1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JESSICA HATTICH, Case No. 26-cv-02419-JSC
8 Plaintiff, ORDER RE: DEFENDANTS’ MOTION 9 v. TO DISMISS
10 UA LOCAL 342 and CHE TIMMONS, Re: Dkt. No. 7 Defendants. 11
12 13 Plaintiff sues Defendants for discrimination and sexual harassment under Title VII and the 14 Fair Employment and Housing Act (“FEHA”). (Dkt. No. 1 at 11-21.)1 Now pending before the 15 Court is Defendants’ motion to dismiss. (Dkt. No. 7.) Having carefully considered the parties’ 16 submissions, the Court concludes oral argument is not required, see N.D. Cal. Civ. L.R. 7-1(b), 17 VACATES the May 8, 2026 hearing, and GRANTS IN PART and DENIES IN PART 18 Defendants’ motion to dismiss. Although Plaintiff does not plausibly allege an adverse 19 employment action supporting her sex discrimination or retaliation claims under Title VII, she 20 does plausibly allege sexual harassment under Title VII. However, Plaintiff fails to state a FEHA 21 claim because she has not plausibly alleged timely exhaustion of administrative remedies. 22 BACKGROUND 23 I. COMPLAINT ALLEGATIONS 24 UA Local 342 (“UA Local”) is a labor union, and Che Timmons is UA Local’s business 25 manager. (Dkt. No. 1 at 11.) Plaintiff was hired by UA Local in 2017 and worked “as a clerical 26 worker/assistant office coordinator for several years.” (Id. at 11-12.) 27 1 At UA Local, Plaintiff “experienced and observed repeated incidents of inappropriate 2 conduct.” (Id. at 12.) For example, Todd Mendoza, a union member, “directed unnecessary or 3 inappropriate tasks” and “a derogatory remark toward Plaintiff, calling her a ‘bitch.’” (Id.) 4 Although she reported her concerns to Heather Zamora, the Office Coordinator, no “meaningful 5 corrective action was taken.” (Id.) Mr. Timmons also “directed Charlene Walton to contact 6 Plaintiff, after hours, with instructions that Plaintiff not leave the office at the same time as her 7 husband, Mathew Hattich,” and “directed Plaintiff to not sit with her husband or asked Plaintiff to 8 move away from him in public settings” at workplace events. (Id.) “Plaintiff was [also] kissed on 9 her mouth by a Union member, Joe Campbell.” (Id. at 18.) And during a meeting, another 10 employee, Carlos Diaz, told Plaintiff “she was ‘hot.’” (Id.) Plaintiff was also “asked on dates and 11 asked if she is ‘one of the bad girls that likes to ‘polish’ the Business Agents’ ‘nobs.’” (Id.) “In 12 October 2024, Plaintiff experienced sexual harassment, as did another female employee, during an 13 awards meeting, resulting in a panic attack at work and her early departure,” and she “later 14 overheard Timmons state ‘we pay for these girls.’” (Id. at 16.) 15 Plaintiff also observed and reported several concerning incidents, including when “a 16 female employee took another employee’s phone from his hand and answered it without knowing 17 who was calling,” and when “a female employee approached a male employee and touched his 18 head shortly after he arrived at work following a haircut.” (Id. at 13.) Plaintiff also observed Mr. 19 Timmons “repeatedly belittle” an “employee [] injured while off on personal time”; “belittle 20 another employee and instruct the employee’s family to leave an apprenticeship graduation 21 ceremony”; “refer to another employee using a derogatory term”; and “make comments that 22 trivialized serious physical and mental health conditions, including matters related to recovery.” 23 (Id. at 13-14.) She also “heard dismissive inquiries made regarding at least two employees’ 24 retirement plans.” (Id. at 14.) Plaintiff also witnessed Randy Loyd “engage in ‘hazing’ behavior 25 toward another employee,” including “directing the employee to perform a transfer of a member to 26 a different local,” and comment a female employe “was ‘doing a real good job,’ despite not 27 performing any task at that time.” (Id. at 13-14.) 