Clifford Merlo v. Robert L. Wilkie

• Court: District Court, C.D. California
• Decided: February 13, 2020
• Docket: 2:19-cv-05078
• Status: Unknown

Opinion

O 1

2 3 4 5 6 7 United States District Court 8 Central District of California 9 10 11 CLIFFORD MERLO, Case No. 2:19-cv-05078-ODW (JCx) 12 Plaintiff, ORDER GRANTING IN PART 13 v. DEFENDANT’S MOTION TO 14 ROBERT L. WILKIE, DISMISS AND DENYING MOTION 15 Defendant. TO STRIKE [10] 16 17 18 I. INTRODUCTION 19 Defendant Robert L. Wilkie, Secretary of Veteran Affairs of the United States 20 Department of Veteran Affairs (“VA” or “Defendant”), moves to dismiss the complaint 21 of Plaintiff Dr. Clifford Merlo (“Dr. Merlo”) alleging age discrimination over the 22 course of his employment (“Motion”). (Mot. to Dismiss and Strike (“Mot.”), ECF 23 No. 10.) For the reasons that follow, the Court GRANTS in part Defendant’s 24 Motion to Dismiss and DENIES Defendant’s Motion to Strike.1 25 26 27

28 1 After carefully considering the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. FACTUAL BACKGROUND 2 Dr. Merlo is a board-certified radiation oncologist whom Defendant employed 3 from about December 2011 to on or about May 31, 2015. (Compl. ¶ 4, ECF No. 1.) 4 When he was first hired at age 58, Dr. Merlo served in a fee for service capacity rather 5 than a permanent appointment. (Compl. ¶¶ 7, 10–11.) He worked alongside three 6 other physicians with Dr. Ahmed Sadeghi managing the team. (Compl. ¶¶ 11–12.) 7 When an older colleague, Dr. Juilliard, left the VA in 2012, Defendant 8 attempted to recruit Dr. Eric Chan, who was younger than 40 at the time, into the full- 9 time position. (Compl. ¶ 13.) After Dr. Chan declined the offer, Dr. Sadeghi informed 10 Dr. Merlo that he could apply for a full-time position. (Compl. ¶ 13.) Dr. Merlo 11 subsequently applied and was selected for a full-time position, but Defendant granted 12 him only a temporary thirteen-month appointment. (Compl. ¶ 14.) Defendant 13 extended Dr. Merlo’s temporary appointment several times, and Dr. Merlo alleges that 14 Defendant concealed that he had a temporary—not permanent—appointment until 15 December 2014. (Compl. ¶ 14.) Meanwhile, Defendant hired two other doctors into 16 permanent positions who were under the age of 40. (Compl. ¶¶ 15, 16.) 17 In November 2014, Dr. Sadeghi told Dr. Merlo “that he was getting older and 18 needed to retire to make room for two UCLA residents.” (Compl. ¶ 17.) Dr. Merlo, 19 shocked by the command, approached the Human Resources Department and 20 discovered that he held only a temporary appointment. (Compl. ¶ 18.) Dr. Merlo also 21 reported the statement and the age-based discrimination to the Chief of Staff, Dr. Dean 22 Norman. (Compl. ¶ 19.) 23 On March 13, 2015, Dr. Merlo emailed Dr. Norman, Dr. Sadeghi, and several 24 other superiors to report Dr. Sadeghi’s comment, and again requested a permanent 25 position. (Compl. ¶ 20.) Dr. Merlo alleges that this email served as a complaint of 26 discrimination, which Defendant recognized but failed to investigate. (Compl. ¶ 21.) 27 Instead of investigating the allegations, Defendant terminated Dr. Merlo on May 31, 28 2015. (Compl. ¶ 22.) 1 III. PROCEDURAL BACKGROUND 2 On April 30, 2015, parties engaged in mediation during which they executed a 3 Memorandum of Understanding (“MOU”) which states that Defendant agreed to 4 extend Dr. Merlo’s temporary appointment to May 31, 2015. (Decl. of Sophia Eaves 5 (“Eaves Decl.”) Ex. A (“MOU”), ECF No. 10-2.) On May 31, 2015, VA terminated 6 Dr. Merlo. (Compl. ¶ 22.) On June 2, 2015, the U.S. Equal Employment Opportunity 7 counselor Mr. Winter sent a letter to Dr. Merlo’s formerly-retained counsel 8 summarizing Dr. Merlo’s claim as “Termination (Term Appointment)” based on age. 9 (Eaves Decl. Ex. B (“June 2 Letter”) 1, ECF No. 10-3.) Mr. Winter also included a 10 Notice of Rights which stated that “[i]f you allege age discrimination, you have the 11 right to file a lawsuit in Federal District Court, without filing a formal EEO 12 Complaint,” but that a Notice of Intent to Sue must be filed within 180 calendar days 13 of the discriminatory act. (June 2 Letter 4.) The letter advised that Dr. Merlo must 14 notify the Equal Employment Opportunity Commission thirty days before filing a 15 Notice of Intent to Sue. (June 2 Letter 4.) 