MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS

WARREN K. URBOM, United States Senior District Judge.

The plaintiff, Deborah Stoner-Bryan, was formerly employed by the defendant Community Medical Center, Inc. as a physician. The plaintiff has filed a five-count complaint against the defendants, alleging gender-based discrimination in violation of 42 U.S.C. § 2000e et seq. of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (Title VII) [Count I]; retaliation in violation of Title VII [Count II]; a hostile work environment that involved gender-based discrimination and retaliation in violation of Title VII [Count III]; constructive discharge in violation of Title VII [Count IV]; and gender-based discrimination, hostile work environment, constructive discharge, retaliation, and a violation of the "Nebraska Whistleblower Act" [Neb. Rev. Stat. § 48-1114 ] in violation of Neb. Rev. Stat. § 20-148 [Count V] (filing 1). The defendants have moved to dismiss the plaintiff's state-law claims, arguing that supplemental jurisdiction does not exist, or, alternately, I ought to decline to extend supplemental jurisdiction over the state claims pursuant to 28 U.S.C. § 1367 (c)(1)-(2) (filings 10 and 13). After carefully considering the defendants' motions and the relevant briefs, I find that the defendants' motions should be denied.

I. BACKGROUND

From approximately August 1996 through July 1999, the plaintiff was employed by Community Medical Center, Inc. as a medical doctor. Community Medical Center, Inc. is a Nebraska corporation that is alleged to be doing business as Falls City Community Medical Center and as Family Medicine of Falls City, Nebraska. On or about August 18, 1998, the plaintiff confronted another doctor employed by the defendants regarding his use of "illegal and/or controlled substances," and the doctor allegedly confessed to this drug use. (Complaint ¶ 12.) Very soon after confronting this doctor, the plaintiff reported this doctor's drug related activities to the hospital administrator, one Victor Lee. The plaintiff has alleged that Lee's terms, conditions, and privileges of employment were controlled jointly by Community Medical Center, Inc. and the other named defendant, Great Plains Health Alliance, Inc. (Complaint ¶ 6.) It is alleged that Lee took no action in response to the plaintiff's report, and so on August 21, 1998, the plaintiff reported the doctor's "illegal activities" to the Nebraska Health and Human Services System Regulation and Licensure Division. (Id.)

After making this report, the plaintiff alleges that the defendants subjected her to a hostile work environment, retaliated against her, allowed gender-based comments to be made about her by management staff and supervisory personnel, and discriminated against her. The plaintiff also seems to insinuate that there may have been an illicit motive behind rejections of the plaintiff's requests to be excluded from working in the defendants' emergency room. (Complaint ¶ 16.) Although they are not specified, it is alleged that other discriminatory and retaliatory acts "were based on the plaintiff's gender and because she reported unlawful activities." (Complaint ¶ 19.) The plaintiff alleges that in July 1999, she did not renew her employment contract "and was constructively discharged from the Defendants' employ" due to the problems in her work environment. (Complaint ¶ 17.)

II. STANDARD OF REVIEW

When a district court has original jurisdiction over a civil action, it shall have supplemental jurisdiction over all other claims that are so related to claims within the court's original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. 28 U.S.C. § 1367 (a). It its discretion, a district court may decline to exercise supplemental jurisdiction over a claim if the claim raises a novel or complex issue of state law, or the claim substantially predominates over the claim or claims over which the district court has original jurisdiction. 28 U.S.C. § 1367 (c)(1)-(2).

III. ANALYSIS

Pursuant to Fed.R.Civ.P. 12(b)(1), the defendants have moved to dismiss the plaintiff's state-law claims for lack or supplemental jurisdiction under 28 U.S.C. § 1367(a). Alternately, if supplemental jurisdiction is found to exist over the state-law claims, the defendants argue that it is within the bounds of my discretion to decline to exercise supplemental jurisdiction over these claims pursuant to 28 U.S.C. § 1367(c)(1)-(2).

A. Whether Supplemental Jurisdiction Exists Under 28 U.S.C. § 1367(a)

The Eighth Circuit has set forth the following standard for determining whether supplemental jurisdiction exists under 28 U.S.C. § 1367(a):

"[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy. . . ." 28 U.S.C. § 1367(a). Supplemental jurisdiction exists over state-law claims where, as here, "the federal-law claims and state-law claims in the case `derive from a common nucleus of operative fact' and are `such that . . . [a plaintiff] would ordinarily be expected to try them all in one judicial proceeding.'" Kansas Public Employees Retirement Sys. v. Reimer Koger, Assocs., Inc., 77 F.3d 1063, 1067 (8th Cir. 1996) (quoted case omitted). Where original jurisdiction exists, exercise of supplemental jurisdiction over all adequately related claims is mandatory, absent certain exceptions. . . .

B. Whether the Plaintiff's State-Law claims Fall Within an Exception Included in 28 U.S.C. § 1367(c)

The defendants argue that the plaintiff's Nebraska state-law claims raise novel and complex issues of state law and would substantially predominate over the plaintiff's federal claims, and that therefore I ought to exercise my discretion pursuant to 28 U.S.C. § 1367(c)(1)-(2) and decline to extend supplemental jurisdiction over the state claims. Initially, I shall determine whether the plaintiff's claims fall into either of the categories set forth in § 1367(c)(1)-(2). If I find that the plaintiff's claims fit within either of these categories, I must then determine whether I should decline to extend jurisdiction over these claims.

