ¶ 73.) Jackson found that plaintiff was injured by the false allegations and that disciplinary action should be taken against the complainant. (Id.) However, no action was taken in response to Jackson's report. (TAC ¶ 74.)
In early 2004, plaintiff sought to hire a CPS social worker. (TAC ¶ 63.) Defendant Mannel, Lassen's Director of Mental Health, demanded that plaintiff hire his wife. Plaintiff refused because Mannel's wife did not apply for the position through the proper channels. (TAC ¶¶ 5, 54-55.) Instead, plaintiff offered the position to Bill Snitkin. (Id. at 63.) Defendant Margolies directed plaintiff to rescind the job offer to Snitkin, or in the alternative, prepare for his termination by "starting a paper trail," because Snitkin was HIV positive. (TAC ¶¶ 64.) Plaintiff refused to rescind the offer. (TAC ¶ 65.) On February 17, 2004, defendants Whiteman, Mannel and Margolies met with Plaintiff and again demanded she hire Mannel's wife. (TAC ¶ 66.) At this time, Whiteman was Lassen's Chief Administrative Officer. (TAC ¶ 8.) Following another demand to hire Mannel's wife in March 2004, plaintiff sought medical care for anxiety induced chest pains. (TAC ¶ 71.)
Thereafter, plaintiff believes that defendants Whiteman, Mannel, and others attempted to solicit negative information about plaintiff, which may have resulted in the filing of a second female-on-female sexual harassment complaint against plaintiff. (TAC ¶¶ 72, 75.) Again, the complaint was later recanted. (TAC ¶ 78.) Plaintiff believes that Chapman, a member of Lassen's Board of Supervisors, as well as Whiteman and Mannel, met with Woody Morgan, managing editor of the Lassen County News. (TAC ¶¶ 8, 76.) Plaintiff also believes that these defendants made defamatory statements and provided false and misleading information to Morgan regarding plaintiff's professionalism and management of CPS. (TAC ¶ 77.) Thereafter, plaintiff was "shocked and humiliated" by the call for plaintiff's termination in Morgan's article published in the Lassen County News on May 11, 2004. (TAC ¶¶ 79-80.)
Plaintiff believes that, as a result of her complaints regarding the allegedly false sexual harassment claims, her refusal to hire defendant Mannel's wife, her refusal to rescind the job offer to Snitkin, and her refusal to engage in discriminatory conduct toward Snitkin, defendants Whiteman, Chapman, Mannel, and others conspired to create intolerable working conditions and to interfere with her civil rights so as to cause her to quit her job or take a disability leave. (TAC ¶¶ 67, 69.)
Plaintiff also believes Whiteman discriminated against women employed by Lassen. (TAC ¶ 81.) In April 2004, Whiteman told plaintiff she should "leave the bigger issues to the men in management." (TAC ¶ 82.) Mannel, a male employee with the same level of responsibility, the same title and comparable duties earned approximately $20,000 more per year than Plaintiff. (TAC ¶ 84.)
On June 1, 2004, defendant Bixby, Lassen's Chief Administrative Officer, informed plaintiff by memorandum that he was placing the operations of CPS under the control of defendant Mannel. (TAC ¶ 87.) On that same date, plaintiff began a 14 day medical leave as a result of work-related stress. (TAC ¶ 88.) Subsequently, plaintiff sought the care of a psychiatrist, who diagnosed plaintiff as suffering from post traumatic stress disorder. (TAC ¶ 93.) As a result of her mental and emotional condition, plaintiff has been unable to seek suitable re-employment after July 27, 2004. (TAC ¶ 96.)
While plaintiff took medical leave, Mannel prohibited CPS staff from contacting her and repeatedly made false, degrading comments about her professional abilities during staff meetings. (TAC ¶¶ 89-90.) During this time, Mannel removed and destroyed her diplomas and other personal property from her office. (TAC ¶ 91.) Defendant Bixby demanded by letter on June 15, 2004 that plaintiff refrain from contacting any member of the staff at CPS. (TAC ¶¶ 6, 92.) This action effectively ended plaintiff's authority over CPS. (TAC ¶ 92.) Plaintiff remained on sick and/or medical leave until July 27, 2004. (TAC ¶ 95.) In November 2004, plaintiff received a letter from Ronald Vossler, Lassen County Human Resources Director, notifying plaintiff that her health care premium payments were overdue and her benefits would be discontinued effective September 2004. (TAC ¶ 98-99 and Ex. 14.)
Plaintiff filed a claim for damages with the County on December 10, 2004. (TAC ¶ 101.) Plaintiff's claim alleged that plaintiff was wrongfully terminated on December 1, 2004. (TAC at Ex. 15.) Plaintiff's claim also alleged that she was subjected to a hostile work environment, which caused her to have an emotional breakdown and to suffer from post traumatic stress disorder. (Id.) In addition, plaintiff's claim included allegations of malicious acts by County officials, slander and retaliation for whistle blowing. (Id.) Plaintiff alleged that John Kettleson, all Supervisors of Lassen County, William Bixby, Margaret Crosby, and others caused her injuries. (Id.) The County denied plaintiff's claim on January 11, 2005. (TAC ¶ 102.) Plaintiff submitted another claim to Lassen by letter dated March 10, 2005. (TAC ¶ 113.) She later filed an amended complaint with Lassen on March 25, 2006. (TAC ¶ 120.)
Plaintiff also filed complaints with the Department of Fair Employment and Housing ("DFEH"). She called the DFEH on March 14, 2005 to inquire about filing a complaint and scheduled an interview for June 14, 2005. (TAC ¶ 103.) Plaintiff filed charges for discrimination, harassment and retaliation with the DFEH in June 2005. (TAC ¶ 105 and Ex. 17.) The DFEH issued a right-to-sue notice on June 27, 2005. (TAC ¶ 106.) Plaintiff then filed claims for violations of Title VII and the Americans with Disabilities Act ("ADA") with the Equal Employment Opportunity Commission ("EEOC") on July 12, 2005. (TAC ¶ 107.) The EEOC issued a right-to-sue notice on September 1, 2005. (TAC ¶ 108.) The Department of Justice issued a right to sue letter based on plaintiff's ADA claim October 4, 2005. (TAC ¶ 109.)
Plaintiff received a final termination letter from Lassen dated November 18, 2005. (TAC ¶ 110.) After receipt of this letter, plaintiff requested COBRA benefits. Lassen did not grant the request. (TAC ¶ 111-12.) Plaintiff submitted an additional claim to DFEH restating complaints against Mannel on January 28, 2006. (TAC ¶ 115.) The DFEH issued a right to sue notice for this claim on March 10, 2006. (TAC ¶ 117.) Plaintiff requested a right to sue notice from the EEOC regarding these restated complaints on March 13, 2006, which was issued by the Department of Justice on March 27, 2006. (TAC ¶¶ 118-19.)
