United States District Court, D. Nevada
GLORIA M. NAVARRO, Chief District Judge.
Pending before the Court is a civil action filed by Plaintiff Dorothy Jackson ("Plaintiff") against Defendant Valley Health System LLC, doing business as Desert Springs Hospital Medical Center ("DSH"). (Complaint, ECF No. 1). DSH filed a Partial Motion to Dismiss (ECF No. 13) on February 10, 2014. Plaintiff filed her Response in Opposition (ECF No. 17) on March 7, 2014, and she also filed a Countermotion to Amend the Complaint (ECF No. 18) on March 10, 2014. On March 24, 2014, DSH filed a Reply in Support of their Motion to Dismiss (ECF No. 21) and a Response to Plaintiff's Countermotion to Amend. (ECF No. 22).
According to her Complaint (ECF No. 1), Plaintiff is an African-American female who was employed by DSH from April 27, 1998 until her employment was terminated on September 12, 2011. (Complaint ¶¶ 3-4, ECF No. 1). At the time of her termination, she was employed as a Monitoring Tech/Unit Coordinator earning $20.50 an hour. ( Id. ¶ 5). Plaintiff's supervisor during her employment with DSH was Defendant Jim Zolonowski ("Defendant Zolonowski"). ( Id. ¶ 8).
Plaintiff alleges that during her employment, she was discriminated against based on both her race and her gender. ( Id. ¶¶ 14-39). Specifically, Plaintiff alleges that while working for DSH, she was "referred to  as RuPaul, ' who is an African-American male cross-dresser, " she was held to different work standards and protocols than her non-African-American and male co-workers, and she was referred to as being part of a group of employees whom Defendant Zolonowski described as "lazy pieces of crap" and another group of employees whom Defendant Zolonowski described as "whiny bitches." ( Id. ¶¶ 16, 28). Plaintiff further alleges that when she complained about her treatment to the HR department, she was subjected to additional discipline and harassment and ultimately terminated as a result of her complaint. ( Id. ¶¶ 40-60). Plaintiff contends that DSH's stated reason for firing her based upon her failure to follow protocol in staffing the telemetry department was pre-textual and that other similarly situated male and non-African-American employees were not disciplined or terminated. ( Id. ¶¶ 18-20, 31, 33-34).
After obtaining her Right to Sue Letter from the Equal Employment Opportunity Commission, Plaintiff filed her Complaint (ECF No. 1) on September 12, 2013 asserting seven causes of action: (1) race discrimination/disparate impact in violation of § 1981, (2) gender discrimination/disparate impact in violation of § 1981, (3) harassment, (4) retaliation, (5) intentional infliction of emotional distress, (6) negligent training and supervision, and (7) wrongful termination. ( Id. ¶¶ 14-81). In response to the Complaint, DSH filed the pending Partial Motion to Dismiss (ECF No. 13), seeking dismissal of Plaintiff's claims for race and gender discrimination in violation of § 1981, intentional infliction of emotional distress, negligent training and supervision, and wrongful termination.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. See North Star Int'l. v. Arizona Corp. Comm'n., 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the Court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).
The Court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555) (emphasis added).
In order to survive a motion to dismiss, a complaint must allege "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (internal quotation marks omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
A. Counts 1 & 2: Race and Gender Discrimination/Disparate Impact in Violation of § 1981
Plaintiff's first two alleged causes of action are for discrimination/disparate impact on account of her race and gender in violation of 42 U.S.C. § 1981.
However, as DSH points out in its motion, an allegation of discrimination based on disparate treatment or disparate impact is insufficient to bring a claim under § 1981. See Gen. Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982) ("§ 1981, like the Equal Protection Clause, can be violated only by purposeful discrimination.") "In General Building Contractors, the Court limited § 1981 to cover only acts involving intentional discrimination, excluding from the statute's reach actions that merely have a disparate effect." Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate, 470 F.3d 827, 837 (9th Cir. 2006). ...