United States District Court, D. Alaska
ORDER RE MOTION TO DISMISS CLAIM V
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE.
Before
the Court at Docket 42 is Defendants Providence Health &
Services - Washington (“Providence”),
[1]
Kelli Rinas, James Efird, Brenda Franz, and James
Blankenship's (“Defendants”) motion to
dismiss Claim V of Plaintiff Debra Rena Graciani's
Complaint. Ms. Graciani opposed at Docket 46. Defendants
replied at Docket 47. Oral argument was not requested and was
not necessary to the Court's determination.
BACKGROUND
Ms.
Graciani alleges as follows in her Complaint. She “is a
registered nurse with specialized training in
dialysis.” Her race is African American.[2] On or about
February 17, 2014, Providence hired Ms. Graciani for a
part-time position in its dialysis department.[3] On or about April
16, 2015, Ms. Graciani was hired into a full-time nurse
position in the dialysis department; she alleges she received
the position only after her union “stepped in on her
behalf” to prevent Providence from hiring another
person.[4]
Ms.
Graciani's Complaint alleges that, initially, nurses'
shifts were scheduled in a fair manner.[5] Shortly after Ms.
Graciani was hired, Mr. Efird, a fellow nurse, made a
derogatory remark to several nurses about African
Americans.[6] In late 2014 or early 2015, Mr. Efird was
promoted; in his new position, he had authority to resolve
nurses' scheduling conflicts.[7] Ms. Graciani alleges that
throughout 2015, Mr. Efird favored Caucasian nurses, to the
detriment of Ms. Graciani, in scheduling
shifts.[8] Ms. Graciani also makes two allegations
regarding 2016 scheduling. She asserts that “[s]he was
sent home multiple times based on ‘Overstaff' in
2016 without any regard to the rotation required by the
Collective Bargaining Agreement.”[9] Ms.
Graciani's Complaint does not identify the person(s)
involved in the decision to send her home. She also alleges
that beginning in August 2016, unspecified “Providence
managers began allowing Caucasian employee Kelly Whitworth, a
Patient Care Technician, to set the scheduling for the
dialysis department employees.”[10] Ms. Whitworth
is not a named defendant in this action.
The
Complaint also alleges that between June 2015 and October
2016, Ms. Graciani attended disciplinary meetings and other
actions with certain of the named defendants on multiple
occasions. She maintains she was criticized for her
demeanor[11] and was wrongly accused of failing to
follow procedures.[12]
“On
or about June 20, 2016 Ms. Graciani filed a complaint for
race discrimination and retaliation with the Equal Employment
Opportunity Commission
(“EEOC”).”[13] “On or about September
27, 2016, Ms. Graciani's EEOC complaint was transferred
to the Alaska State Commission for Human Rights
(“ASCHR”) for investigation.”[14] Also in
September 2016, Ms. Graciani submitted to Providence
“an integrity report about the race discrimination and
retaliation that she was facing.”[15]
The
Complaint alleges that “[o]n or about November 1, 2016
Ms. Graciani was terminated for allegedly failing to follow
proper [patient] handoff protocols . . .
.”[16] Ms. Graciani successfully challenged her
termination and was granted reinstatement.[17] However, her
Complaint alleges that “Providence continued to resist
reemploying Ms. Graciani. They would not reinstate her to the
dialysis unit. Ms. Graciani is currently in the ICU unit.
Providence did not restore her benefits and are treating her
as a new hire on a 90 day probationary
period.”[18]
On
March 23, 2018, Ms. Graciani filed her Complaint in this
Court.[19] She alleges six claims. Providence is
the only named defendant in Claims I-IV. Claims I-III allege
violations of Title VII of the Civil Rights Act of
1964;[20] Claim IV alleges a deprivation of equal
rights under Section 1981.[21] Claim V alleges a conspiracy
by the four individual Defendants to interfere with Ms.
Graciani's civil rights in violation of Section
1985(3).[22] Claim VI seeks punitive damages from all
Defendants.[23]
In
support of Claim V, Ms. Graciani maintains that Ms. Rinas,
Mr. Efird, Ms. Franz, and Mr. Blankenship, acting
individually and as agents of Providence, “engag[ed] in
an ongoing campaign of destructive behavior to Ms.
Graciani's career by issuing a string of vague,
unsupported, false and misleading disciplinary actions
against Ms. Graciani” to which nurses of other races
were not subjected;[24]“arrang[ed] scheduling practices to
favor Caucasian employees in the dialysis unit to the
detriment of [Ms. Graciani, ] the African American
employee;”[25] “creat[ed] circumstances under
which Providence, through its employees, justified
terminating Ms. Graciani's employment employee [sic] for
an alleged policy violation that the other nurses of all
other represented races use as common practice and were not
terminated” for;[26] and “hinder[ed] and prevent[ed]
African American employees from working in Providence's
dialysis department.”[27] Ms. Graciani alleges that the
individual Defendants “each engaged in one or more acts
personally in furtherance of the conspiracy that were
motivated by animus toward Ms. Graciani as an African
American citizen and as a person engaged in protected
activity, ” and that Ms. Graciani “was injured in
her property interest in her career with Providence and
deprived of rights and privileges of equal
employment[.]”[28]
On
October 9, 2018, Defendants filed the instant motion to
dismiss Claim V.[29]
LEGAL
STANDARDS
I.
