Bodi v. Shingle Springs Band of Miwok Indians
| Decision Date | 13 May 2014 |
| Docket Number | No. CIV. S–13–1044 LKK/CKD.,CIV. S–13–1044 LKK/CKD. |
| Citation | 19 F.Supp.3d 978 |
| Court | U.S. District Court — Eastern District of California |
| Parties | Beth A. BODI, Plaintiff, v. SHINGLE SPRINGS BAND OF MIWOK INDIANS ; and Does 1 through 15, inclusive, Defendants. |
David Nied, Wendy L. Hillger, AD Astra Law Group, LLP, Katy M. Young, Nossaman LLP, San Francisco, CA, for Plaintiff.
Paula M. Yost, Ian R. Barker, Sandra R. McCandless, Dentons U.S., LLP, San Francisco, CA, for Defendants.
This matter concerns an employment law dispute between plaintiff Beth A. Bodi and defendants Shingle Springs Band of Miwok Indians (“Tribe”), Shingle Springs Tribal Health Program (“Health Program”), Shingle Springs Tribal Health Board (“Health Board”), and individual defendant Brenda Adams, a Tribe member. The gravamen of plaintiff's Second Amended Complaint is that she was wrongfully terminated due to her illness, in violation of state and federal law, including the federal Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (“FMLA”). The action was initially filed in state court; defendants removed, and now move to dismiss under Fed.R.Civ.P. 12(b)(1), asserting lack of subject matter jurisdiction based on tribal sovereign immunity.
Having considered the matter, the court will grant defendants' motion to dismiss in part and deny it in part, for the reasons set forth below.
Plaintiff's Second Amended Complaint (“SAC,” ECF No. 17) alleges as follows.
Defendant Tribe is a federally-registered and recognized Indian tribe. (SAC ¶ 2.) Plaintiff is a Tribe member. (SAC ¶ 18.)
Defendant Health Program operates the Shingle Springs Tribal Health Clinic. Defendant Health Board is responsible for governing the Health Clinic; the Health Board's members, in turn, are appointed by the Shingle Springs Rancheria Tribal Council, the Tribe's governing body (“Tribal Council”). (SAC ¶ 6.)
From February 1997 through August 3, 2012, plaintiff was employed primarily by the Health Program; for approximately the last eleven of these years, she was its Executive Director, a capacity in which she reported to the Health Board. (SAC ¶¶ 18, 20, 21.)
In June 2011, plaintiff was diagnosed with cancer
. She alleges that prior to starting chemotherapy, she met with both the Health Board's chairperson and the Tribe's Human Resources Director. At this meeting, plaintiff indicated that she wanted to take unpaid, job-protected leave under the FMLA; she was told that she need not rely on the FMLA because she was in no danger of losing her job, and that she could take off as much time as she wanted. Plaintiff's chemotherapy regime successfully concluded six months later, in December 2011. (SAC ¶¶ 23–25, 28.)
In mid–2012, plaintiff was given a performance evaluation, her first since 2000. The written evaluation was prepared by a Health Board member, and signed by both another Health Board member and the Tribe's Human Resources Director. Plaintiff was advised that the evaluation covered the April 2011–April 2012 period (i.e., a period encompassing the time during which plaintiff was diagnosed and treated for cancer
). She was given an overall rank of 2 (on a scale of 1 to 5, with 5 being the most favorable); according to the evaluation, this level meant, “Serious effort is needed to improve performance.” (SAC ¶¶ 30–33, 37.)
On June 28, 2012, shortly after she received this evaluation, plaintiff broke her ankle at work; the injury was extensive enough to require corrective surgery. Plaintiff's physicians placed her on temporary disability leave through July 24, 2012; her orthopedic surgeon later ordered her to remain off work till August 6, 2012. She also applied for FMLA leave, which she is informed and believes was in effect starting June 28, 2012. (SAC ¶¶ 40–42.)
