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Vopnford v. Wellcare Health Plans

United States District Court, W.D. Washington, Seattle

August 8, 2017

LINDA VOPNFORD, Plaintiff,
v.
WELLCARE HEALTH PLANS, et al., Defendants.

          ORDER

          JAMES L. ROBART United States District Judge.

         I. INTRODUCTION

         This is an employment discrimination action in which Plaintiff Linda Vopnford asserts seven causes of action against “all defendants”: (1) gender discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; (2) age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; (3) unequal pay based on gender in violation of the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d); (4) discrimination and wrongful termination in violation of the Washington Law Against Discrimination (“WLAD”), RCW ch. 49.60; (5) negligent hiring and supervision; (6) intentional infliction of emotional distress; and (7) violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. (Am. Compl. (Dkt. # 11) ¶¶ 5.1-6.34.) Before the court is Defendants Comprehensive Health Management, Inc. (“CHMI”), Tom Potts, Frank Webster, Lydia Ophaug, Ray McComb, and Kaleista Lagarde's (collectively, “Moving Defendants”) motion to strike certain allegations from and partially dismiss Ms. Vopnford's amended complaint. (MTD (Dkt. # 20).) Ms. Vopnford opposes Moving Defendants' motion. (MTD Resp. (Dkt. # 29).)

         The court has considered the parties' submissions in support of and opposition to the motion, the relevant portions of the record, and the applicable law. Considering itself fully advised, [1] the court GRANTS in part and DENIES in part Moving Defendants' motion; STRIKES paragraphs 3.2 through 3.31 from the amended complaint; DISMISSES without prejudice Ms. Vopnford's claims against Mr. Potts, Ms. Ophaug, Mr. McComb, and Ms. Lagarde for lack of personal jurisdiction; DISMISSES with prejudice Ms. Vopnford's Title VII, ADEA, EPA, and ADA claims against Mr. Webster; and DISMISSES with leave to amend Ms. Vopnford's negligent hiring and supervision claim against Mr. Webster and CHMI, Ms. Vopnford's intentional infliction of emotional distress claim against Mr. Webster and CHMI, and Ms. Vopnford's ADA claim against CHMI. The court also DISMISSES without prejudice Ms. Vopnford's claims against the Doe defendants and ORDERS Ms. Vopnford to show cause no later than August 15, 2017, why the court should not dismiss her claims against Defendants Wellcare Health Plans (“Wellcare”) and Tom Cahill for failure to serve.

         II. BACKGROUND

         This action arises out of alleged employment discrimination by Moving Defendants, Wellcare, Mr. Cahill, and 150 Doe defendants. (See generally Am. Compl.) Ms. Vopnford, a 65-year-old woman, worked as a supervisor and manager at CHMI.[2](Am. Compl. ¶ 2.1.)

         A. Initial Employment and Promotions

         CHMI hired Ms. Vopnford in August 2011 as a temporary employee.[3] (Am. Compl. ¶ 3.32.) In July 2012, CHMI hired Ms. Vopnford to the position of Help Desk Operator, a full-time position that initially paid $38, 000.00 annually. (Id. ¶¶ 3.33-3.34.) Mr. Cahill, the Bellingham Service Delivery Director, alerted Ms. Vopnford in September 2012 that she would become the new Service Desk Manager. (Id. ¶¶ 3.35, 3.51.)

         Ms. Vopnford became the Service Desk Manager but did not receive an increase in pay until March 2013. (Id. ¶¶ 3.36, 3.38.) At that time, she received a raise to $42, 000.00 per year, and the raise was retroactive to January 1, 2013. (Id. ¶¶ 3.40-3.41.) Although the minimum pay for a manager, according to CHMI's salary bands, was $56, 000.00 per year, Mr. Cahill explained that CHMI could not afford to give Ms. Vopnford a larger raise at that time due to a limited pool of funds available. (Id. ¶¶ 3.39, 3.43.)

