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 13 v. DEFENDANT’S MOTION TO 14 DISMISS CARLOS DEL TORO, Secretary of the
15 Navy, [ECF No. 6] Defendant. 16 17 Plaintiff Kristine Barton (“Plaintiff”) is suing Defendant Carlos Del Toro, in his 18 official capacity as Secretary of the Navy1 based on what Plaintiff claims to be 19 discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), the 20 Vocational Rehabilitation Act, and the Family Medical Leave Act (FMLA). Plaintiff’s 21 complaint cites four claims for relief: (1) Discrimination based on Plaintiff’s protected 22 classification, (2) Discrimination based on hostile work environment, (3) Discrimination 23 based on reprisal; and (4) Violations of the FMLA. See generally Complaint, ECF No. 1. 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 Defendant filed the Motion to Dismiss which is now before the Court. ECF No. 6. For 2 the reasons set forth below, the motion is GRANTED. 3 I. BACKGROUND2 4 Plaintiff is a registered nurse who was employed by the Department of the Navy. 5 Around 2017, she accepted a temporary assignment to Naval Hospital Sigonella, Italy. 6 ECF No. 1 at 3. Plaintiff alleges that after she arrived in Italy, she started receiving 7 hostile treatment from hospital leadership as well as other supervisory members of the 8 hospital staff. Id. In early 2018, Plaintiff sought FMLA leave to attend to her adult son 9 who resided in the United States. Id. at 5. Plaintiff’s FMLA leave ran from June 30, 10 2018, to August 28, 2018. Id. During this leave period, the Naval Hospital Sigonella 11 Security Officer submitted a report to the Department of Defense’s Consolidated 12 Adjudications Facility (DoDCAF) regarding some of Plaintiff’s purported financial 13 difficulties. Id. Plaintiff disputes the accuracy of the report. Id. 14 Plaintiff’s security clearance was temporarily removed in July 2018, which led to 15 Plaintiff being unable to perform the core functions of her position, as she worked in a 16 Department of Defense facility. Id. at 6. On March 19, 2019, her security clearance was 17 permanently revoked. Id. Three days later, Plaintiff was reassigned within the hospital 18 to a position that did not require a clearance. Id. Plaintiff’s requests for various 19 certifications relating to her nursing practice were denied by the Command on May 23, 20 2019. Id. Plaintiff also had a certification class cancelled on October 21, 2019. Id. 21 Plaintiff had obtained written approval from the Command’s security manager for the 22 latter course. Id. 23 In addition to being denied the opportunity to attend certification courses, Plaintiff 24 also asserts a host of alleged discriminatory behavior including denying requests for sick 25
26 27 2 The following overview of the facts is drawn from Plaintiff’s Complaint, ECF No. 1, which the Court assumes true in analyzing the motion to dismiss. Erickson v. Pardus, 28 1 leave, discipline for taking FMLA, submitting a security clearance report containing false 2 information, adverse performance reviews, subjecting Plaintiff to multiple targeted drug 3 tests, and ignoring Plaintiff’s expressed concerns regarding COVID-19 safety precautions 4 at the start of the pandemic. Id. at 4-5. On or about April 15, 2020, in response to her 5 treatment since starting her position at Naval Hospital Sigonella, Plaintiff initiated an 6 Equal Employment Opportunity (EEO) office pre-complaint counseling to address her 7 concerns. Id. at 2. The pre-counseling process concluded on July 8, 2020, and Plaintiff 8 filed a formal EEO complaint on July 23, 2020. Id. Plaintiff’s claims were investigated 9 as to some portions of her complaint and the EEO office returned its findings to Plaintiff 10 on January 14, 2021. Id. Plaintiff received the Final Agency Determination, thus ending 11 her EEO complaint, on April 26, 2021. Id. 12 II. LEGAL STANDARD 13 A dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure may be 14 based on the lack of a cognizable legal theory or absence of sufficient facts to support a 15 cognizable or plausible legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 16 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When 17 considering a Rule 12(b)(6) motion, the Court “accept[s] as true facts alleged and draw[s] 18 inferences from them in the light most favorable to the plaintiff.” Stacy v. Rederite Otto 19 Danielsen, 609 F.3d 1033, 1035 (9th Cir. 2010). A plaintiff must not merely allege 20 conceivably unlawful conduct but must allege “enough facts to state a claim to relief that 21 is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim 22 is facially plausible ‘when the plaintiff pleads factual content that allows the court to 23 draw the reasonable inference that the defendant is liable for the misconduct alleged.’” 