Barnes v. Commissioner of Social Security Administration

• Court: District Court, D. Nevada
• Decided: July 29, 2019
• Docket: 3:18-cv-00199
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 6 PATRICIA G. BARNES., Case No. 3:18-cv-00199-MMD-WGC 7 Plaintiff, ORDER v. 8 NANCY A. BERRYHILL, Acting 9 Commissioner Social Security Administration, 10 Defendants. 11 12 I. SUMMARY 13 Pro se Plaintiff Patricia G. Barnes brought this action under the Age Discrimination 14 in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”) and Title VII of the Civil 15 Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) (ECF Nos. 1, 86). Among various 16 motions currently pending before the Court, Defendant Nancy A. Berryhill, Acting 17 Commissioner of the Social Security Administration (“SSA”) (herein “Defendant”) has 18 moved to dismiss Plaintiff’s second amended complaint (“SAC”) (ECF No. 86) (“MTD”). 19 (ECF No. 87.) Defendant has also filed a motion to strike Plaintiff’s request for jury trial on 20 her ADEA claims. (ECF No. 88.) 21 The Court grants Defendant’s MTD (ECF No. 87) and denies Defendant’s motion 22 to strike (ECF No. 88) as moot. As to other pending motions, the Court rules as follows: 23 Plaintiff’s motion to amend and her motions providing supplementation in support of her 24 response to the MTD (ECF Nos. 103, 110, 119) are granted. All other pending motions 25 (ECF Nos. 93, 125) are denied as moot.1 26 /// 27 1The Court has reviewed the briefs related to the pending motions (ECF Nos. 90, 28 96, 98, 107, 117, 127, 128, 132, 134). The Court also notes that it postponed the deadline 2 This lawsuit stems from Plaintiff’s non-selection for one of several attorney-advisor 3 positions with the SSA in Reno, Nevada in 2011.2 At the relevant time, Plaintiff was 60 4 years old. Plaintiff is an attorney with more than 20 years of legal experience. She has 5 written legal books and has had articles published nationally. She also edits two 6 employment law blogs. 7 A new SSA Office of Disability Adjudication and Review (ODAR) was set to open 8 in Reno in September 2011. Plaintiff inquired whether the office was hiring attorneys and 9 hearing officers. Posting for the attorney-advisor vacancies were not “publicly” available. 10 (Id. at 15.) In June 2011, SSA’s Selection Officer Jimmy Elkins advised Plaintiff to apply 11 promptly because the recruitment was closing. He did not provide Plaintiff a copy of a 12 vacancy announcement. 13 On July 18, 2011, Plaintiff interviewed for one of the attorney-advisor positions with 14 Elkins and his assistant, Barbara Groberg. Elkins said that after Plaintiff’s interview, he 15 turned to Groberg immediately to state that Plaintiff was excluded from further 16 consideration. Elkins alone made the non-selection decision. 17 Upon Plaintiff’s inquiry, Elkins informed Plaintiff she was not selected and referred 18 her to Ed Pilapil, a regional SSA human resources officer in California, who was in charge 19 of the hiring process. After consulting with Elkins, Pilapil told Plaintiff on August 10, 2011, 20 that she was not hired because Elkins felt she was not sufficiently excited about the 21 position. 22 Elkins agreed that Plaintiff’s qualifications for the attorney-advisor position were 23 superior but said he selected candidates that he felt had “a personality that would fit with 24 the agency’s culture and mission” and ignored objective qualifications. (Id. at 5.) 25 /// 26 for Defendant to respond to Plaintiff’s motion for summary judgment (ECF No. 93) to 21 days from the Court’s ruling on Defendant’s MTD. (ECF No. 100.) 27 2The facts of this case derive from the SAC (ECF No. 86), unless otherwise noted. 28 Notably in the SAC Plaintiff cites to deposition testimony and affidavits from Defendant’s employees, among other things. 2 apply, and he responded that the jobs were in the “excepted service” and Elkins had 3 complete discretion to recruit in any way he wished. Pilapil further explained that Elkins 4 notified two institutions about the vacancies—the law school at the University of Nevada, 5 Las Vegas (“UNLV”) and an outgoing office of Peace Corps volunteers. Plaintiff “observed” 6 (id.) that both institutions have populations with an average age well below 40. 