1 benefits,” and “Plaintiff had to produce procedures so that they would have some guidance on how 2 [new hires should] handle their new roles, despite not having adequate support.” (Id. at 13.) “In 3 April 2024, Plaintiff was forced to travel to an office professionals’ meeting” although she had 4 disclosed “being out of the office was not sustainable for her and caused immense amounts of 5 stress.” (Id. at 16.) And when Plaintiff “was ill with COVID, she was required to train Randy 6 Loyd, who had previously engaged in abusive behavior towards Plaintiff,” and “[n]o other 7 employees were required to perform this task under the same circumstances, creating additional 8 stress and health risks.” (Id. at 14.) “Plaintiff experienced repeated incidents of harassment and 9 unsafe interactions involving Randy Loyd.” (Id. at 15.) For example, when Plaintiff was working 10 alone on a Saturday, Mr. Loyd “entered the office and approached Plaintiff,” and “Plaintiff did not 11 feel safe and began to cry.” (Id.) “Plaintiff was repeatedly exposed to images of Randy in social 12 settings,” and he “would enter the office and sit behind Plaintiff while waiting for meetings, which 13 contributed to an ongoing feeling of threat and lack of safety.” (Id.) Once, when Plaintiff’s child 14 was visiting her in the office, “Randy attempted to involve Plaintiff’s child in work-related tasks, 15 which made her child feel uncomfortable.” (Id.) He also required her “to work on a rental 16 agreement and promotional flyer for [his] home, a personal task unrelated to her official duties.” 17 (Id.) 18 “Beginning in September 2024, Plaintiff worked on a modified schedule and disclosed 19 PTSD, long-term trauma recovery, and a pregnancy loss to Che Timmons,” but she “experienced 20 discrimination, retaliation, and continued harassment.” (Id. at 16.) In January 2025, “an incident 21 occurred involving Randy Loyd and Marc Lopez during a member service issue,” and Plaintiff 22 reported the incident to Ms. Walton, but “experienced a severe physiological response when [Mr. 23 Lopez] followed her into [Ms. Walton’s] office.” (Id.) “Plaintiff requested leave and sought 24 medical care,” and “was placed on medical disability effective January 31. 2025.” (Id.) While on 25 disability leave, Plaintiff’s son asked Plaintiff for direction on dues payment, but she was unable 26 to assist because she was on leave. (Id.) 27 II. PROCEDURAL HISTORY 1 42 U.S.C. § 2000e-2(a); (2) sexual harassment, 42 U.S.C. §§ 2000e; (3) retaliation, 42 U.S.C. § 2 2000e-3(a); (4) failure to prevent discrimination, Cal. Gov’t Code § 12940(k); and (5) hostile 3 work environment, Cal. Gov’t Code § 12923. (Dkt. No. 1 at 11-21.) Defendants removed based 4 on federal question jurisdiction, (id. at 1-5), and now move to dismiss Plaintiff’s complaint, (Dkt. 5 No. 7). 6 DISCUSSION 7 I. TITLE VII (CAUSES OF ACTION I, II, AND III) 8 A. Exhaustion of Administrative Remedies 9 Before bringing a Title VII claim, a plaintiff “must exhaust administrative remedies by 10 filing a charge with the EEOC or an equivalent state agency . . . and receiving a right-to-sue 11 letter.” See Scott v. Gina Morena Enters., LLC, 888 F.3d 1101, 1106 (9th Cir. 2018) (citing 42 12 U.S.C. § 2000e-5(e)(1)). The charge also has a “verification requirement” to “protect[] employers 13 from the disruption and expense of responding to a claim unless a complainant is serious enough 14 and sure enough to support it by oath subject to liability for perjury.” See Edelman v.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JESSICA HATTICH, Case No. 26-cv-02419-JSC
8 Plaintiff, ORDER RE: DEFENDANTS’ MOTION 9 v. TO DISMISS
10 UA LOCAL 342 and CHE TIMMONS, Re: Dkt. No. 7 Defendants. 11
