United States District Court, W.D. Washington, Tacoma
B. LEIGHTON UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendants' Motion to
Dismiss. Dkt. #34. Plaintiff Rorebeck worked as a nurse for
Defendant Franciscan Health from July, 2001, through 2016, at
St. Joseph's Hospital in Tacoma. Am. Compl., Dkt. #33 at
5. She belonged to a union and her employment was governed by
a collective bargaining agreement.
alleges she told Franciscan that she was disabled by back
problems, and that she required reasonable (but undescribed)
accommodations. Id. She claims she provided medical
records in support of this request, but that Franciscan made
derogatory comments, joked, and laughed at Rorebeck's
medical concerns before dismissing her request entirely.
also claims she once overheard her manager, Defendant Cook,
disclosing a co-worker's protected private health
information to other employees, in violation of the Health
Insurance Portability and Accountability Act (HIPAA), and in
violation of Franciscan's internal policies and
procedures. Id. at 7. She contends that employees
are not allowed to disclose anyone's protected medical
information and are directed to report violations to Human
Resources under Franciscan's policies. Id.
Rorebeck reported these violations to an HR employee via
email, assuming they would stay confidential. Id.
But a co-worker, Defendant Doyle, told Rorebeck that she knew
Rorebeck reported Cook's violations the following week.
Id. at 8. Rorebeck argues that she was targeted for
reporting these violations. Specifically, she asserts that
Cook began “micro-managing” her actions and
disciplined her for failing to abide by the company's
policies and procedures. Id. at 9. She claims other
employees did not suffer any repercussions in similar
situations. Id. Rorebeck also claims she discovered
several untruthful and defamatory statements in her personnel
file relating to her work. Id. at 11.
informed the same HR representative that she was being
targeted unfairly. The HR representative assured Rorebeck
that she was protected from reprisal for reporting concerns.
Id. at 9. Rorebeck expressed her concern to her
director, Defendant Melchiorre, about Cook's retaliation
for reporting his violations to HR. Id. Ultimately,
Franciscan terminated Rorebeck's employment. Id.
CBA mandates a grievance procedure when an employee alleges a
breach of its terms. She claims that filed a grievance to the
extent that she can, and that the grievance process has been
stalled by actions other than her own, including that of the
Defendants, so it never got finalized. Defendants claim that
Rorebeck abandoned her grievance after the Washington State
Nurses Association (WSNA) advanced it to arbitration two
years ago. Dkt. #34; Defs. Reply, Dkt. #45. Rorebeck sued
Franciscan, Cook, Doyle, and Melchiorre, claiming: (1)
violations of the ADA, including harassment and
discrimination; (2) retaliation for opposing unlawful
practices under HIPAA; (3) violations of the WLAD based on
disability, hostile work environment, failure to make
reasonable accommodations and/or retaliation; (4) breach of
contract and the implied covenant of good faith and fair
dealing; and (5) defamation. See Dkt. #33.
Defendants argue that Rorebeck's ADA claim against the
individual Defendants should be dismissed because there is no
individual liability under the ADA. Rorebeck concedes she has
no ADA claim against any individual Defendant, and the Motion
to Dismiss those claims is GRANTED. Her ADA
claim against Franciscan remains.
also argue that the HIPPA claim against the individual
Defendants should be dismissed because HIPPA's
prohibition on retaliation applies only to specific
“covered entities” or “business associates,
” which are entities that “create, receive,
maintain, or transmit protected health information on behalf
of a health care provider. See C.F.R. §160.103.
Defendants claim she has not, and cannot, plausibly allege
that this section applies to her co-workers. Rorebeck argues
that whether or not the individual Defendants meet that
definition is subject to discovery, and to the extent it is a
challenge, must be supported by facts in a summary judgment
motion, not by an unsupported statement.
further argue that Rorebeck's WLAD claims are
preempted by §301 of the Labor Management Relations Act
(LMRA), which preempts state law claims if they are either
grounded in the provisions of the labor contract, or require
interpretation of it, because they are founded on rights
provided for in the CBA, and not independent of it. Rorebeck
argues that her state law WLAD claims are independent of the
CBA and are therefore not preempted.
also argue that Rorebeck's claims are preempted because
she did not exhaust the CBA's grievance procedure before
filing suit. Rorebeck contends that she has fully complied
and exhausted her remedies without abandoning them. Pl.
Resp., Dkt. #44 at 9. Defendants argue that even if she did
not abandon her grievance, her failure to exhaust her
remedies is fatal to her claim, unless she can show that the
union did not represent her, which she has not claimed. Dkt.
#45 at 9.
Defendants also argue that Rorebeck's breach of contract
and good faith and fair dealing claims necessarily seek to
vindicate a right or duty created by the CBA itself, and are
similarly pre-empted. Dkt. #34 at 11. Rorebeck argues that
her breach of contract claims are not preempted because they
do not turn on an interpretation of any language in the CBA
itself, but arise out of common and statutory law, even
though Rorebeck does not dispute Defendants' assertion
that the CBA is the contract that was breached. Rorebeck also
does not identify any other contract upon which her contract
claims are premised. Dkt. #45 at 9.
Defendants argue that Rorebeck's defamation claim fails
because she does not and cannot plausibly allege that any
defamatory statements were published or spoken concerning
her. Dkt. #34; Dkt. 45. Rorebeck argues that she has
adequately pled the elements necessary to establish her claim
for defamation, including the element of unprivileged
Rule 12(b)(6) Standard
Dismissal under Fed.R.Civ.P. 12(b)(6) may be based on either
the lack of a cognizable legal theory or the absence of
sufficient facts alleged under a cognizable legal theory.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). A plaintiff's complaint must
allege facts to state a claim for relief that is plausible on
its face. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A claim has “facial
plausibility” when the party seeking relief
“pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Although the court
must accept as true the Complaint's well-pled facts,
conclusory allegations of law and unwarranted inferences will
not defeat an otherwise proper 12(b)(6) motion to dismiss.
Vazquez v. Los Angeles Cty., 487 F.3d 1246, 1249
(9th Cir. 2007); Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001). “[A] plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (citations and footnotes omitted). This
requires a plaintiff to plead “more than an unadorned,
Iqbal, 556 U.S. at 678 (citing id.).
12(b)(6) motion, “a district court should grant leave
to amend even if no request to amend the pleading was made,
unless it determines that the pleading could not possibly be
cured by the allegation of other facts.” Cook,
Perkiss & Liehe v. N. Cal. Collection Serv., 911
F.2d 242, 247 (9th Cir. 1990). However, where the facts are
not in dispute, and the sole issue is whether there is
liability as a matter of substantive law, the court may deny
leave to amend. Albrecht v. Lund, 845 F.2d 193,
195-96 (9th Cir. 1988).
Retaliation for Opposing Unlawful Practices under
claims Defendants violated HIPAA when Cook disclosed a
co-worker's protected health information to his
subordinates and retaliated against ...