Gamble v. Kaiser Found. Health Plan, Inc.

Decision Date18 December 2018
Docket NumberCase No. 17-cv-06621-YGR
Citation348 F.Supp.3d 1003
Parties Lunell GAMBLE and Sheila Kennedy, Plaintiffs, v. KAISER FOUNDATION HEALTH PLAN, INC., et al., Defendants.
CourtU.S. District Court — Northern District of California

Jeremy L. Friedman, Law Offices of Jeremy L. Friedman, Oakland, CA, for Plaintiffs.

Claire A. Hoffmann, Amanda Bolliger Crespo, GBG LLP, San Francisco, CA, Heather Ann Morgan, GBG LLP, Los Angeles, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS; GRANTING IN PART AND DENYING IN PART MOTION TO STRIKE; DENYING MOTION FOR RULE 11 SANCTIONS

Re: Dkt. No. 35, 44, 45

Yvonne Gonzalez Rogers, United States District Court Judge

Plaintiff Lunell Gamble filed her complaint alleging claims of employment discrimination under the California Fair Employment and Housing Act (FEHA), Cal. Gov't Code section 12940 et seq., in the Superior Court of Alameda County, California. With a demurrer pending, Gamble filed a First Amended Complaint. When a demurrer to the First Amended Complaint was sustained with leave to amend, Gamble was permitted to file a Second Amended Complaint which added claims under 42 U.S.C. section 1981. Gamble's Second Amended Complaint was then removed to this Court on November 16, 2017 by defendants Kaiser Foundation Health Plan, Inc. ("Health Plan"), Kaiser Foundation Hospitals ("Hospitals"); and The Permanente Medical Group ("Medical Group"). (See Dkt. No. 1.) Gamble then filed a new amended complaint on January 12, 2018, in this Court. (Dkt. No. 18.) Defendants filed a motion to dismiss and a motion to strike. Gamble filed a motion for Sanctions under Rule 11 against defendants. (Dkt. No. 35.)

Thereafter, in April 2018 and before the Court ruled on the pending motions, Gamble sought and was granted leave to file a new iteration of the complaint, styled as a Second Amended Complaint, adding new claims and a new plaintiff, Sheila Kennedy. (Dkt. No. 38.)

Presently pending before the Court are three motions: (1) defendants' motion dismiss the complaint under Rules 12(b)(1) and 12(b)(6) (Dkt. No. 44); (2) defendants' motion to strike allegations therein under the California anti-SLAPP statute, Cal. Code of Civil Proc. section 425.16 and Rule 12(f) of the Federal Rules of Civil Procedure (Dkt. No. 45), and plaintiff Gamble's motion for Rule 11 Sanctions (Dkt. No. 35). Having carefully considered the papers filed in support of and in opposition to the motions, as well as the matters properly subject to judicial notice in connection with these motions, and for the reasons stated herein, the Court ORDERS as follows:

(1) Defendants' motion to dismiss is GRANTED IN PART AND DENIED IN PART.

On the First Cause of Action, insofar as it alleges a violation of section 1981, the motion to dismiss is GRANTED .

To the extent that the all the causes of action in the SAC are alleged under Title VII and/or the ADEA, those claims are time-barred as to Gamble, and the motion to dismiss on those grounds is GRANTED .

The motion to dismiss on all other grounds, including failure to exhaust the disparate impact claim, class-wide claims, claims as to each defendant, Gamble's claims based upon promotion and race-plus-gender, Kennedy's claims as to promotion and age discrimination in promotion; and failure to allege the class claims and disparate impact claims sufficiently, is DENIED .

(2) Defendants' motion to strike GRANTED IN PART AND DENIED IN PART . The motion to strike pursuant to the California anti-SLAPP statute is DENIED for failure to demonstrate that the claims are directed to protected activity.

The motion to strike under Rule 12(f) is GRANTED WITH LEAVE TO AMEND as to paragraphs 22a-c, 40, 53, and 90, and the Fifth Cause of Action; and GRANTED WITHOUT LEAVE TO AMEND as to paragraph 51.

(3) Plaintiff's motion for Rule 11 sanctions in connection with the anti-SLAPP motion is DENIED .

I. BACKGROUND

Plaintiffs Lunell Gamble and Sheila Kennedy allege that they worked for defendants Hospitals, Health Plan, and Medical Group which they allege act as a single employer, "Kaiser." (SAC, Dkt. No. 38, ¶ 12.) Plaintiffs are African-American women over the age of 40 who allege they were denied promotions and involuntarily terminated by Kaiser. Plaintiffs seek to represent a class of African-Americans, and subclasses of female African-Americans and older African-Americans, who were employed at Kaiser in the northern California region, and (1) were denied promotion, (2) were terminated, or (3) complained internally or to a governmental entity regarding race or age discrimination.