12 13 Plaintiff sues Defendants for discrimination and sexual harassment under Title VII and the 14 Fair Employment and Housing Act (“FEHA”). (Dkt. No. 1 at 11-21.)1 Now pending before the 15 Court is Defendants’ motion to dismiss. (Dkt. No. 7.) Having carefully considered the parties’ 16 submissions, the Court concludes oral argument is not required, see N.D. Cal. Civ. L.R. 7-1(b), 17 VACATES the May 8, 2026 hearing, and GRANTS IN PART and DENIES IN PART 18 Defendants’ motion to dismiss. Although Plaintiff does not plausibly allege an adverse 19 employment action supporting her sex discrimination or retaliation claims under Title VII, she 20 does plausibly allege sexual harassment under Title VII. However, Plaintiff fails to state a FEHA 21 claim because she has not plausibly alleged timely exhaustion of administrative remedies. 22 BACKGROUND 23 I. COMPLAINT ALLEGATIONS 24 UA Local 342 (“UA Local”) is a labor union, and Che Timmons is UA Local’s business 25 manager. (Dkt. No. 1 at 11.) Plaintiff was hired by UA Local in 2017 and worked “as a clerical 26 worker/assistant office coordinator for several years.” (Id. at 11-12.) 27 1 At UA Local, Plaintiff “experienced and observed repeated incidents of inappropriate 2 conduct.” (Id. at 12.) For example, Todd Mendoza, a union member, “directed unnecessary or 3 inappropriate tasks” and “a derogatory remark toward Plaintiff, calling her a ‘bitch.’” (Id.) 4 Although she reported her concerns to Heather Zamora, the Office Coordinator, no “meaningful 5 corrective action was taken.” (Id.) Mr. Timmons also “directed Charlene Walton to contact 6 Plaintiff, after hours, with instructions that Plaintiff not leave the office at the same time as her 7 husband, Mathew Hattich,” and “directed Plaintiff to not sit with her husband or asked Plaintiff to 8 move away from him in public settings” at workplace events. (Id.) “Plaintiff was [also] kissed on 9 her mouth by a Union member, Joe Campbell.” (Id. at 18.) And during a meeting, another 10 employee, Carlos Diaz, told Plaintiff “she was ‘hot.’” (Id.) Plaintiff was also “asked on dates and 11 asked if she is ‘one of the bad girls that likes to ‘polish’ the Business Agents’ ‘nobs.’” (Id.) “In 12 October 2024, Plaintiff experienced sexual harassment, as did another female employee, during an 13 awards meeting, resulting in a panic attack at work and her early departure,” and she “later 14 overheard Timmons state ‘we pay for these girls.’” (Id. at 16.) 15 Plaintiff also observed and reported several concerning incidents, including when “a 16 female employee took another employee’s phone from his hand and answered it without knowing 17 who was calling,” and when “a female employee approached a male employee and touched his 18 head shortly after he arrived at work following a haircut.” (Id. at 13.) Plaintiff also observed Mr. 19 Timmons “repeatedly belittle” an “employee [] injured while off on personal time”; “belittle 20 another employee and instruct the employee’s family to leave an apprenticeship graduation 21 ceremony”; “refer to another employee using a derogatory term”; and “make comments that 22 trivialized serious physical and mental health conditions, including matters related to recovery.” 23 (Id. at 13-14.) She also “heard dismissive inquiries made regarding at least two employees’ 24 retirement plans.” (Id. at 14.) Plaintiff also witnessed Randy Loyd “engage in ‘hazing’ behavior 25 toward another employee,” including “directing the employee to perform a transfer of a member to 26 a different local,” and comment a female employe “was ‘doing a real good job,’ despite not 27 performing any task at that time.” (Id. at 13-14.) 