24 Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 25 U.S. 662, 678 (2009)). “Threadbare recitals of the elements of a cause of action, 26 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 27 III. ANALYSIS 28 Defendant seeks dismissal of all four of Plaintiff’s Claims for Relief. The Court 1 addresses Claims 1-3 jointly and Claim 4 separately below. 2 A. Discrimination Claims Under Title VII and the Vocational 3 Rehabilitation Act 4 A plaintiff must first exhaust his administrative remedies before litigating Title VII 5 claims in federal court. See 42 U.S.C. § 2000e-16(c); Sommatino v. United States, 255 6 F.3d 704, 708 (9th Cir. 2001). To exhaust administrative remedies, a federal employee 7 must notify an EEO counselor of alleged discriminatory conduct within 45 days of the 8 alleged conduct, and if the matter is unresolved, the employee may submit a formal 9 administrative complaint to the agency. See 29 C.F.R. § 1614.105(a). An employee's 10 failure to contact an EEO counselor within 45 days of the alleged discriminatory event is 11 grounds to dismiss the complaint, or the untimely allegations within the employee's 12 complaint. See 29 C.F.R. §§ 1614.107(a)(2)(b); Lyons v. England, 307 F.3d 1092, 1105 13 (9th Cir. 2002). 14 Here, Plaintiff fails to allege any discriminatory act that occurred during the 45-day 15 window preceding initiation of EEO counseling. The alleged final discriminatory act, the 16 cancellation of one of Plaintiff’s certification courses, occurred on October 21, 2019. 17 Complaint, ECF No. 1 at 6. As Plaintiff did not initiate EEO contact until April 14, 2020, 18 any discriminatory action by Defendant would have to occur after February 29, 2020.
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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 13 v. DEFENDANT’S MOTION TO 14 DISMISS CARLOS DEL TORO, Secretary of the
15 Navy, [ECF No. 6] Defendant. 16 17 Plaintiff Kristine Barton (“Plaintiff”) is suing Defendant Carlos Del Toro, in his 18 official capacity as Secretary of the Navy1 based on what Plaintiff claims to be 19 discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), the 20 Vocational Rehabilitation Act, and the Family Medical Leave Act (FMLA). Plaintiff’s 21 complaint cites four claims for relief: (1) Discrimination based on Plaintiff’s protected 22 classification, (2) Discrimination based on hostile work environment, (3) Discrimination 23 based on reprisal; and (4) Violations of the FMLA. See generally Complaint, ECF No. 1. 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 Defendant filed the Motion to Dismiss which is now before the Court. ECF No. 6. For 2 the reasons set forth below, the motion is GRANTED. 3 I. BACKGROUND2 4 Plaintiff is a registered nurse who was employed by the Department of the Navy. 5 Around 2017, she accepted a temporary assignment to Naval Hospital Sigonella, Italy. 6 ECF No. 1 at 3. Plaintiff alleges that after she arrived in Italy, she started receiving 7 hostile treatment from hospital leadership as well as other supervisory members of the 8 hospital staff. Id. In early 2018, Plaintiff sought FMLA leave to attend to her adult son 9 who resided in the United States. Id. at 5. Plaintiff’s FMLA leave ran from June 30, 10 2018, to August 28, 2018. Id. During this leave period, the Naval Hospital Sigonella 11 Security Officer submitted a report to the Department of Defense’s Consolidated 12 Adjudications Facility (DoDCAF) regarding some of Plaintiff’s purported financial 13 difficulties. Id. Plaintiff disputes the accuracy of the report. Id. 14 Plaintiff’s security clearance was temporarily removed in July 2018, which led to 15 Plaintiff being unable to perform the core functions of her position, as she worked in a 16 Department of Defense facility. Id. at 6. On March 19, 2019, her security clearance was 17 permanently revoked. Id. Three days later, Plaintiff was reassigned within the hospital 18 to a position that did not require a clearance. Id. Plaintiff’s requests for various 19 certifications relating to her nursing practice were denied by the Command on May 23, 20 2019. Id. Plaintiff also had a certification class cancelled on October 21, 2019. Id. 21 Plaintiff had obtained written approval from the Command’s security manager for the 22 latter course. Id. 23 In addition to being denied the opportunity to attend certification courses, Plaintiff 24 also asserts a host of alleged discriminatory behavior including denying requests for sick 25