         In the summer of 2013, the CEO of non-party Windsor Health Group, then CHMI's parent company, announced that the company would pay Ms. Vopnford within the published salary bands within a year. (Id. ¶ 3.44.) By the end of 2013, CHMI had increased Ms. Vopnford's annual compensation to $52, 000.00, which is $4, 000.00 less than the low end of the published salary band for a manager. (Id. ¶¶ 3.45-3.46.) Nonetheless, Ms. Vopnford continued to perform her duties and receive “kudos from end users, positive response from staff, and support from [Mr. Cahill].” (Id. ¶ 3.47.) Her managers also called upon her to “work on several projects with other Service Delivery staff” during this time. (Id. ¶ 3.48.)

         B. Wellcare's Acquisition of Windsor Health Group

         On January 1, 2014, Wellcare purchased Windsor Health Group. (Id. ¶ 3.50.) Shortly thereafter, Wellcare, which is based in Tampa, Florida, initiated meetings with Ms. Vopnford and others regarding systems integration. (Id. ¶¶ 3.50-3.51.) In March 2014, Mr. Cahill left CHMI, and Ms. Vopnford began reporting directly to “the Corporate office in Tampa.” (Id. ¶ 3.51.) Her “new boss”[4] asked Ms. Vopnford “to lead the process of terminating access for the people who would be leaving on May 21, 2014.” (Id. ¶ 3.52.) Ms. Vopnford's new boss also requested that Ms. Vopnford “come to Tampa to meet with him, ” and Ms. Vopnford suggested that they include Mr. Webster in the meeting.[5] (Id. ¶ 3.52.)

         Ms. Vopnford and Mr. Webster traveled to Tampa and met with members of the IT staff. (Id. ¶ 3.53.) Ms. Vopnford's new boss had not decided where to place Ms. Vopnford or Mr. Webster, but he directed Ms. Vopnford to “continue what she was doing” and “work with Tampa staff as needed.” (Id. ¶ 3.54.) Ms. Vopnford had little subsequent contact with her new boss, but she and Mr. Webster were scheduled to meet with him in Nashville, Tennessee in May 2014. (Id. ¶¶ 3.55-3.56.)

         A few days before the trip to Nashville, Mr. Potts, the head of Ms. Vopnford's department, informed Ms. Vopnford that “a reorganization would be announced the next day.”[6] (Id. ¶ 3.57.) As part of that reorganization, CHMI demoted Ms. Vopnford to Supervisor and gave her a raise to $54, 000.00. (Id. ¶¶ 3.58, 3.60.) Despite her title, Ms. Vopnford no longer had any direct reports, management canceled her trip to Nashville, and she suffered a diminishment in responsibilities and a lack of direction. (Id. ¶¶ 3.59, 3.61-3.62(b).)[7] Mr. Potts and Mr. Webster, who CHMI promoted to “manager of all remote Client Services staff, ” assured Ms. Vopnford that she remained part of the leadership team, praised Ms. Vopnford's work, and assured her that they would work on increasing her responsibilities. (Id. ¶¶ 3.59, 3.62(a)-3.62(b), 3.64.) Despite her efforts to remain proactive in fulfilling her job duties, however, CHMI began to phase Ms. Vopnford out of communication with management in Tampa.[8] (Id. ¶¶ 3.63, 3.65.)

         C. Termination

         On November 21, 2014, CHMI eliminated Ms. Vopnford's position and terminated Ms. Vopnford.[9] (Id. ¶ 3.66.) CHMI informed Ms. Vopnford that her termination was due to a reduction in force and that CHMI treated her the same as others. (Id. ¶¶ 3.67, 3.69.) However, other employees received notice of termination as early as March 2014, which allowed them to make preparations that Ms. Vopnford could not make. (Id. ¶¶ 3.68, 3.70.) Ms. Vopnford also did not receive prompt payment of benefits upon her termination, and she had to threaten legal action in order to receive the money owed. (Id. ¶¶ 3.73-3.74.) Since her termination, Ms. Vopnford has struggled to find consistent, full-time work, and her current job pays approximately $30, 000.00 per year. (Id. ¶¶ 3.76-3.88.)

