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Vergara v. Skyline Ultd Inc.

United States District Court, D. Hawaii

December 9, 2019

PRISCILLA VERGARA, Plaintiff,
v.
SKYLINE ULTD INC., et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS COMPLAINT

          Susan Oki Mollway, United States District Judge.

         I. INTRODUCTION.

         Plaintiff Priscilla Vergara asserts that she was discriminated against by her employer Defendant Skyline ULTD Inc. She originally sued in state court, asserting only state-law claims; Skyline removed the case to this court based on diversity jurisdiction. See ECF No. 1. Skyline now moves to dismiss the Complaint. See ECF No. 7. That motion is granted in part and denied in part.

         Vergara concedes that she has not adequately pled her state-law hostile work environment claim based on national origin/ancestry, her claim of intentional interference with economic advantage, her unjust enrichment claim, and her invasion of privacy claim. The motion to dismiss is granted on that ground, but Vergara is given leave to amend those claims.

         Vergara further agrees to dismissal without leave to amend of her Hawaii Whistleblower Protection Act claim, her claim of wrongful termination in violation of public policy, her intentional infliction of emotional distress (“IIED”) claim, her negligent infliction of emotional distress (“NIED”) claim, and her claims of negligent hiring, negligent training, negligent supervision, negligent retention, and retaliation. The motion to dismiss is granted with respect to those claims, which are dismissed with prejudice.

         The court denies the motion to the extent it seeks dismissal based on Vergara's alleged failure to exhaust her administrative remedies, as such a failure is not apparent from the face of the Complaint. The court also rejects Skyline's argument that this court lacks subject matter jurisdiction because of the alleged failure to exhaust. Exhaustion of state-law claims is not a matter of federal jurisdiction. Skyline may, of course, reassert the alleged failure to exhaust administrative remedies argument in a motion for summary judgment.

         II. STANDARD.

         Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court's review is generally limited to the contents of a complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). However, the court may take judicial notice of and consider matters of public record without converting a Rule 12(b)(6) motion to dismiss into a motion for summary judgment. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988). The court may also consider materials incorporated into the complaint. “But the mere mention of the existence of a document is insufficient to incorporate the contents of a document.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). Instead, courts may “consider documents in situations where the complaint necessarily relies upon a document or the contents of the document are alleged in a complaint, the document's authenticity is not in question and there are no disputed issues as to the document's relevance.” Id. (examining whether the material was “integral” to the complaint). When matters outside the pleadings are considered, the Rule 12(b)(6) motion is treated as one for summary judgment. See Keams v. Tempe Tech. Inst., Inc., 110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996).

         On a Rule 12(b)(6) motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). However, conclusory allegations of law, unwarranted deductions of fact, and unreasonable inferences are insufficient to defeat a motion to dismiss. Sprewell, 266 F.3d at 988; Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).

         Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984)).

         “[T]o survive a Rule 12(b)(6) motion to dismiss, factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true even if doubtful in fact.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The complaint must “state a claim to relief that is plausible on its face.” Id. at 570. “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.” Iqbal, 556 U.S. at 678.

         III. FACTUAL BACKGROUND.

         In November 2015, Skyline hired Vergara as a General Clerk II for the Soldiers Support Center at Schofield Army Barracks, Hawaii. See Complaint ¶ 4. Vergara says that she was subjected to unwelcome and unsolicited sexual comments by civilian personnel, including Lead Supervisor Rick Hanna, who allegedly told Vergara that (1) she should show more of her body, (2) she should go to a nightclub he went to, and (3) he would find her a man who would go to a concert with her and would tell the man that Vergara would perform some kind of sexual act in return. Hanna also allegedly implied that Vergara was a lesbian, asked her if she had ever slept with someone on the first date, and made comments about a woman's body. See Complaint ¶ 7(a). Hanna also allegedly used sexual language and watched “sexual content” at work. See Complaint ¶ 7(f).

         The Complaint alleges that another supervisor, Pierce, told Vergara that she took a long time helping a serviceman because she was ...


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