Mayes v. Kaiser Found. Hosps.

• Decision Date: 09 January 2013
• Docket Number: No. CIV S–12–1726 KJM EFB.,CIV S–12–1726 KJM EFB.
• Citation: 917 F.Supp.2d 1074
• Court: U.S. District Court — Eastern District of California
• Parties: Edward MAYES, Plaintiff, v. KAISER FOUNDATION HOSPITALS, et al., Defendants.

917 F.Supp.2d 1074

Edward MAYES, Plaintiff,

v.KAISER FOUNDATION HOSPITALS, et al., Defendants.

No. CIV S–12–1726 KJM EFB.

United States District Court, E.D. California.

Jan. 9, 2013.

Pamela Y. Price, Price and Associates, Oakland, CA, for Plaintiff.

Michael R. Lindsay, Nixon Peabody LLP, Los Angeles, CA, Seth Lewis Neulight, Nixon Peabody LLP, San Francisco, CA, for Defendants.

ORDER

KIMBERLY J. MUELLER, District Judge.

This case was on calendar on December 14, 2012 for a hearing on a motion to dismiss filed by defendants Kaiser Foundation Hospitals (KFH), Wynetta McGriff, Janitress Nathaniel, and Sherri Ambrose (collectively, “defendants”). ¹ Seth Neulight, Nixon Peabody LLP, appeared for defendants; Pamela Price appeared for plaintiff. After considering the parties' arguments, the court GRANTS the motion.

I. BACKGROUND

On May 14, 2012, plaintiff Edward Mayes filed an action in Solano County Superior Court alleging several causes of action stemming from his termination from employment at Kaiser Permanente Hospital in Vallejo. ECF No. 1 at 7–18. Defendants removed the action to this court on June 28, 2012. ECF No. 1.

On July 10, 2012, plaintiff filed a demand for a jury trial and on August 7, 2012, filed a first amended complaint. ECF No. 7. Thereafter the parties stipulated to plaintiff's filing a second amended complaint (SAC). ECF Nos. 10, 11. Plaintiff filed the Second Amended Complaint on September 21, 2012, identifying seven causes of action: (1) retaliation in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 215(a)(3), against all defendants; (2) wrongful termination in violation of the public policy embodied in California Labor Code §§ 1173 and 1199 against KFH; (3) wrongful termination of public policy embodied in California Health and Safety Code § 1276.4 against KFH; (4) violation of California's Fair Employment and Housing Act (FEHA), Cal. Govt.Code §§ 12900, et seq., because of race and gender discrimination against KFH; (5) failure to prevent discrimination against KFH; (6) violation of 42 U.S.C. § 1981 because of race discrimination against all defendants; (7) violation of 42 U.S.C. § 2000e–2 based on race and gender discrimination against KFH. ECF No. 12.

The following facts are taken from the Second Amended Complaint. Plaintiff alleges he was hired as a registered nurse (RN) in 2006 and worked at Kaiser Permanente Hospital in Vallejo until his termination on July 1, 2011. ECF No. 12 ¶ 9. He was assigned to work on the fifth floor of Kaiser Vallejo and was one of only two male registered nurses. Id. ¶ 10. Plaintiff is African–American. Id. ¶ 2.

In 2007, plaintiff became a Union Representative with the California Nurses Association(CNA) and in that position regularly advocated for patient care and safety as well as for nurses' labor rights. Id. ¶¶ 9, 10.

In 2010, a doctor issued an order that patient FW be given three showers a week; plaintiff was assigned as FW's primary RN and began to give FW the showers as ordered. Id. ¶ 13. Other nurses had not followed the orders before plaintiff took over FW's care and did not give FW showers when plaintiff was on vacation. Id. ¶¶ 11–12, 16. Plaintiff asked defendant McGriff, who was plaintiff's supervisor on the fifth floor, and defendant Nathaniel, who was the Adult Patient Care Services Administrator and another of plaintiff's supervisors, for assistance, as it was difficult to give FW showers. Id. ¶¶ 4, 5, 14.

