Opinion
3:10-cv-00801-RCJ-VPC
10-24-2011
CAROLYN SPROUL, Plaintiff, v. WASHOE BARTON MEDICAL CLINIC, Defendant.
ORDER
This case arises out of alleged age discrimination, Family Medical Leave Act ("FMLA") violations, and unlawful retaliation. Pending before the Court is Defendant's Motion to Dismiss (ECF No. 5) and Plaintiff's Motion to Amend (ECF No. 10). For the reasons given herein, the Court grants the motion to dismiss in part and grants the motion to amend.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff Carolyn Sproul was injured on the job while working for Defendant Washoe Barton Medical Clinic ("WBMC") and sought workers compensation benefits. (Compl. ¶¶ 4-6, Dec. 24, 2010, ECF No. 1). After she returned to work, WBMC demoted her on January 7, 2008 and terminated her on or about March 31, 2009. (Id. ¶¶ 7-9). At all relevant times, Plaintiff was over forty years old, but Plaintiff was denied opportunities that persons substantially younger received. (Id. ¶¶ 10-11).
Doing business as Carson Valley Medical Center.
Plaintiff sued Defendant in this Court on three causes of action: (1) FMLA violations; (2) Age Discrimination in Employment Act ("ADEA") violations; and (3) "tortious retaliation and discharge in violation of public policy." Defendant has moved to dismiss for failure to exhaust administrative remedies, failure to state a claim, and under the statute of limitations.
II. LEGAL STANDARDS
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555).
"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule of Evidence 201, a court may take judicial notice of "matters of public record." Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).
III. ANALYSIS
A. FMLA
Plaintiff alleges Defendant terminated her for requesting and taking leave off from work, in violation of the FMLA. (See Compl. ¶¶ 18-20). Under the FMLA, "an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period . . . [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(a)(1)(D). It is "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided" under subchapter I of Chapter 28 of Title 29 or "to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful" by subchapter I. Id. § 2615(a)(1)-(2). To establish a prima facie case of retaliation in violation of the FMLA, a plaintiff must establish: (1) she engaged in a protected activity under the FMLA; (2) she suffered adverse action by the employer following the protected activity; and (3) the adverse employment action was causally linked to the protected activity. Raymond v. Albertson's Inc., 38 F. Supp. 2d 866, 869 (D. Nev. 1999) (Rawlinson, J.). The McDonnell Douglas burden-shifting framework applies to an FMLA claim:
[O]nce the employee has established a prima facie case, the burden shifts to the employer to articulate a legitimate nonretaliatory reason for its employment decision. Once the employer meets its burden, the employee must show that a material issue of fact exists regarding whether the employer's proffered reason for the challenged action is a pretext.Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)).
Defendant correctly notes that Plaintiff alleges no FMLA retaliation, because she does not allege that she was retaliated against for opposing any employer practices that are unlawful under FMLA. See Xin Liu v. Amway Corp., 347 F.3d 1125, 1133 (9th Cir. 2003). Her claim must therefore be characterized as an interference claim, i.e., that Defendant interfered with her rights under FMLA directly. Plaintiff does not plead facts indicating that she attempted to take leave under FMLA and was denied leave or fired for taking it. She does not allege having been fired for taking twelve or fewer workweeks of leave in a twelve month period related to a "serious health condition that [made her] unable to perform the functions of [her] position." Alternately, she could allege that she opposed some unlawful employer practice under FMLA and that she was terminated therefor. The Court will therefore dismiss this claim, with leave to amend.
B. ADEA
An ADEA plaintiff can establish a prima facie case by alleging that she was "(1) at least forty years old, (2) performing [her] job satisfactorily, (3) discharged, and (4) either replaced by substantially younger employees with equal or inferior qualifications or discharged under circumstances otherwise giving rise to an inference of age discrimination." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citation and internal quotation marks omitted). In this Circuit, an ADEA plaintiff must meet certain prerequisites before filing suit but need not exhaust all available administrative remedies. The Ninth Circuit had previously held that an ADEA claimant who appeals to an administrative agency for redress must then exhaust her remedies with that agency before filing suit and cannot simply withdraw an administrative complaint in order to sue. See Rivera v. U.S. Postal Serv., 830 F.2d 1037, 1039 (9th Cir. 1987). However, the court later reversed itself in the face of an intervening regulation. See Bak v. U.S. Postal Serv., 52 F.3d 241, 243-44 (9th Cir. 1995) (citing 29 C.F.R. § 1613.513 (1987) ("The filing of a civil action by an employee or applicant involving a complaint filed under this subpart terminates processing of that complaint.")). The Bak court stated:
In accord with the Second and Seventh Circuits, we hold that a claimant is no longer required to exhaust his administrative remedies with regard to an age discrimination claim prior to filing a civil suit.Id. at 244. The code has been further amended, and the current language reads in relevant part:
. . . .