         Three weeks after her termination, CHMI advertised her previous job-Client Services Supervisor-on its website. (Id. ¶ 3.71.) CHMI eventually filled the position with a “younger male with less experience and qualifications” than Ms. Vopnford, who was also “paid less” than Ms. Vopnford. (Id. ¶ 3.75.) Ms. Vopnford subsequently filed a charge with the Equal Employment Opportunity Commission (Alexander Decl. (Dkt. # 30) ¶ 3, Ex. A), and obtained a right-to-sue letter (Milianti Decl. (Dkt. # 21) ¶ 3, Ex. A).[10] This lawsuit followed.

         III. ANALYSIS

         Moving Defendants first ask the court to strike paragraphs 3.2 through 3.31 from Ms. Vopnford's amended complaint. (MTD at 17-20.) They also contend that the court lacks personal jurisdiction over Mr. Potts, Mr. Webster, Ms. Ophaug, Mr. McComb, and Ms. Lagarde (collectively, “Individual Moving Defendants”). (Id. at 7-9.) In the alternative, Moving Defendants challenge the legal basis and sufficiency of the allegations as to all seven of Ms. Vopnford's causes of action against Individual Moving Defendants. (Id. at 9-17.) As to CHMI, however, Moving Defendants move to dismiss only Ms. Vopnford's claims for negligent hiring and supervision, intentional infliction of emotional distress, and violation of the ADA. (Id. at 13-17.) The court now turns to Moving Defendants' motion.

         A. Motion to Strike

         Pursuant to Federal Rule of Civil Procedure 12(f)(2), Moving Defendants ask the court to strike paragraphs 3.2 through 3.31 of Ms. Vopnford's amended complaint. (MTD at 17-20.) Those paragraphs chronicle Ms. Vopnford's employment history from 1999 through 2011. (See Am. Compl. ¶¶ 3.2-3.31.) Ms. Vopnford opposes the motion and argues that the allegations provide relevant contextual information regarding past practices at CHMI's predecessor companies. (MTD Resp. at 19-21.)

         1. Legal Standard

         Federal Rule of Civil Procedure 12(f) permits the court to “strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). “A federal court will not exercise its discretion under Rule 12(f) to strike a pleading unless the matters sought to be omitted have no possible relationship to the controversy, may confuse the issues, or otherwise prejudice a party.” Ollier v. Sweetwater Union High Sch. Dist., 735 F.Supp.2d 1222, 1223-24 (S.D. Cal. 2010) (citing Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F.Supp.2d 1048, 1057 (N.D. Cal. 2004)). Furthermore, “motions to strike are rarely granted in the absence of a showing of prejudice to the moving party.” Freeman v. Alta Bates Summit Med. Ctr. Campus, No. C 04-2019 SBA, 2004 WL 2326369, at *2 (N.D. Cal. Oct. 12, 2004) (citing 61 Am. Jur. 2d Pleading § 505 (1999)). This demanding standard leads district courts in the Ninth Circuit to disfavor motions to strike, which are “often used as a delaying tactic.” Cal. Dep't of Toxic Substances Control v. Alco Pac., Inc., 217 F.Supp.2d 1028, 1032-33 (C.D. Cal. 2002); see also Cruz v. Sky Chefs, Inc., No. C-12-03705 DMR, 2013 WL 1892337, at *6 (N.D. Cal. 2013) (collecting cases); Hovenkotter v. Safeco Corp., No. C09-0218JLR, 2009 WL 6698629, at *8-9 (W.D. Wash. Aug. 3, 2009).