Plaintiff filed her first complaint with this court June 1, 2005. She then filed an amended complaint which defendants moved to dismiss. On February 22, 2006, this court granted in part and denied in part defendants' motion to dismiss. The court denied defendant's motion to dismiss plaintiff's claims of first amendment violations under 42 U.S.C. § 1983. The court dismissed plaintiff's other claims and granted plaintiff's motion for leave to amend to add claims pursuant to Title VII, the ADA and slander. The court also granted plaintiff's motion for leave to amend deficiencies in those claims that were not dismissed with prejudice. A stipulation order on March 15, 2006 permitted plaintiff to include additional facts and claims arising out of events which occurred after filing the second amended complaint. Plaintiff filed her third amended complaint April 26, 2006.
Defendants move to dismiss plaintiff's claims for: (1) violations of her due process rights under 42 U.S.C. § 1983; (2) violations of the California Fair Employment and Housing Act ("FEHA") for retaliation, harassment and discrimination; (3) violation of Title VII for retaliation and sexual discrimination; (4) violation of the ADA; and (5) slander.
Defendants do not move to dismiss plaintiff's seventh claim for relief for wrongful termination in violation of public policy.
Plaintiff requests leave to amend to add claims for: (1) Title VII discrimination in compensation; (2) violation of Federal Equal Pay Act and the California Equal Pay Act; (3) violation of FEHA for discrimination in compensation; (4) negligent infliction of emotional distress ("NIED"); (5) conversion of personal property; and (6) violation of COBRA.
Plaintiff asserts that her new claims fall within the March 15, 2006 stipulation and order, which granted plaintiff leave to amend to add new claims arising out of facts occurring after October 13, 2005. The facts supporting plaintiff's new claims occurred before October 13, 2005. Therefore, the court did not grant plaintiff leave to amend her new claims, and the court interprets plaintiff's inclusion of her new claims as a request for leave to amend.
Standard
A. Motion to Dismiss
On a motion to dismiss, the allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n. 6 (1963). Thus, the plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. See Id.
A complaint need not plead all elements of a prima facie case in order to survive a motion to dismiss. Swierkewicz v. Sorema N.A., 534 U.S. 506, 510-512 (2002) (rejecting a heightened pleading standard for employment discrimination and civil rights cases). Fair notice of the grounds for relief along with a short and plain statement of the claim are all that is required. Id. at 508 (citing Fed.R.Civ.Proc. 8(a)(2)).
Given that the complaint is construed favorably to the pleader, the court may not dismiss the complaint for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957);NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). Nevertheless, it is inappropriate to assume that plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged."Associated Gen. Contractors of Cal., Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). Moreover, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n. 2 (9th Cir. 1986).
In ruling upon a motion to dismiss, the court may consider only the complaint, any exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201.See Mir v. Little Co. Of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. Consumers Union of United States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998).
Rule 201 permits a court to take judicial notice of an adjudicative fact "not subject to reasonable dispute," in that the fact is either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R. EvId. 201(b). The court can take judicial notice of matters of public record, such as pleadings in another action and records and reports of administrative bodies. See Emrich v. Touche Ross Co., 846 F.2d 1190, 1198 (9th Cir. 1988).
B. Leave to Amend
Pursuant to Rule 15(a), "leave [to amend] is to be freely given when justice so requires." "[L]eave to amend should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay."Martinez v. Newport Beach, 125 F.3d 777, 785 (9th Cir. 1997).
Analysis
A. Motion to Dismiss
1. Defendant Crosby
Defendant Crosby moves to dismiss all claims because plaintiff's third amended complaint does not state any specific claim for relief against her. Plaintiff does not oppose dismissing all claims against defendant Crosby. Therefore, defendant Crosby's motion to dismiss is GRANTED.
Defendants Lassen, Mannel, Bixby, Whiteman, Margolies, and Chapman move to dismiss plaintiff's due process claim on the grounds that plaintiff has not sufficiently alleged a property interest in her continued employment. Plaintiff asserts that she has sufficiently pled a due process claim because she has alleged that after passing her 6-month probationary period she became a tenured employee with a valid property interest in her employment. "The Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). Due process guarantees of the Fourteenth Amendment are implicated only when a constitutionally protected property or liberty interest is at stake. Sanchez v. City of Santa Ana, 915 F.2d 424, 428 (9th Cir. 1990) (citations omitted). Property interests are not created by the constitution.Id. (citing Bd. of Regents v. Roth, 408 U.S. 564 (1972)). Rather they are created "by existing rules or understandings that stem from an independent source such as state law." Id.
The California Civil Service Act, Cal. Gov't Code § 18500, et seq., provides that an employee who attains permanent status has a statutory right to continued employment. Duncan v. Dep't of Personnel Admin., 77 Cal. App. 4th 1166, 1175 (2000) (citing Skelly v. State Personnel Bd., 15 Cal. 3d 194 (1975)). This status requires the state to comply with procedural due process requirements. Id. Permanent status is achieved when an employee, who is lawfully retained, completes the requisite probationary period. Cal. Gov't Code § 18528. The length of the probationary period is either six months, or a time period determined by the board not to exceed one year. Id. § 19170.
Defendants argue that plaintiff's position as Director of CPS was not a permanent employment position. Defendants request the court to take judicial notice of the Lassen County job description for Director of CPS and the Lassen County Personnel Rules and Regulations as evidence that plaintiff was an "at will" employee. (Defs.' Req. for Judicial Notice ¶¶ 7, 8.) Rule 12(b) states, "[if] matters outside the pleading are presented to and not excluded by the court, the motion [to dismiss] shall be treated as one for summary judgment . . . and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion under Rule 56." However, a court may look beyond the complaint to uncontested matters of public record when deciding a motion to dismiss. Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986), overruled on other grounds by Astoria Fed. Sav. Loan Ass'n v. Solimino, 501 U.S. 104 (1991).
The court will not take notice of these documents for the purposes of this motion to dismiss. In this case, the public entity in control of the documents is also a defendant. The court cannot assume the authenticity and applicability of the documents without following the provisions of Rule 56, which give both parties a reasonable opportunity to refute the authenticity and content of the documents. Because the court does not convert this motion to dismiss to a motion for summary judgment, the documents are not relevant to the present motion.
Plaintiff makes very serious, and presently unsupported, accusations that the proposed documents from Lassen are doctored. (Pl.'s Opp'n to Mot. to Dismiss 9.) The court does not consider these accusations at this time and makes no ruling on the matter.
