Moore v. Cal. Dep't of Corr., CASE NO. CV F 10-1165 LJO SMS

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtLawrence J. O'Neill
Decision Date13 June 2011
Docket NumberDoc. 46.,CASE NO. CV F 10-1165 LJO SMS

CANDY Q. MOORE, Plaintiff,



Dated: June 13, 2011



Defendant California Department of Corrections and Rehabilitation ("CDCR") and several of its officials and employees1 seek to dismiss pro se plaintiff Candy Q. Moore's ("Ms. Moore's") employment termination and related claims as inadequately pled and barred by immunities and defenses. Ms. Moore filed no papers to oppose dismissal of the claims subject to defendants' F.R.Civ.P. 12(b)(6) motion to dismiss. This Court considered defendants' F.R.Civ.P. 12(b)(6) motion to dismiss on the record and VACATES the June 22, 2011 hearing, pursuant to Local Rule 230(c), (g). For the reasons discussed below, this Court DISMISSES all of Ms. Moore's claims against defendants, except those against CDCR for hostile environment and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq.

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Ms. Moore is black and a nurse who worked through a nursing registry at a CDCR facility during part of 2007 and early January 2008. Ms. Moore proceeds on her second amended complaint ("SAC") to allege generally that:

1. Defendant coworker Charles Funch ("Mr. Funch")2 racially harassed Ms. Moore;
2. CDCR did not adequately investigate or remediate the harassment after Ms. Moore reported it; and
3. For filing administrative complaints, Ms. Moore was subjected to retaliation, including changed worked assignments and termination, that is, inability to work at the CDCR facility.
The SAC is unclear and appears to attempt to allege claims of:
1. Hostile work environment under Title VII and the California Fair Employment and Housing Act ("FEHA"), Cal. Gov. Code, §§ 12900, et seq.;
2. Retaliation under Title VII and FEHA;
3. Discrimination under Title VII and FEHA;
4. Wrongful termination in violation of public policy;3 and
5. Intentional infliction of emotional distress ("IIED").

The SAC is disorganized and repetitive and difficult to discern. Following defendants' lead, this Court will summarize the SAC's allegations, including those against particular defendants.

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General Allegations

In April 2007, Ms. Moore was hired to work as a "registry contract nurse" through former defendant Supplemental Health Care, Inc. ("SHC"). During June-October 2007, Ms. Moore "was forced to work two different jobs on two different clinics five times a week. Mr. Funch harassed Ms. Moore "on daily basis" and engaged in "racial misconduct." On November 27, 2007, Ms. Moore "filed charges with E.E.O." for "Discrimination on basis of race retaliation."

In January 2008, Ms. Moore was fired "because she filed charges with EEO." Ms. Moore was fired based on false claims that she had threatened Director Tucker and Nurse Afonso. Ms. Moore was deprived of due process in the absence of an opportunity to defend herself at a committee meeting which addressed allegations that she had made threats against Director Tucker and Nurse Afonso.

Allegations Against Supervisors Mr. Mangrum, Director Tucker And Dr. Martin

When Ms. Moore informed her immediate supervisor Mr. Mangrum of Mr. Funch's racial misconduct, Mr. Mangrum told Ms. Moore "that she needed to keep her objections to herself, besides defendant Funch was a state worker, and the plaintiff had no rights." Mr. Mangrum also told Ms. Moore "to hang in there kid."

Although Director Tucker, another immediate supervisor, had never observed Ms. Moore work, Director Tucker "stated in a memo that she observed the plaintiff [sic] work ethics and job performances" and "stated the plaintiff barely did enough to get the job done, and that the plaintiff worked harder at getting out of work."

Mr. Mangrum and Director Tucker failed to take action or provide counseling for Ms. Moore after Ms. Moore reported Mr. Funch's misconduct of punching "his state issued personal alarm on the plaintiff" on August 30, 2007. Mr. Mangrum, Director Tucker and Dr. Martin placed Mr. Funch in the same workplace, Medical Clinic B, after an investigation found that he created a hostile work environment, behaved inappropriately, and lied during the investigation. After Mr. Funch returned to Medical Clinic B, Mr. Mangrum and Director Tucker failed to stop Mr. Funch's continuing harassment and on October 22, 2007, granted Mr. Funch's request to ban Ms. Moore from Medical Clinic B so that Mr. Funch would not need to work with Ms. Moore.

