Helen Rains v. Hung Cao, Acting Secretary of The Navy

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HELEN RAINS, Case No.: 3:25-cv-717-CAB-MMP

12 Plaintiff, ORDER GRANTING-IN-PART AND 13 v. DENYING-IN-PART MOTION TO DISMISS 14 HUNG CAO, ACTING SECRETARY OF

THE NAVY,1 15 [Doc. No. 17] Defendant. 16

17 18 Plaintiff Helen Rains, a Navy employee, brings suit against the Secretary of the Navy 19 for multiple Title VII violations, including sexual and racial discrimination, allegedly 20 committed by her former supervisor Daniel Conley (“Conley”) and other Navy employees. 21 Before the Court is Defendant’s motion to dismiss pursuant to Federal Rules of Civil 22 Procedure 12(b)(1)2 and 12(b)(6). For the reasons explained below, the Court GRANTS- 23 IN-PART and DENIES-IN-PART the motion to dismiss. [Doc. No. 17.] 24

25 26 1 Hung Cao assumed responsibility as Acting Secretary of the Navy on April 22, 2026. Pursuant to Federal Rules of Civil Procedure 25(d), Hung Cao is substituted automatically for Defendant Terance Emmert. 27 2 Defendant moves under Fed. R. Civ. P. 12(b)(1) but makes no actual argument that the Court lacks subject matter jurisdiction and the Court has no such concerns. Moreover, even viewing exhaustion as a 28 1 I. BACKGROUND 2 Before the Court is Plaintiff’s amended complaint. Plaintiff’s amended complaint 3 is nearly identical to her initial complaint, thus the Court will not restate the facts in their 4 entirety. Though Plaintiff did not comply with Local Rule 15.1(c)’s requirement to show 5 how her amended complaint changed, Defendant’s motion to dismiss highlights the added 6 allegations and Plaintiff does not dispute Defendant’s characterization of those changes. 7 [See Doc. No. 17-1 at 9–10.] 8 The Court dismissed Plaintiff’s initial complaint because, inter alia, she failed to 9 timely exhaust administrative remedies. See Rains v. Phalen, No. 3:25-CV-00717-CAB- 10 MMP, 2025 WL 2606623, at *2–5 (S.D. Cal. Sept. 9, 2025). Plaintiff was required to 11 notify an Equal Employment Opportunity (“EEO”) counselor within 45 days of any alleged 12 unlawful discrimination and harassment. Plaintiff first notified an EEO counselor of her 13 complaints on September 26, 2023, thus her claims had to have occurred on August 12, 14 2023 or later. Id. at *2. However, Plaintiff’s claims against Conley, which included all of 15 her sexual discrimination and harassment claims, were initially alleged to have occurred 16 exclusively before August 12, 2023. Id. at *4. The Court also rejected Plaintiff’s argument 17 that her claims were nonetheless timely under a continuing violations theory, finding that 18 any timely alleged acts were too different from the untimely alleged acts. 19 To remedy her defective complaint, Plaintiff now alleges that Conley sexually 20 discriminated against and harassed her until September 2023 and that he did so “on a 21 regular basis, and . . . within 45 days of when Plaintiff initiated her informal EEO 22 complaint[.]” [Doc. No. 8 at 5.] 23 Defendant argues the amended complaint remains deficient for substantially the 24 same reasons identified in the Court’s prior dismissal order. [See generally Doc. No. 17- 25