Motions to Dismiss
Defendants
move to dismiss Claim V of Ms. Graciani's Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) and the
Supreme Court's interpretation of that rule in Bell
Atlantic Corp. v. Twombly and Ashcroft v.
Iqbal.[30] “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'”[31] This inquiry requires a court to
“draw on its judicial experience and common
sense.”[32] When reviewing a Rule 12(b)(6) motion, a
court considers only the complaint and other pleadings,
documents incorporated into the pleadings by reference, and
matters on which a court may take judicial
notice.[33]
When a
motion to dismiss for failure to state a claim is granted, a
court “should freely give leave [to amend the
complaint] when justice so requires.”[34]
II.
Section 1985
The
United States Supreme Court has held that “Section
1985(3) may not be invoked to redress violations of Title
VII.”[35] The statute was enacted with a narrow
purpose:
The central theme of the bill's proponents was that the
Klan and others were forcibly resisting efforts to emancipate
[African Americans] and give them equal access to political
power. The predominate purpose of § 1985(3) was to
combat the prevalent animus against [African Americans] and
their supporters.[36]
To
maintain a Section 1985 claim, “the plaintiff must
allege and prove four elements: (1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws;
and (3) an act in furtherance of the conspiracy; (4) whereby
a person is either injured in his person or property or
deprived of any right or privilege of a citizen of the United
States.”[37] In addition to satisfying these four
elements, a plaintiff must also demonstrate that the
violation of her civil rights was motivated by “some
racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators'
action.”[38] “A claim conspired together. A
mere allegation of conspiracy without factual specificity is
insufficient.”[39]
III.
The Statute of Limitations and Tolling Standard
For
federal laws that were enacted prior to December 1, 1990 and
that lack a limitations period, “the settled practice
has been to adopt a local time limitation as federal law if
it is not inconsistent with federal law or policy to do so.
In 42 U.S.C. § 1988, Congress has implicitly endorsed
this approach with respect to claims enforceable under the
Reconstruction Civil Rights Acts.”[40] Therefore,
the Court will look to the statutes of limitations in Alaska
regarding Claim V.[41]
“[W]hen
a federal statute is deemed to borrow a State's
limitations period, the State's tolling rules are
ordinarily borrowed as well . . . .”[42] Alaska has
“adopted a three-part test for equitable tolling: (1)
the alternative remedy must give notice to the defendant; (2)
there must not be prejudice to the defendant; and (3) the
plaintiff must have acted reasonably and in good
faith.”[43] “[T]he statute of limitations is
tolled only for those who initially pursue their rights in a
judicial or quasi-judicial governmental
forum.”[44]
The
farmworkers are correct to note that plaintiffs ordinarily
need not “plead on the subject of an anticipated
affirmative defense.” United States v. McGee,
993 F.2d 184, 187 (9th Cir. 1993). When an affirmative
defense is obvious on the face of a complaint, however, a
defendant can raise that defense in a motion to dismiss.
See Cedars-Sinai Med. Ctr. v. Shalala, 177 F.3d
1126, 1128-29 (9th Cir.1999) (citing 5B Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure: Civil
§ 1357 (3d ed. 1998) (“A complaint showing that
the governing statute of limitations has run on the
plaintiff's claim for relief is the most common situation
in which the affirmative defense appears on the face of the
pleading and provides a basis for a motion to dismiss under
Rule 12(b)(6)....”)). In this case, the statute of
limitations issues are apparent on the face of the complaint.
The district court, therefore, was correct to address them.
DISCUSSION
I.
The Applicable Statute of Limitations; Tolling
Defendants
maintain that the applicable statute of limitations for Claim
V is AS 9.10.070(a), which provides as follows:
Except as otherwise provided by law, a person may not bring
an action . . . (2) for personal injury or death, or injury
to the rights of another not arising on contract and not
specifically provided otherwise; . . . (5) upon a liability
created by statute, other than a penalty or forfeiture;
unless the action is commenced within two years of the
accrual of the cause of action.[45]
Ms.