Plaintiff alleges that she commenced working for Lassen CPS as a supervisor on May 19, 2003, and was promoted to Director of CPS in November 2003. Plaintiff further alleges that she completed her six month probationary period in November 2003 and became a "tenured" employee. (TAC ¶ 48.) Pursuant to the California Civil Service Act, plaintiff acquired a property interest in her employment once she passed the probationary period and became a permanent employee with a legitimate claim of entitlement to continued employment. Accepting all allegations in the complaint as true and drawing all reasonable inferences in favor of the plaintiff, the complaint adequately alleges a property interest in plaintiff's employment with the county which is protected under due process. Therefore, defendants' motion to dismiss plaintiffs § 1983 claim for failure to allege a valid property interest is DENIED.
3. Fair Employment and Housing Act ("FEHA") Claims
a. Individual liability of defendants
Defendants Mannel, Bixby, Whiteman and Chapman move to dismiss plaintiff's FEHA claims against them as individuals. Defendants contend that plaintiff cannot hold them individually liable for discrimination under FEHA. Under California law, individual employees cannot be held liable for violations of employment discrimination. Cal. Gov't Code § 12940(a); Reno v. Baird, 18 Cal. 4th 640 (1998). Only an employer may be held liable for discrimination. Id. Therefore, to the extent plaintiff claims employment discrimination under FEHA, defendants Mannel, Bixby, Whiteman and Chapman's motion to dismiss in their individual capacities is GRANTED.
Individuals may be held liable under FEHA for harassment or retaliation. Winarto v. Toshiba America Electronics Components, Inc., 274 F.3d 1276, 1288 (9th Cir. 2001); Walrath v. Sprinkel, 99 Cal. App. 4th 1237, 1240 (2002). Plaintiff's third amended complaint includes FEHA claims of retaliation and harassment against defendants Mannel, Bixby, Whiteman and Chapman. (TAC ¶¶ 130-44.) Therefore, plaintiff's inclusion of individual defendants to these claims is permissible.
b. Timeliness of FEHA claims
Defendants Lassen, Mannel, Bixby, Whiteman, and Chapman move to dismiss plaintiff's FEHA claims because she did not timely file a claim with the Department of Fair Employment and Housing ("DFEH"). This court dismissed plaintiff's earlier FEHA claims for failure to allege timely exhaustion of administrative remedies required by FEHA. Pursuant to Rule 15(a), the court granted plaintiff leave to amend her second amended complaint to correct any deficiencies found in the pleading. Plaintiff argues that her third amended complaint repairs the deficiencies present in the previous complaint and properly alleges timely exhaustion of administrative remedies.
FEHA prohibits discrimination or harassment based on sexual orientation. Cal. Gov't Code §§ 12940(a), 12940(j). FEHA further prohibits retaliation against an employee who opposes discrimination or harassment. Id. § 12940(h). In order to pursue a judicial remedy for a violation, a claimant must file an administrative claim with the DFEH within one year of the violation's occurrence. Id. § 12960(d). When a series of incidents occur, California courts may consider these actions as a single event for purposes of beginning the period of limitations under the continuing violation doctrine. Richards v. CH2M Hill, Inc., 26 Cal. 4th 798, 801 (2001). The continuing violation doctrine applies when (1) the actions are sufficiently similar in kind; (2) they occur with sufficient frequency; and (3) they have not acquired a degree of permanence, such as the employee's resignation. Id. This doctrine also applies to claims for retaliation and harassment. Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1059 (2005).
In Richards, an employee brought suit against her employer for disability discrimination. Richards, 26 Cal. 4th at 801. Plaintiff alleged multiple instances of discriminatory conduct and refusal to accommodate throughout her employment and until her resignation. Many of the incidents plaintiff relied on occurred outside the period of limitations defined by FEHA. Id. The court determined the series of incidents should be considered a single action if (1) the actions are sufficiently similar in kind, (2) they occur with sufficient frequency, and (3) they have not acquired a degree of permanence. The court found the employer's continued pattern of harassment throughout plaintiff's employment met the first and second elements. Id. at 824. For the final element, the court held permanence is achieved when the employer stops the discriminatory conduct, the employee resigns, or the employee is on notice that further efforts to end the unlawfully conduct are in vain. Id. at 823.
Plaintiff alleges that defendants engaged in retaliatory conduct against her because of her complaints regarding sexual harassment by Bovee and her refusal to discriminate against Snitkin. (TAC ¶¶ 133.) Plaintiff also alleges that various employees of Lassen engaged in ongoing sexual orientation harassment by making derogatory comments about her and other homosexuals. (TAC ¶ 139-40.) Plaintiff asserts that these events began in November 2003 and continued through her cessation of employment as Director of Lassen CPS in July 2004 and until her termination. (TAC ¶¶ 130-44.) Accepting plaintiff's allegations as true, plaintiff sufficiently alleges that defendants created an ongoing environment of harassment, retaliation and discrimination over a period of several months. These actions may be sufficiently similar in type and frequency to constitute a single event thereby giving rise to application of the continuing violation doctrine.
Plaintiff argues that defendants' alleged denial of benefits in November 2004 would delay the period of limitations under the continuing violation doctrine. Plaintiff alleges that she was diagnosed by a psychiatrist as suffering from post traumatic stress disorder, major depression, panic anxiety disorder and agoraphobia. (TAC ¶ 93.) She further asserts that she has had a disability from July 27, 2004 until the date of filing this action. (TAC ¶ 96.) Plaintiff alleges that she was assured during her interview process that Lassen maintained group health benefits while managerial employees were on disability leave. (TAC ¶ 30.) Assuming these facts to be true, plaintiff has sufficiently asserted facts that lead to a reasonable assumption that plaintiff was on disability leave after July 27, 2004. Plaintiff also asserts that her benefits were denied because of the ongoing discrimination, harassment and retaliation of defendants. (TAC ¶¶ 134, 143.) The court can reasonably infer from these allegations that permanence regarding the violation of plaintiff's rights may not have occurred until her benefits were denied during disability leave. Such a showing could give rise to the application of the continuing violation doctrine. Plaintiff filed a complaint with the DFEH in June 2005. November 2004 falls within one year of June. Therefore, plaintiff has sufficiently pled timely compliance under FEHA.
Plaintiff filed an additional complaint with the DFEH on January 28, 2006. Because plaintiff has alleged sufficient facts to support timely filing of her FEHA claims based on her June 2005 DFEH complaint, the court does not consider the timeliness of her January 28, 2006 DFEH complaint at this time.
