Kailikole v. Palomar Community College District et al, No. 3:2018cv02877 - Document 20 (S.D. Cal. 2019)
Court Description: ORDER Denying 9 Defendant's Motion to Dismiss. Signed by Judge Anthony J. Battaglia on 4/26/2019. (tcf)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KATHRYN KAILIKOLE, an individual, Plaintiff, 12 13 v. 14 PALOMAR COMMUNITY COLLEGE DISTRICT, a governmental entity; and DOES 1 through 25, inclusive, 15 16 Case No.: 18-CV-02877-AJB-MSB ORDER DENYING DEFENDANT’S MOTION TO DISMISS (Doc. No. 9) Defendants. 17 18 Pending before the Court is Defendant Palomar Community College District’s 19 motion to dismiss. (Doc. No. 9.) Plaintiff filed an opposition to Defendant’s motion to 20 dismiss. (Doc. No. 11.) For the reasons set forth more fully below, the Court DENIES 21 Defendant’s motion to dismiss. Pursuant to Civil Local Rule 7.1.d.1, the Court finds the 22 instant matter suitable for determination on the papers and without oral argument. 23 Accordingly, the hearing date of June 20, 2019 at 2 p.m. is vacated as to this motion only. 24 I. BACKGROUND 25 Kathryn Kailikole (“Plaintiff”) brings seven causes of action, under state and federal 26 law, for retaliation and disability discrimination against her previous employer, Palomar 27 Community College District (“Defendant”). (Doc. No. 7.) Plaintiff alleges that on 28 December 14, 2017 she was “mysteriously and suddenly placed on paid leave.” (Id. ¶ 13.) 1 18-CV-02877-AJB-MSB 1 She was told she could not speak to anyone at the college and was not given information 2 about why she was removed, other than that it involved an investigation related to a 3 confidentiality issue. (Id. ¶ 14.) Plaintiff remained on paid leave for five months without 4 ever being informed of the nature of the allegations. (Id. ¶ 15.) 5 Plaintiff’s retaliation claims are rooted in her participation as a witness in an 6 investigation against Takashi Nakajima (“Nakajima”) and Arthur Gerwig (“Gerwig”), who 7 were professors at Palomar Community College District accused of sexual harassment and 8 race discrimination. (Id. ¶¶ 5–10.) In May 2017, Plaintiff received a report from a faculty 9 member about their racist and sexually harassing conduct, and reported the incident to 10 Shawna Cohen, the District’s Manager of the Equal Opportunity and Compliance Office 11 and a Deputy Title IX Coordinator. (Id. ¶ 6.) On November 1, 2017, an investigator for the 12 school district concluded that Plaintiff was credible, and Nakajima and Gerwig were guilty 13 of violating the College’s anti-harassment policies. (Id. ¶ 9.) No action was taken against 14 these professors. (Id. ¶ 10.) Plaintiff inquired and discussed with other faculty in November 15 2017 as to why action was not being taken. (Id.) On December 12, 2017, the District placed 16 Nakjima and Gerwig on one month of unpaid leave. (Id. ¶ 12.) Plaintiff was subsequently 17 placed on paid leave on December 14, 2017. (Id. ¶ 13.) Plaintiff alleges that her computer 18 was searched, without her consent, to acquire evidence that would discredit her report of 19 Nakajima’s and Gerwig’s racist and sexually harassing conduct. (Id. ¶ 19.) Through this 20 search, an email dated December 8, 2017 was obtained. (Id.) This email contained a 21 forwarded message from the Plaintiff to another faculty member about an incident 22 involving Nakajima and Gerwig. (Id.) The faculty member then forwarded the email to his 23 wife. (Id. ¶¶ 20–22.) Based on this conduct, the District investigator concluded that 24 Plaintiff was part of a conspiracy to leak confidential information about Nakajima and 25 Gerwig outside the College. (Id.) 26 Plaintiff’s disability claims are rooted in her informing the Defendant of her 27 disability and her subsequent termination. (Id. ¶¶ 2, 11, 14.) On May 5, 2017, Plaintiff 28 alleges that she needed to leave a meeting because she believed she was having a heart 2 18-CV-02877-AJB-MSB 1 attack. (Id. ¶ 4.) Plaintiff was