Graciani v. Providence Health & Services-Washington

          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 ...