Thus, we hold that the amended regulations eliminate the exhaustion requirement for age discrimination claims and vacate the district court's dismissal for lack of subject matter jurisdiction and remand.
(b) An aggrieved person whose claims are the subject of a timely pending charge may file a civil action at any time after 60 days have elapsed from the filing of the charge with the Commission (or as provided in § 1626.12) without waiting for a Notice of Dismissal or Termination to be issued.29 C.F.R. § 1626.18(b), (d) (2010). In other words, a plaintiff may sue under the ADEA so long as she files a "charge" and gives the Equal Employment Opportunity Commission ("EEOC") sixty days to consider it, and after she files a suit the EEOC may either dismiss the administrative charge of discrimination or continue to investigate it. Although an ADEA plaintiff need not exhaust administrative remedies as a prerequisite to suit, she must file a charge of discrimination with the EEOC or the equivalent state agency in the first instance and wait sixty days. See Sanchez v. Pac. Power Co., 147 F.3d 1097, 1099 (9th Cir. 1998). For the charge of discrimination to be timely, the plaintiff must either file it with the EEOC directly within 180 days of the alleged discriminatory act or file it with the appropriate state agency within 300 days of the act. Id. (citing 29 U.S.C. §§ 626(d)(1)-(2), 633(b)). A charge is considered "filed with the EEOC" under ADEA when it is "received" by either the EEOC itself or the equivalent state agency. Id. (citing 29 C.F.R. §§ 1626.10(c), 1626.7). Therefore, in order for the present suit to be proper, Plaintiff must have: (1) filed a "charge" relating to the allegations in the present suit; (2) filed the charge with EEOC within 180 days of the alleged discriminatory act or with Nevada Equal Rights Commission ("NERC") within 300 days of the alleged discriminatory act; and (3) filed the present suit sixty or more days after having filed the charge.
. . . .
(d) If the Commission becomes aware that the aggrieved person whose claim is the subject of a pending ADEA charge has filed an ADEA lawsuit against the respondent named in the charge, it shall terminate further processing of the charge or portion of the charge affecting that person unless [certain officials] or their designees determine at that time or at a later time that it would effectuate the purpose of the ADEA to further process the charge.
Plaintiff alleges in conclusory fashion that she filed a charge with the EEOC and satisfied all applicable time limits, although she neither alleges the details of nor attaches copies of any charge of discrimination, intake information form, right to sue letter, etc. (See Compl. ¶ 2). Defendant adduces a copy of a notice of charge of discrimination (the "NOCOD") it received. The NOCOD, dated March 26, 2008, indicates that Plaintiff had filed Charge of Discrimination No. 550-2008-00932 (the "COD") against Defendant under both ADEA and the Americans with Disabilities Act ("ADA"). (See NOCOD, Mar. 26, 2008, ECF No. 5-1, at 2). The NOCOD included the COD itself as an attachment and demanded a response by April 25, 2008. (See id.). The attached COD, dated January 28, 2008, contained allegations that Defendant was not given the same opportunities as younger employees and had been demoted on January 7, 2008 and believed it was because of her age (then sixty-two), disability, and workers compensation claim filed in May 2004. (See COD 2, Jan. 28, 2008, ECF No. 5-1, at 7). Plaintiff's supervisor told her the demotion was due to another employee's complaint about her that the supervisor did not explain. (See id.).
The age discrimination charge to the EEOC was timely, having been filed within 180 days of the demotion. Plaintiff did not file the present case until December 24, 2010, which is far more than the sixty-day waiting period required after filing the charge. The Court therefore has jurisdiction to hear the claim, although only insofar as it concerns the demotion, not the later termination, because the COD does not allege any termination. In the COD, Plaintiff alleges that she was demoted from "Phlebotomy Supervisor/Lead Lab Assistant" to "Lab Tech Assistant" and that her "employer ha[d] also showed favoritism toward younger female employees, offering then training classes, higher positions, higher pay and other benefits that [we]re not offered to me and other older employees." (See COD 2). Plaintiff bases the second cause of action under ADEA, however, on the allegation that younger employees "were given the opportunity to work in the EKG Department instead of Plaintiff." (See Compl. ¶ 27). If working in the EKG Department constitutes a "higher position," as explained in the COD, then the Court has jurisdiction over this claim. Also, Plaintiff complains of the demotion in both the COD and in the general allegations of the Complaint. (See COD 2; Compl. ¶ 8).