1 benefits,” and “Plaintiff had to produce procedures so that they would have some guidance on how 2 [new hires should] handle their new roles, despite not having adequate support.” (Id. at 13.) “In 3 April 2024, Plaintiff was forced to travel to an office professionals’ meeting” although she had 4 disclosed “being out of the office was not sustainable for her and caused immense amounts of 5 stress.” (Id. at 16.) And when Plaintiff “was ill with COVID, she was required to train Randy 6 Loyd, who had previously engaged in abusive behavior towards Plaintiff,” and “[n]o other 7 employees were required to perform this task under the same circumstances, creating additional 8 stress and health risks.” (Id. at 14.) “Plaintiff experienced repeated incidents of harassment and 9 unsafe interactions involving Randy Loyd.” (Id. at 15.) For example, when Plaintiff was working 10 alone on a Saturday, Mr. Loyd “entered the office and approached Plaintiff,” and “Plaintiff did not 11 feel safe and began to cry.” (Id.) “Plaintiff was repeatedly exposed to images of Randy in social 12 settings,” and he “would enter the office and sit behind Plaintiff while waiting for meetings, which 13 contributed to an ongoing feeling of threat and lack of safety.” (Id.) Once, when Plaintiff’s child 14 was visiting her in the office, “Randy attempted to involve Plaintiff’s child in work-related tasks, 15 which made her child feel uncomfortable.” (Id.) He also required her “to work on a rental 16 agreement and promotional flyer for [his] home, a personal task unrelated to her official duties.” 17 (Id.) 18 “Beginning in September 2024, Plaintiff worked on a modified schedule and disclosed 19 PTSD, long-term trauma recovery, and a pregnancy loss to Che Timmons,” but she “experienced 20 discrimination, retaliation, and continued harassment.” (Id. at 16.) In January 2025, “an incident 21 occurred involving Randy Loyd and Marc Lopez during a member service issue,” and Plaintiff 22 reported the incident to Ms. Walton, but “experienced a severe physiological response when [Mr. 23 Lopez] followed her into [Ms. Walton’s] office.” (Id.) “Plaintiff requested leave and sought 24 medical care,” and “was placed on medical disability effective January 31. 2025.” (Id.) While on 25 disability leave, Plaintiff’s son asked Plaintiff for direction on dues payment, but she was unable 26 to assist because she was on leave. (Id.) 27 II. PROCEDURAL HISTORY 1 42 U.S.C. § 2000e-2(a); (2) sexual harassment, 42 U.S.C. §§ 2000e; (3) retaliation, 42 U.S.C. § 2 2000e-3(a); (4) failure to prevent discrimination, Cal. Gov’t Code § 12940(k); and (5) hostile 3 work environment, Cal. Gov’t Code § 12923. (Dkt. No. 1 at 11-21.) Defendants removed based 4 on federal question jurisdiction, (id. at 1-5), and now move to dismiss Plaintiff’s complaint, (Dkt. 5 No. 7). 6 DISCUSSION 7 I. TITLE VII (CAUSES OF ACTION I, II, AND III) 8 A. Exhaustion of Administrative Remedies 9 Before bringing a Title VII claim, a plaintiff “must exhaust administrative remedies by 10 filing a charge with the EEOC or an equivalent state agency . . . and receiving a right-to-sue 11 letter.” See Scott v. Gina Morena Enters., LLC, 888 F.3d 1101, 1106 (9th Cir. 2018) (citing 42 12 U.S.C. § 2000e-5(e)(1)). The charge also has a “verification requirement” to “protect[] employers 13 from the disruption and expense of responding to a claim unless a complainant is serious enough 14 and sure enough to support it by oath subject to liability for perjury.” See Edelman v. Lynchburg 15 Coll., 535 U.S. 106, 113 (2002). Specifically, “[c]harges shall be in writing under oath or 16 affirmation and shall contain such information and be in such form as the [EEOC] requires.” 42 17 U.S.C. § 2000e-5(b). 18 Title VII’s “charge-filing” and verification requirements are not jurisdictional 19 requirements, but rather their absence is an affirmative defense the defendant must plead and 20 prove. See Fort Bend Cnty., Texas v. Davis, 587 U.S. 541, 550-52 (2019); Kraus v. Presidio Tr. 21 Facs. Div./Residential Mgmt. Branch, 572 F.3d 1039, 1046 n.7 (9th Cir. 2009). “[P]laintiffs 22 ordinarily need not ‘plead on the subject of an anticipated affirmative defense.’” Rivera v. Peri & 23 Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013) (citations omitted). When an affirmative 24 defense is obvious on the face of a complaint, however, a defendant can raise that