26 27 2 The following overview of the facts is drawn from Plaintiff’s Complaint, ECF No. 1, which the Court assumes true in analyzing the motion to dismiss. Erickson v. Pardus, 28 1 leave, discipline for taking FMLA, submitting a security clearance report containing false 2 information, adverse performance reviews, subjecting Plaintiff to multiple targeted drug 3 tests, and ignoring Plaintiff’s expressed concerns regarding COVID-19 safety precautions 4 at the start of the pandemic. Id. at 4-5. On or about April 15, 2020, in response to her 5 treatment since starting her position at Naval Hospital Sigonella, Plaintiff initiated an 6 Equal Employment Opportunity (EEO) office pre-complaint counseling to address her 7 concerns. Id. at 2. The pre-counseling process concluded on July 8, 2020, and Plaintiff 8 filed a formal EEO complaint on July 23, 2020. Id. Plaintiff’s claims were investigated 9 as to some portions of her complaint and the EEO office returned its findings to Plaintiff 10 on January 14, 2021. Id. Plaintiff received the Final Agency Determination, thus ending 11 her EEO complaint, on April 26, 2021. Id. 12 II. LEGAL STANDARD 13 A dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure may be 14 based on the lack of a cognizable legal theory or absence of sufficient facts to support a 15 cognizable or plausible legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 16 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When 17 considering a Rule 12(b)(6) motion, the Court “accept[s] as true facts alleged and draw[s] 18 inferences from them in the light most favorable to the plaintiff.” Stacy v. Rederite Otto 19 Danielsen, 609 F.3d 1033, 1035 (9th Cir. 2010). A plaintiff must not merely allege 20 conceivably unlawful conduct but must allege “enough facts to state a claim to relief that 21 is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim 22 is facially plausible ‘when the plaintiff pleads factual content that allows the court to 23 draw the reasonable inference that the defendant is liable for the misconduct alleged.’” 24 Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 25 U.S. 662, 678 (2009)). “Threadbare recitals of the elements of a cause of action, 26 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 27 III. ANALYSIS 28 Defendant seeks dismissal of all four of Plaintiff’s Claims for Relief. The Court 1 addresses Claims 1-3 jointly and Claim 4 separately below. 2 A. Discrimination Claims Under Title VII and the Vocational 3 Rehabilitation Act 4 A plaintiff must first exhaust his administrative remedies before litigating Title VII 5 claims in federal court. See 42 U.S.C. § 2000e-16(c); Sommatino v. United States, 255 6 F.3d 704, 708 (9th Cir. 2001). To exhaust administrative remedies, a federal employee 7 must notify an EEO counselor of alleged discriminatory conduct within 45 days of the 8 alleged conduct, and if the matter is unresolved, the employee may submit a formal 9 administrative complaint to the agency. See 29 C.F.R. § 1614.105(a). An employee's 10 failure to contact an EEO counselor within 45 days of the alleged discriminatory event is 11 grounds to dismiss the complaint, or the untimely allegations within the employee's 12 complaint. See 29 C.F.R. §§ 1614.107(a)(2)(b); Lyons v. England, 307 F.3d 1092, 1105 13 (9th Cir. 2002). 14 Here, Plaintiff fails to allege any discriminatory act that occurred during the 45-day 15 window preceding initiation of EEO counseling. The alleged final discriminatory act, the 16 cancellation of one of Plaintiff’s certification courses, occurred on October 21, 2019. 17 Complaint, ECF No. 1 at 6. As Plaintiff did not initiate EEO contact until April 14, 2020, 18 any discriminatory action by Defendant would have to occur after February 29, 2020. In 19 her complaint, Plaintiff focuses on the time elapsed between the conclusion of the EEO 20 process and the initiation of this case, but that is not the only important window of time 21 for purposes of assessing the timeliness of Plaintiff’s exhaustion of remedies. 