16 On June 25, 2015, Mr. Winter sent a letter to Dr. Merlo regarding Dr. Merlo’s 17 claim of age-based “Termination,” indicating that Winter was closing the informal 18 counseling and inviting Dr. Merlo to file a formal complaint if he was still 19 dissatisfied. (Eaves Decl. Ex. C (“June 25 Letter”), ECF No. 10-4.) The next day Dr. 20 Merlo filed a formal complaint with the Department of Veteran Affairs (“VA”). 21 (Eaves Decl. Ex. D (“Formal Complaint”), ECF No. 10-5.) On August 11, 2015, the 22 VA accepted his EEO Complaint raising the following claim: “[w]hether Complainant 23 was discriminated against based on age, when on May 30, 2015, he was terminated 24 from his temporary appointment as a Physician.” (Eaves Decl. Ex. F (“Acceptance of 25 Formal Complaint”) 1, ECF No. 10-7.) 26 On or about December 17, 2015, Dr. Merlo allegedly requested a hearing before 27 an EEOC Administrative Judge (“ALJ”) in the EEOC’s Los Angeles office. 28 (Compl. ¶ 6.) However, counsel for Dr. Merlo submits as an exhibit to his declaration 1 EEOC’s acknowledgement of complainant’s request for a hearing dated on July 12, 2 2017—a year a half after the alleged request. (Decl. of G. Samuel Cleaver (“Cleaver 3 Decl.”) Ex. 3, ECF No. 11-4.) On August 3, 2017, Dr. Merlo sought to amend his 4 complaint before the ALJ to add claims of retaliation and non-selection for two 5 permanent positions. (Cleaver Decl. Ex. 4 (“Mot. to Am. EEOC Compl.”), ECF 6 No. 11-5.) The record does not indicate that the motion was granted. 7 The record reflects that Dr. Merlo also sought a decision from the Merit 8 Systems Protection Board (“MSPB”). (Cleaver Decl. Ex. 6 (“MSPB Initial 9 Decision”), ECF No. 11-7.) On January 18, 2018, the MSPB issued its initial decision 10 discussing Dr. Merlo’s allegations that younger, less-experienced physicians were 11 offered full-time positions whereas he was told to retire. (MSPB Initial Decision 10.) 12 The MSPB concluded that it lacked jurisdiction on the matter because Dr. Merlo 13 failed to make nonfrivolous allegations of whistleblowing activity that led to 14 personnel action. (MSPB Initial Decision 13.) Included in the decision is a notice 15 that the decision would become final on February 22, 2018. (MSPB Initial 16 Decision 13.) 17 Meanwhile, on or about February 2, 2018, the ALJ allegedly held an initial case 18 conference. (Compl. ¶ 6.) On February 11, 2019, Dr. Merlo withdrew his request for 19 a hearing before an ALJ and requested a Final Agency Decision. (Compl. ¶ 6; Eaves 20 Decl. Ex. G (“Final Agency Decision”) 1, ECF No. 10-8.) On April 11, 2019, the VA 21 issued its Final Agency Decision. (Compl. ¶ 6.) The VA determined that Dr. Merlo 22 “failed to prove that he was subjected to disparate treatment based on his age when he 23 was terminated from his temporary appointment as a physician.” (Final Agency 24 Decision 6.) The VA advised that Dr. Merlo had the right to appeal to the EEOC 25 within thirty days or to file a civil action in a United States District Court within 26 90 days if he did not appeal to the EEOC. (Final Agency Decision 7.) 27 On June 11, 2019, Dr. Merlo filed his Complaint in this action alleging three 28 claims: (1) Violation of the ADEA; (2) Hostile Environment Harassment; and 1 (3) Retaliation. (See Compl. ¶¶ 29–47.) Defendant now moves to dismiss the 2 Complaint and to strike certain of Dr. Merlo’s claims for damages. (See Mot.) 3 IV. REQUEST FOR JUDICIAL NOTICE 4 Defendant requests the Court take judicial notice of the MOU Dr. Merlo and Dr. 5 Sadeghi signed, pleadings and briefing before the EEOC, letters and a report from 6 EEO counselor Mr. Winter, and the VA’s Final Agency Decision. (Def.’s Req. for 7 Judicial Notice (“RJN”) 1–2, ECF No. 10-9.) Dr. Merlo objects to the request, 8 asserting that the MOU contains hearsay and the documents related to the EEOC 9 determination do not contain judicially noticeable facts. (Obj. to Def.s’ RJN, ECF 10 No. 13.) Dr. Merlo also requests the Court take judicial notice of pleadings and 11 briefing before the EEOC. (Pl.’s RJN, ECF No. 12.) 