26 motion to dismiss under Rule 12(b)(6).” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). Thus, 27 in “determin[ing] whether the [plaintiff’s] allegations are sufficient as a legal matter to invoke the [C]ourt’s jurisdiction,” the Court “[a]ccept[s] the plaintiff’s allegations as true and draw[s] all reasonable 28 1 1.] Specifically, Defendant contends Plaintiff’s discrimination and harassment claims 2 remain time-barred despite the new allegations, and further argues that Plaintiff’s 3 discrimination, harassment, and retaliation claims fail as a matter of law. [Id.] Finally, the 4 parties dispute whether Plaintiff’s newly added allegations are contradicted by 5 documentation subject to judicial notice and thus should be rejected. [See id. at 15–16; see 6 also Doc. No. 20 at 11–12.] 7 II. LEGAL STANDARD 8 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 9 defense that the complaint “fail[s] to state a claim upon which relief can be granted.” The 10 Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in 11 light of Federal Rule of Civil Procedure 8(a)(2), which requires a “short and plain statement 12 of the claim showing that the pleader is entitled to relief.” Rule 8 “does not require 13 ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant- 14 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 15 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 16 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 17 accepted as true, to ‘state a claim of relief that is plausible on its face.’” Id. (quoting 18 Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible 19 when the collective facts pled “allow[] the court to draw the reasonable inference that the 20 defendant is liable for the misconduct alleged.” Id. There must be “more than a sheer 21 possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent with’ a 22 defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly, 23 550 U.S. at 557). 24 The Court accepts as true all allegations in the complaint and construes the 25 allegations in the light most favorable to the nonmoving party. See Knievel v. ESPN, 393 26 F.3d 1068, 1072 (9th Cir. 2005). However, the Court need not accept as true “legal 27 conclusions” contained in the complaint, Iqbal, 556 U.S. at 678, or other “allegations that 28 1 are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” 2 Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). 3 III. DISCUSSION 4 The Court begins with the parties’ dispute over judicial notice and the extent to 5 which the Court may rely on the administrative record at this stage and then addresses 6 Defendant’s administrative exhaustion and 12(b)(6) challenges. 7 A. Judicial Notice 8 When ruling on a motion to dismiss under Rule 12(b)(6), the court may consider 9 “matters properly subject to judicial notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763 10 (9th Cir. 2007). Both parties seek judicial notice of administrative records from Plaintiff’s 11 underlying EEO proceedings. Defendant requests judicial notice of a “Second Amendment 12 and Correction to Notice of Acceptance of Discrimination Complaint” dated August 16, 13 2024, which is an excerpt from the Navy’s 2024 Report of Investigation (“Report”). [Doc. 14 No. 17-2; Doc. No. 17-3 at Ex. 3.] Plaintiff requests judicial notice of additional excerpts 15 from the same Report, including the investigation cover page and portions of the 16 investigative summary describing the findings of the Navy’s investigation into Defendant 17 Conley’s conduct. [Doc. No. 20-2; Doc. No. 21.] 18 Consistent with its prior order, the Court takes judicial notice of the existence and 19 authenticity of these administrative EEO records as matters of public record not subject to 20 reasonable dispute. See Fed. R. Evid. 201(b); Allen v. Donovan, No. 8:20-CV-01756-JLS- 21 ADS, 2021 WL 5867137, at *3 (C.D. Cal. June 28, 2021). 22 B. Claim 1: Sexual Harassment in Violation of Title VII 23 The Court next considers whether the amended complaint cures the administrative 24 exhaustion deficiencies that led the Court to dismiss Plaintiff’s initial complaint. Federal 25 employees must “notify an EEO counselor of discriminatory conduct within 45 days of the 26 alleged conduct.” Lui v. DeJoy, 129 F.4th 770, 781 (9th Cir. 2025). Failure to do so is 27 generally fatal to a Title VII claim. Lyons v. England, 307 F.3d 1092, 1105 (9th Cir. 2002). 