As a preliminary matter, I note that my analysis has been complicated to the extent that it is unclear which claims the defendants are moving to dismiss. Although generally this is a rather straightforward issue, the defendants characterization of the complaint as consisting predominantly of state claims with one incidental federal claim based upon gender discrimination starkly contradicts the complaint, which on its face includes four counts citing violations of Title VII and one count based on state law. I find that my analysis must begin with an examination of the complaint and the facts underlying the claims included therein.

The complaint itself, along with the plaintiff's brief in response to the defendants' motions to dismiss, indicates that the plaintiff found her work environment to be hostile, at least partly in a gender-based manner, in retaliation for her report of drug use by another physician. The defendants argue that each of the plaintiff's claims is based upon retaliation she experienced after reporting a violation of the law committed by the drug-using physician, which does not constitute retaliation in violation of Title VII. In other words, the defendant's theory is, "but for her reports of illegal activities, she would not have been subjected to any gender discrimination, retaliation, or a hostile work environment, nor would she have been constructively discharged by the defendant." (Df. Community Medical Center, Inc.'s Br. In Supp. of Mot. To Dismiss at 5 (emphasis in original).) The implication is, since a state law claim of retaliation forms the basis of all of the other claims, the claims are all grounded in state law rather than federal law.

The defendants' argument has merit. Title VII contains a provision that prohibits retaliation "because [a person] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Although Count II of the complaint alleges retaliation in violation of Title VII, the paragraphs incorporated into that count seem not to allege a violation of § 2000e-3(a). Opposing incidents of drug use by a certain physician does not appear to be protected by Title VII, and no other facts that could form the basis of the plaintiff's retaliation claim have been alleged in the complaint. However, I must emphasize that the defendants have not moved to dismiss Count II (nor any other portion of the complaint) for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6).

Although the complaint before me does indeed appear not to set forth claims based upon retaliation in violation of Title VII, the defendant's argument that the plaintiff's gender discrimination, hostile work environment, and constructive discharge claims are therefore grounded in state law goes too far. Of course, the plaintiff's gender discrimination claim alleges a Title VII violation. Furthermore, the complaint clearly sets forth facts indicating that the plaintiff's hostile work environment and constructive discharge claims are based in part upon gender discrimination. That the violations of Title VII alleged in the complaint may have been associated with, or even caused by, acts of retaliation in violation of state law does not destroy the basis for federal jurisdiction of the alleged violations of Title VII. Thus, for the purposes of this motion only, while I agree with the defendant that the retaliation issue does not appear to be truly based upon a violation of Title VII, Counts I, III, and IV might properly allege violations of federal law.

1. Whether the Plaintiff's State-Law Claims Substantially Predominate Over the Claims Over Which The District Court Has Original Jurisdiction

I may decline to extend supplemental jurisdiction over the plaintiff's state claims if those claims substantially predominate over the plaintiff's federal claims. 28 U.S.C. § 1367(c)(2).

In determining whether state law claims "substantially predominate" over main claims, it is useful to examine [United Mine Workers of America v.] Gibbs [ 383 U.S. 715 (1966)] once more. The Gibbs court recognized that state law claims could so overwhelm trial of the claims supported by original jurisdiction that considerations of efficiency would no longer justify federal resolution of the state claims. The Court counseled trial judges to examine whether the state claims "predominated" as a matter of: (1) proof, (2) remedy, or (3) issues. Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139.

The defendants argue that the plaintiff's gender discrimination claim is based upon a single, isolated occurrence that is entirely distinct from her retaliation claim, which I consider to be a state claim for the purposes of this motion. However, after studying the complaint, I fail to see how the defendants arrive at the conclusion that the gender discrimination claim is based on a single, isolated occurrence. (See,e.g., Complaint ¶¶ 15, 17, 19.) Also, while it is true that it is proper to decline to extend supplemental jurisdiction over state claims which are separate and distinct from the jurisdiction-conferring federal claims when the claims do not form a part of the same case or controversy, I have already determined that supplemental jurisdiction over the plaintiff's state claims meets the requirements of § 1367(a).

