Johnson v. Riverside Healthcare System, Lp

• Decision Date: 13 February 2008
• Docket Number: No. 06-55280.,06-55280.
• Citation: 516 F.3d 759
• Parties: Christopher Lynn JOHNSON, M.D., Plaintiff-Appellant, v. RIVERSIDE HEALTHCARE SYSTEM, LP, a California limited partnership, d/b/a Riverside Community Hospital; Riverside Healthcare System, LLC, a California limited liability corporation; Columbia/HCA Western Group, Inc., a Tennessee corporation, doing business in California; Medical Staff of Riverside Community Hospital, a California unincorporated association; Robert Duncanson, M.D.; Libby. Martin; Barbara Marshall; Gay Dickinson; Patricia Lemmle; Earl Tate; Michael Rawlings, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

516 F.3d 759

Christopher Lynn JOHNSON, M.D., Plaintiff-Appellant, v. RIVERSIDE HEALTHCARE SYSTEM, LP, a California limited partnership, d/b/a Riverside Community Hospital; Riverside Healthcare System, LLC, a California limited liability corporation; Columbia/HCA Western Group, Inc., a Tennessee corporation, doing business in California; Medical Staff of Riverside Community Hospital, a California unincorporated association; Robert Duncanson, M.D.; Libby. Martin; Barbara Marshall; Gay Dickinson; Patricia Lemmle; Earl Tate; Michael Rawlings, Defendants-Appellees.

No. 06-55280.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 18, 2007.

Filed February 13, 2008.

Dale L. Gronemeier, Gronemeier & Associates, P.C., South Pasadena, CA, argued the cause for the plaintiff-appellant, and filed briefs.

James L. Payne, Payne & Fears LLP, Irvine, CA, argued the cause for the defendants-appellees, and filed a brief; Laura Fleming, Payne & Fears LLP, Irvine, CA, and Tami Smason, Foley & Lardner LLP, Los Angeles, CA, were on the brief.

Appeal from the United States District Court for the Central District of California; Audrey B. Collins, District Judge, Presiding. D.C. No. CV-03-01392-ABC.

Before: DIARMUID F. O'SCANNLAIN and MILAN D. SMITH, JR., Circuit Judges, and MICHAEL W. MOSMAN,^* District Judge.

O'SCANNLAIN, Circuit Judge:

We are called upon to decide whether a physician who asserts that he was discriminated against (based on his race, sexual orientation, and perceived disability) by doctors and nurses at the hospital where he treated patients can establish civil rights claims under federal and state law.

I

A

Christopher Lynn Johnson worked as a physician at the Riverside Community Hospital ("Riverside")¹ and as a member of the Medical Staff of Riverside Community Hospital ("Medical Staff') from October 1999 until February 2002. Johnson's responsibilities included performing plastic surgeries and providing trauma consultations in Riverside's emergency room. Johnson identifies himself as African American and bisexual. Soon after he began his tenure at Riverside, Johnson alleges that several physicians regularly harassed him because of his sexual orientation and their mistaken belief that he suffered from HIV/AIDS. He alleges that several nurses harassed him and refused to participate in surgeries with him for the same reasons. In addition, Johnson points to one particularly serious incident of racial discrimination during his time at Riverside. According to Johnson, a colleague, Dr. Vlasak, admonished him by using a racial slur after Johnson performed surgery on one of Vlasak's patients. As the facts are set forth in Johnson's complaint, Vlasak failed to review the patient's CT scan and consequently failed to realize that the patient was suffering from a skull fracture with an underlying brain contusion. Upon discovering the problem, Johnson admitted the patient for surgery and performed the necessary procedure. When Vlasak learned that Johnson had corrected (and therefore exposed) his oversight, Vlasak moved as if to strike Johnson, "charged" into the room where Johnson was standing and "screamed ... `You fucking nigger—why did you do that to me?'"

Johnson worked at Riverside under the terms of a professional services agreement. The contract explicitly designated Johnson as a "Contractor," rather than an employee. The contract also required Johnson to retain his membership and privileges with the Medical Staff. Failure to do so was a cause for termination. In February 2002, Johnson's Medical, Staff privileges were revoked after he failed to pay his membership dues by a deadline Johnson claims the Medical Staff imposed arbitrarily and without warning while he was traveling out of the country. Because full membership on the Medical Staff was a condition of his contract, Riverside terminated Johnson soon afterwards. Johnson immediately applied to the Medical Staff for reinstatement, but was informed that he could only regain his status by reapplying to the Staff as a new applicant, which would require him to submit to a hearing before the Medical Staff Credentials Committee. Johnson obliged, and was confronted at the hearing with numerous complaints about his behavior filed by co-workers, all of which he contends were fabricated. After the hearing, the Committee voted to uphold the denial of Johnson's Medical Staff membership. Prior to the completion of the hearing, Riverside filed a report describing the complaints against Johnson with the California Medical Board pursuant to California Business and Professions Code § 805. Johnson argues that the filing of this report was premature and cost him future opportunities for employment.