The SAC alleges that, beginning in 1997, Gamble worked in Kaiser's Human Resources department. Gamble alleges that she was denied promotions and subjected to a pattern and practice of discrimination, despite her qualifications and excellent performance. (SAC ¶ 44.) She alleges she also was subjected to harassment and unreasonable scrutiny by the person who began supervising her in July 2012, Rosa Grajeda. (Id. ¶¶ 43-44.) Gamble asserts that Grajeda and Kaiser determined to terminate her under false pretenses, and ultimately terminated her on July 29, 2014. (Id. ¶¶ 45, 46.)

Kennedy began working at Kaiser in October of 1997, and worked in various positions in the Chemical Dependency and Rehabilitation Program. (Id. at ¶ 47.) Kennedy alleges she was denied promotions, transfers, pay raises, and other benefits that were given to non-African-American employees, even though her performance and qualifications were equal to or better than those employees. (Id. ¶¶ 48, 49.) She further alleges that she was threatened, retaliated against, and ultimately terminated because of her race and because she made complaints regarding Kaiser's non-compliance with civil rights laws. (Id. ¶ 49.) Ultimately, Kennedy alleges that she was subjected to disciplinary proceedings based on false information and was terminated in February 2016. (Id. ¶ 49.)

II. MOTION TO DISMISS

Defendants seek to dismiss certain claims brought by Gamble and Kennedy on the grounds of: (a) failure to exhaust their administrative remedies; (b) untimeliness of the charge or suit; and (c) failure to allege the claim sufficiently. The Court considers each in turn.

A. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

In order to bring a civil action alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), the federal Age Discrimination in Employment Act (ADEA), of the California Fair Employment and Housing Act (FEHA), a plaintiff must first exhaust administrative remedies by filing a timely complaint with the appropriate government agency and receiving a right-to-sue letter. See 42 U.S.C. § 2000e-5(e), (f)(1) (Title VII); 29 U.S.C. § 626(d) (ADEA) ; Cal. Gov't Code § 12965(b) (FEHA). Where federal and state law overlap, there is a work-sharing agreement under which employment discrimination charges may be filed either with the federal Equal Employment Opportunity Commission (EEOC) or the state anti-discrimination agency, which in California is the Department of Fair Employment and Housing (DFEH). See 42 U.S.C. § 2000e-8(b). Charges filed with either the EEOC or the DFEH are deemed filed with both agencies. See Laquaglia v. Rio Hotel & Casino, Inc. 186 F.3d 1172, 1175-1176 (9th Cir. 1999).1

As a general rule, a plaintiff may not bring suit upon discrimination claims that are not "like or reasonably related to the allegations contained in" the administrative charge. B.K.B. v. Maui Police Dep't. , 276 F.3d 1091, 1100 (9th Cir. 2002) (quoting Green v. L.A. County Supt. Of Sch. , 883 F.2d 1472, 1475 (9th Cir. 1989) ); Okoli v. Lockheed Tech. Operations Co. , 36 Cal. App. 4th 1607, 1615, 43 Cal.Rptr.2d 57 (1995) (adopting similar standard for DFEH charges). Courts construe the language of the administrative charge "with utmost liberality since they are made by those unschooled in the technicalities of formal pleading." B.K.B. , 276 F.3d at 1100 (quoting Kaplan v. Int'l Alliance of Theatrical & Stage Employees , 525 F.2d 1354, 1359 (9th Cir. 1975) ).

"[U]nnamed class members in a private class action need not exhaust administrative remedies." Arizona ex rel. Horne v. Geo Grp., Inc. , 816 F.3d 1189, 1204 (9th Cir. 2016), cert. denied sub nom. Geo Grp., Inc. v. E.E.O.C. , ––– U.S. ––––, 137 S.Ct. 623, 196 L.Ed.2d 515 (2017). "In addition, an aggrieved employee who fails to file a timely charge ... may still be able to pursue a claim under the piggyback or single-filing rule, in which the employee ‘piggyback[s]' onto the timely charge filed by another plaintiff for purposes of exhausting administrative remedies." Id. , citing Harris , 682 F.3d at 1136.2 The single filing rule is applicable even if the administrative charge did not indicate it was on behalf of a class, and even if the individual seeking to piggyback on the plaintiff's claim had filed her own administrative charge before joining in plaintiff's lawsuit. Harris , 682 F.3d at 1136-37 ; see also Ellis v. Costco Wholesale Corp. , No. C-04-3341 EMC, 2015 WL 2453158, at *2–3 (N.D. Cal. May 22, 2015) (plaintiff could piggyback on co-plaintiff's administrative charge, even if she had filed her own administrative charge separately before joining lawsuit).

Defendants argue that both plaintiffs failed to exhaust their: (1) disparate impact claims under Title VII and FEHA; (2) Title VII, FEHA and ADEA claims against entities other than those stated as the respondent in their charges, despite their attempt to allege a single employer theory; and (3) claims on a class-wide basis generally. In addition, defendants argue as to the individual plaintiffs that: (4) Gamble failed to exhaust "pattern and practice" claims, including those alleging gender discrimination and failure to promote; (5) Kennedy failed to exhaust any promotion claim timely in either her 2017 or 2018 charge; and (6) Kennedy failed to exhaust an age-based promotion claim. Each is addressed below.

1. Failure to Exhaust Disparate Impact...

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