28 1 Plaintiff notified an EEO counselor of Conley’s alleged sexual harassment on 2 September 26, 2023, thus the operative cutoff date remains August 12, 2023. [Doc. No. 8 3 at 6.] The amended complaint now alleges that from March 2023 until September 2023— 4 when Conley was removed from supervising Plaintiff—Conley subjected Plaintiff to 5 sexual harassment on “a regular basis,” including “groping [her] breasts, grabbing her 6 buttocks, and fondling her vaginal area,” and that he did so “within 45 days of when 7 Plaintiff initiated her informal EEO complaint.” [Doc. No. 8 at 5.] 8 Defendant argues that Plaintiff’s sexual harassment claim is time barred because her 9 main supplemental allegation—that Conley sexually harassed her within 45 days of her 10 notifying an EEO counselor—“contradicts matters properly subject to judicial notice.” 11 [Doc. No. 17-1 at 15.] The matters that Defendant refers to are the allegations in Plaintiff’s 12 formal EEO complaint, which are reflected in the Report.3 Defendant correctly flags that 13 the Report and the EEO complaint reference no harassment by Conley on or after August 14 12, 2023. However, just because those documents do not mention other incidents of 15 harassment does not necessarily mean other incidents did not occur. 16 More importantly, while the Court “may take judicial notice of ‘matters of public 17 record’ without converting a motion to dismiss into a motion for summary judgment[,] . . . 18 a court may not take judicial notice of a fact that is ‘subject to reasonable dispute.’” Lee v. 19 City of Los Angeles, 250 F.3d 668, 689–90 (9th Cir. 2001) (internal citation omitted). 20 There is a reasonable dispute regarding whether Conley harassed Plaintiff on or after 21 August 12, 2023 given that the Navy’s investigative summary, which the Court took 22 judicial notice of above, states that “a fact-finding investigation into [Plaintiff’s] allegation 23 of sexual harassment . . . concluded that Mr. Conley and [Plaintiff] engaged in explicit 24 25 3 The Court notes that Defendant has not attached Plaintiff’s formal EEO complaint as an exhibit to the 26 instant motion to dismiss. Indeed, they cite to their initial motion to dismiss where the EEO complaint was attached as an exhibit. Nonetheless, the Court finds no issue given that (1) it already judicially noticed 27 the EEO complaint in its order on the initial motion to dismiss, and (2) the excerpt from the Report, which is attached as an exhibit to the instant motion and judicially noticed, captures the same information and 28 1 dialogue from July 2019 through August 2023.” [Doc. No. 21 at 6 (emphasis added).] 2 Although the summary does not specify whether that conduct occurred after the cut-off 3 date of August 12, 2023, drawing all reasonable inferences in Plaintiff’s favor, it is 4 plausible that it did, and plausibility is what is required at the motion-to-dismiss stage. See 5 Iqbal, 556 U.S. at 678; see also Lee, 250 F.3d at 690 (finding district court erred in taking 6 judicial notice of disputed matters of fact and not drawing all reasonable inferences in 7 plaintiff’s favor). 8 Defendant also argues that all allegations before August 12, 2023 are time-barred. 9 [Doc. No. 17-1 at 17.] Plaintiff counters that her sexual harassment allegations from before 10 that date are timely through a hostile work environment claim. [Doc. No. 20 at 15.] 11 “[D]iscrete discriminatory acts are not actionable if time barred, even when they are 12 related to acts alleged in timely filed charges.” Nat’l R.R. Passenger Corp. v. Morgan, 536 13 U.S. 101, 113 (2002). However, if those time-barred acts are part of repeated conduct, and 14 if one related act was timely raised with an EEO counselor, then they can collectively 15 constitute a hostile work environment claim4, which is a form of harassment. See id. at 16 115, 117 (holding that it “does not matter . . . that some of the component acts . . . fall 17 outside the statutory time period” so long as one “act contributing to the claim occurs 18 within the filing period”). Plaintiff argues that Conley’s sexual harassment of her created 19 a hostile work environment. [Doc. No. 20 at 15.] 20 To state a hostile work environment claim based on sexual harassment, Plaintiff 21 must allege: “(1) that [s]he was subjected to verbal or physical conduct of a . . . sexual 22 nature; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently 23 severe or pervasive to alter the conditions of the plaintiff’s employment and create an 24