B

On September 26, 2002, Johnson filed a complaint against Robert Duncanson, the Chief of the Medical Staff, with the California Department of Fair Employment and Housing ("DFEH") alleging that he had been harassed, denied employment, and denied privileges to admit patients to Riverside on account of his race and sexual orientation. On September 30, 2002, DFEH issued Johnson right-to-sue notices for Duncanson and several other individuals on the Medical Staff and nursing staff.

On September 2, 2003, Johnson filed a complaint in California state court against Riverside and several other defendants setting forth multiple civil rights claims under federal and state law. He voluntarily dismissed that action, however, on October 16, 2003. Later, on December 2, 2003, Johnson filed a complaint in the District Court for the Central District of California against Riverside, the Medical Staff, Duncanson, and other individuals alleging the same causes of action, including three relevant to this appeal: (1) racial discrimination in violation of 42 U.S.C. § 1981; (2) racial and sexual orientation discrimination in violation of California Civil Code § 51 (the "Unruh Civil Rights Act claim") and § 51.5; and (3) racial and sexual orientation discrimination in violation of California's Fair Employment and Housing Act ("FEHA"), Cal. Gov't.Code §§ 12940 et seq.

The defendants moved to dismiss all claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district court dismissed Johnson's claims under California Civil Code §§ 51 and 51.5 with prejudice, finding that Johnson had failed to state a claim upon which relief could be granted because neither provision creates a cause of action for employment discrimination. The district court did not specifically address Johnson's § 1981 claims, but dismissed his remaining claims, including his FE HA claims, without prejudice, granting him leave to amend.

Johnson timely filed a first amended complaint which omitted, and thereby waived, all other claims except those mentioned here. Thereafter, he reached a settlement with several defendants, leaving only Riverside, Duncanson, and the Medical Staff as defendants in this action. The district court then dismissed each of Johnson's remaining claims under Rule 12(b)(6) for failure to state a claim.

Johnson appeals. First, he argues that the district court erred in dismissing his § 1981 claims against all three defendants, contending that he raised a triable issue of fact as to whether the defendants created a racially hostile work environment in violation of that provision. Second, Johnson argues that the district court erred in dismissing his §§ 51 and 51.5 claims because both recognize a cause of action for the type of workplace discrimination Johnson alleges here. Finally, Johnson argues that the district court erred in dismissing his FE HA claims against all three defendants even though the statute of limitations expired, suggesting that he was entitled to equitable tolling. We consider each argument in turn.

II

The district court dismissed without discussion Johnson's § 1981 claim. Nevertheless, we may affirm the district court's determination on any ground supported by the record. Papa v. United States, 281 F.3d 1004, 1009 (9th Cir.2002) (citing Vestar Dev. II v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir.2001)). A Rule 12(b)(6) dismissal may be based on either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988) (citation omitted). In reviewing the district court's decision, we view Johnson's complaint in the light most favorable to him, accepting all well-pleaded factual allegations as true, as well as any reasonable inferences drawn from them. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.2003) (citations omitted).

A

Among other things, § 1981 guarantees "all persons" the right to "make and enforce contracts." 42 U.S.C. § 1981(a). Section 1981(b) defines that right to include the right to the "enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." As a consequence, we have found claims alleging a hostile work environment cognizable under § 1981. Manatt v. Bank of America, 339 F.3d 792, 797 (9th Cir.2003). Nevertheless, § 1981 only creates a cause of action for those plaintiffs discriminated against on the basis of their race or ethnicity. See Jones v. Bechtel, 788 F.2d 571, 574 (9th Cir.1986) (holding that a plaintiff could not assert a § 1981 claim based on gender discrimination) (citations omitted); see also Magana v. N. Mariana Islands, 107 F.3d 1436, 1446-47 (9th Cir.1997) (holding that plaintiff's claim that she was "Filipino" was a sufficient basis for § 1981 relief). Thus, although Johnson's complaint alleges numerous incidents of sexual orientation discrimination, only his allegations of racial discrimination are relevant to his § 1981 claim.

A prima facie claim for hostile work environment under § 1981 must raise triable issues of fact as to whether "(1) [the plaintiff] was subjected to verbal or physical conduct because of [his] race, (2) the conduct was unwelcome, and (3)...