7 Plaintiff asked Pilapil for the ages of candidates who were hired, and he told her to 8 file a Freedom of Information Act (“FOIA”) request. Plaintiff filed a FOIA request the same 9 day with the SSA. She emailed a copy to Elkins, along with a note questioning whether 10 the hiring process was fair and equitable and asking him to reconsider her application if 11 any candidate rejected the offer of a position. Several candidates subsequently declined 12 appointment, but Elkins never reconsidered Plaintiff’s application. 13 Younger candidates—under 40—were hired by the SSA instead of Plaintiff. For 14 example, on August 11, 2011, Pilapil authorized Elkins to make job offers to 2 candidates 15 who were younger and less qualified than Plaintiff. The following day, Pilapil authorized 16 the hiring of a 26-year-old with “13 months of low-level practice experience.” (Id. at 6.) The 17 final offer was made on August 29, 2011, which was 19 days after Plaintiff complained to 18 Elkins and Pilapil of age discrimination. A 31-year-old was hired the following day. 19 Elkins and Groberg submitted sworn affidavits to the EEO containing identical 20 language and falsehoods. They claimed that one other candidate was over 40—a 47-year- 21 old man who had volunteered for the Peace Corps—and that he was one of the first 5 22 candidates selected. However, discovery revealed he was the ninth candidate selected. 23 Elkins and Groberg also swore that 7 selectees were offered positions when, in fact, Elkins 24 selected 11 candidates and two of the candidates not mentioned graduated law school in 25 2009 and 2010. 26 In addition to citing Elkins’ deposition testimony, affidavits and discovery, Plaintiff 27 attaches the following to the SAC: (1) a 2014 article from the Baltimore Sun newspaper 28 stating that the SSA found no case of discrimination over 4 years after having processed 2 supposed to follow; and (3) a Forbes article titled “The End of Culture Fit”—contending 3 that a hiring process based on culture fit is fraught with bias. (Id. at 10–26.) 4 Plaintiff asserts the following four claims: (1) age discrimination based on disparate 5 treatment in violation of the ADEA; (2) age discrimination based on disparate impact in 6 violation of the ADEA; (3) reprisal for opposing age discrimination in violation of the ADEA, 7 29 U.S.C. § 623, “Section Four D[;]” and (4) retaliation in violation of Title VII, 42 U. S.C. 8 § 2000e–3(a), Section 704(a). 9 In response to Defendant’s MTD, Plaintiff filed a response (ECF No. 90), a motion 10 to amend her response to purportedly make corrections to record cites (ECF No. 103),3 a 11 motion to supplement providing additional caselaw and argument (ECF No. 110)4 and a 12 separate motion for leave to supplement her response with accompanying caselaw 13 attached (ECF Nos. 119, 119-1). Defendant filed a reply in support of the MTD (ECF No. 14 96) and oppositions to Plaintiff’s two latter attempts to supplement her response (ECF 15 Nos. 117, 127). Plaintiff then filed a response to Defendant’s opposition to her second 16 motion to supplement. (ECF No. 128.) 17 III. MOTION TO DISMISS (ECF NO. 87) 18 Legal Standard 19 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which 20 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must provide 21 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 22 R.Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does 23 not require detailed factual allegations, it demands more than “labels and conclusions” or 24 a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 25 662, 678 (2009) (citing Twombly, 550 U.S. at 555). “Factual allegations must be enough 26 /// 27 3To the extent Plaintiff’s response makes allegations not in the SAC, the Court disregards them. 28 4ECF No. 110 is currently docketed as a response. 2 to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that 3 is plausible on its face.” Iqbal, 556 U.S. at 678 (internal citation omitted). 4 In Iqbal, the Supreme Court clarified the two-step approach district courts are to 5 apply when considering motions to dismiss. First, a district court must accept as true all 6 well-pleaded factual allegations in the complaint; however, legal conclusions are not 7 entitled to the assumption of truth. Id. at 678–79. Mere recitals of the elements of a cause 8 of action, supported only by conclusory statements, do not suffice. Id. at 678. Second, a 9 district court must consider whether the factual allegations in the complaint allege a 10 plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s 11 complaint alleges facts that allow a court to draw a reasonable inference that the 