instead having a panic attack and was later diagnosed with 2 anxiety. (Id.) She suffers from feelings of being overwhelmed, helplessness, and 3 nervousness. (Id.) She also has panic attacks and suffers from vertigo and cysts. (Id.) The 4 effects of her anxiety affect her daily activities. (Id.) Plaintiff informed Dr. Jack Kahn, the 5 Vice-President of Instruction, that she suffered from anxiety in May 2017. (Id.) Plaintiff 6 later met with Dr. Kahn on December 4, 2017 and discussed her anxiety with him. (Id. ¶ 7 11.) Dr. Kahn “assured Plaintiff that she was an ‘incredibly valuable member of the team’ 8 and that he was dedicated to providing her with his ‘complete support.’” (Id.) Less than 9 two weeks after this meeting, Plaintiff was put on paid leave. (Id. ¶ 13.) 10 II. LEGAL STANDARD 11 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s 12 complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A] court may dismiss 13 a complaint as a matter of law for (1) lack of cognizable legal theory or (2) insufficient 14 facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta Dental Plan of Cal., 15 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a complaint will survive a 16 motion to dismiss if it contains “enough facts to state a claim to relief that is plausible on 17 its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making this 18 determination, a court reviews the contents of the complaint, accepting all factual 19 allegations as true and drawing all reasonable inferences in favor of the nonmoving party. 20 See Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 975 21 (9th Cir. 2007). Notwithstanding this deference, a reviewing court need not accept legal 22 conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for 23 a court to assume “the [plaintiff] can prove facts that [he or she] has not alleged.” Assoc. 24 Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 25 (1983). However, “[w]hen there are well-pleaded factual allegations, a court should assume 26 their veracity and then determine whether they plausibly give rise to an entitlement to 27 relief.” Iqbal, 556 U.S. at 664. 28 /// 3 18-CV-02877-AJB-MSB 1 III. DISCUSSION 2 A. 3 As a threshold issue, the Court will first turn to Defendant’s request for judicial 4 notice. Pursuant to Rule 201, a court may take judicial notice of adjudicative facts “not 5 subject to reasonable dispute.” Fed. R. Evid. 201(b). Facts are indisputable, and thus 6 subject to judicial notice, only if they are either “generally known” under Rule 201(b)(1) 7 or “capable of accurate and ready determination by resort to sources whose accuracy cannot 8 be reasonably questioned” under Rule 201(b)(2). Id. If the parties dispute the facts 9 contained in the documents, “the Court takes judicial notice only of the statements 10 contained,” but not for the truth of the matters asserted. Shenwick v. Twitter, Inc., 282 F. 11 Supp. 3d 1115, 1122 (N.D. Cal. 2017) (citations omitted); see also City of Roseville 12 Employees’ Ret. Sys. v. Sterling Fin. Corp., 963 F. Supp. 2d 1092, 1108 (E.D. Wash. 2013), 13 aff’d, 691 F. App’x 393 (9th Cir. 2017) (court found it unnecessary to consider the 14 truthfulness of judicially noticeable documents in a defendant’s motion to dismiss). Request for Judicial Notice 15 Defendant’s motion requests judicial notice of the following documents: Notice of 16 Proposed Discharge (Exhibit A), the Governing Board Regular Meeting Agenda for June 17 12, 2018 (Exhibit B), the June 11, 2018 24-Hour Notice Pursuant to Government Code 18 section 54957 (Exhibit C), the Governing Board Minutes for the June 12, 2018 Meeting of 19 the Governing Board (Exhibit D), and the Notice of Termination (Exhibit E). (Doc. No. 9- 20 3.) Plaintiff argues that the documents contain assertions that are subject to dispute and are 21 being offered for the truth of the matter asserted. (Doc. No. 11 at 9.) The Court agrees. 