After Ms. Moore telephoned another supervisor for a copy of the letter banning Ms. Moore from

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Medical Clinic B, Director Tucker telephoned Ms. Moore at her residence "trying to intimidate the plaintiff stating she would be recording the plaintiff, and that the plaintiff would say that she is aware of the note and . . . [of] Funch being placed back to work with the plaintiff." Director Tucker refused Ms. Moore's request for a personal meeting and stated that Ms. Moore was "just registry" with no need to talk to her in person. Director Tucker continued to telephone Ms. Moore's residence "several times." Because Ms. Moore filed an EEO charge of discrimination, Director Tucker "called plaintiffs [sic] house numerous times trying to intimidate plaintiff, by telling the plaintiff she is being recorded over the phone, and that the plaintiff better lie and say she's aware of the defendant Funch, being placed back on the yard and that the plaintiff agreed that, there was no problem."

After the supervisors learned of Ms. Moore's EEO charge, Mr. Mangrum told Ms. Moore to talk to Nurse Afonso about a change in Ms. Moore's work shift and Nurse Afonso told Ms. Moore to talk to Mr. Mangrum. Mr. Mangrum, Director Tucker and Dr. Martin improperly granted Mr. Funch's grievance against Ms. Moore on December 24, 2007 and failed to respond appropriately to Mr. Funch's calls about Ms. Moore.

Because Ms. Moore "filed charges with EEO," she was fired by Director Tucker on January 4, 2008 and by Dr. Martin on January 8, 2008. Dr. Martin put Ms. Moore's "picture up at the entrance for coworkers to see." Ms. Moore was fired because a committee made false charges that Ms. Moore had made threats, and the committee's chairman was Dr. Martin, and Director Tucker was a committee member.

Allegations Against Nurse Afonso

When Ms. Moore attempted to contact Nurse Afonso about scheduling, Nurse Afonso placed a note on a desk that Ms. Moore was banned from working "B Medical" per Director Tucker. Ms. Afonso refused to talk to Ms. Moore about a shift change and indicated that she "would not talk to plaintiff due to her civil rights complaining" and directed Ms. Moore to Mr. Mangrum to address scheduling.

Despite knowing that Ms. Moore had complained about Mr. Funch and after Director Tucker banned Ms. Moore from Medical Clinic B, Ms. Fonso scheduled Ms. Moore to work Medical Clinic B where Mr. Funch worked. When Ms. Moore complained about not feeling safe and requested a reassignment, Nurse Fonso told Ms. Moore to take the assignment or go home without pay. Although

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Nurse Afonso scheduled Ms. Moore to work a later shift after a morning shift, Ms. Afonso sent Ms. Moore home after her morning work.

Nurse Afonso became irate with Ms. Moore after Ms. Moore submitted a December 11, 2007 memorandum regarding schedule changes and childcare issues and indicated that she did not need to respond to Ms. Moore's memorandum in writing. On January 4, 2008, Ms. Moore learned from SHC that Nurse Afonso and Director Tucker had informed SHC that Ms. Moore had threatened them and that Ms. Moore should not telephone the CDCR facility or come onto the grounds.

Because Ms. Moore had filed discrimination charges and "exercised her rights," Nurse Afonso, Mr. Mangrum, Director Tucker and Dr. Martin conspired "to make up false allegations on threats because that's the only way plaintiffs [sic] charges would be dropped, and she would be terminated." Nurse Afonso further changed Ms. Moore's schedule and refused to answer memos regarding her schedule.

Allegations Against Warden Hornbeak And Associate Warden Colmenero

Warden Hornbeak and Associate Warden Colmenero issued a December 3, 2007 memorandum that Ms. Moore "is free from any further discrimination and retaliation." Because Associate Warden Colmenero "went on vacation shortly after plaintiff filed charges of discrimination, defendant did not follow policy and procedure when a complaint is filed." Warden Hornbeak fired Ms. Moore on January 9, 2008.

Allegations Against Mr. Miller

Mr. Miller "called the plaintiffs [sic] house after she was fired, telling her that he was doing an investigation, which defendant Miller never told...

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