12 defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does not 13 permit the court to infer more than the mere possibility of misconduct, the complaint has 14 “alleged—but it has not show[n]—that the pleader is entitled to relief.” Id. at 679 (internal 15 quotation marks omitted). When the claims in a complaint have not crossed the line from 16 conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570. A 17 complaint must contain either direct or inferential allegations concerning “all the material 18 elements necessary to sustain recovery under some viable legal theory.” Twombly, 550 19 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 20 1989) (emphasis in original)). 21 In ruling on a motion to dismiss, a court may “consider certain materials— 22 documents attached to the complaint, documents incorporated by reference in the 23 complaint, or matters of judicial notice—without converting the motion . . . into a motion 24 for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). 25 Further, because Plaintiff proceeds pro se—albeit an experienced attorney—the 26 Court will liberally construe her filings in this lawsuit. Erickson v. Pardus, 551 U.S. 89, 94 27 (2007) (per curiam). 28 /// 2 Defendant moves to dismiss the SAC, citing pleading and jurisdictional 3 deficiencies. (ECF No. 87.) Defendant chiefly argues the SAC violates the pleading 4 standards under Fed. R. Civ. P. 8(a)(2), 8(d)(1) and 10(b)—in gist for lacking conciseness 5 and numbering—and is otherwise deprived of facts to establish Plaintiff is entitled to relief 6 on any of her claims.5 (Id. at 2–3.) Construing Plaintiff’s SAC liberally, the Court finds 7 contrary to Defendant’s contention that Plaintiff’s allegation fails under the minimal 8 pleading requirements of Rules 8 and 10. The Court will therefore address each of 9 Plaintiff’s claims in turn, considering whether Plaintiff has stated colorable claims that 10 could entitle her to relief. Ultimately, the Court concludes that Plaintiff fails to state any 11 claim for which the Court may grant relief and therefore grants Defendant’s MTD on this 12 ground. 13 1. Claim One: Disparate Treatment 14 Plaintiff’s first claim is for alleged discrimination based on disparate treatment under 15 the ADEA. (ECF No. 86 at 13.) Plaintiff alleges that she was subject to disparate treatment 16 due to her age because the SSA hired younger, lesser qualified individuals instead of her, 17 in violation of 29 U.S.C. § 623(a)(1). (Id.) She bases her contention on the fact that Elkins 18 admittedly made hiring decisions based on subjective, as opposed to objective factors— 19 such as personality and cultural fit. (Id.) Defendant argues that Plaintiff’s claim fails 20 because Plaintiff’s allegations do not demonstrate that Defendant’s employees’ hiring 21 decisions were based on age. (ECF No. 87 at 4.) The Court agrees with Defendant. 22 The ADEA’s anti-discrimination provision is “limited to individuals who are at least 23 40 years of age.” 29 U.S.C. § 631(a). It applies to protect both federal employees and 24 applicants for federal employment. Id. at § 633a(a). The ADEA specifically provides that 25 “[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any 26 /// 27 5To the extent the parties raise other arguments—such as those related to 28 Defendant’s argument that Plaintiff is precluded from challenging the EEO process in this action (e.g., ECF No. 87 at 7–8)—the Court declines to address them. 2 compensation, terms, conditions, or privileges of employment, because of such 3 individual’s age.” Id. at § 623(a)(1) (emphasis added). 4 A plaintiff “retains the burden of persuasion to establish that age was the ‘but for’ 5 cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 6 (2009). In Gross, the Supreme Court declined to apply the McDonnell Douglas burden 7 shifting framework to ADEA cases. Id. at 174 (“This Court never held that this burden- 8 shifting framework applies to ADEA claims. And, we decline to do so now.”). Nonetheless, 9 the Ninth Circuit has concluded that Gross only applies at trial—whereas the McDonnell 10 Douglas framework applies at summary judgment—and thus concluding that Gross finds 11 the McDonnell Douglas framework inapplicable to ADEA cases at summary judgment “is 12 not inconsistent with Gross.” Shelley v. Geren, 666 F.3d 599, 607–08 (9th Cir. 2012). In 13 short, it is unclear what framework the Court should consider at the motion to dismiss 14 stage. 