         2. Paragraphs 3.2 through 3.31 of the Amended Complaint

         The challenged allegations pertain to actions at and by non-party Olympic Health Management (“Olympic”) from 1999 through 2008. (Am. Compl. ¶¶ 3.2-3.31.) As best the court can discern from the passive voice, vague nouns, and imprecise verbs that typify Ms. Vopnford's allegations, Olympic relates to this litigation in the following manner: from 1999 to 2006, Ms. Vopnford worked at Olympic, but Olympic eliminated her position and let her go in May 2006 (id. ¶¶ 3.2, 3.15); in 2008, Olympic “was sold to Munich Re” (id. ¶ 3.28); in August 2009, Olympic “was transitioned to”-which appears to mean, “was renamed”-Sterling Life Insurance (“Sterling”) (id. ¶ 3.29); at an indeterminate subsequent time, Sterling purchased Windsor Health Plans and “the overall name [of the business] changed to Windsor Health Group” (id. ¶ 3.30); in August 2011, “the company”-presumably Sterling and/or Windsor Health Group-hired Ms. Vopnford (id. ¶ 3.32); on January 1, 2014, Wellcare purchased Windsor Health Group (id. ¶ 3.49); and CHMI is a subsidiary of and does business as Wellcare (id. ¶ 2.3). Between 2006 and 2011, Ms. Vopnford alleges no connection between herself and Wellcare, CHMI, or any other defendant in this action or non-party corporate entity identified in the above chronology. (See Am. Compl. ¶¶ 3.2-3.31.) Furthermore, Ms. Vopnford does not dispute that the challenged allegations reach well beyond the statute of limitations (see MTD at 18-19; MTD Resp. at 19-21), but she argues that the time-barred allegations are “relevant as background information” (MTD Resp. at 21).

         The challenged allegations are not only stale, they are also untethered to the defendants in this action. Olympic renamed itself Sterling, which purchased Windsor Health Plans and changed its name to Windsor Health Group, which hired Ms. Vopnford and was subsequently purchased by Wellcare. (See Am. Compl. ¶¶ 3.29-3.30, 3.32, 3.49.) Olympic's actions, in some cases more than a decade earlier, do not bear on liability, damages, or any other issue in this case, which concerns actions by Wellcare, its subsidiary, and its agents after hiring Ms. Vopnford in August 2011. (Id. ¶ 3.32.) Paragraphs 3.2 through 3.31 therefore “have no possible relationship to the controversy” and “may confuse the issues” in this case. Ollier, 735 F.Supp. at 1223; see also Platte Anchor, 352 F.Supp.2d at 1057. Furthermore, if allowed to stand, the eight-year time frame referenced in the challenged allegations could prejudice Moving Defendants by dramatically expanding the scope of relevant discovery. See Freeman, 2004 WL 2326369, at *2. Accordingly, the court strikes paragraphs 3.2 through 3.31 from the complaint. See Fed. R. Civ. P. 12(f).

         B. Motion to Dismiss for Lack of Personal Jurisdiction

         Individual Moving Defendants argue that the amended complaint fails to establish personal jurisdiction over them, and they therefore move to dismiss all claims against them. (MTD at 6-9.)

         1. Legal Standard

         Federal Rule of Civil Procedure 12(b)(2) allows a defendant to move to dismiss claims against it for lack of personal jurisdiction. See Fed. R. Civ. P. 12(b)(2). “In opposing a defendant's motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that jurisdiction is proper.” CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1073 (9th Cir. 2011). However, in the absence of an evidentiary hearing, “the plaintiff need only make ‘a prima facie showing of jurisdictional facts to withstand the motion to dismiss.'” Wash. Shoe Co. v. A-Z Sporting Goods, Inc., 704 F.3d 668, 671-72 (9th Cir. 2012) (quoting Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006)); see also Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015). Although the plaintiff cannot simply rest on the bare allegations of her complaint, uncontroverted allegations in the complaint must be taken as true, and conflicts between parties over statements in affidavits must be resolved in the plaintiff's favor. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004); see CollegeSource, 653 F.3d at 1073; Ranza, 793 F.3d at 1068.

         The test for personal jurisdiction involves two basic inquiries: (1) whether the applicable long-arm statute is satisfied and (2) whether the assertion of personal jurisdiction satisfies due process. See CollegeSource, 653 F.3d at 1073. Where, as here, no federal long-arm statute applies, the court applies the long-arm statute of the state in which it sits. Schwarzenegger, 374 F.3d at 800. “Washington's long-arm statute extends jurisdiction over a defendant to the fullest extent” due process permits. Wash. Shoe, 704 F.3d at 672 (citing RCW 4.28.185; Shute v. Carnival Cruise Lines, 783 P.2d 78, 82 (Wash. 1989)); see also Failla v. FixtureOne Corp., 336 P.3d 1112, 1116 (Wash. 2014) (“[Washington's] long-arm statute [is] designed to be co-extensive with federal ...


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