12 “[A] court may judicially notice a fact that is not subject to reasonable dispute 13 because it: (1) is generally known within the trial court’s territorial jurisdiction; or 14 (2) can be accurately and readily determined from sources whose accuracy cannot 15 reasonably be questioned.” Fed. R. Evid. 201(b). “Judicial notice is appropriate for 16 records and ‘reports of administrative bodies.’” United States v. 14.02 Acres of Land 17 More or Less in Fresno Cty., 547 F.3d 943, 955 (9th Cir. 2008); see also Adetuyi v. 18 City & Cty. of San Francisco, 63 F. Supp. 3d 1073, 1080 (N.D. Cal. 2014) (taking 19 judicial notice of an EEOC Intake Questionnaire, letters from the EEOC, and a Right 20 to Sue letter from the Department of Fair Employment and Housing). 21 The Court may take judicial notice of the MOU, pleadings and briefing before 22 the EEOC, letters and a report from EEO counselor Mr. Winter, and the VA’s Final 23 Agency Decision, as these documents are records and reports of administrative bodies. 24 Accordingly, the Court GRANTS both requests for judicial notice. The Court 25 OVERRULES Dr. Merlo’s objections to the extent to Court relies on these 26 documents in the disposition of the Motion. 27 28 1 V. MOTION TO DISMISS 2 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 3 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 4 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). “To 5 survive a motion to dismiss . . . under Rule 12(b)(6), a complaint generally must 6 satisfy only the minimal notice pleading requirements of Rule 8(a)(2)”—a short and 7 plain statement of the claim. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003); see 8 also Fed. R. Civ. P. 8(a)(2). The “[f]actual allegations must be enough to raise a right 9 to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 10 (2007). The “complaint must contain sufficient factual matter, accepted as true, to 11 state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 12 678 (2009) (internal quotation marks omitted). “A pleading that offers ‘labels and 13 conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not 14 do.’” Id. (citing Twombly, 550 U.S. at 555). 15 Whether a complaint satisfies the plausibility standard is a “context-specific 16 task that requires the reviewing court to draw on its judicial experience and common 17 sense.” Id. at 679. A court is generally limited to the pleadings and must construe all 18 “factual allegations set forth in the complaint . . . as true and . . . in the light most 19 favorable” to the plaintiff. Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 20 2001). But a court need not blindly accept conclusory allegations, unwarranted 21 deductions of fact, and unreasonable inferences. Sprewell v. Golden State Warriors, 22 266 F.3d 979, 988 (9th Cir. 2001). Where a district court grants a motion to dismiss, 23 it should generally provide leave to amend unless it is clear the complaint could not be 24 saved by any amendment. See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & 25 Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 26 A. Failure to Exhaust Administrative Remedies 27 Defendant moves to dismiss Dr. Merlo’s ADEA claim in part, and harassment 28 and retaliation claims in full, for failure to exhaust his administrative remedies. 1 (Mot. 6–10.) Dr. Merlo opposes the motion, asserting that he had no duty to 2 administratively exhaust his ADEA claim and that he did in fact exhaust his remedies 3 as to the second and third claims as the claims grew out of allegations made in a prior 4 complaint. (Opp’n to Mot. 1, ECF No. 11.) 