22 Defendant requests judicial notice of exhibits that contain assertions that are disputed and 23 are not generally known or capable of accurate and ready determination. As such, the Court 24 finds the documents are purported evidence of Plaintiff’s performance issues and thus, are 25 subject to reasonable dispute. Accordingly, the Court DENIES Defendant’s request for 26 judicial notice. 27 /// 28 /// 4 18-CV-02877-AJB-MSB 1 B. 2 Plaintiff Participated in a Protected Activity and then Faced Retaliation by her Employer 3 A plaintiff establishes a prima facie case of retaliation by showing “that: 1) [s]he 4 engaged in a protected activity; 2) [s]he [subsequently] suffered an adverse employment 5 decision; and 3) there was a causal link between the protected activity and the adverse 6 employment decision.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 7 2002). “Protected activity includes the filing of a charge or a complaint, or providing 8 testimony regarding an employer’s alleged unlawful practices, as well as engaging in other 9 activity intended to ‘oppose[]’ an employer’s discriminatory practices.” Raad v. Fairbanks 10 N. Star Borough, 323 F.3d 1185, 1197 (9th Cir. 2003) (quoting 42 U.S.C. § 2000e-3(a)). 11 “[P]roximity in time between the protected action and the allegedly retaliatory employment 12 decision” can create an inference that the employer’s actions were caused by an employee’s 13 engagement in protected activities. Id. (internal quotations and citations omitted). “[T]he 14 plaintiff must also make some showing sufficient for a reasonable trier of fact to infer that 15 the defendant was aware that the plaintiff had engaged in protected activity.” Id. 16 The Defendant alleges that under the “manager rule,” Plaintiff is unable to bring a 17 claim of retaliation because her formal job duties and tasks included reporting harassment 18 and discrimination. An employer cannot restrict employees’ rights by creating excessively 19 broad 20 “Formal job descriptions often bear little resemblance to the duties an employee” is 21 expected to perform. Id. at 424–25. However, “a given task in an employee’s 22 written job description is neither necessary nor sufficient to demonstrate that conducting 23 the task is within the scope of the employee's professional duties.” Id. at 425. job descriptions. Garcetti v. Ceballos, 547 U.S. 410, 424 (2006). 24 The law remains unclear and the Ninth Circuit has yet to speak as to the applicability 25 of the “manager rule” for retaliation under either Title IX or Title VI. The “manager rule” 26 has been applied, however, in some Circuits in the context of retaliation claims under the 27 Fair Labor Standards Act (“FLSA”). See McKenzie v. Renberg's Inc., 94 F.3d 1478, 1486– 28 87 (10th Cir. 1996); Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 627–28 (5th Cir. 5 18-CV-02877-AJB-MSB 1 2008); Claudio-Gotay v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 102 (1st Cir. 2004). 2 The “manager rule” requires an employee “[to] step outside his or her role of representing 3 the company” in order to engage in protected activity. McKenzie, 94 F.3d at 1486–87 4 (“[T]he employee must [take certain actions] or otherwise engage in activities that 5 reasonably could be perceived as directed towards the assertion of rights protected by the 6 FLSA.”). Further, the “manager rule” is distinguishable from the Kasten “fair notice” rule. 7 See Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14 (2011) (“[A] 8 complaint must be sufficiently clear and detailed for a reasonable employer to understand 9 it, in light of both content and context, as an assertion of rights protected by the statute and 10 a call for their protection.”). 