15 In any event, “[despite [the McDonnell Douglas] burden shifting, the ultimate burden 16 of proof remains always on the [job applicant] to show that [the employer] discriminated 17 because of their age.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000). 18 Proof of discriminatory motive is critical in a disparate treatment claim—unlike with a 19 disparate impact claim. Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993) (quotations 20 and citations omitted). Further, “[u]nlike Title VII, the ADEA’s text does not provide that a 21 plaintiff may establish discrimination by showing that age was simply a motivating factor.” 22 Shelley, 666 F.3d at 607 (quoting Gross). In Hazen Paper Co., the Supreme Court 23 “clarif[ied] that there is no disparate treatment under the ADEA when the factor motivating 24 the employer is some feature other than the employee’s age.” Id. at 609; see also Casillas 25 v. U.S. Navy, 735 F.2d 338, 345 (9th Cir. 1984) (internal quotation and citation omitted) 26 (providing, albeit in the Title VII context: “We have explicitly rejected the idea that an 27 employer’s use of subjective employment criteria has a talismanic significance: ‘Even 28 assuming subjectivity was involved here, it has never been held that subjective evaluation 2 of proving absence of intentional . . . bias . . .’”); see Murphy v. Yellow Freight System, 3 Inc., 832 F. Supp. 1543, 1548 (N.D. G.A. 1993) (concluding in the ADEA context that “[t]he 4 use of subjective factors in making employment decisions cannot be sufficient to support 5 a finding of discrimination”). 6 The SAC is ripe with allegations by Plaintiff and statements providing that Elkins’ 7 decision for not hiring Plaintiff was based on factors completely exclusive of age. (See 8 generally ECF No. 86.) Accepting these allegations as true, Plaintiff fails to state a claim 9 for disparate treatment. In her response to the MTD Plaintiff posits that the issue is whether 10 the selecting officer’s subjective considerations were pretext for age discrimination. (ECF 11 No. 90 at 6–13.) However, it is evident that Plaintiff fails to establish her claim because 12 pointing to Defendant’s subjective non-discriminatory explanations for not hiring Plaintiff 13 is insufficient to support an inferential leap to conclude discrimination.6 At most, the SAC 14 supports an inference of the “mere possibility of misconduct”—which is not enough. Iqbal, 15 556 U.S. at 679. The Court therefore finds that Plaintiff fails to state a claim based on the 16 allegations in the SAC. As it is clear from the face of the SAC that the SSA declined to hire 17 Plaintiff for non-age-related reasons, the Court concludes that amending the SAC on this 18 claim would be futile. Accordingly, Plaintiff’s disparate treatment claim is dismissed with 19 prejudice. 20 /// 21 6Plaintiff’s first motion to supplement (ECF No. 110) offers the case of Figueroa v. 22 Pompeo, 923 F.3d 1078 (D.C. Cir. 2019) to support her argument that Defendant cannot rely on subjective factors in making hiring decisions under the ADEA. Figueroa does not 23 support that plain conclusion and considers subjectivity within the context of the three-step McDonnell Douglas framework under Title VII. Within that framework, the circuit court 24 concludes that “an employer at the second prong [—after the employee establishes a prima facie case—] must proffer admissible evidence showing a legitimate, 25 nondiscriminatory, clear, and reasonably specific explanation for its actions.” Id. at 1092. The court further explains that when the employer’s stated reason—at step two—involves 26 subjective criteria, the employer must provide evidence giving the plaintiff “fair notice as to how the employer applied the standards to the employee’s own circumstances”—and 27 not merely provide vague reasons. The Court therefore concludes that even if Figueroa directed this Court’s analysis, the SAC undermines any conclusion that Plaintiff could 28 possibly establish a claim of discrimination based on age in this case as the Court accepts as true the rationale Plaintiff claims the selecting officers provided. 