5 1. Claim 1- ADEA 6 “[T]he ADEA ‘contains no express requirement that a federal employee 7 complainant seek administrative relief.’” Bankston v. White, 345 F.3d 768, 770 (9th 8 Cir. 2003) (citing Stevens v. Dep’t of Treasury, 500 U.S. 1, 12 (1991) (Stevens, J., 9 concurring and dissenting); see also Nguyen v. Nielsen, 731 F. App’x 687, 688 (9th 10 Cir. 2018) (citing Bankston for the proposition that an employee may file suit under 11 the ADEA without pursuing administrative remedies). An employee who wishes to 12 file suit without pursuing administrative remedies must provide the EEOC written 13 notice of intent to sue at least thirty days before filing suit and within one hundred and 14 eighty days of the unlawful conduct. 29 U.S.C. § 633a(d); 29 C.F.R. § 1614.201(a). 15 An employee with an ADEA claim may pursue administrative remedies either 16 through the agency’s EEO procedures or through the Merit Systems Protection 17 Board.” Bullock v. Berrien, 688 F.3d 613, 617 (9th Cir. 2012) (citing Bankston, 345 18 F.3d at 770). However, the Ninth Circuit has held that an employee with an ADEA 19 claim who choses at first to pursue administrative remedies but later withdraws the 20 request and opts to file suit in district court will not be required to exhaust the 21 administrative remedy. Bankston, 345 F.3d at 772 (specifically denying the argument 22 that the employee needs to wait for final agency action); accord Bullock, 688 F.3d at 23 617 (finding that a party need not file an appeal of a final decision by the ALJ to 24 exhaust administrative remedies). 25 Here, Dr. Merlo sought to adjudicate his claims through administrative 26 proceedings. The VA rendered a final determination on the issue of “[w]hether 27 complainant was subjected to disparate treatment discrimination based on his age 28 when on May 30, 2015, he was terminated from his temporary appointment as a 1 Physician.” (Final Agency Decision 2.) Per the Final Agency Decision, Dr. Merlo 2 could sue in District Court within 90 days or pursue an administrative appeal. (Final 3 Agency Decision 7.) Dr. Merlo filed suit on June 6, 2019, within the 90-day period. 4 (See Compl.) Accordingly, the Court finds that Dr. Merlo adequately exhausted his 5 administrative remedies and may bring an age discrimination claim regarding his 6 termination on May 30, 2019. 7 Following administrative proceedings, a plaintiff may ordinarily bring only the 8 specific claims presented to the EEOC. Leong v. Potter, 347 F.3d 1117, 1122 (9th 9 Cir. 2003). “However, the district court has jurisdiction over any charges of 10 discrimination that are ‘like or reasonably related to’ the allegations made before the 11 EEOC, as well as charges that are within the scope of an EEOC investigation that 12 reasonably could be expected to grow out of the allegations.” Id. To determine 13 whether a plaintiff has satisfied the exhaustion requirement, the court should construe 14 the language of the EEOC charge “with the utmost liberality.” Kaplan v. Int’l All. of 15 Theatrical & Stage Emp.s, 525 F.2d 1354, 1359 (9th Cir. 1975), abrogated on other 16 grounds. 17 While the issues addressed in Dr. Merlo’s administrative complaints and the 18 VA’s Final Agency Decision concerned a very narrow factual scenario, here Dr. 19 Merlo alleges age discrimination for “multiple adverse actions.” (Compl. ¶ 32.) Dr. 20 Merlo alleges that “Defendant refused to place [him] in a permanent position, 21 harassed [him], ignored [him] when he complained of age discrimination, refused to 22 extend [his] temporary appointment, terminated [him] on or about May 31, 2015, and 23 refused to hire [him] when he subsequently applied for positions.” (Compl. ¶ 32.) 