11 The Ninth Circuit has not applied the “manager rule” in an FLSA context. See 12 Rosenfield v. Globaltranz Enters., 811 F.3d 282, 287 (9th Cir. 2015). In Rosenfield, the 13 court did not definitively weigh in whether if the manager rule should be applied. Id. It is 14 unclear if the “manager rule” is broader, narrower, or the same as the Kasten “fair notice” 15 rule. Id. Regardless, Kasten’s “fair notice” rule is controlling in the Ninth Circuit for FLSA 16 causes of action. Id. However, this instant claim is brought under Title IX and Title VI, 17 and the Court finds that the “manager rule” should not apply as the Ninth Circuit has not 18 even applied the “manager rule” in a FLSA context. Additionally, applying the “manager 19 rule” to either Title IX or Title VI would potentially eliminate a large category of workers 20 from its anti-retaliation protections. Nothing from the language of either of these statutes 21 indicates that the statutory protection granted to an employee’s conduct turns on the 22 employee’s job description. 23 Defendant contends that Plaintiff did not engage in a protected activity since 24 reporting Nakajima’s and Gerwig’s harassing and discriminatory conduct was in 25 accordance with her assigned job duties. (Doc. No. 9 at 10–14.) However, the Court must 26 accept all factual allegations as true and draw on reasonable inferences in favor of the 27 nonmoving party. See Cedars-Sinai Med. Ctr., 497 F.3d at 975. Here, Plaintiff alleges that 28 as the Academic Dean, she was responsible for planning, organizing, administering, 6 18-CV-02877-AJB-MSB 1 developing, and evaluating the instructional programs, projects and activities of her 2 division. (Doc. No. 7 ¶ 6.) As alleged in her first amended complaint, Plaintiff’s job title 3 and duties do not indicate that she was a compliance officer or a human resource 4 professional. (Id.) Additionally, Plaintiff reported the conduct to Cohen. (Id.) Cohen was 5 responsible for investigating the alleged conduct by Nakajima and Gerwig. (Id.) 6 Based on the facts alleged in Plaintiff’s first amended complaint, the Court finds 7 Plaintiff’s role as Dean does not immunize the Defendant from a retaliation claim. The 8 Court DENIES the Defendant’s motion to dismiss Plaintiff’s first, second, and third causes 9 of action. 10 C. 11 California state and federal courts follow the McDonnell Douglas three-part, burden- 12 shifting framework to assess a plaintiff’s disability discrimination claims and to determine 13 whether there are triable issues of fact for resolution by a jury. Faust v. California Portland 14 Cement Co., 150 Cal. App. 4th 864, 886 (Cal. Ct. App. 2007) (applying the test established 15 in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). To establish a prima 16 facie case of disability discrimination, the Plaintiff must show: (1) she suffers from a 17 disability; (2) she was otherwise qualified to do the job; and (3) she was subjected to an 18 adverse employment action because of the disability. See Smith v. Clark County Sch. Dist., 19 727 F.3d 950, 955 (9th Cir. 2013). Plaintiff Likely Suffers from a Cognizable Disability 20 To succeed on a FEHA claim for failure to accommodate, a plaintiff must show that 21 she (1) has a disability of which the employer is aware, and (2) is a qualified individual. 22 Diaz v. Fed. Express Corp., 373 F. Supp. 2d 1034, 1054 (C.D. Cal. 2005) (citing Cal. Gov't 23 Code § 12940(m)) (citations omitted). “Unlike for a claim for employment discrimination, 24 a plaintiff need not establish that an adverse employment action was caused by the 25 plaintiff's disability because [ ] a FEHA claim for failure to accommodate is an independent 26 cause of action.” Diaz, 373 F. Supp. 2d at 1054; see Jensen v. Wells Fargo Bank, 85 Cal. 27 App. 4th 245, 254 (Cal. Ct. App. 2000); Perez v. P&G Mfg. Co., 161 F. Supp. 2d 1110, 28 1119 (E.D. Cal. 2001). 7 18-CV-02877-AJB-MSB 1 i. Anxiety or Stress may be Considered a Disability Under FEHA 2 “[T]he Legislature has determined that the definitions of ‘physical disability’ and 3 ‘mental disability’ under [California law] require a ‘limitation’ upon a major life activity, 4 but do not require, as does the Americans with Disabilities Act of 1990, a ‘substantial 5 limitation.’ This distinction is intended to result in broader coverage under [California law] 6 than under [the ADA].” Jensen, 85 Cal. App. 4th at 258 (quoting Stats. 2000, ch. 1049, § 7 6.) A plaintiff need only show that her condition limited, rather than substantially limited, 8 a major life activity. Jensen, 85 Cal. App. 4th. at 257–59. Anxiety, nervousness, 9 depression, helplessness, and panic attacks could, as a matter of law, meet the definition of 10 mental disability even under the “substantial limitation” standard. Id. at 259. 11 The Defendant asserts that Plaintiff’s anxiety does not reach the level of “limitation” 12 that would constitute a disability under FEHA. Plaintiff alleges that her anxiety caused her 13 to feel overwhelmed, helpless, and nervous. (Doc. No. 7 ¶ 4.) Plaintiff also states that she 14 suffered from vertigo, cysts, as well as panic attacks and that her anxiety “limit[ed] her in 15 her major life activities.” (Id.) The Court cannot make a factual determination as to whether 16 the anxiety Plaintiff faced is sufficient to meet the “limitation” standard of a disability 17 under FEHA, or even the stricter ADA “substantial limitation” standard. Anxiety is 18 considered a disability under FEHA, which as a matter of law, is sufficient to proceed. The 19 Court declines to make a factual determination as to whether the Plaintiff’s anxiety was 20 severe enough to qualify under either a “limitation” standard or “substantial limitation” 21 standard. 22 ii. Plaintiff’s Disability was not “Work-Related” 23 Defendant argues workplace stress related to an employee’s job performance is not 24 alone a cognizable disability under FEHA. “An employee’s inability to work under a 25 particular supervisor because of anxiety and stress related to the supervisor’s standard 26 oversight of the employee's job performance does not constitute a disability under FEHA.” 27 Higgins-Williams v. Sutter Medical Foundation, 237 Cal. App. 4th 78, 84 (Cal. Ct. App. 28 2015). Defendant asserts that Plaintiff has failed to allege a recognizable disability under 8 18-CV-02877-AJB-MSB 1 FEHA because Plaintiff’s anxiety is strictly “work-related.” (Doc. No. 9 at 17.) However, 2 the instant action is distinguishable from Higgins-Williams since no facts have been 3 presented here that indicate that Plaintiff’s stress and anxiety relates to working under a 4 particular supervisor. Additionally, no facts indicate that the stress was specifically “work- 5 related.” 6 Plaintiff alleges that she first became aware of her anxiety in early May 2017, after 7 having a panic attack at work. (Doc. No. 7 ¶ 4.) In May 2017, Plaintiff met with Dr. Khan 8 to inform him of this anxiety. (Id.) It was not until December 2017 that she “discussed her 9 anxiety with Dr. Khan and expressed concern about her overwhelming workload, which 10 included duties that are not typically part of the Dean’s job.” (Id. ¶¶ 11, 68.) This meeting 11 took place after months of Plaintiff acting as a witness in the investigation of Nakajima’s 12 and Gerwig’s racist and sexually harassing conduct. (Id. ¶ 8.) Plaintiff stated that she was 13 suffering from anxiety and expressed concern for her workload. These two individualized 14 concerns, in context, do not appear to hint that Plaintiff’s anxiety and stress stemmed from 15 her workload. Rather, she had anxiety, and in addition, had concerns about her workload. 16 Because the Court must accept all factual allegations as true, we must accept Plaintiff’s 17 assertion that these are individualized, unrelated concerns as true. See Cedars-Sinai Med. 18 Ctr., 497 F.3d at 975. Additionally, Plaintiff discussed her disability with Dr. Khan during 19 a May 2017 meeting. (Doc. No. 7 ¶ 4.) This was approximately two months before she 20 reported the racist and sexually harassing conduct, indicating her anxiety was separate from 21 her concerns about the investigation adding to her workload. 