25 26 4 “Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. The ‘unlawful employment practice’ therefore cannot be said to occur on any particular day. It 27 occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” Morgan, 536 U.S. at 115. 28 1 abusive work environment.” Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2 2003). Moreover, the Ninth Circuit considers “whether the earlier and later events 3 amounted to the same type of employment actions, occurred relatively frequently, or were 4 perpetrated by the same managers.” Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 893 (9th 5 Cir. 2005) (quoting Morgan, 536 U.S. at 120) (cleaned up). 6 Plaintiff sufficiently pleads sexual harassment based on a hostile work environment. 7 As aforementioned, Plaintiff alleges that Conley sexually harassed her by groping and 8 fondling her in September 2023, and that she notified an EEO counselor on September 26, 9 2023; thus at least one act falls within the statutory time period. Plaintiff’s pre-August 12, 10 2023 sexual harassment allegations include Conley forcing Plaintiff to perform certain 11 sexual acts, sending her unsolicited sexual pictures, masturbating in her presence, and 12 more. 13 These allegations involve the same perpetrator5 (Conley) engaged in the same type 14 of unwanted, abusive conduct (groping, sexual assault, sexual propositioning, etc.), with 15 substantial frequency, both before and after August 12, 2023. These allegations describe 16 the kind of continuous, abusive conduct that Morgan, 536 U.S. at 115–17, and Vasquez, 17 349 F.3d at 642, contemplate. 18 The Court is mindful of the Porter court’s admonition to not “blur to the point of 19 oblivion the dichotomy between discrete acts and a hostile environment.” 419 F.3d at 892. 20 But Plaintiff’s allegations do not attempt to improperly revive discrete acts of sexual 21 harassment that occurred outside the 45-day window; instead, they allege a continuous 22 pattern of harassment by a single supervisor with one of the constituent acts timely raised 23 with an EEO counselor. 24 25 26 27 5 Plaintiff also complains of other employees’ actions, however, the allegations against Conley are sufficient to survive dismissal. [See, e.g., Doc. No. 8 at 6; Doc. No. 21 at 5.] Thus, the Court does not 28 1 Accordingly, the Court finds that Plaintiff sufficiently pleads sexual harassment in 2 violation of Title VII and thus DENIES Defendant’s motion to dismiss Plaintiff’s sexual 3 harassment claim. 4 C. Claim 2: Sexual Discrimination in Violation of Title VII 5 Defendant argues that Plaintiff’s sexual discrimination claim fails because she has 6 not pled that she suffered an adverse employment action. Plaintiff counters that if the Court 7 finds Plaintiff sufficiently pleads a sexual harassment claim based on a hostile work 8 environment, it should also find she sufficiently pleads a sexual discrimination claim. 9 A Title VII discrimination claim requires a plaintiff to prove, inter alia, that she 10 suffered an adverse employment action. See Gonzales v. Marriott Int'l, Inc., 142 F. Supp. 11 3d 961, 976 (C.D. Cal. 2015) (citing Cornwell v. Electra Cent. Credit Union, 439 F.3d 12 1018, 1028 (9th Cir. 2006)). “An adverse employment action is one that materially affects 13 the compensation, terms, conditions, or privileges of employment.” Davis v. Team Elec. 14 Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (cleaned up). “By tolerating sexual harassment 15 against its employees, the employer6 is deemed to have adversely changed the terms of 16 their employment in violation of Title VII.” Swenson v. Potter, 271 F.3d 1184, 1191 (9th 17 Cir. 2001); see also Ray v. Henderson, 217 F.3d 1234, 1244–45 (9th Cir. 2000) (in context 18 of retaliation claims, creation of a hostile work environment qualifies as an adverse 19 employment action). 20 The Court has already found that Plaintiff sufficiently pled a hostile work 21 environment based on sexual harassment. The Ninth Circuit has held that “[s]exual 22 harassment is a form of sex discrimination prohibited by Title VII.” Heyne v. Caruso, 69 23 F.3d 1475, 1478 (9th Cir. 1995); see also Trent v. Valley Elec. Ass’n Inc., 41 F.3d 524, 24 525–26 (9th Cir. 1994) (“Courts have interpreted ‘unlawful employment practices’ to 25