The Court finds that it has jurisdiction over the ADEA claim insofar as the harm complained of is the demotion and the inability to move to the EKG Department, but these are the only two injuries alleged in both the COD and the Complaint. There is no jurisdiction over the termination because it is not complained of in the COD, and no other adverse actions are pled in the Complaint, although Plaintiff will be given leave to amend to add additional adverse actions that fall within the scope of the injuries identified in the COD, i.e., the "higher positions, higher pay and other benefits."
C. Wrongful Discharge
"Under Nevada law, the absence of a written contract gives rise to the presumption that employment is at will." Brooks v. Hilton Casinos, Inc., 959 F.2d 757, 759 (9th Cir. 1992) (citing Vancheri v. GNLV Corp., 777 P.2d 366, 368 (Nev. 1989)). At-will employment can be terminated without liability by either the employer or the employee at any time and for any reason or no reason, Martin v. Sears-Roebuck & Co., 899 P.2d 551, 554 (Nev. 1995), with limited exceptions based on "strong public policy," see Hansen v. Harrah's, 675 P.2d 394, 396 (Nev. 1984) (holding that an at-will employee can bring an action for retaliatory discharge when fired in retaliation for filing a worker's compensation claim). As Plaintiff has not specifically alleged a written contract, for the purposes of the present motion the presumption of at-will employment applies.
An employer may be liable for tortious discharge in Nevada in the context of an at-will employment relationship where it terminates an employee in a way repugnant to the strong public policy of the state. Hansen, 675 P.2d at 396. The Supreme Court of Nevada has noted that terminating an employee "for seeking industrial insurance benefits, for performing jury duty or for refusing to violate the law" are examples of violations of strong public policy. See D'Angelo v. Gardner, 819 P.2d 206, 212 (Nev. 1991). Not all terminations contrary to the express public policy of the state, however, necessarily implicate the strong public policy exception to the at-will employment rule, see, e.g., Sands Regent v. Valgardson, 777 P.2d 898, 899 (Nev. 1989) (age discrimination), and firings for garden-variety insubordination are not contrary to public policy at all, Wayment v. Holmes, 912 P.2d 816, 819 (Nev. 1996). Finally, termination with a mixed motivation will not support a wrongful discharge claim under Nevada law; the motivation must have been purely wrongful. Allum v. Valley Bank of Nev., 970 P.2d 1062, 1066 (Nev. 1998).
Here, Plaintiff alleges two tortious reasons for her termination: filing a workers compensation claim and filing charges with the EEOC. (See Compl. ¶¶ 33-34). Discharge in retaliation for filing a workers compensation claim is actionable even by an at-will employee. See Hansen, 675 P.2d at 396. Plaintiff does not and could not list age discrimination as a basis for wrongful discharge. See Valgardson, 777 P.2d at 899. The Court concludes that if age discrimination does not support the "strong public policy" exception to the at-will employment doctrine, then the Nevada Supreme Court would determine that retaliation for having filed an age discrimination complaint does not support the exception either. Plaintiff also included an ADA claim in her COD to the EEOC. But the Nevada Supreme Court has not adopted disability discrimination as an exception to the at-will employment doctrine, and the Court therefore finds that retaliation for having filed an ADA complaint does not support the "strong public policy" exception either. See Herman v. United Bhd. of Carpenters & Joiners of Am., Local 971, 60 F.3d 1375, 1385 (9th Cir. 1995) (predicting that in light of Valgardson the Nevada Supreme Court would not apply the exception in cases of disability discrimination). In conclusion, Plaintiff's wrongful discharge claim must rely on alleged retaliation for her having filed the workers compensation claim.
Defendant argues that there is no nexus between the workers compensation claim filed in 2004 and the adverse employment actions in 2008. Defendant is correct. Plaintiff has simply alleged in conclusory fashion that her 2009 termination was in retaliation for her having filed for workers compensation benefits in 2004. She pleads no facts making a nexus between the two plausible, and as a matter of law a five-year temporal proximity cannot support a finding of causality without more. Cf. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (twenty-month gap insufficient in a Title VII retaliation case, without more, although a three- or four- month gap might suffice without further evidence of causation). Plaintiff could cure this claim by amendment.
The Nevada Supreme Court adopted this reasoning in an unreported workers compensation retaliation case. See Hardy v. Chromy, No. 53956, 2010 WL 5541181, at *5 (Nev. Dec. 20, 2010).
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CONCLUSION
IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 5) is GRANTED in part, with leave to amend.
IT IS FURTHER ORDERED that the Motion to Amend (ECF No. 10) is GRANTED.
IT IS SO ORDERED.
ROBERT C. JONES
United States District Judge