22 Based on the foregoing, the Court finds that it remains unclear whether Plaintiff 23 suffered from anxiety and whether the disability was simply caused by temporary 24 workplace stressors. These determinations cannot be made at this stage of the litigation. 25 Thus, this Court DENIES Defendant’s Motion to Dismiss Plaintiff’s fourth, fifth, and sixth 26 causes of action. 27 /// 28 /// 9 18-CV-02877-AJB-MSB 1 D. 2 An “internal” remedy is “established by a private organization.” Payne v. Anaheim 3 Memorial Medical Center, Inc., 130 Cal. App. 4th 729, 739 (Cal. Ct. App. 2005). An 4 “administrative” remedy is “traditionally provided by statute.” Id. Both are considered 5 “alternatives to an action [ ] in court.” Id. Alternative remedies must include a right to be 6 heard and to have a decision rendered fairly and sufficiently. Id. at 239–40. Exhaustion of 7 “administrative remed[ies] is a jurisdictional prerequisite to resort to the courts.” Abelleira 8 v. District Court of Appeal, 17 Cal. 2d 280, 293 (Cal. 1941) (emphasis added). Plaintiff Exhausted her Administrative Remedies 9 An employee “who claim[s] to have suffered employment-related discrimination 10 need not exhaust [ ] internal remedies prior to filing a complaint. Schifando v. City of Los 11 Angeles, 31 Cal. 4th 1074, 1092 (Cal. 2003). In Schifando, the court noted the value of the 12 exhaustion of internal grievance procedures, where the Legislature did not mandate 13 administrative review. Id. at 1075. However, there is no required exhaustion of internal 14 remedies where an employee would have other mandated exhaustion prerequisites under 15 FEHA. Id. 16 Defendant conflates administrative and internal remedies. See Campbell v. Regents 17 of University of California, 35 Cal. 4th 311, 332 (Cal. 2005) (finding that a whistleblower 18 was required to exhaust administrative remedies); Palmer v. Regents of the University of 19 California, 107 Cal. App. 4th 899, 910 (Cal. Ct. App. 2003) (holding that a whistleblower 20 was required to exhaust internal remedies as required by the Legislature). Further, 21 Defendant relies upon authority that is distinguishable from the instant action. First, 22 Campbell and Palmer involve whistleblowers. Here, the Plaintiff was allegedly retaliated 23 against for reporting sexual harassment and race discrimination, not whistleblowing. 24 Second, Campbell emphasizes that there must be “a respect for internal grievance 25 procedures and [an] exhaustion requirement where the Legislature has not specifically 26 mandated its own administrative review process.” Campbell, 35 Cal. 4th at 321. Here, it is 27 unclear whether there was a respect for the internal grievance procedures in the workplace. 28 /// 10 18-CV-02877-AJB-MSB 1 Administrative and internal remedies are distinct and require Plaintiff to participate 2 in separate steps before resorting to the courts. Here, the Legislature mandated an 3 administrative review process that Plaintiff participated in. See e.g., Terris v. County of 4 Santa Barbara, 20 Cal. App. 5th 551, 553 (Cal. Ct. App. 2018) (finding summary judgment 5 proper because plaintiff failed to file a complaint with an Equal Employment Opportunity 6 Officer office for her FEHA claims). Here, Plaintiff received a right to sue letter. (Doc. No. 7 11 at 22.) Thus, Plaintiff exhausted her administrative remedies. 8 The supposed failure to exhaust internal remedies does not bar Plaintiff’s seventh 9 cause of action. Plaintiff sufficiently exhausted the required administration remedies and 10 received a right to sue letter. (Doc. No. 11 at 22.) Thus, the Court DENIES Defendant’s 11 motion to dismiss Plaintiff’s seventh cause of action. 12 13 14 V. CONCLUSION For the foregoing reasons, the Court DENIES the Defendant’s motion to dismiss in its entirety. (Doc. No. 9.) 15 16 17 18 IT IS SO ORDERED. Dated: April 26, 2019 19 20 21 22 23 24 25 26 27 28 11 18-CV-02877-AJB-MSB
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