22 Plaintiff also alleges the discriminatory conduct was ongoing and continuing week 23 by week leading up to the initiation of the EEO process. Pl.’s Opp’n, ECF No. 7 at 7. 24 This is insufficient to sustain a complaint. As the Ninth Circuit recognized, the Plaintiff 25 “must demonstrate a series of closely related similar occurrences that took place within 26 the same general time period and stemmed from the same source.” Draper v. Coeur 27 Rochester, Inc., 147 F3d 1104, 1108 (9th Cir. 1998). “[M]ere continuing impact from 28 past violations is not actionable” if the violations lie outside the statute of limitations 1 period. Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001). Any allegations of “early 2 2020 conduct” are vague and conclusory in nature in the Plaintiff’s complaint. 3 Claims for Relief 1-3 are dismissed for lack of timeliness. 4 B. FMLA Claim 5 An action brought under the FMLA must be brought not later than two years after 6 the date of the last event constituting the alleged violation for which the action is brought. 7 29 U.S.C. § 2617(c)(1). Here, Plaintiff’s last use of FMLA leave was August 28, 2018; 8 Plaintiff’s current suit was initiated July 23, 2021, outside the two-year period. Plaintiff’s 9 only response to this is that discriminatory conduct relating to her FMLA leave occurred 10 after August 28, 2018, but she fails to cite any authority or pinpoint specific facts that 11 support this argument. 12 The FMLA lists prohibited actions in 29 U.S.C. § 2615. An employer cannot 13 interfere with an employee’s exercise of FMLA rights, discriminate based on FMLA 14 elections, or interfere with proceedings or inquiries (cannot discharge or discriminate 15 against someone if they are involved in actions under the FMLA). Id. Here, it is unclear 16 what violation under the FMLA the Plaintiff is alleging. Plaintiff’s complaint alleges, 17 “Defendant violated Plaintiff’s rights under FMLA by engaging in a continuing course of 18 conduct which has included, but is not limited to, at least some of the acts alleged above.” 19 Complaint, ECF No. 1 at 10. Plaintiff fails to establish the timeliness of the complaint 20 and this vague assertion also runs afoul of Iqbal and Twombly pleading standards. 21 The only act of discrimination alleged within the two-year window is the 22 cancellation of Plaintiff’s NRP certification class in October 2019. But, Plaintiff fails to 23 point to any plausible connection between her taking FMLA leave and this cancellation. 24 The Complaint indicates this is tied to the revocation of Plaintiff’s security clearance, 25 which is not actionable under FMLA. Based on the face of Plaintiff’s complaint, there is 26 no FMLA violation alleged within the two-year window from the filing of the complaint. 27 Accordingly, Plaintiff’s fourth claim for relief is dismissed. 28 l C. Leave to Amend 2 If a court dismisses a complaint, it may grant leave to amend unless “the pleading 3 could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe, Inc. 4 ||v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). The Court finds any 5 |}amendment to Claims 1-3 would be futile. Plaintiff laid out the alleged discriminatory 6 || actions she experienced, and all are well before the 45-day window of initiation of EEO 7 ||proceedings. The Court will allow Plaintiff to amend her FMLA-related claim for relief 8 cite specific incidents that occurred after July 23, 2019, that show discrimination based 9 her opting to use FMLA leave. Mere assertions of discrimination after this time 10 || without a direct tie to using FMLA leave are insufficient. 11 CONCLUSION 12 For the foregoing reasons, the Court orders as follows: 13 1. Plaintiff's Claims for Relief 1-4 are dismissed. 14 2. Plaintiff may file a First Amended Complaint within fourteen (14) days that 15 cures the pleading deficiencies identified in this Order solely on the FMLA 16 claim. If Plaintiff fails to cure the deficiencies outlined by the Court, the 17 Court may dismiss this matter with prejudice. 18 IT IS SO ORDERED. ° 19 || Dated: July 5, 2022 0 IN: OGER T. BENITE United States District Judge 21 22 23 24 25 26 27 28