2 To support a claim of discrimination based on disparate impact under the ADEA, 3 a plaintiff must identify a test, requirement or practice of the employer that has an adverse 4 impact on older workers. Smith v. City of Jackson, Miss., 544 U.S. 228, 241 (2005). It is 5 not enough to “simply allege that there is disparate impact on workers, or point to a 6 generalized policy that leads to such an impact. Rather, the employee is responsible for 7 isolating and identifying the specific employment practices that are allegedly responsible 8 for any observed statistical disparities.” (Id.) (internal quotations and citations omitted). 9 Defendant argues that Plaintiff has failed to state a claim because Plaintiff’s 10 allegations are too vague and conclusory as Plaintiff fails to identify the alleged policies in 11 question with sufficient specificity or to demonstrate a causal connection to alleged 12 disparate impact. (ECF No. 87 at 5.) The Court agrees with Defendant, especially on the 13 latter contention. 14 For this claim, Plaintiff specifically asserts that the SSA’s hiring policies deprive 15 older job seekers of equal employment opportunity because the recruitment process was 16 designed to solicit applications from workers under the age of 40. (ECF No. 86 at 5, 15.) 17 Plaintiff’s statement is based on the fact that the attorney-advisor positions were listed as 18 “excepted service” positions. (Id. at 15.) She asserts this listing gave selection officers 19 unfettered discretion to recruit candidates that had no relevant training or experience. (Id.) 20 She further asserts that the position was not “publicly” available—although Elkins notified 21 UNLV and an outgoing office of Peace Corps volunteers. (Id. at 5, 15.) She contends that 22 while facially neutral, the recruitment, evaluation and hiring policies based on the 23 “excepted service” listing adversely affect job seekers that are 40 years old and over. (Id. 24 at 15.) 25 The Court concludes that even accepting Plaintiff’s allegations as true, Plaintiff’s 26 assertion that the hiring policy was designed to solicit only young applicants either 27 because it was an “excepted service” listing or not publicly available is based on 28 conjecture. Even at this stage, factual allegations—while accepted as true—must rise 2 service” listing would provide for unfettered discretion to recruit inexperience candidates, 3 such allegations do not allow for a reasonable inference that the policy adversely affects 4 applicants who are over 40. Moreover, the SAC lacks any allegations of statistical 5 evidence of disparities in the SSA’s hiring process in general or the “excepted service” 6 listing in particular from which the Court could infer a conclusion of disparate impact 7 causally related to age discrimination. Notably, the SAC provides that the only other 8 applicant over 40 was selected. (ECF No. 86 at 6–7.) While Plaintiff’s response to the MTD 9 offers additional relevant allegations and statistics not alleged in the SAC (ECF No. 90 at 10 13–15), such allegations are not enough for this Court to conclude that permitting Plaintiff 11 to amend this claim would be anything but futile. Accordingly, the Court dismisses 12 Plaintiff’s disparate impact claim with prejudice. 13 3. Claim Three: Reprisal for Opposing Age Discrimination 14 Plaintiff next asserts a claim of reprisal for opposing age discrimination under the 15 ADEA, contending that Elkins testified at his deposition that he did not hire her “because 16 of her activities in opposition to employment discrimination . . ..” (ECF No. 86 at 15–17.) 17 Plaintiff claims Elkins particularly referenced her “syndicated employment blog, Abuser 18 Goes to Work, at abuser goestowork.com.” (Id.) Plaintiff brings this claim under “29 U.S.C. 19 § 623, Section Four D.” (Id.) 20 As an initial matter, Defendant seeks dismissal of the claim, arguing that no such 21 statute exists. (ECF No. 87 at 5–6; ECF No. 96 at 4.) The Court agrees with Defendant 22 that as written no such statute exists. Further, Plaintiff reasserts the same incorrect statute 23 in her response, but accompanied by the relevant language. (ECF No. 90 at 15–16.) In 24 any event, with minimal effort Defendant could ascertain that Plaintiff’s claim is raised 25 under 29 U.S.C. § 623(d) because that provision is expressly titled “Opposition to unlawful 26 practices . . ..” The section also provides that “[i]t shall be unlawful for an employer to 27 discriminate against . . . applicants for employment . . . because such individual . . . has 28 opposed any practice made unlawful by this section.” 29 U.S.C. § 623(d). This is evidently 2 Plaintiff to have asserted a claim under 29 U.S.C. § 623(d)—not 29 U.S.C. § 623(4)(d), 3 which does not exist. 