24 These additional allegations discuss age related actions arising in the same role under 25 the same manager as the allegation before the EEOC. Thus, the additional allegations 26 are within the scope and certainly could be expected to grow out of his prior 27 complaint. Construing Dr. Merlo’s EEO complaint with the utmost liberality, the 28 Court finds that Dr. Merlo’s additional allegations regarding age discrimination are 1 “like or reasonably related to” the allegations raised before the EEOC. Accordingly, 2 the Court DENIES the motion to dismiss on this basis. 3 2. Claims 2 and 3 - Hostile Work Environment and Retaliation 4 Defendant moves to dismiss Dr. Merlo’s claims for hostile work environment 5 and retaliation on the basis that Dr. Merlo failed to exhaust his administrative 6 remedies. (Mot. 12–15.) Dr. Merlo contends that he did in fact exhaust his remedies 7 as to the second and third claims because the claims grew out of allegations made in a 8 prior complaint to the EEOC. (Opp’n 7–10.) 9 As discussed below, Dr. Merlo fails to allege the facts giving rise to his 10 retaliation and hostile work environment claims with adequate specificity. Thus, the 11 Court cannot determine whether the allegations giving rise to the age-based 12 discrimination are “like or reasonably related to” the allegations raised before the 13 EEOC. Accordingly, the Court does not determine whether Dr. Merlo has exhausted 14 his remedies. 15 B. Failure to State a Claim 16 Defendant also moves to dismiss all of Dr. Merlo’s claims for failure to state a 17 claim. (Mot. 10–15.) The Court now addresses the sufficiency of the allegations. 18 1. Age-based Discrimination 19 To establish a prima facie case, Dr. Merlo has the burden of production to show 20 that he was: “(1) at least forty years old, (2) performing his job satisfactorily, 21 (3) discharged, and (4) either replaced by substantially younger employees with equal 22 or inferior qualifications or discharged under circumstances otherwise ‘giving rise to 23 an inference of age discrimination.’” Diaz v. Eagle Produce, Ltd., 521 F.3d 1201, 24 1207 (9th Cir. 2008). “An inference of discrimination can be established by showing 25 the employer had a continuing need for the employees’ skills and services in that their 26 various duties were still being performed . . . or by showing that others not in their 27 protected class were treated more favorably.” Id. at 1207–08 (alteration in original) 28 (internal quotation marks omitted). 1 Defendant moves to dismiss Dr. Merlo’s age discrimination claim, arguing that 2 Dr. Merlo failed to sufficiently allege the third and fourth elements. (Mot. 10–12.) 3 First, Defendant asserts that non-renewal of a temporary position is not an adverse 4 employment decision. (Mot. 11.) Not so. Non-renewal of an employment 5 arrangement can be an adverse employment action. See Rutherford v. Palo Verde 6 Health Care Dist., No. ED-CV-13-01247-JAK-OPx, 2015 WL 12864244, at *21, n.12 7 (C.D. Cal. Mar. 13, 2015) (citing cases). Further, Dr. Merlo alleges that he was 8 denied future positions that he applied for because of his age. (Compl. ¶ 32.) 9 Second, Defendant asserts that Dr. Merlo failed to allege that he was replaced 10 by a younger employee. (Mot. 11–12.) Defendant misstates the law. Dr. Merlo can 11 meet the fourth prong by alleging facts from which an inference of discrimination 12 could be drawn. Diaz, 521 F.3d at 1207. Here, Dr. Merlo alleges that his manager 13 stated that “he was getting older and needed to retire to make room for two UCLA 14 residents”; Defendant allowed him to apply for a permanent position only after other 15 younger physicians turned it down; and hired two physicians under 40 while merely 16 extending Dr. Merlo’s temporary appointment. (Compl. ¶¶ 13–17.) Taking these 17 allegations as true, Dr. Merlo plausibly alleges a claim for age-based discrimination. 18 Accordingly, the Court DENIES the motion to dismiss on this basis. 