United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
Oki Mollway, United States District Judge.
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.
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
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.
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.
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).
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).
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)).
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,
“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.
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).
Complaint alleges that another supervisor, Pierce, told
Vergara that she took a long time helping a serviceman
because she was ...