4 Defendant seeks dismissal of this claim on two additional grounds. First, Defendant 5 in gist contends that Plaintiff’s description of alleged protected activity is too vague and 6 conclusory to support a claim. (ECF No. 87 at 6.) Second, Defendant refers to the relevant 7 portion of Elkins’ deposition testimony that Plaintiff provides and argue that Plaintiff’s 8 quoted language (ECF No. 86 at 16) does not demonstrate reprisal. (ECF No. 87 at 6.) 9 The Court agrees with Defendant in both regards. 10 At most, Plaintiff’s SAC attempts to establish that her blog writings amount to 11 protected activity because her blog “regularly features articles about employment 12 discrimination based on age.” (ECF No. 86 at 16.) However, Plaintiff provides no legal 13 authority to support a finding that her blog writings may amount to protected activity during 14 the employment application process and as to the SSA specifically. Writing a blog that 15 features articles about age discrimination is not analogous to opposition activities that 16 have been found to amount to protected activity under § 623(d). See, e.g., Stilwell v. City 17 of Williams, 831 F.3d 1234, (9th Cir. 2016) (concluding that an employee’s sworn 18 statement and imminent testimony in age discrimination lawsuit relating to the employer’s 19 illegal practices were protected First Amendment retaliation speech covered under the 20 ADEA); Poland v. Chertoff, 494 F.3d 1174, 1180 (9th Cir. 2007) (“[F]iling of EEO 21 complaints [against employer] was a protected activity.”); O’Day v. McDonnell Douglas 22 Helicopter Co., 79 F.3d 756, 763 (9th Cir. 1996) (providing that protected activity is activity 23 that is reasonable in opposing discrimination balanced against “Congress’ equally 24 manifest desire not to tie the hands of employers in the objective selection and control of 25 personnel”); Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015) (“[P]rotected 26 opposition activity includes . . . ‘informal protests of discriminatory employment practices, 27 including making complaints to management.’”) (internal quotation and citation omitted); 28 Johnson v. Mech. & Farmers Bank, 309 F. App’x 675, 685 (4th Cir. 2009) (“Opposition 2 protests and voicing one’s opinions in order to bring attention to an employer’s 3 discriminatory activities.”) (quotations and citations omitted); Morgan v. Napolitano, 938 F. 4 Supp. 2d 1162, 1178 (E.D. Cal. 2013) (finding employee’s wife’s representation of agency 5 employees in employment disputes with the employee’s employer amounted to protect 6 activity under the ADEA based on a third-party retaliation theory); see also Lalau v. City & 7 County of Honolulu, 938 F. Supp. 2d 1000, 1018 (D. Haw. 2013) (finding that ‘voicing 8 concern and questioning the validity of citations issued to licensed premises’ by employer 9 is not protected activity under the ADEA). Because Plaintiff’s conduct does not amount to 10 protected activity, she cannot state a claim under § 623(d). 11 Even assuming Plaintiff’s blog writing amounts to protected activity, Plaintiff’s 12 quotes to Elkins’ deposition testimony in the SAC does not support a causal link between 13 Plaintiff’s non-selection and blog writing about age discrimination in particular. The 14 references to Elkins’ testimony show the blogs were a red flag for Elkins because Plaintiff 15 referenced it in her application cover sheet and the blog compared employers to abusers— 16 which led to a concern that Plaintiff would look to criticize Elkins as an employer or create 17 “nothing but problems if she doesn’t like what I’m asking her to do.” (ECF No. 86 at 16.) 18 Thus, Plaintiff’s allegations in the SAC—accepted as true and reflecting Elkins’ 19 statements—undermine any viable claim of discrimination or even reprisal based on 20 protected activity because of age. 21 Accordingly, the Court finds Plaintiff’s third claim is not a claim for which relief may 22 be granted. The claim is therefore dismissed with prejudice. 23 4. Claim Four: Retaliation in Violation of Title VII 24 Plaintiff’s fourth—and final—claim is for retaliation brought under Title VII. (ECF No. 25 86 at 17.) Defendant moves to dismiss this claim, contending, inter alia, that Plaintiff has 26 failed to exhaust her administrative remedies and otherwise fails to state a colorable claim 27 for relief. (ECF No. 87 at 6–7; ECF No. 96 at 1–3.) The Court first addresses Defendant’s 28 exhaustion argument. 