19 2. Hostile Work Environment 20 To establish a hostile work environment claim, an employee must prove: 21 “(1) that he was subjected to verbal or physical conduct of a harassing nature, (2) that 22 this conduct was unwelcome, and (3) that the conduct was sufficiently severe or 23 pervasive to alter the conditions of the victim’s employment and create an abusive 24 working environment.” Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1110 (9th Cir. 25 2000). To determine whether conduct was sufficiently severe or pervasive, a court 26 must consider “all the circumstances, including the frequency of the discriminatory 27 conduct; its severity; whether it is physically threatening or humiliating, or a mere 28 1 offensive utterance; and whether it unreasonably interferes with an employee’s work 2 performance.” Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003). 3 Defendant argues that Dr. Merlo asserts conclusory allegations and fails to 4 allege conduct severe or pervasive enough to give rise to a hostile work environment 5 claim. (Mot. 13.) The Court concurs. Here, Dr. Merlo alleges that on one occasion 6 his supervisor stated that “he was getting older and needed to retire to make room for 7 two UCLA residents.” (Compl. ¶ 17.) Apart from this comment, Dr. Merlo 8 summarily states that he was “subject to slurs, insults, jokes, and/or other verbal 9 comments or intimidation.” (Compl. ¶ 38.) As Dr. Merlo alleges neither the 10 frequency of the comments nor content from which the Court can ascertain the 11 severity, the Court finds that Dr. Merlo fails to sufficiently allege this claim. See Knox 12 v. Donahoe, No. C-11-2596 EMC, 2012 WL 949030, at *8 (N.D. Cal. Mar. 20, 2012) 13 (finding three incidents alleged not sufficiently severe or pervasive to give rise to a 14 hostile work environment claim), aff’d, 540 F. App’x 811 (9th Cir. 2013). 15 Accordingly, the Court DISMISSES Dr. Merlo’s hostile work environment 16 claim with leave to amend. 17 3. Retaliation 18 To establish a prima facie case of retaliation, plaintiffs must show (1) they 19 engaged in protected activity; (2) they suffered a materially adverse employment 20 action; and (3) a causal connection exists between the protected activity and the 21 adverse employment action. Kortan, 217 F.3d at 1112. Defendant argues that Dr. 22 Merlo’s conclusory allegations of protected activity and a causal link are insufficient 23 to state a retaliation claim.2 (Mot. 14.) 24 Making informal complaints to a supervisor for their alleged violation is a 25 protected activity. Ray v. Henderson, 217 F.3d 1234, 1240 n. 3 (9th Cir.2000). As is 26 pursuing one’s rights under Title VII. See Hashimoto v. Dalton, 118 F.3d 671, 679– 27 2 Defendant also asserts that Dr. Merlo fails to allege any adverse action. (Mot. 14.) The Court 28 previously determined that non-renewal of a temporary position suffices as an adverse action and does not readdress the same argument. 1 80 (9th Cir. 1997) (determining that meeting with an EEO counselor to discuss sex 2 and race discrimination constitutes protected activity). Here, Dr. Merlo alleges that 3 his protected activities included complaints to his supervisor Dr. Sadeghi in person, 4 via email, and during the VA’s investigation of his claims, as well as complaints to the 5 Chief of Staff, Dr. Norman. (Compl. ¶¶ 18–20, 43.) He therefore sufficiently alleges 6 that he engaged in protected activity. 7 Dr. Merlo must also allege a causal link between his complaints to Dr. Sadeghi 8 and Dr. Norman and Defendant’s decision to not renew his temporary appointment or 9 subsequently hire him, the alleged adverse employment action. He must plead with 10 sufficiency that, “but for” his complaints, his appointment would have been renewed. 