defense in a 25 motion to dismiss.” Id. (citation omitted). So, a motion to dismiss a Title VII claim based on a 26 failure-to-exhaust defense should only be granted if “the defense is ‘clearly indicated’ and 27 ‘appear[s] on the face of the pleading.’” Harris v. Amgen, Inc., 738 F.3d 1026, 1045 (9th Cir. 1 Defendants argue Plaintiff’s Title VII claims must be dismissed because Plaintiff has not 2 verified her EEOC charge. Plaintiff’s complaint only alleges she “timely filed a charge” with the 3 EEOC and obtained a right-to-sue letter and attaches such letter from December 23, 2025. (Dkt. 4 No. 1 at 16-17, 23-24.) Defendants attach a December 15, 2025 Notice of Charge letter from the 5 EEOC to UA Local, which states UA Local “will receive electronic notification when a perfected 6 charge . . . is received from the Charging Party.” (Dkt. No. 7-1 at 4.)2 So, Defendants argue 7 Plaintiff’s EEOC charge was imperfect and therefore unverified. 8 The verification requirement “demands an oath only by the time the employer is obliged to 9 respond to the charge, not at the time an employee files it with the EEOC.” See Edelman, 535 10 U.S. at 113; see also id. at 112 (rejecting the proposition “the charge must be verified when 11 filed”). While the December 15, 2025 Notice of Charge supports an inference Plaintiff had not 12 perfected, and thus verified, her charge by that date, that fact does not compel the inference 13 Plaintiff never did so. And although Defendants assert they “never received a notification that 14 Plaintiff had perfected her charge and there is no evidence that Plaintiff verified the charge under 15 oath,” Defendants provide no evidence supporting their assertions. (Dkt. No. 7 at 8.) Even if 16 Defendants had done so, the Court generally “may not consider any material beyond the pleadings 17 in ruling on a Rule 12(b)(6) motion.” See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 18 2001) (cleaned up), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 19 1119 (9th Cir. 2002); see also Harris, 738 F.3d at 1045 (explaining a motion to dismiss based on a 20 failure-to-exhaust affirmative defense should only be granted if “the defense is ‘clearly indicated’ 21 and ‘appear[s] on the face of the pleading’”). So, Defendants have not shown as a matter of law 22 that Plaintiff has not verified her complaint to the extent necessary to fulfill Title VII’s charge- 23 filing requirement. 24 Defendants also seek dismissal of Plaintiff’s claims against Mr. Timmons because, 25 2 The Court may take judicial notice of the EEOC notice of charge as a “matter[] of public 26 record.” See Lawson v. Reynolds Indus., No. CV-04-6533 FMC (FMOx), 2005 WL 8165610, at *2 (C.D. Cal. Feb. 4, 2005) (citing Gallo v. Bd. of Regents of Univ. of California, 916 F. Supp. 27 1005, 1007-08 (S.D. Cal. 1995); Wynn v. Nat’l Broad. Co., 234 F. Supp. 2d 1067, 1076 n.3 (C.D. 1 according to Defendants, Plaintiff did not file an EEOC charge against him. See Sosa v. Hiraoka, 2 920 F.2d 1451, 1458 (9th Cir. 1990) (“Title VII claimants may only sue those named in the EEOC 3 charge.”). But not only does Plaintiff allege she “timely filed a charge . . . alleging violations of 4 Title VII by Defendants,” but in the attached right-to-sue letter, the EEOC copied both Mr. 5 Timmons and UA Local. (Dkt. No. 1 at 16, 24.) Defendants argue the Notice of Charge letter 6 from the EEOC to UA Local only mentions Plaintiff’s charge “against your organization,” i.e., the 7 charge against UA Local. (Dkt. No. 7-1 at 4.) But on a motion to dismiss, the Court draws 8 inferences in Plaintiff’s favor, and Defendants’ argument does not show it is “obvious on the face 9 of [Plaintiff’s] complaint” she has not filed an EEOC charge against Mr. Timmons. See Rivera, 10 735 F.3d at 902. 11 The Court therefore declines to dismiss Plaintiff’s Title VII claims for failure to exhaust 12 administrative remedies. 