1 2
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
11 KRISTINE BARTON, Case No.: 3:21-cv-01332-BEN-JLB 12 Plaintiff, ORDER GRANTING-IN-PART 13 v. DEFENDANT’S MOTION TO 14 DISMISS FIRST AMENDED CARLOS DEL TORO, Secretary of the COMPLAINT 15 Navy, Defendant. 16 [ECF No. 12] 17 Plaintiff Kristine Barton (“Plaintiff”) is suing Defendant Carlos Del Toro, in his 18 official capacity as Secretary of the Navy1 based on violations of the Family Medical 19 Leave Act, 29 U.S.C. § 2601 et seq (“FMLA”). Plaintiff’s First Amended Complaint 20 (“FAC”) cites two claims for relief: Interference with FMLA leave and Retaliation for 21 Taking FMLA leave. See generally FAC, ECF No. 11. 22 Before the Court is Defendant’s Motion to Dismiss the FAC. ECF No. 12. For the 23 reasons set forth below, the motion is GRANTED-IN-PART. 24 25 26 1 This case was originally brought against then Acting Secretary of the Navy Thomas 27 Harker. In accordance with Rule 25(d) of the Federal Rules of Civil Procedure, Secretary Del Toro is automatically substituted for former Acting Secretary Harker as a named 28 1 I. BACKGROUND 2 A. Factual Background2 3 Plaintiff was a registered nurse employed by the Department of the Navy. FAC ¶ 4 14. In 2017, she accepted a temporary assignment to Naval Hospital Sigonella, Italy. Id. 5 ¶ 15. Plaintiff alleges that after she arrived in Italy, she started receiving hostile 6 treatment from hospital leadership as well as other supervisory members of the hospital 7 staff. Id. ¶¶ 16-18. In mid 2018, Plaintiff sought FMLA leave to attend to her adult son 8 who resided in the United States. Id. ¶ 21. Plaintiff’s FMLA leave ran from June 30, 9 2018, to August 28, 2018. Id. ¶ 22. During her leave, the Naval Hospital Sigonella 10 Security Officer submitted a report to the Department of Defense’s Consolidated 11 Adjudications Facility regarding some of Plaintiff’s purported financial difficulties. Id. ¶ 12 28. Plaintiff disputes the accuracy of the report. Id. 13 Plaintiff’s security clearance was temporarily removed in July 2018, which led to 14 Plaintiff being unable to perform the core functions of her position. Id. ¶ 31. On March 15 22, 2019, Plaintiff was reassigned within the hospital to a position that did not require a 16 clearance. Id. ¶ 33. Plaintiff’s requests for various certifications relating to her nursing 17 practice were denied by the Command on May 23, 2019. Id. ¶ 34. Plaintiff had a 18 certification class cancelled on October 21, 2019, despite her having obtained written 19 approval to attend the class. Id. In addition to being denied the opportunity to attend 20 certification courses, Plaintiff also asserts a host of alleged discriminatory behavior. Id. 21 ¶¶ 36-54. 22 B. Procedural History 23 Plaintiff filed her original complaint on July 23, 2021, alleging four claims for 24 relief, three arising under Title VII and one under FMLA. ECF No. 1. Defendant moved 25
26 27 2 The following overview of the facts is drawn from Plaintiff’s FAC, ECF No. 11, which the Court assumes as true in analyzing the instant motion to dismiss. Erickson v. 28 1 to dismiss this complaint on various grounds. This Court granted Defendant’s motion, 2 dismissing Plaintiff’s Title VII discrimination claims with prejudice due to a lack of 3 timeliness for the allegations it alleged, but allowing Plaintiff to amend her complaint 4 with regard to the FMLA claim. See ECF No. 10. 5 II. LEGAL STANDARD 6 A dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure may be 7 based on the lack of a cognizable legal theory or absence of sufficient facts to support a 8 cognizable or plausible legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 9 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When 10 considering a Rule 12(b)(6) motion, the Court “accept[s] as true facts alleged and draw[s] 11 inferences from them in the light most favorable to the plaintiff.” Stacy v. Rederite Otto 12 Danielsen, 609 F.3d 1033, 1035 (9th Cir. 2010). A plaintiff must not merely allege 13 conceivably unlawful conduct but must allege “enough facts to state a claim to relief that 14 is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim 15 is facially plausible ‘when the plaintiff pleads factual content that allows the court to 16 draw the reasonable inference that the defendant is liable for the misconduct alleged.’” 