Alternatively, plaintiff also alleges that, at a minimum, she was on sick leave and/or vacation until July 27, 2004. (TAC ¶ 95.) Assuming that plaintiff was still an employee until July 27, 2004, she has alleged sufficient facts to argue that permanence was not achieved before that time, thereby giving rise to application of the continuing violation doctrine. July 27, 2004 falls within one year of June 2005. Therefore, even if plaintiff had not alleged timeliness regarding the November 2004 denial of benefits, she has still pled timely compliance under FEHA.
Plaintiff further contends that the March 2004 phone call to DFEH raises issues of equitable tolling. Because plaintiff has alleged facts sufficient to survive a motion to dismiss under the continuing violation doctrine, the court does not address her equitable tolling argument. However, this does not preclude plaintiff from raising the argument later in the litigation.
b. Harassment
Defendants Lassen, Mannel, Bixby, Whiteman, and Chapman move to dismiss plaintiff's sexual orientation harassment claim for failure to state a claim. Defendants argue that plaintiff does not allege a sufficiently severe and/or pervasive environment to claim hostile work environment harassment. Defendants also argue that the complaint does not allege that any of the individual defendants engaged in discriminatory name-calling.
FEHA prohibits harassment based on sexual orientation. Cal. Gov't Code § 12940(j). However, when pleading employment discrimination, a plaintiff need not allege a prima facie case with particularity so long as the allegations give defendants notice of and the basis for the charges against them.Swierkiewicz v. Soreman, 534 U.S. 506, 508, 512 (2002). To sufficiently plead a prima facie case for a violation of FEHA based on hostile work environment, plaintiff must allege that the "workplace [was] permeated with discriminatory intimidation . . . that [was] sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citations omitted); Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 609 (1989). Acts of harassment cannot be occasional, isolated, sporadic or trivial.Id. The severe and pervasive requirement applies to sexual orientation harassment. Murray v. Oceanside Unified School Dist., 79 Cal. App. 4th 1338, 1361 (2000). A plaintiff personally subjected to derogatory remarks may sufficiently establish a hostile work environment. Hope v. California Youth Auth., 134 Cal. App. 4th 577, 590 (2005) (citing Fisher, 214 Cal. App. 3d at 610-11). Supervisors with the authority to control the environment may be held personally liable for harassment in violation of FEHA if they tacitly approved of the actions or if they were aware of the harassment and failed to take action to prevent it. Matthew v. Superior Court, 34 Cal. App. 4th 598, 604 (1995).
Because the anti-discrimination objective and relevant wording of Title VII and § 1981 are similar to those of FEHA, "California courts often look to federal decisions interpreting these statutes for assistance in interpreting the FEHA."Richards, 26 Cal. 4th at 812.
Plaintiff alleges that employees of Lassen directed derogatory comments regarding her sexual orientation toward her and others while in her presence. (TAC ¶¶ 49-50.) Plaintiff asserts that this behavior was ongoing and frequent. (TAC ¶¶ 139-40.) Plaintiff alleges that she repeatedly contacted defendants Margolies and Whiteman complaining about this ongoing sexual orientation harassment and that they did nothing to resolve the issue. (TAC at Ex. 7.) Plaintiff includes a letter alleging that defendant Bixby knew about the harassing behavior when he became her supervisor and was complicit in the plan to force her out of CPS. (TAC at Ex. 11.) Plaintiff alleges that defendants Mannel, Whiteman and Chapman entered into an agreement to create intolerable working conditions because of her sexual orientation and gender. (TAC ¶¶ 67-68.) Plaintiff asserts defendants Mannel, Whiteman and Chapman then provided defamatory information to the Lassen County Times regarding her performance at CPS. (TAC ¶ 77 and Ex. 11.) Plaintiff asserts that Mannel made defamatory comments about her during staff meetings while she was on leave. (TAC ¶ 90.) Plaintiff also asserts that Mannel destroyed her personal property, such as diplomas and certificates. (TAC ¶ 91.) These allegations sufficiently assert that defendants Lassen, Mannel, Bixby and Whiteman engaged in conduct that could have created a severe and pervasive hostile work environment. As supervisors, defendants Bixby and Whiteman are personally liable if they knew of the harassing behavior and did nothing to stop it. Matthews, 39 Cal. App. 4th at 604. In regards to plaintiff's claims against defendant Mannel, plaintiff has alleged that he committed specific acts of harassment through his comments and destruction of property. Under the broad notice pleading standard set forth by the Federal Rules of Civil Procedure, plaintiff has alleged a scenario where it may be reasonably inferred that the defendants' conduct was harassing and, at least in part, motivated by her sexual orientation. Therefore, defendants Lassen, Mannel and Whiteman's motion to dismiss plaintiff's FEHA claim for harassment is DENIED.
Plaintiff also claims her refusal to hire Mannel's wife was a motivating factor. This refusal is not a protected activity under FEHA. However, plaintiff has sufficiently alleged that defendants relied on prohibited motivations as well.
Defendant Mannel argues that plaintiff did not include his derogatory comments in her DFEH complaint; therefore, she cannot raise a FEHA complaint based on those actions. This argument is unpersuasive. Plaintiff included "harassment" as a base for her complaint, and Mannel's alleged comments could be a form of harassment.
However, plaintiff has not sufficiently asserted a claim of harassment by defendant Chapman. Plaintiff's only allegation against defendant Chapman is that he made defamatory statements to the Lassen County Times. This allegation by itself does not sufficiently give rise to a claim for harassment in violation of FEHA against Chapman. Furthermore, plaintiff has not alleged that Chapman was a supervisor with any control over the hostile environment. Cf. Matthew, 34 Cal. App. 4th at 604. As such, defendant Chapman's motion to dismiss plaintiff's claim of harassment in violation of FEHA is GRANTED.
c. Retaliation
Defendants Lassen, Mannel, Bixby, Whiteman, and Chapman move to dismiss plaintiff's FEHA retaliation claim because she does not assert sufficient facts to state a claim for relief. Specifically, defendant Mannel asserts that the allegations in the complaint do not sufficiently link the alleged retaliatory conduct to any protected activity.