13 B. Adverse Employment Action 14 To state a Title VII discrimination claim, a plaintiff must allege “(1) he is a member of a 15 protected class; (2) he was qualified for his position; (3) he experienced an adverse employment 16 action; and (4) similarly situated individuals outside his protected class were treated more 17 favorably, or other circumstances surrounding the adverse employment action give rise to an 18 inference of discrimination.” See Berry v. Dep’t of Soc. Servs., 447 F.3d 642, 656 (9th Cir. 2006) 19 (quotation marks and citation omitted). “[A]n adverse employment action is one that ‘materially 20 affect[s] the compensation, terms, conditions, or privileges of . . . employment.’” Davis v. Team 21 Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (citation omitted). “Adverse employment actions 22 include ‘assigning more, or more burdensome, work responsibilities’ as well as ‘termination, 23 demotion, failing to promote, denial of an available job, adverse job assignments, official 24 discipline, and significant changes in compensation or benefits.’” Martinez v. Costco Wholesale 25 Corp., 481 F. Supp. 3d 1076, 1091 (S.D. Cal. 2020) (quoting Davis, 520 F.3d at 1089; Ayala v. 26 Frito Lay, Inc., 263 F. Supp. 3d 891, 905 (E.D. Cal. 2017)). 27 Defendants argue Plaintiff has not plausibly alleged any adverse employment action. In 1 subjected to gender-based disparities in workload and authority.” (Dkt. No. 11 at 10.) 2 Specifically, Plaintiff alleges she was required to: “produce procedures” for new hires “despite not 3 having adequate support”; “to travel to an office professionals’ meeting” despite her disclosure 4 “being out of the office was not sustainable for her”; and “to train Randy Loyd” while she was ill 5 with COVID. (Dkt. No. 1 at 13-14, 16.) As an initial matter, Plaintiff does not allege any of these 6 duties fell outside her role as a “clerical worker/assistant office coordinator.” (Dkt. No. 1 at 11.) 7 See Mendoza v. DeJoy, No. 21-CV-00991-H-JLB, 2022 WL 18832234, at *6 (S.D. Cal. Dec. 20, 8 2022) (“Assigning additional work that is included in an individual’s job description is not an 9 adverse employment action.” (citations omitted)). Furthermore, “assigning more, or more 10 burdensome, work responsibilities, is [only] an adverse employment action” if it “materially 11 affects the compensation, terms, conditions, or privileges of . . . employment.” Davis, 520 F.3d at 12 1089 (quotation marks and citation omitted). And because Plaintiff does not allege any facts 13 supporting a plausible inference these duties materially changed her employment conditions, she 14 has not plausibly alleged they constituted adverse employment actions. 15 Plaintiff next argues she was “placed on disability leave following sustained discriminatory 16 treatment and harassment.” (Dkt. No. 11 at 10.) In her complaint, Plaintiff alleges after she 17 “experienced a severe physiological response” and “requested leave,” she “was placed on medical 18 disability.” (Dkt. No. 1 at 16.) “[U]nder some circumstances, placement on administrative leave 19 can constitute an adverse employment action.” Dahlia v. Rodriguez, 735 F.3d 1060, 1078 (9th 20 Cir. 2013). However, “being placed on paid administrative leave is not an adverse employment 21 action [if] it does not deprive a plaintiff of any term, condition or benefit of employment.” 22 Gannon v. Potter, No. C 05-2299SBA, 2006 WL 3422215, at *5 (N.D. Cal. Nov. 28, 2006), aff’d, 23 298 F. App’x 623 (9th Cir. 2008) (citation omitted). Although Plaintiff alleges she was unable to 24 help her son with his dues payments while she was on leave, (Dkt. No. 1 at 16), she does not 25 allege disability leave deprived her of pay, opportunities for promotion, or any other term, 26 condition, or benefit of her employment. See Dahlia, 735 F.3d at 1079 (considering allegations 27 “administrative leave prevented [the plaintiff] from taking the sergeant’s exam, required him to 1 sufficient to plausibly allege an adverse employment action). So, Plaintiff has not plausibly 2 alleged her placement on disability leave constituted an adverse employment action. 