17 Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 18 U.S. 662, 678 (2009)). “Threadbare recitals of the elements of a cause of action, 19 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 20 III. ANALYSIS 21 Defendant seeks dismissal of both claims for relief alleged in the FAC. ECF No. 22 12. Plaintiff’s response to the instant motion makes a request for reconsideration of the 23 Court’s prior order granting Defendant’s motion to dismiss the original complaint. See 24 ECF No. 13. Defendant urges the Court to deny this request as well. 25 A. Plaintiff’s FMLA Claims Are Barred by Sovereign Immunity 26 Defendant argues that Plaintiff’s FMLA claims are barred as a matter of law 27 because the federal government has not waived sovereign immunity with respect to such 28 claims, citing Russell v. U.S. Dept. of the Army, 191 F.3d 1016, 1018-19 (9th Cir. 1999). 1 In response, Plaintiff essentially argues it does not make sense for there to be a private 2 right of action for certain federal employees but not all federal employees. 3 The FMLA grants private and federal employees an entitlement to periods of leave 4 for certain enumerated circumstances. Federal civil service employees with more than 5 twelve months of service are covered under Title II of the FMLA. 5 U.S.C. § 6381 et 6 seq. Covered under Title I of the FMLA are private employees and federal employees 7 otherwise not covered by Title II. 29 U.S.C. § 2601 et seq. While employees under Title 8 I and Title II are afforded equivalent rights to leave time, only Title I contains a provision 9 affording a private right of action to remedy employer violation of FMLA rights. See 29 10 U.S.C. § 2617(a)(2); 5 U.S.C. §§ 6381-6387 (no analogous provision). 11 In Russell, the Ninth Circuit held the absence of express statutory authorization for 12 suit under Title II barred a plaintiff’s FMLA claims. “[I]t is axiomatic that suits against 13 the government are barred by sovereign immunity absent an unequivocally expressed 14 waiver.” Russell, 191 F.3d at 1018.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
11 KRISTINE BARTON, Case No.: 3:21-cv-01332-BEN-JLB 12 Plaintiff, ORDER GRANTING-IN-PART 13 v. DEFENDANT’S MOTION TO 14 DISMISS FIRST AMENDED CARLOS DEL TORO, Secretary of the COMPLAINT 15 Navy, Defendant. 16 [ECF No. 12] 17 Plaintiff Kristine Barton (“Plaintiff”) is suing Defendant Carlos Del Toro, in his 18 official capacity as Secretary of the Navy1 based on violations of the Family Medical 19 Leave Act, 29 U.S.C. § 2601 et seq (“FMLA”). Plaintiff’s First Amended Complaint 20 (“FAC”) cites two claims for relief: Interference with FMLA leave and Retaliation for 21 Taking FMLA leave. See generally FAC, ECF No. 11. 22 Before the Court is Defendant’s Motion to Dismiss the FAC. ECF No. 12. For the 23 reasons set forth below, the motion is GRANTED-IN-PART. 24 25 26 1 This case was originally brought against then Acting Secretary of the Navy Thomas 27 Harker. In accordance with Rule 25(d) of the Federal Rules of Civil Procedure, Secretary Del Toro is automatically substituted for former Acting Secretary Harker as a named 28 1 I. BACKGROUND 2 A. Factual Background2 3 Plaintiff was a registered nurse employed by the Department of the Navy. FAC ¶ 4 14. In 2017, she accepted a temporary assignment to Naval Hospital Sigonella, Italy. Id. 5 ¶ 15. Plaintiff alleges that after she arrived in Italy, she started receiving hostile 6 treatment from hospital leadership as well as other supervisory members of the hospital 7 staff. Id. ¶¶ 16-18. In mid 2018, Plaintiff sought FMLA leave to attend to her adult son 8 who resided in the United States. Id. ¶ 21. Plaintiff’s FMLA leave ran from June 30, 9 2018, to August 28, 2018. Id. ¶ 22. During her leave, the Naval Hospital Sigonella 10 Security Officer submitted a report to the Department of Defense’s Consolidated 11 Adjudications Facility regarding some of Plaintiff’s purported financial difficulties. Id. ¶ 12 28. Plaintiff disputes the accuracy of the report. Id. 13 Plaintiff’s security clearance was temporarily removed in July 2018, which led to 14 Plaintiff being unable to perform the core functions of her position. Id. ¶ 31. On March 15 22, 2019, Plaintiff was reassigned within the hospital to a position that did not require a 16 clearance. Id. ¶ 33. Plaintiff’s requests for various certifications relating to her nursing 17 practice were denied by the Command on May 23, 2019. Id. ¶ 34. Plaintiff had a 18 certification class cancelled on October 21, 2019, despite her having obtained written 19 approval to attend the class. Id. In addition to being denied the opportunity to attend 20 certification courses, Plaintiff also asserts a host of alleged discriminatory behavior. Id. 21 ¶¶ 36-54. 