McKenna v. Permanente Med. Grp., Inc.

Decision Date13 August 2012
Docket NumberCase No. CV F 12–0849 LJO GSA.
Citation894 F.Supp.2d 1258
PartiesElizabeth McKENNA, Plaintiff, v. The PERMANENTE MEDICAL GROUP, INC., et al., Defendants.
CourtU.S. District Court — Eastern District of California


Jacqueline Mittelstadt, Mittelstadt Law, South Lake Tahoe, CA, for Plaintiff.

David R. McNamara, McCormick Barstow Sheppard Wayte and Carruth LLP, Fresno, CA, for Defendants.

LAWRENCE J. O'NEILL, District Judge.


Defendant The Permanente Medical Group, Inc. (Kaiser) and defendant MichelleHanrahan (“Ms. Hanrahan”), a Kaiser supervisor, seek to dismiss as improperly pled and legally barred plaintiff Elizabeth McKenna's (Ms. McKenna's) claims arising from her employment with and termination by Kaiser. Ms. McKenna appears to contend that her claims are adequately pled to avoid F.R.Civ.P. 12(b)(6) dismissal. This Court considered Kaiser and Ms. Hanrahan's (collectively “defendants' ”) F.R.Civ.P. 12(b)(6) motion to dismiss on the record and VACATES the August 14, 2012 hearing, pursuant to Local Rule 230(g). For the reasons discussed below, this Court GRANTS in part and DENIES in part dismissal of Ms. McKenna's claims against defendants.


Kaiser employed Ms. McKenna as a medical assistant during December 19, 1995 to December 3, 2009. Ms. McKenna was a member of former defendant SEIU, United Healthcare Workers—West (“UHW”), a union which entered into a collective bargaining agreement (“CBA”) with Kaiser and represents Kaiser employees. Ms. McKenna pursues against defendants employment and union based claims that defendants failed to protect and secure Ms. McKenna's employment interests and subjected Ms. McKenna to discrimination, retaliation and harassment. Defendants challenge the FAC's claims as lacking sufficient facts and barred as a matter of law.

Ms. McKenna's Employment Issues
Medical Leaves

As early as May 2004, Ms. McKenna suffered non-work related medical conditions (chronic kidney stones and female issues) to require intermittent leaves of absence.

Ms. McKenna's March 24, 2009 performance evaluation mentioned neither attendance issues nor negative comments. An April 23, 2009 “investigatory conversation” with Ms. McKenna made no mention of attendance problems.

Date With Man Who Became Ms. Hanrahan's Husband

Ms. McKenna went on a date with a man which “did not go well.” Thereafter, Ms. McKenna's supervisor, Ms. Hanrahan, dated the man and married him. Ms. McKenna began to experience “harassment, retaliation and difficulties at work.” Ms. McKenna complained to a supervisor and requested a transfer to another hospital.

Union Steward

In spring 2009, Ms. Stewart was made an UHW steward.

Concerns About Coworkers

On June 3 or 4, 2009, Ms. McKenna grew concerned that a coworker (“first coworker”) appeared under the influence of alcohol and/or drugs and wrote a formal notification to supervisors. Kaiser conducted a June 18, 2009 “investigatory conversation” about Ms. McKenna's report. Ms. McKenna was suspended for several days for alleged failure to report timely the first coworker.

During this time, Ms. McKenna reported that another coworker (“second coworker”) failed to perform his job duties to the detriment of Ms. McKenna's working group. The second coworker was reprimanded and began making violent threats against Ms. McKenna's supervisor.2 Ms. McKenna overheard the second coworker state on the telephone that he would kill his supervisor and feed her to pigs and that they don't know what we do to people in our country.”

On July 7, 2009, the second coworker waited for Ms. McKenna after work and informed Ms. McKenna that he had something to show her. The second coworker pulled a bat and knife from his car, ripped off a receipt and stated to the effect that the receipt “could be used as evidence.” Ms. McKenna feared for her supervisor's safety and informed her supervisor “about the verbal threats, as well as the bat and knife.” The second coworker was removed immediately from the workplace.

Kaiser disciplined Ms. McKenna for her report of the second coworker.

To retaliate against Ms. McKenna, the second coworker fabricated a complaint that Ms. McKenna had sexually harassed him. On August 4, 2009, Ms. McKenna informed her supervisors that she wanted to file a formal complaint.