2 remedies before the Court may exercise subject matter jurisdiction over this claim. Citing 3 Lyons v. England, 307 F.3d 1092, 1103 (9th Cir. 2002), Defendant argues that Plaintiff’s 4 failure to exhaust deprives the Court of subject matter jurisdiction over the claim. (ECF 5 No. 87 at 6–7.) Plaintiff argues to the contrary. In the second supplementation to her 6 response (ECF Nos. 119, 119-1), Plaintiff provides a recent Supreme Court decision— 7 Fort Bend County, Texas v. Davis, 139 S. Ct. 1843 (2019) (“Fort Bend”)—which settles 8 the issue. In Fort Bend, the Supreme Court held that Title VII’s charge-filing requirement 9 is not jurisdictional but is instead a claim-processing rule. Id. at 1846, 1849–50. However, 10 as to the present issue, the high court’s holding ultimately provides a distinction without 11 much meaning because the Court nonetheless concluded that exhaustion under Title VII 12 is mandatory. Id. at 1851. 13 Plaintiff was required to exhaust her administrative remedies. B.K.B. v. Maui Police 14 Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002), as amended (Feb. 20, 2002). A defendant has 15 the burden of proving such administrative remedies have not been exhausted. See, e.g., 16 Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (explaining that the failure to exhaust 17 is an affirmative defense that must be pleaded and proved by defendant); Brown v. Marsh, 18 777 F.2d 8, 13 (D.C. Cir. 1985) (same). 19 Here, Defendant argues that there is no evidence that Plaintiff exhausted her Title 20 VII retaliation claim. (ECF No. 87 at 6–7; ECF No. 96 at 1–2.) While Plaintiff contends, 21 inter alia, that she addressed her activity in opposition to discrimination in EEO 22 administrative proceedings (ECF No. 90 at 17), she does not provide an attachment of the 23 filing for the Court to review. The Court will nonetheless presume that Plaintiff in fact 24 exhausted the issue of retaliation because Plaintiff’s fourth claim is essentially based on 25 the same facts underlying claim three—that Plaintiff was not hired in reprisal/retaliation 26 because she opposed unlawful employment practices by engaging in protected activity— 27 /// 28 /// 2 race, sex) via her employment blog.7 (ECF No. 86 at 17.) 3 In any event, the Court agrees with Defendant that Plaintiff fails to state a claim for 4 which relief may be granted. As the Court found above, Plaintiff fails to establish that her 5 employment blog amounts to protected activity during the job application process and as 6 to the SSA.8 See, e.g., Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 7 2002) (explaining the requirements for establishing a prima facie case of retaliation under 8 Title VII). Accordingly, like claim three, claim four is dismissed with prejudice. 9 IV. MOTION TO STRIKE (ECF NO. 88) 10 Defendant has moved to strike Plaintiff’s request for a jury trial on her ADEA claims. 11 (ECF No. 88; ECF No. 86 at 19.) The Court denies the motion as moot in light of its 12 conclusion that Plaintiff fails to state any claim for which relief may be granted. 13 V. CONCLUSION 14 The Court notes that the parties made several arguments and cited to several cases 15 not discussed above. The Court has reviewed these arguments and cases and determines 16 that they do not warrant discussion as they do not affect the outcome of the issues before 17 the Court. 18 It is therefore ordered that Plaintiff’s motion to amend (ECF No. 103) and motions 19 providing supplementation (ECF Nos. 110, 119) are granted. 20 It is further ordered that Defendant’s motion to dismiss (ECF No. 87) is granted. 21 Plaintiffs’ claims are dismissed with prejudice as amendment would be futile. 22 It is further ordered that Defendant’s motion to strike (ECF No. 88) and all other 23 pending motions (ECF Nos. 93, 125) are denied as moot. 24 /// 25 7Notably, Defendant does not challenge Plaintiff’s third claim on the basis of 26 exhaustion. 27 8Relative to her third claim, Plaintiff’s fourth claim merely asserts a broader range of conduct her blog regularly features beyond age discrimination—such as employment 28 discrimination on the basis of race, sex, gender orientation, religion, color and national origin. (ECF No. 86 at 17.) 1 The Clerk is directed to enter judgment in accordance with this order and close this 2 || case. 3 DATED THIS 29" day of July 2019.

5 MIRANDA M. DU 6 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15