22 B. Procedural History 23 Plaintiff filed her original complaint on July 23, 2021, alleging four claims for 24 relief, three arising under Title VII and one under FMLA. ECF No. 1. Defendant moved 25
26 27 2 The following overview of the facts is drawn from Plaintiff’s FAC, ECF No. 11, which the Court assumes as true in analyzing the instant motion to dismiss. Erickson v. 28 1 to dismiss this complaint on various grounds. This Court granted Defendant’s motion, 2 dismissing Plaintiff’s Title VII discrimination claims with prejudice due to a lack of 3 timeliness for the allegations it alleged, but allowing Plaintiff to amend her complaint 4 with regard to the FMLA claim. See ECF No. 10. 5 II. LEGAL STANDARD 6 A dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure may be 7 based on the lack of a cognizable legal theory or absence of sufficient facts to support a 8 cognizable or plausible legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 9 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When 10 considering a Rule 12(b)(6) motion, the Court “accept[s] as true facts alleged and draw[s] 11 inferences from them in the light most favorable to the plaintiff.” Stacy v. Rederite Otto 12 Danielsen, 609 F.3d 1033, 1035 (9th Cir. 2010). A plaintiff must not merely allege 13 conceivably unlawful conduct but must allege “enough facts to state a claim to relief that 14 is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim 15 is facially plausible ‘when the plaintiff pleads factual content that allows the court to 16 draw the reasonable inference that the defendant is liable for the misconduct alleged.’” 17 Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 18 U.S. 662, 678 (2009)). “Threadbare recitals of the elements of a cause of action, 19 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 20 III. ANALYSIS 21 Defendant seeks dismissal of both claims for relief alleged in the FAC. ECF No. 22 12. Plaintiff’s response to the instant motion makes a request for reconsideration of the 23 Court’s prior order granting Defendant’s motion to dismiss the original complaint. See 24 ECF No. 13. Defendant urges the Court to deny this request as well. 25 A. Plaintiff’s FMLA Claims Are Barred by Sovereign Immunity 26 Defendant argues that Plaintiff’s FMLA claims are barred as a matter of law 27 because the federal government has not waived sovereign immunity with respect to such 28 claims, citing Russell v. U.S. Dept. of the Army, 191 F.3d 1016, 1018-19 (9th Cir. 1999). 1 In response, Plaintiff essentially argues it does not make sense for there to be a private 2 right of action for certain federal employees but not all federal employees. 3 The FMLA grants private and federal employees an entitlement to periods of leave 4 for certain enumerated circumstances. Federal civil service employees with more than 5 twelve months of service are covered under Title II of the FMLA. 5 U.S.C. § 6381 et 6 seq. Covered under Title I of the FMLA are private employees and federal employees 7 otherwise not covered by Title II. 29 U.S.C. § 2601 et seq. While employees under Title 8 I and Title II are afforded equivalent rights to leave time, only Title I contains a provision 9 affording a private right of action to remedy employer violation of FMLA rights. See 29 10 U.S.C. § 2617(a)(2); 5 U.S.C. §§ 6381-6387 (no analogous provision). 