Increased Workload

During the last eight months of her employment, Ms. McKenna was forced to perform the work of three people to violate the CBA. Management refused to provide Ms. McKenna help despite her complaints and coworkers' comments.

Second Coworker's Return

The second coworker returned to work “around the corner from Ms. McKenna” but did not share Ms. McKenna's workload to result in her increased workload of “the job of three people.” Ms. McKenna feared for her safety and suffered “extreme distress.” The second coworker often glared at Ms. McKenna, who felt intimidated. The second coworker made hospital machines unavailable to Ms. McKenna to interfere with her job duties.

Workers' Compensation Claim

On September 3, 2009, Ms. McKenna filed a workers' compensation claim for stress-related injury.

Leaves And Suspensions

Ms. McKenna was removed from work during September 1–4, 2009.

On October 1, 2009, Ms. McKenna received approval for a one-year medical leave of absence.

On October 20, 2009, Ms. McKenna was suspended for two days for her reporting the first coworker.

On October 28, 2009, Ms. McKenna filed a grievance.

On November 2, 2009, Ms. McKenna was disciplined for alleged sexual harassment of the second coworker.

On November 10, 2009, Ms. McKenna was called in to discuss her “attendance” although no issue had been raised for seven months “until after Ms. McKenna became a union representative, filed a workers' compensation case, and reported two co-workers for highly unsafe conduct.” On December 1, 2009, Ms. McKenna was “extremely ill” and went on her approved medical leave.

Ms. McKenna's Termination

Kaiser mailed Ms. McKenna a December 3, 2009 termination letter, which noted:

We have made multiple attempts to meet with you to resolve an investigatory conversation that was held with you on 11/10/09. As we have not been successful with meeting with you in person and we are unsure of when you will be at work again, this notice serves as notice of termination of your employment with Kaiser Permanente effective immediately.

Ms. McKenna was terminated 17 days prior to her 15–year mark, at which she would vest in additional retirement benefits.Ms. McKenna was treated differently than other Kaiser employees “who are given a Last Chance Agreement prior to termination.”

Post–Termination Activity

About ten days after Ms. McKenna's termination, UHW and Kaiser were to conduct a meeting on Ms. McKenna's behalf. Ms. McKenna was ill, and UHW representatives told Ms. McKenna that she need not attend in that they would “handle it for her.” After the meeting, Ms. McKenna received no response to her numerous telephone calls and inquiries as to the meeting and “union issues.”

Yvonne Davilla (“Ms. Davilla”) 3 represented to Ms. McKenna that they were ‘helping her,’ and were ‘still working on her,’ and that they would ‘take one thing at a time.’ Ms. McKenna indicated that failure to respond to her calls suggested the absence of assistance. Ms. Davilla angrily retorted that Ms. McKenna had “exhausted her,” “I'm done with you,” “if you fight us, we will fight against you,” and “you cannot sue us.”

Ms. McKenna's Claims Against Defendants

On October 11, 2010, Ms. McKenna filed an administrative charge with the California Department of Fair Employment and Housing (“DFEH”). A March 25, 2011 right-to-sue letter was issued.

On February 28, 2012, prior to removal from state court, Ms. McKenna filed her original complaint against defendants and UHW. After defendants and UHW filed motions to dismiss, Ms. McKenna filed her FAC as a matter of course under F.R.Civ.P. 15(a) to allege against defendants California statutory and common law claims related to her Kaiser employment. This Court will discuss below the claims which defendants challenge.

F.R.Civ.P. 12(b)(6) Motion To Dismiss Standards

Defendants fault the FAC's failure to allege sufficient facts to sustain claims under an existing legal theory or to state a cognizable legal theory to support claims.

“When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Gilligan v. Jamco Development Corp., 108 F.3d 246, 249 (9th Cir.1997). A F.R.Civ.P. 12(b)(6) dismissal is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988); Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7th Cir.1995). A F.R.Civ.P. 12(b)(6) motion “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001).

In addressing dismissal, a court must: (1) construe the complaint in the light most favorable to the plaintiff; (2) accept all well-pleaded factual allegations as true; and (3) determine whether plaintiff can prove any set of facts to support a claim that would merit relief. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–338 (9th Cir.1996). Nonetheless, a court is not required “to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Sciences Securities Litig., 536 F.3d 1049, 1055 (9th Cir.2008) (citation omitted). A court “need not assume the truth of legal conclusions cast in the form of factual allegations,” U.S. ex...

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