FEHA prohibits retaliation against an employee who opposes discrimination or harassment. Cal. Gov't Code § 12940(h). In the instant case, plaintiff asserts that her constructive termination resulted from defendants retaliation against her for her refusal to discriminate against Snitkin based on his HIV status and her complaints regarding Bovee's harassment. Plaintiff's third amended complaint specifically alleges that defendants Mannel, Whiteman and Chapman entered into an agreement to force plaintiff to quit or take disability leave. (TAC ¶¶ 68-69.) The allegations of harassing conduct by defendants Lassen, Mannel and Whiteman described above could have contributed to plaintiff's eventual constructive termination. Plaintiff also alleges defendant Bixby was involved in a plan to force her out in retaliation for her refusal to hire Snitkin and her complaints about Bovee. (TAC ¶ 133.) Specifically, plaintiff alleges Bixby ended her authority over CPS by demanding that she refrain from contacting any CPS staff. (TAC ¶ 92.) At the pleading stage, the court may reasonably infer that the alleged actions of Mannel, Whiteman and Bixby contributed to plaintiff's constructive termination. It may also be reasonably inferred from plaintiff's allegations that those actions were taken, at least in part, in retaliation for plaintiff's refusal to discriminate against Snitkin and her complaints about Bovee. As such, plaintiff's complaint sufficiently alleges that defendants Lassen, Mannel, Whiteman and Bixby engaged in conduct in retaliation for plaintiff's protected activities under the broad notice pleading standard set forth in the Federal Rules of Civil Procedure. Therefore, defendants Lassen, Mannel, Whiteman and Bixby's motion to dismiss plaintiff's FEHA claim for retaliatory conduct is DENIED.
However, plaintiff has again not sufficiently asserted a claim of retaliation by defendant Chapman. Plaintiff alleges that Chapman may have contributed to defamatory statements to the Lassen County Times and also stated that plaintiff "would be gone in 30 days". (TAC ¶¶ 76-77 and Ex. 11.) These allegation do not sufficiently allege that Chapman took any actions that contributed to plaintiff's constructive termination. Nor does plaintiff allege that Chapman had any authority over her employment at CPS. As such, defendant Chapman's motion to dismiss plaintiff's claim of retaliation in violation of FEHA is GRANTED.
4. Title VII Claims
Defendant Lassen moves to dismiss plaintiff's claims for hostile work environment and retaliation violations under 42 U.S.C. §§ 2000e et seq. ("Title VII"). Defendant asserts that plaintiff did not comply with a mandatory provision to timely pursue an administrative remedy with the EEOC.
Title VII claims must comport with EEOC filing requirements. 42 U.S.C. § 12117(a). When a state claim has been filed, the EEOC filing deadline is 300 days after the alleged violation. Id. § 2000e-5(e)(1). Therefore, a party must file a charge within 300 days of the date of the act or lose the ability to recover for it. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002). The Supreme Court differentiates between discrete acts of discrimination and ongoing acts of work environment harassment.Id. at 117. If an act contributing to a hostile work environment claim occurs within the filing period, the entire time period of the hostile environment may be considered by the court. Id. In contrast, for claims of discrimination or retaliation:
discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the . . . 300-day time period after the discrete discriminatory act occurred. Porter v. California Dept. of Corr., 419 F.3d 885, 891-92 (9th Cir. 2005) (citing Morgan, 536 U.S. at 122). However, events outside of the 300-day time period may be used as supporting evidence to show that actions occurring within the period of limitations were discriminatory or retaliatory. Id.
In the present case, plaintiff's third amended complaint asserts hostile work environment and retaliation claims under Title VII. Plaintiff filed her Title VII claims with the EEOC on July 12, 2005. (TAC ¶ 107.) Because plaintiff filed a state claim, the EEOC filing deadline requires all claims to have accrued within the preceding 300 days. In this case, plaintiff's claims must have accrued on or after September 14, 2004. The court reviews each claim in turn.
Plaintiff filed an additional complaint with the EEOC on March 13, 2006. Because plaintiff has alleged sufficient facts to support timely filing of her EEOC claims based on her July 12, 2005 EEOC complaint, the court does not consider the timeliness of her March 13, 2006 complaint at this time.
a. Hostile Work Environment
Plaintiff asserts that she was subject to a hostile work environment because of Lassen's sex-based harassment. A Title VII hostile work environment claim may include events occurring before the period of limitations if an event contributing to the claim occurs within the filing period. Morgan, 536 U.S. at 117. Plaintiff alleges that Lassen employees discriminated against and harassed her because of her gender. (TAC ¶¶ 67-68, 82-84, 90, 91.) Plaintiff also alleges that Whiteman, Lassen's Chief Administrative Officer, sought to create an environment where men held positions of power and authority. (TAC ¶ 81.) Plaintiff also alleges Lassen had a pattern of harassing and discriminating against women. (TAC at Ex. 9.) Finally, plaintiff alleges that defendant Lassen denied her benefits in November 2004 as part of an ongoing practice that created a hostile work environment. (TAC ¶ 99.) Taken together, these allegations may reasonably support the claim that plaintiff was subjected to a hostile work environment by employees of Lassen because she was a woman. Plaintiff's alleged denial of benefits in November 2004 may be considered a final component of the cumulative harassment that led to her terminations. As such, plaintiff has sufficiently pled sufficient actions to support a claim of harassment that occurred within the period of limitations. Therefore, defendant's motion to dismiss plaintiff's Title VII hostile work environment claim is DENIED.
b. Retaliation
Plaintiff asserts a claim for retaliation in violation of Title VII. Defendant argues that plaintiff has not pled sufficient facts to support a Title VII retaliation claim.
Title VII prohibits discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). When pleading employment discrimination in violation of Title VII, a plaintiff does not need to allege a prima facie case.Swierkiewicz, 534 U.S. at 508. The complaint must contain only a short and plain statement stating what the claim is and the grounds upon which it rests. Id. at 512.
Plaintiff alleges that defendant Lassen harassed her with the intention of forcing her to quit work because of the complaints she made about the behavior of Bovee and other employees. (TAC ¶ 165-66). Drawing all reasonable inferences from the allegations in the complaint in favor of plaintiff, plaintiff alleges that Bovee's false sexual harassment claim was a form of harassment against her because of her sexual orientation and gender. Title VII does not prohibit discrimination or harassment based on sexual orientation, but does prohibit harassment on the basis of gender. 42 U.S.C. § 2000e-2(a)(1). Plaintiff asserts that she complained about the false sexual harassment claims by Bovee and that she was subsequently terminated because of these complaints. Under the broad pleading standard required for employment discrimination, plaintiff has sufficiently alleged a claim of retaliation in violation of Title VII. Therefore, defendant's motion to dismiss plaintiff's Title VII retaliation claim is DENIED.
5. Americans with Disabilities Act.
Plaintiff alleges discrimination and failure to accommodate in violation of the ADA. Defendant Lassen argues that plaintiff's claim is invalid because it does not meet the EEOC filing requirements. Defendant also argues that the claim is not supported by facts asserted in the complaint.