On November 8, 2010, plaintiff, in his capacity as CNA representative, attended a meeting with KFH management personnel and other nurses. Plaintiff and other CNA representatives presented information suggesting that managers manipulated acuities, a system of points used to set patient-nurse staffing ratios, resulting in a lower ratio than that permitted by law. Id. ¶ 17. Plaintiff and other CNA representatives also presented evidence that Kaiser managers on the third floor had altered nurses' time cards, which resulted in nurses being denied overtime they had earned, and suggested that the motive for the alteration might be a bonus offered to Kaiser managers who cut costs. Id. ¶ 18. Plaintiff asked for an audit of the entire Kaiser Vallejo payroll and of the acuity alterations; an audit would have affected defendants McGriff, Nathaniel and Ambrose because they are floor managers. Id. ¶¶ 19–20.

On November 10, 2010, an assistant manager told plaintiff he was being investigated for failing to give medications to FW and that defendants Nathaniel, McGriff and Ambrose had requested the investigation. Id. ¶ 21. On November 16, 2010, defendant Nathaniel told plaintiff he was being put on administrative leave for not following doctor's orders regarding pain medication for FW. Id. ¶ 22. Two days later, plaintiff and his union representative met with Nathaniel and Ambrose, who usually did not participate in the preliminary stages of an investigation, and presented documentation that all the nurses on the fifth floor were administering pain medication in the same way as plaintiff. Id. ¶¶ 23–24. Eventually, after being asked to account for all the medication he had given FW, plaintiff demonstrated he had not taken medications prescribed to FW. Id. ¶¶ 25, 28.

In January 2011, defendants accused plaintiff of the same failures and Nathaniel, Ambrose and McGriff suspended plaintiff for one week. Id. ¶ 29. On March 9, 2011 KFH accused plaintiff of not providing medications to another patient, and of taking medications, but eventually closed the investigation without finding that plaintiff had committed misconduct. Id. ¶ 30. On March 21, 2011, Nathaniel said plaintiff was responsible for missing narcotics. Id. ¶ 30. A scheduled meeting never occurred because defendants knew no narcotics were missing. Id. Plaintiff was terminated on July 1, 2011 because of the missing medications, which also had been the subject of the March accusations. Id. ¶ 32.

II. STANDARDS FOR A MOTION TO DISMISS ²A. Rule 12(b)(6) Generally

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” A court may dismiss “based on the lack of 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.1990).

Although a complaint need contain only “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), in order to survive a motion to dismiss this short and plain statement “must contain sufficient factual matter ... to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A complaint must include something more than “an unadorned, the-defendant-unlawfully-harmed-me accusation” or “ ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action.’ ” Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679, 129 S.Ct. 1937. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

In making this context-specific evaluation, this court must construe the complaint in the light most favorable to the plaintiff and accept as true the factual allegations of the complaint. Erickson v. Pardus, 551 U.S. 89, 93–94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). This rule does not apply to “ ‘a legal conclusion couched as a factual allegation,’ ” Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (quoted in Twombly, 550 U.S. at 555, 127 S.Ct. 1955), nor to “allegations that contradict matters properly subject to judicial notice” or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988–89 (9th Cir.2001). A court's consideration of documents attached to a complaint or incorporated by reference or matter of judicial notice will not convert a motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir.2003); Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995); compare Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.2002) (noting that even though court may look beyond pleadings on motion to dismiss, generally court is limited to face of the complaint on 12(b)(6) motion).

B. Review of Documents

Defendants have asked the court to refer to the Collective Bargaining Agreement (CBA) between KFH and CNA, which they have attached as an exhibit to their memorandum of points and authorities, arguing that “its provisions are integralto the viability of Plaintiff's FLSA retaliation claim.” ECF No. 17 at 6 n. 4. “A district court ruling on a motion to dismiss may consider a document the authenticity of which is not contested, and upon which the plaintiff's complaint necessarily relies.” Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.1998), superseded by statute on other grounds as recognized in Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 681 (9th Cir.2006). The Ninth Circuit has explained that such reliance is permissible when “plaintiff's claim depends on the contents of a document” that is not attached to the complaint. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.2005); see also Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir.2007) (in order to prevent a plaintiff from prevailing on a Rule 12(b)(6) motion by omitting documents underlying a claim, court may...