11 See Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013); Gross v. FBL 12 Fin. Servs., Inc., 557 U.S. 167, 177 (2009) (establishing that the plaintiff has the 13 burden to prove “but for” causation for ADEA claims). Here, Dr. Merlo alleges that 14 he was subjected to adverse employment actions such as “refusing to extend [his] 15 temporary appointment” because he complained of age discrimination. (Compl. ¶¶ 16 44–45.) The Court finds the single allegation conclusory as Dr. Merlo fails to explain 17 why age discrimination was the “but for” cause. Therefore, he fails to adequately 18 plead the third factor. Accordingly, the Court DISMISSES the retaliation claim with 19 leave to amend. 20 VI. MOTION TO STRIKE 21 Federal Rule of Civil Procedure 12(f) provides that “[t]he court may strike from 22 a pleading an insufficient defense or any redundant, immaterial, impertinent, or 23 scandalous matter.” Fed. R. Civ. P. 12(f). The decision on whether to grant a motion 24 to strike is made at the Court’s discretion. See Fantasy, Inc. v. Fogerty, 984 F.2d 25 1524, 1527 (9th Cir. 1993), rev’d on other grounds in Fogerty v. Fantastic, Inc., 510 26 U.S. 517 (1994). In using its discretion, the court must view the pleadings in the light 27 most favorable to the non-moving party. In re 2TheMart.com Sec. Litig., 114 F. Supp. 28 2d 955, 965 (C.D. Cal. 2000). 1 Courts may grant a motion to strike “to avoid the expenditure of time and 2 money that must arise from litigating spurious issues by dispensing with those issues 3 prior to trial.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 4 2010) (quoting Fantasy, 984 F.2d at 1527). Courts may also grant such a motion to 5 streamline the resolution of the action and focus the jury’s attention on the real issues 6 in the case. See Fantasy, 984 F.2d at 1528. Yet, motions to strike are generally 7 disfavored due to the limited role that pleadings play in federal practice, and because 8 such motions are often used as a delay tactic. Cal. Dep’t of Toxic Substances Control 9 v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002). 10 First, Defendants move to strike the compensatory, liquidated, and “emotional 11 distress” damages because the ADEA does not provide for such damages. (Mot. 15.) 12 However, the Ninth Circuit has held that parties seeking to omit allegations of 13 damages precluded as a matter of law should file a Rule 12(b)(6) or a Rule 56 motion 14 not a Rule 12(f) motion. Whittlestone, Inc., 618 F.3d at 974. The Whittlestone court 15 held that allegations of damages precluded as a matter of law were not “an insufficient 16 defense or any redundant, immaterial, impertinent, or scandalous matter.” 17 Accordingly, the Court DENIES the motion to strike the allegations of damages. 18 Second, Defendants move to strike Dr. Merlo’s request for jury trial as the 19 ADEA does not provide for a jury trial. (Mot. 15–16.) However, claims under Title 20 VII may be adjudicated by jury trial. Lutz v. Glendale Union High Sch., 403 F.3d 21 1061, 1068 (9th Cir. 2005) (“An employee may now recover “compensatory and 22 punitive damages” for certain Title VII violations, 42 U.S.C. § 1981a(a)(2), and he is 23 entitled to have a jury determine the amount of such awards, id. § 1981a(c)(1).”). As 24 the Court addressed above, Dr. Merlo may sufficiently plead allegations under the 25 ADEA and Title VII. As such, striking the request for a jury trial is improper. See 26 Stambanis v. TBWA Worldwide, Inc., No. 2:19-CV-03962-ODW (JEMx), 2019 WL 27 3997257, at *9 (C.D. Cal. Aug. 23, 2019). Accordingly, the Court DENIES the 28 motion to strike the request for a jury trial. 1 VIL. CONCLUSION 2 For the foregoing reasons, the Court DISMISSES with leave to amend Dr. 3 || Merlo’s hostile work environment and retaliation claims, DENIES the motion dismiss Dr. Merlo’s discrimination claim, and DENIES the motion to strike in its entirety. Dr. 5 || Merlo shall have 14 days from the date of this order to amend his complaint. Should 6 || he fail to do so, dismissal of his hostile work environment and retaliation claims will 7 || convert to dismissal with prejudice. 8 9 IT IS SO ORDERED. 10 11 February 13, 2020 12 Y 4

4 OTIS D. WRIGHT, II Is UNITED STATES DISTRICT JUDGE

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