The time requirements for plaintiff's EEOC filing for claims of ADA violations are the same requirements as under her claims of Title VII violations; thus, events occurring before September 14, 2004 are not actionable as an ADA claim. However, plaintiff may assert facts occurring before September 14, 2004 as evidence in support of other timely claims. Porter, 419 F.3d at 891-92. As set forth above, plaintiff alleges that she had a disability from July 27, 2004 through the date of filing the instant action. Plaintiff also alleges that defendant discontinued her health benefits in November 2004 because of her disability. As such, Plaintiff sufficiently alleges that a discrete act of discrimination occurred within the EEOC filing period. Therefore, plaintiff has sufficiently pled timely compliance with the EEOC filing requirement.
To state a claim for relief under the ADA, a plaintiff must establish: (1) that she is a disabled person within the meaning of the ADA; (2) that she is able to perform the essential functions of the job (with or without accommodation); and (3) that the employer terminated her because of her disability.Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999). An ADA claim must follow the same EEOC filing deadlines as the Title VII claims described above. 42 U.S.C. § 12117(a).
Plaintiff alleges that she is disabled and was capable of performing her job duties with reasonable accommodations. (TAC ¶¶ 20, 21, 88, 93, 95, 97, 155, 156, 159.) Plaintiff also alleges that defendant Lassen was aware of and failed to accommodate her disability and that she was fired because of her disability. (TAC ¶¶ 20, 21, 157-61.) Plaintiff asserts that she repeatedly asked Lassen supervisors and managers to investigate false sexual harassment charges against her and that their failure to do so exacerbated her disability. (TAC ¶¶ 58, 62.) Taking all plaintiff's allegations as true, she has sufficiently pled substantive facts that could give rise to a claim for violation of the ADA.
Defendant argues that plaintiff's claim fails because she did not adequately inform Lassen of her required accommodations. Defendant also argues that requesting an accommodation to provide a stress-free environment would be ludicrous. These arguments seeking for the court to adjudicate the merits of plaintiff's claims are not appropriately considered by the court on a motion to dismiss. Plaintiff has sufficiently alleged elements necessary for an ADA claim. Therefore, defendant's motion to dismiss plaintiff's ADA claim is DENIED.
6. Slander
Defendants move to dismiss plaintiff's slander claim on the grounds that plaintiff failed to sufficiently plead the substance of her slander claim. Under California Civil Code § 46, "slander is a false publication, orally uttered . . . which . . . (3)tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires." The statutory definition of slander is very broad and includes any language which, on its face, has a natural tendency to injure a person with respect to her occupation. Sempler v. Andrews, 27 Cal. App. 2d 228, 232 (1938).
Plaintiff alleges that defendants Mannel, Whiteman, Bixby and Chapman made, or conspired to make, false, defamatory statements regarding her professionalism. (TAC ¶¶ 203-205.) Defendants claim plaintiff has not pled sufficient facts to support a claim of slander. However, defendants' reliance on the unreported caseJones v. Thyssenkrupp Elevator Corp. is unpersuasive. 2006 U.S. Dist. LEXIS 13978 (N.D. Cal. 2006). In Jones, the plaintiff failed to identify the speakers, the recipients or the timing of the defamatory remarks. Id. at *17. Here, plaintiff specifically asserts that Whiteman, Mannel, Chapman and "possibly others" made false and defamatory comments about her management of CPS. (TAC ¶ 76.) These statements resulted in a newspaper article calling for the replacement of plaintiff as director of CPS. (TAC at Ex. 13.) Plaintiff gives an approximate date of April or May 2004 regarding the comments to the Lassen County Times. Plaintiff also gives a date range from June 1, 2004 through August 15, 2004 regarding derogatory comments made by Mannel at staff meetings. (TAC ¶¶ 76, 206.) As such, plaintiff's claim properly asserts a claim of slander. The complaint provides sufficient notice to defendants of what they are charged with and the grounds for relief as required by Rule 8(a). Therefore, defendants' motion to dismiss plaintiff's slander claim is DENIED.
B. Leave to Amend
The court interprets plaintiff's third amended complaint as a request for leave to amend with regard to plaintiff's previously unidentified claims. At this early stage of litigation, granting leave to amend will not unduly burden defendants. Further, there is no evidence that the request is made in bad faith. Plaintiff makes a legitimate request following substitution of counsel. Consequently, plaintiff's request for leave to amend requires an analysis of whether the claims are futile.
1. Equal Pay
a. Title VII
Plaintiff includes a new claim under Title VII discrimination in compensation. This claim follows the EEOC filing requirements discussed above. Plaintiff sufficiently alleges facts that may support the assertion she was an employee on disability leave until November 2004. As such, defendant's alleged discrimination in compensation would extend into the period of limitations required by the EEOC filing deadline. The court cannot at this time consider defendant's assertion that plaintiff received her last discriminatory paycheck outside the period of limitations. Because plaintiff has asserted facts which, if true, would show timely compliance with the EEOC filing deadline, her Title VII discrimination in compensation claim is not futile. Therefore, plaintiff's motion for leave to amend is GRANTED.
b. Federal Equal Pay Act, 29 U.S.C. § 206 and California Equal Pay Act, Labor Code § 1197.5
Plaintiff seeks to amend her complaint to add a claim for unequal pay based on gender in violation of the Federal Equal Pay Act and the California Equal Pay Act. (TAC ¶¶ 181-92.) These acts prohibit an employer from discriminating between employees on the basis of sex by paying different wages. 29 U.S.C. § 206(d); Cal. Labor Code § 1197.5. If employees of the opposite sex are employed in equal work on jobs requiring equal skill, effort and responsibility, and those jobs are performed in similar working conditions, then the employer must pay them equally. Id.
Plaintiff alleges that (1) she was engaged in jobs with men requiring equal skill, effort and responsibility, (2) the jobs were performed under similar working conditions, and (3) Mannel, a man, was paid a higher wage than her for such work. (TAC ¶¶ 181-86.) Based upon the allegations in the proposed complaint, the court cannot determine that the claims are futile. Therefore plaintiff's motion for leave to amend is GRANTED.
c. FEHA Discrimination in Compensation
Plaintiff seeks to amend her complaint to assert discrimination in compensation in violation of Cal. Gov't Code § 12940(a). FEHA prohibits an employer from discriminating in compensation or privileges of employment because of sex. Id. As described above, FEHA requires a claimant to exhaust administrative remedies within one year of injury. Id. § 12960(d).
Plaintiff alleges that Lassen paid her lower compensation because she is a woman. (TAC ¶¶ 193-200.) Plaintiff alleges that Mannel was paid more for the same level of responsibility and job duties. (TAC ¶ 83.) She further alleges that Lassen gave preferential treatment to men regarding positions of authority. (TAC ¶ 81.) These allegation could give rise to a claim for which relief may be granted under FEHA. Plaintiff submitted a copy of her gender discrimination and equal pay complaint to the DFEH dated June 27, 2005. (TAC Ex. 17.) The complaint identified "denied equal pay" as one of the categories of harm. (Id.) For the reasons set forth in this order regarding plaintiff's other FEHA claims, plaintiff sufficiently alleges timely compliance with FEHA's administrative filing requirement. As such, plaintiff's claim is not futile, and her motion for leave to amend is GRANTED.