In Gold v. Local 7 United Food and Commercial Workers Union, 159 F.3d 1307, 1310-11 (10th Cir. 1998), no abuse of discretion was found in the district court's determination that state-law claims would predominate. In that case, it was determined that the trial of wrongful — termination and outrageous — conduct claims would revolve around the question of whether there was retaliation against the plaintiff for exercising her workers' compensation rights, which was a matter distinct in scope from the federal issue of sex discrimination.Id. Therefore, it was proper to dismiss the "predominating" state claims. The point set forth in Gold is well taken, but I believe Gold misses the mark that is properly set in Blue Dane. The notion that different claims are likely to present distinct issues and elements of proof is virtually axiomatic. This, however, is not the question. I am to determine if the state claims will predominate the proof and issues at trial to the degree that considerations of efficiency would be overwhelmed. While it appears in this case that the plaintiff's state retaliation claim and the facts and issues associated with it may occupy a significant portion of the trial, the complaint also alleges constructive discharge and a hostile work environment based on gender discrimination. The issues and proof surrounding the plaintiff's gender-discrimination claims may occupy an equal or greater portion of the trial. It cannot be said that the federal claims are merely an adjunct of the state claims, and that the state claim is the crux of the action. The complaint does not indicate that the retaliation issue will clearly predominate the proceedings, as the defendants suggest. Although the plaintiff's claims seem to be related to a common core of factual circumstances, there is no argument that the plaintiff's federal claims are linked to her state retaliation claim in the sense that she must prevail on her state claims in order to prevail on her Title VII claims. I find that the defendants' assertion that the state claims raised by the plaintiff would predominate over the federal claims must be rejected.

2. Whether the Plaintiff's State-Law Claims Raise Novel or Complex Issues of State Law

I may decline to extend supplemental jurisdiction over the plaintiff's state claims if those claims raise novel or complex issues of state law. 28 U.S.C. § 1367(c)(1). The defendant argues that the plaintiff's state claims are both novel and complex.

The defendants argue that the plaintiff's retaliation claim under Neb. Rev. Stat. § 48-1114(3) is novel because, quite simply, there are few reported cases dealing with the statute. They assert that the state law claim is complex, because (1) the allegations regarding the drug-consuming doctor may not fit the definition of "unlawful" as defined by a relevant Nebraska statute, (2) there is a question whether the plaintiff is entitled to compensatory damages, and (3) there is a question whether the plaintiff is entitled to a jury trial on his state claims.

I am not persuaded by the defendants' arguments. Although I feel it would not be appropriate to resolve the three issues raised by the defendants in the context of the present motion, it is clear that their complexity is not comparable to a difficult decision involving state compulsory counterclaim rules and three complex state-choice-of-law questions. Blue Dane Simmental Corp. v. American Simmental Association, 952 F. Supp. at 1411. The cases cited by the defendants do not indicate that the issues are complex, but instead go to the merits of the defendants' positions on these issues. See Lampman v. McCook Public Schools, 54 F. Supp.2d 945 (D.Neb. 1999); Coffman v. Tracker Marine, L.P., 141 F.3d 1241, 1247-48 (8th Cir. 1998); and Women Prisoners of the District of Columbia Department of Corrections v. District of Columbia, 93 F.3d 910 (D.C. Cir. 1996).

In Pfister v. Bryan Memorial Hospital, 874 F. Supp. 993 (D.Neb. 1995), the court construed the complaint as raising a claim under § 48-1114(3), but dismissed a portion of the plaintiff's Title VII claim because certain illegal acts opposed by the plaintiff were not protected by Title VII. Id. at 996. Although the memorandum and order in Pfister is certainly not clear on this point, it appears to me that the only reasonable reading of the memorandum leads to the conclusion that the defendant's motion to dismiss was directed at the plaintiff's retaliation claim under Title VII, which is listed in the memorandum as claim (1).Id. at 995. The court agreed that retaliation claims under Title VII do not cover opposition of illegal activities that are not protected by Title VII, and dismissed any such aspects of claim (1). Id. at 996. However, contrary to the defendants' insinuation, there is no indication that the plaintiff's § 48-1114(3) claim, which was listed as claim (3) in the memorandum, was dismissed. Id. at 995-96, 998. In fact, the plaintiff's attorney, who also represented the plaintiff in Pfister, has stated that the jury was instructed on the plaintiff's state claims in that case. (Pl's Br. In Resp. to Mot. to Dismiss at 2.) Certainly, if supplemental jurisdiction was extended to a plaintiff's § 48-1114(3) claim in this very court nearly six years ago, the defendants' argument is considerably weakened. However, in fairness to the defendants' position, it does not appear that the issue of supplemental jurisdiction was raised by the defendant in Pfister.

The plaintiff asserts that a colleague of the plaintiff's attorney represented the plaintiff in Danhauer v. J.K. Tooling Machine, Inc., 4:98CV3401, and has called my attention to the fact that in that case, a state law claim was brought pursuant to the "Nebraska Whistleblower Act" and was tried, along with various Title VII claims, before a jury. I have retrieved the Danhauer file, and I find that the plaintiff is correct. Although I emphasize that I am not determining at this time whether the plaintiff is entitled to a jury trial on her state claims, the fact that claims similar to the one now raised by the plaintiff have been heard in this court suggests that the plaintiff's state claim is neither too novel nor too complex to fall within this court's supplemental jurisdiction.

Finally, the defendant has offered absolutely no argument that considerations of judicial economy, fairness, convenience, and comity weigh in favor of declining to extend supplemental jurisdiction over the plaintiff's state-law claims. A district court is to consider these values when deciding whether to exercise supplemental jurisdiction under 28 U.S.C. § 1367. City of Chicago v. International College of Surgeons, 522 U.S. 156, 173 (1997).

IT IS ORDERED that the defendants' motions to dismiss, filings 10 and 13, are denied.