11 In Russell, the Ninth Circuit held the absence of express statutory authorization for 12 suit under Title II barred a plaintiff’s FMLA claims. “[I]t is axiomatic that suits against 13 the government are barred by sovereign immunity absent an unequivocally expressed 14 waiver.” Russell, 191 F.3d at 1018. In Russell, the Ninth Circuit expressly adopted the 15 reasoning of the Fourth Circuit on this issue: 16 “No unequivocal waiver of immunity exists in Title II, and, consequently, the 17 omission of a provision in Title II similar to that in Title I creating a private right 18 of action is treated as an affirmative congressional decision that the employees covered by Title II of the FMLA should not have a right to judicial review of their 19 FMLA claims through the FMLA…” 20 21 Id. at 1019 (quoting Mann v. Haigh, 120 F.3d 34 (4th Cir. 1997)). Plaintiff’s arguments 22 in response are centered on public policy, noting “[I]t would be a curious circumstance 23 indeed for Congress to vest a private right of action for FMLA violations in a 24 probationary federal employee and deny the same right to a fully vested federal 25 employee.” ECF No. 13. 26 Ninth Circuit precedent is clear. Absent an “unequivocally expressed waiver,” 27 sovereign immunity bars Plaintiff’s suit for FMLA violations against Department of the 28 Navy. 1 Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s first 2 and second claims for relief under the FMLA with prejudice. 3 B. Request for Reconsideration 4 Plaintiff argues for reconsideration of this Court’s dismissal of her Title VII 5 claims, and requests leave to re-allege them. A party may seek reconsideration of a court 6 order under the Local Rules for the U.S. District Court, Southern District of California 7 (the “Local Rules”). See Local Rule 7.1(i). District courts have analyzed a motion for 8 reconsideration made under Local Rules as a motion to alter or amend a judgment under 9 the Federal Rules of Civil Procedure (the “Federal Rules”) 59(e) or 60(b). See Soler v. 10 Cty. of San Diego, No. 14-cv-02470-MMA-RBB, 2017 WL 11420586 at *1 (S.D. Cal. 11 Jan. 17, 2021) (“A timely filed motion for reconsideration under a local rule is a motion 12 to alter or amend a judgment under Fed. R. Civ. P. 59(e).”) (citation omitted); Sams v. 13 California Dep’t of Corr. and Rehab., No. 21-cv-00493-ODW-JDE, 2021 WL 6618626 14 at *3 (C.D. Cal. Aug. 19, 2021) (“Courts in this district have interpreted Local Rule 7-18 15 to be coextensive with Rules 59(e) and 60(b).”) (citation omitted). 16 Defendant argues Plaintiff’s request is not timely under the Local Rules. Local 17 Rule 7.1(i)(2) requires reconsideration requests to be filed within twenty-eight days after 18 entry of the ruling, order, or judgment sought to be reconsidered. Under Federal Rule 19 59(e), the motion must also be made within twenty-eight days after entry of the order or 20 judgment. The procedural requirements under Federal Rule 60(b) are more liberal. The 21 motion must be made “within a reasonable time”—no more than one year after entry of 22 judgement under certain theories—and for “any other reason that justifies relief.” 23 F.R.C.P. 60(b)(6). 24 The Court reconsiders its previous order dismissing Plaintiff’s Title VII claims 25 with prejudice. Leave to amend is ordinarily freely given and only denied when “the 26 pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss & 27 Liehe, Inc., v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). Here, 28 Plaintiff has sufficiently demonstrated that other facts in the relevant statutory time- 1 || period can be alleged. See e.g., Plaintiff's Opposition (Dkt. 13), Exhs. A & B (listing 2 eleven paragraphs of factual allegations of Title VII violations within 45 days of 3 || initiating EEO proceedings). Thus, reconsideration falls within the purview of Federal 4 || Rule 60(b)(6). 5 Accordingly, the Court having reconsidered its dismissal of Plaintiff's Title VII 6 claims, GRANTS Plaintiff's motion to amend her complaint to re-allege her Title VII 7 || claims. 8 CONCLUSION 9 For the foregoing reasons, the Court orders: 10 Claims I and II of Plaintiff’s First Amended Complaint for alleged violations of the 11 FMLA are DISMISSED with prejudice. However, Plaintiff will have twenty-one days 12 || from the date of this Order to amend her complaint to re-allege the previously dismissed 13 || Title VII claims. 14 15 IT IS SO ORDERED. ° 16 || Dated: January 24, 2023 7 IN. ROGER T. BENI Z United States District Judge 18 19 20 21 22 23 24 25 26 27 28