By letter dated August 1, 2012, plaintiff was informed that she was “hereby terminated from [her] employment with the Shingle Springs Band of Miwok Indians, Shingle Springs Tribal Health Program, effective immediately.” The letter stated that she was being terminated “for inadequate performance” because of alleged deficiencies occurring “during the last several months.” The letter also noted that the termination had (SAC ¶¶ 44–47.)
Plaintiff believes she was terminated due to her objection to the termination of the Health Program's Medical Director (who had complained about patient loads), her own complaints about patient loads, her calling of attention to troubling accounting irregularities at the Health Program, and her objection to the Tribe moving its Office of Tribal Administration to the Health Clinic. (SAC ¶¶ 53–56.)
Around January 28, 2013, plaintiff was hired as Executive Assistant to the Tribal Council Chairman, a position that paid much less than her previous position as the Health Program's Executive Director. (SAC ¶ 57.) On March 19, 2013, plaintiff sent defendants a communication complaining about her termination from the Health Program and expressing her willingness to seek redress in state court. Two days later, she was placed on administrative leave, and approximately three weeks later, she was terminated. (SAC ¶ 58.)
On April 22, 2013, plaintiff commenced this action in the Superior Court of California for the County of El Dorado. (Notice of Removal, ECF No. 1.)
On May 28, 2013, defendants removed to this court, asserting federal question jurisdiction under 28 U.S.C § 1331. (Id. )
On July 12, 2013, plaintiff filed the operative Second Amended Complaint, which pleads claims under the FMLA and various state laws.
On August 5, 2013, defendants filed the instant motion to dismiss. The basis of defendants' motion is that the Tribe, as a federally-recognized tribal entity, is immune from suit, and that the other defendants are similarly immune due to their relationships with the Tribe. In opposition, plaintiff argues that Congress abrogated tribal sovereign immunity in enacting the FMLA; alternatively, she argues that defendants have waived immunity through their actions.
The matter came on for hearing on March 3, 2014. The following day, the parties filed a joint stipulation (i) requesting that the court stay this matter pending the outcome of settlement discussions, and (ii) pledging to file a status report with the court no later than May 1, 2014. (ECF No. 49.) The court entered the parties' requested order. (ECF No. 50.) On May 1, 2014, the parties notified the court that they were unable to reach a settlement, and requested that the court enter its ruling on the dismissal motion. (ECF No. 51.)
“A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.1989).
“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). “The burden of establishing subject matter jurisdiction rests on the party asserting that the court has jurisdiction.” In re Wilshire Courtyard, 729 F.3d 1279, 1284 (9th Cir.2013) (citing McNutt v. GM Acceptance Corp., 298 U.S. 178, 182–83, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) ). A defendant may raise the defense of lack of subject-matter jurisdiction by motion pursuant to Fed.R.Civ.P. 12(b)(1).
“A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). Id.
In considering a facial attack, the court “determine[s] whether the complaint alleges ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ ” Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir.2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).
“If the defendant instead makes a factual attack on subject matter jurisdiction, the defendant may introduce testimony, affidavits, or other evidence” and “[u]nder these circumstances, ‘no presumptive truthfulness attaches to plaintiff's allegations.’ ” Terenkian, 694 F.3d at 1131 (quoting Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir.2009) ). “In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” Safe Air for Everyone, 373 F.3d at 1039. However, in the absence of a full-fledged evidentiary hearing, disputes as to the pertinent facts are viewed in the light most favorable to the non-moving party. Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1996).
An action should not be dismissed for lack of subject matter jurisdiction without giving the plaintiff an opportunity to amend unless it is clear that the jurisdictional deficiency cannot be cured by amendment. May Dep't Store v. Graphic Process Co., 637 F.2d 1211, 1216 (9th Cir.1980).
Defendants herein advance a facial attack regarding the absence of subject matter jurisdiction, contending that the court's jurisdiction fails as a matter of law. They also attack subject matter jurisdiction on factual grounds, and have submitted extrinsic evidence in support of their motion.
Defendants request that the court take judicial notice of 78 Fed. Reg....
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