2. Negligent Infliction of Emotional Distress
Plaintiff moves to amend her complaint to include a claim against defendants for Negligent Infliction of Emotional Distress ("NIED") against defendants Lassen, Mannel, Bixby, Whiteman, Chapman, Margolies and the Lassen Board of Supervisors. (TAC ¶¶ 210-12.) Defendants contend that the exclusive remedy clause of the California Workers' Compensation Act bars the claim.
The California Workers' Compensation Act provides the exclusive remedy for injuries sustained under the normal conditions of employment. Cal. Lab. Code § 3601. Where an employee falls within the protection of the Workers' Compensation scheme, as laid out in Labor Code § 3600, the code precludes a cause of action against the employer. Id. This prohibition extends to emotional injuries such as intentional infliction of emotional distress and NIED. Cole v. Fair Oaks Fire Protection District, 43 Cal. 3d 148, 160 (1987).
The California Supreme Court warned that exceptions to the exclusive remedy provision risks undermining the legislative compromise of the Workers' Compensation Act by permitting the employee to pursue a cause of action merely by tailoring the claim to fall within the scope of the exception. Id. at 160. The doctrine therefore requires emotional injuries to fall within the exclusive remedy provision of § 3601 so long as the basic conditions of § 3600 are met and the employer's conduct does not contravene fundamental public policy or exceed the risks inherent in the employment relationship. Livitsanos v. Superior Court, 2 Cal. 4th 744, 815 (1992).
The California Supreme Court held that a claim alleging violation of FEHA and a claim of wrongful discharge due to discrimination both fall outside the scope of Labor Code §§ 3600 and 3601. City of Moorpark v. Superior Court, 18 Cal. 4th 1143, 1148 (1998). Emotional injuries arising from discrimination and harassment are by nature outside the scope of the employment relationship and are not precluded by the exclusive remedy provisions of the Workers' Compensation Act. Taylor v. Beth Eden Baptist Church, 294 F. Supp. 2d 1074, 1080 (N.D. Cal. 2003) (citing Yanowitz v. L'Oreal USA, Inc., 131 Cal. Rptr. 2d 575 (2003) (holding that exclusivity did not apply to claim for negligent infliction of emotional distress against employer based on allegation that employer had retaliated against plaintiff for refusing to fire female sales associate who plaintiff's supervisor thought was unattractive); Fretland v. County of Humboldt, 69 Cal. App. 4th 1478, 1491-92 (1999) (holding that work-related injury discrimination is not a normal risk of the compensation bargain and therefore, claims for negligent and intentional infliction of emotional distress against employer were not barred by exclusivity rule); Accardi v. Superior Court, 17 Cal. App. 4th 341 (1993) (holding that claim for intentional infliction of emotional distress against employer based on alleged harassment was not barred by the exclusivity rule because sexual harassment was "outside the normal employment environment")). By properly pleading a harassment claim, a plaintiff will also have sufficiently pled facts supporting an emotional injury claim. See, Fisher v. San Pedro Peninsula Hosp., 214 Cal. App. 3d 590, 609 (1989); Maffei v. Allstate California Ins. Co., 412 F. Supp. 2d 1049, 1056 (finding that plaintiff's allegations that defendant terminated them for failure to engage in illegal action was sufficient allegation that defendant's conduct contravened public policy such that claim was not barred by the exclusive Workers' Compensation remedies).
Defendants argue that plaintiff's NIED claim should be barred because plaintiff did not oppose defendants' motion to dismiss her intentional infliction of emotional distress ("IIED") claim in the second amended complaint. This argument is unpersuasive. Plaintiff's NIED claim is a different claim for relief than IIED and is based on different theories with different elements. As such, plaintiff has not conceded that it is barred by the Workers' Compensation Act.
As described above, plaintiff has properly pled claims for violations of FEHA against defendants Lassen, Mannel, Bixby and Whiteman. Discrimination and harassment in violation of FEHA fall outside the scope of the employment relationship. Therefore, plaintiff has already pled facts that could give rise to a claim of NIED against Lassen, Mannel, Bixby and Whiteman. Similarly, plaintiff has also asserted a claim against Margolies, as well as the previously named defendants, for violation of her first amendment rights and due process rights under 42 U.S.C. § 1983. Therefore, plaintiff has pled facts that could give rise to the assertion that Margolies' actions contravened public policy and were outside the employment relationship.
Because plaintiff's claim for NIED against defendants Lassen, Mannel, Bixby, Whiteman, and Margolies might not be barred by the Workers' Compensation Act, it is not futile. Therefore, plaintiff's motion for leave to amend regarding her NIED claim against defendants Lassen, Mannel, Bixby, Whiteman, and Margolies is GRANTED.
Plaintiff has not asserted that defendants Chapman or the Lassen Board of Supervisors acted in contravention of public policy. Consequently, plaintiff's NIED claim against Chapman and the Lassen Board of Supervisors is barred by the exclusive remedy provision of the Workers' Compensation Act.See Cole, 43 Cal. 3d at 160. Therefore, plaintiff's motion for leave to amend regarding her NIED claim against defendants Chapman and the Lassen Board of Supervisors is DENIED.
Plaintiff voluntarily dismissed all claims against defendants Pyle, Keifer, Dahle, and Hanson in their official capacities as members of the Lassen Board of Supervisors. Chapman is the sole member of the Board of Supervisors who is still a party to this action.
3. Conversion of Personal Property
Plaintiff seeks to include a claim for relief against Mannel for conversion of personal property. (TAC ¶¶ 213-15.) Defendant contends that the conversion claim is futile because plaintiff failed to comply with the California Tort Claims Act ("CTCA"). Specifically, defendant asserts that plaintiff did not file a timely claim notifying Lassen County of the property damage. (Id. at 25.)
In order to state a tort claim against a public entity or public employee, the CTCA requires plaintiff to present claims to the government entity for money or damages with few exceptions. Cal. Gov't Code § 905. Tort claims such as the instant claim for personal property damage are not listed among the exceptions to § 905. Moreover, under Government Code § 945.4,
no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to by presented in accordance with Chapter 1 (commencing with section 900) and Chapter 2 (commencing with section 910) of Part 3 of this division until a written claim therefore has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board.