26 6 Because Defendant has not argued otherwise, the Court assumes without deciding that as Plaintiff’s 27 supervisor, Defendant may be vicariously liable for Conley’s alleged actions. See 42 U.S.C. § 2000e(b); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 70 (1986) (“[T]he courts have consistently held employers 28 1 include a panoply of actions involving discrimination and sexual harassment.”). Moreover, 2 the Ninth Circuit construes “adverse employment action broadly.” Ray, 217 F.3d at 1240. 3 Accordingly, the Court finds Plaintiff has sufficiently pled a sexual discrimination claim. 4 D. Claims 3 and 4: Race and National Origin-Based Discrimination and Harassment in Violation of Title VII 5 6 Defendant argues Plaintiff’s claims for discrimination and harassment based on race 7 and national origin are time barred. The Court agrees. 8 Plaintiff does not allege that any race or national origin-based discrimination and/or 9 harassment occurred within 45 days before she notified an EEO counselor of Conley’s 10 misconduct. For example, Plaintiff alleges that Conley sent “numerous texts” which 11 “emphasized his discriminatory, and deviant viewpoint of Brazilian and/or Latina women” 12 but does not specify when this occurred. [Doc. No. 8 at 5.] Moreover, Plaintiff does not 13 address Defendant’s argument that these race and national origin-based claims are time 14 barred. While Plaintiff argues that her sexual harassment claims are timely, she fails to do 15 so for her race and national origin-based claims. [See generally Doc. No. 20 at 13–18.] 16 “Where a party fails to address arguments against a claim raised in a motion to dismiss, the 17 claims are abandoned and dismissal is appropriate.” Shull v. Ocwen Loan Servicing, LLC, 18 No. 13-CV-2999-BEN-WVG, 2014 WL 1404877, at *2 (S.D. Cal. Apr. 10, 2014) 19 (collecting cases). 20 Accordingly, the Court finds Plaintiff’s claims for discrimination and harassment 21 based on race and national origin to be untimely and GRANTS the motion to dismiss as to 22 those claims WITHOUT LEAVE TO AMEND.7 23 /// 24 25 7 Plaintiff requests leave to amend her complaint for a second time for any claims that the Court dismisses. 26 [Doc. No. 20 at 21.] However, Plaintiff was aware of Defendant’s timeliness argument regarding her race and national origin-based claims and failed to address it in her opposition. See Lee v. Retail Store Emp. 27 Bldg. Corp., No. 15-CV-04768-LHK, 2017 WL 346021, at *20 (N.D. Cal. Jan. 24, 2017) (“The Court denies leave to amend because Plaintiffs’ failure to even argue the issue in their opposition indicates a 28 1 E. Claim 5: Retaliation in Violation of Title VII 2 The Court previously dismissed Plaintiff’s retaliation claim for failure to exhaust 3 administrative remedies, i.e. timely raise the retaliatory incidents with an EEO counselor. 4 See Rains, 2025 WL 2606623, at *5. Plaintiff has not added any allegations to the 5 complaint that remedy the previously identified defects. To be sure, Plaintiff does allege 6 in her opposition that she told an EEO counselor about Conley allegedly yelling and 7 cursing at her after she threatened to file an EEO complaint. [Doc. No. 20 at 20.] However, 8 she provides no date for this incident. See Hollins v. Wilkie, No. 19-CV-2201-DMS-JLB, 9 2021 WL 1906462, at *3 (S.D. Cal. May 12, 2021) (dismissing Title VII claims “that were 10 not raised with an EEO counselor within 45 days of their occurrence”). Plaintiff again fails 11 to allege that she timely raised any retaliatory incident with an EEO counselor. See 12 Gardner v. Braithwaite, 607 F. Supp. 3d 1106, 1122 (S.D. Cal. 2022) (dismissing Title VII 13 retaliation claim for failure “to timely exhaust [] administrative remedies”); see also Nat’l 14 R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002) (“[A] Title VII plaintiff raising 15 claims of discrete . . . retaliatory acts must file [her] charge within the appropriate time 16 period[.]”). 17 Plaintiff also broadly argues that the 45-day reporting requirement should be 18 extended because she had a “reasonable fear of getting bad performance reviews from 19 Conley, unwarranted discipline, nitpicking of her performance, career harm and other 20 harm.” [Doc. No. 8 5–6; Doc. No. 20 at 16–17.] She cites to 29 C.F.R. § 1614.105 (a)(2) 21 which extends the 45-day limit where the individual was either (1) not notified of the time 22 limit and was not otherwise aware of it, (2) did not know that the discriminatory matter or 23 personnel action occurred, (3) was prevented by circumstances beyond her control, or (4) 24 for other reasons considered sufficient by the relevant agency or the Equal Employment 25 Opportunity Commission. The only relevant basis here is the third prong, which asks 26 whether Plaintiff was prevented by circumstances beyond her control from contacting an 27 EEO counselor. The Court finds that Plaintiff’s fear of career harm, nitpicking, poor 28 performance reviews, etc. was not a circumstance beyond her control which prevented her | || from timely raising the alleged incidents with an EEO counselor. Accordingly, the Court 2 || DISMISSES Plaintiff’s retaliation clam WITHOUT LEAVE TO AMEND.* 3 IV. CONCLUSION 4 For the foregoing reasons, the Court GRANTS the motion to dismiss as to Plaintiffs 5 || discrimination and harassment claims based on race and/or national origin and retaliation 6 ||clam WITHOUT LEAVE TO AMEND. The Court DENIES the motion to dismiss as 7 Plaintiffs claims for sexual discrimination and sexual harassment. 8 Defendant shall answer the surviving claims by June 26, 2026. 9 Itis SO ORDERED. 10 Dated: June 8, 2026 € 1] Hon. Cathy Ann Bencivengo 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 2, 2

26 The Court denies leave to amend given that Plaintiff was already on notice of her retaliation claim’s defect based on the Court’s initial dismissal yet failed to remedy it in her amended complaint. See Zucco 27 Partners, LLC v. Digimare Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the plaintiff has 28 previously been granted leave to amend and has subsequently failed to add the requisite particularity to its claims, the district court’s discretion to deny leave to amend is particularly broad.” (cleaned up)).