Graciani responds that Claim V lies in contract, which is
subject to Alaska's three-year statute of
limitations.[46] Ms. Graciani cites to AS
9.10.070(a)(2)'s exclusion of actions arising under
contract.[47] Defendants contend in their reply that
AS 9.10.070(a)(2) does apply to Ms. Graciani's claim
because it lies in tort, rather than contract.[48]
The
Court need not reach the issue of the applicability of AS
9.10.070(a)(2) to Claim V. AS 9.10.070(a)(5) provides a
two-year statute of limitations for actions based “upon
a liability created by statute, other than a penalty or
forfeiture[.]” Ms. Graciani brings Claim V under a
statute: Section 1985(3). Therefore, a two-year statute of
limitations applies to that claim. Ms. Graciani filed her
Complaint on March 23, 2018. Unless the statute of
limitations is tolled, she cannot maintain a claim for
alleged violations of Section 1985(3) that occurred prior to
March 23, 2016 unless those alleged violations are part of an
actionable continuing violation that did not cease prior to
that date.[49]
Ms.
Graciani maintains that the statute of limitations is
equitably tolled under Gudenau & Co. v. Sweeney
Insurance, Inc. because on June 20, 2016, she initiated
an administrative remedy with the EEOC that was later
transferred to the Alaska State Commission for Human
Rights.[50] Ms. Graciani's Complaint filed in
this Court does not specify when these administrative
proceedings ceased.
The
first prong of Gudenau's equitable tolling test
requires that a plaintiff's “alternative remedy []
give notice to the defendant.”[51] Ms. Graciani's
Complaint fails to establish that she filed her EEOC
complaint against any individual Defendant, [52] and so the
Complaint does not adequately allege that any individual
Defendant had notice that Ms. Graciani was asserting a claim
against that Defendant when she initiated the EEOC
proceedings. Therefore, Ms. Graciani has not plausibly
alleged facts that would permit the statute of limitations to
be tolled as to any individual Defendant.
As to
Ms. Rinas and Mr. Efird, the Complaint does not contain any
allegations that either of these Defendants engaged in any
wrongdoing at any time after early December
2015.[53] Therefore, Defendants' motion to
dismiss Ms. Graciani's Claim V will be granted as to Ms.
Rinas and Mr. Efird on this basis, without prejudice and with
leave to amend.
Ms.
Franz and Mr. Blankenship are alleged to have conspired
against Ms. Graciani through September 1, 2016. Their alleged
actions from March 23, 2016 forward fall within the
applicable two-year limitations period.
II.
The Sufficiency of Ms. Graciani's Allegations in Claim V
Against Ms. Franz, Mr. Blankenship, and Providence
Defendants
assert that Ms. Graciani has failed to adequately allege each
if the following two elements of a Section 1985 claim: a
conspiracy and an act in furtherance of the
conspiracy.[54]
Ms.
Graciani responds that, as to the presence of a conspiracy,
“[t]he complaint contains multiple references to each
of the co-conspirators actions and their concerted activity
that are known so far, ” but that “discovery will
be needed to elucidate the actions that Ms. Graciani was not
privy to[.]”[55] She further maintains that she
“does not need to prove [that the alleged
co-conspirators] all acted together at the same time. She
only has to show ‘two or more' acted, and that
‘one or more persons engaged therein do or cause to be
done, any act in furtherance of the conspiracy, whereby
another is injured . . . .'”[56] Ms. Graciani
asserts that, as to acts taken in furtherance of the
conspiracy, “[t]here are specific facts pled for every
single one of the[] areas of injury she suffered that
implicate two or more [co-conspirators] acting
together.”[57] As to the injury Ms. Graciani suffered,
she maintains that “each of the preliminary
disciplinary actions [preceding her termination] was not
actionable in and of itself. Each served a purpose to chip
away at Ms. Graciani's employment
record.”[58]
a.
Ms. Franz and Mr. Blankenship
The
Complaint alleges the following incidents within the
limitations period involving Ms. Franz:
• On or about April 1, 2016, Ms. Graciani received her
performance appraisal, which Ms. Franz had created. The
appraisal noted “no problems” with Ms.
Graciani's work, “[b]ut it was highly critical of
[Ms. Graciani's] communication and referenced the
disciplinary actions taken [against Ms. Graciani] with
respect to communication.”[59]
• On or about May 2, 2016, Ms. Franz was at a meeting at
which Ms. Graciani “was questioned about an interaction
with a nurse during a dialysis taking place in the ICU”
and at which “Mr. Blankenship and Ms. Graciani
discussed several interactions with nurses and patients,
including accusations brought by nurse Mario
S[.]”[60]
• In May 2016, Ms. Franz investigated Ms. Graciani's
allegation that nurse Mario S. had engaged in unwelcome
physical contact with Ms. Graciani. “The investigation
culminated in a memo issued to all Providence dialysis
employees stating that hugging people without permission is
not acceptable workplace behavior. Upon knowledge and belief,
Mario S. was not disciplined for his behavior, nor did he
ever apologize to Ms. Graciani.”[61]
• On or about June 21, 2016, Ms. Franz attended a
meeting that was for “the purpose of confronting Ms.
Graciani about another interaction with ...