Cal. Gov't Code § 945.4. The CTCA requires a claimant to file a request for damages for injury to personal property with the government entity not later than six months after the accrual of the cause of action. Id. § 911.2. Under § 950.2, any suit against a public employee is barred in cases where a plaintiff's action against the agency would be barred for failure to present a claim. The comments to the 1965 Amendment to § 950.2 state "the presentation of a claim to the employing public entity is a prerequisite to suit against an employee." Ann. Cal. Gov't Code § 950.2.
Plaintiff has the burden of pleading compliance with the California Tort Claims Act in her complaint. Wood v. Riverside General Hospital, 25 Cal. App. 4th 1113, 1119 (1994). Moreover, compliance with the California claims statutes is mandatory.City of San Jose v. Superior Court, 12 Cal. 3d 4447, 454 (1974). Federal courts have recognized these requirements. See Ortega v. O'Connor, 764 F.2d 701, 707 (9th Cir. 1985), rev'd on other grounds, 107 S.Ct. 1492 (1987) (failure to comply with claim-filing requirements imposed by California Tort Claims Act bars pendent state claims).
The details of the claim need only allege a general complaint with sufficient detail to reasonably enable the public entity to make an adequate investigation. Blair v. Superior Court, 218 Cal. App. 3d 221, 225 (1990). However, if plaintiff seeks to recover from a different cause of action based upon an entirely different set of facts, plaintiff must timely file a separate claim according to the provisions of the CTCA. Fall River Joint Unified School District v. Superior Court, 206 Cal. App. 3d 431, 590 (1988).
Plaintiff's third amended complaint identifies Mannel as a public employee, Lassen County's Director of Mental Health. (TAC ¶ 5.) Plaintiff alleges that Mannel destroyed diplomas and other personal property in her office in June of 2004. (TAC ¶¶ 91, 214.) Even if the court assumes these allegations to be true, the CTCA requires plaintiff to file a damage claim with the county within six months of the incident. Although plaintiff filed multiple damage claims with Lassen County, there is no evidence that she made even a general claim for personal property damage. (TAC Exs. 15, 22.) Plaintiff must make a separate claim for property damages before she can pursue the conversion claim. No such claim appears in plaintiff's third amended complaint, and the time limit for filing the claim has passed. Plaintiff did not address her failure to comply with th CTCA in her opposition. Therefore, plaintiff's claim for conversion of personal property is futile. Plaintiff's motion for leave to amend is DENIED
4. Violation of COBRA
Plaintiff seeks to assert a claim for recovery based on Lassen's November 2005 denial of continuing health benefits under the Consolidated Omnibus Budget Reconciliation Act ("COBRA"). (TAC ¶¶ 110-11, 216-19.) Defendant contends that plaintiff was not eligible to receive COBRA benefits when she made the request.
COBRA requires employers to provide employees the option to continuing health coverage equal to the coverage provided during employment. 29 U.S.C. § 1162; Coble v. Bonita House, Inc., 789 F. Supp. 320, 322 (N.D. Cal. 1992). However, the employer need only provide access to the same plan the employee held previously. The employer does not need to pay the premiums for the employee. 29 U.S.C. § 1162(3). In the event a beneficiary fails to make a timely premium payment, the employer may end the continuation of benefits. Id. § 1162(2)©.
Plaintiff alleges that Lassen denied her group health care benefits in November 2004. (TAC ¶ 99.) Plaintiff references Exhibit 14, a letter from Ronald Vossler, as evidence of this denial of benefits. The letter is a notification of payments due by plaintiff on premiums under the health plan. (TAC Ex. 14.) COBRA does not require Lassen to make such payments. 29 U.S.C. § 1162(3). Plaintiff was notified that she was responsible for her own premium payments. Therefore, her failure to pay those premiums would have forfeited her right to COBRA benefits. Plaintiff's third complaint fails to allege facts that give rise to a violation of COBRA. However, the court cannot find that plaintiff's COBRA claim is necessarily futile. It is possible that plaintiff could amend the complaint to sufficiently state a claim for violation of COBRA. Therefore, plaintiff's motion for leave to amend is GRANTED.
Plaintiff alleges that defendant wrongly denied her benefits while she was on disability leave. Whether or not defendant was responsible for maintaining premium payments on behalf of defendant during a disability leave is irrelevant to the issue of a COBRA violation. See Roberts v. Union Pacific R. Co., 16 F. App'x 730, 734 (9th Cir. 2001) (unpublished).
CONCLUSION
Based on the foregoing analysis, the court makes the following orders:
A. As to the defendants' motion to dismiss:
(1) Defendant Crosby's motion to dismiss all claims against her is GRANTED.
(2) Defendants Lassen, Mannel, Bixby, Whiteman, Margolies and Chapman's motion to dismiss 42 U.S.C. § 1983 due process claim is DENIED.
(3) Defendants Mannel, Bixby and Whiteman's motion to dismiss FEHA claims is:
(a) DENIED as to plaintiff's FEHA retaliation claim;
(b) DENIED as to plaintiff's FEHA harassment claim;
(c) GRANTED to the extent plaintiff claims employment discrimination.
(4) Defendants Chapman's motion to dismiss FEHA claims is:
(a) GRANTED as to plaintiff's FEHA retaliation claim;
(b) GRANTED as to plaintiff's FEHA harassment claim;
(c) GRANTED to the extent plaintiff claims employment discrimination.
(5) Defendant Lassen's motion to dismiss plaintiff's FEHA retaliation, discrimination and harassment claims is DENIED.
(6) Defendant Lassen's motion to dismiss plaintiff's Title VII hostile work environment and ADA claims is DENIED.
(7) Defendant Lassen's motion to dismiss plaintiff's Title VII retaliation claim is DENIED.
(8) Defendants Lassen, Mannel, Bixby, Whiteman and Chapman's motion to dismiss plaintiff's slander claim is DENIED.
B. Plaintiff's motion for leave to amend is:
(1) GRANTED as to her claim of Title VII discrimination in compensation;
(2) GRANTED as to her claim under the Federal Equal Pay Act;
(3) GRANTED as to her claim under the California Equal Pay Act;
(4) GRANTED as to her FEHA discrimination in compensation claim;
(5) GRANTED as to her claim for NIED against defendants Lassen, Mannel, Bixby, Whiteman, and Margolies;
(6) DENIED as to her claim for NIED against defendants Chapman and the Lassen Board of Supervisors;
(7) DENIED as to her claim for conversion of personal property;
(8) GRANTED as to her claim for denial of COBRA benefits.
(9) Plaintiff shall file and serve her Fourth Amended Complaint within ten (10) days of this order. Defendants shall file their answer within twenty (20) days thereafter.
IT IS SO ORDERED.