3 However, Plaintiff also alleges several comments and actions, including as part of her 4 second cause of action for sexual harassment. “[W]orkplace harassment, if sufficiently severe or 5 pervasive, may in and of itself constitute an adverse employment action.” Schouker v. Swarm 6 Indus., Inc., No. 24-CV-07373-JSC, 2025 WL 1022141, at *4 (N.D. Cal. Apr. 3, 2025) (quotation 7 marks and citation omitted); see also Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000) 8 (“Harassment is actionable only if it is ‘sufficiently severe or pervasive to alter the conditions of 9 the victim’s employment and create an abusive working environment.’” (quoting Harris v. Forklift 10 Systems, Inc., 510 U.S. 17, 21 (1993)). To evaluate “whether the discriminatory conduct was 11 ‘severe or pervasive,’ [courts] look to all the circumstances, including the frequency of the 12 discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere 13 offensive utterance; and whether it unreasonably interferes with an employee’s work 14 performance.” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1122 (9th Cir. 2008) 15 (quotation marks and citations omitted). Plaintiff alleges several derogatory and inappropriate 16 comments related to her sex, being kissed by a union member, and other conduct “result[ed] in a 17 panic attack at work and her early departure,” caused Plaintiff to “not feel safe” and “cry,” and led 18 to “a severe physiological response” followed by her leave. (Dkt. No. 1 at 12, 14-16, 18.) So, 19 Plaintiff has plausibly alleged discriminatory conduct which “materially affect[ed] the terms and 20 conditions of [her] employment,” and therefore sufficed as an adverse employment action. See 21 Martinez, 481 F. Supp. 3d at 1091-92 (citing Yanowitz v. L’Oreal USA, Inc., 36 Cal 4th 1028, 22 1036 (2005)). 23 So, the Court denies Defendants’ motion to dismiss Plaintiff’s second cause of action for 24 sexual harassment. However, the Court grants Defendants’ motion to dismiss Plaintiff’s first and 25 third causes of action for sex discrimination and retaliation because Plaintiff has not plausibly 26 alleged her assigned duties or disability leave constituted adverse employment actions under Title 27 VII. II. FEHA (CAUSES OF ACTION IV AND V) 1 “Before filing a civil action alleging FEHA violations, an employee must exhaust his or 2 her administrative remedies.” Wills v. Superior Court, 195 Cal. App. 4th 143, 153 (2011), as 3 modified on denial of reh’g (May 12, 2011); see also Cal. Gov’t Code § 12965. Under FEHA, 4 employees who believe they have suffered discrimination must first file a complaint with the 5 Department of Fair Employment and Housing (“DFEH”) or the Civil Rights Department (“CRD”) 6 “identifying the conduct alleged to violate FEHA.” See Wills, 195 Cal. App. 4th at 153; see also 7 Yanez-Davison v. United Parcel Serv., Inc., No. 2:23-CV-03016-DC-AC, 2025 WL 619129, at *2 8 n.2 (E.D. Cal. Feb. 26, 2025) (noting DFEH became CRD in July 2022, so the terms are used 9 interchangeably). DFEH or CRD then investigates the claims, and either issues “an accusation for 10 hearing before the Commission” or provides the complainant with a “right-to-sue letter,” at which 11 point the plaintiff can bring her claims as a civil action. See Schifando v. City of Los Angeles, 31 12 Cal. 4th 1074, 1082 (2003), as modified (Dec. 23, 2003) (citations omitted). 13 Unlike a plaintiff bringing Title VII claims, a plaintiff bringing FEHA claims bears the 14 “burden to plead and prove timely exhaustion of administrative remedies, such as filing a 15 sufficient complaint with [CRD] and obtaining a right-to-sue letter.” Kim v. Konad USA 16 Distribution, Inc., 226 Cal. App. 4th 1336, 1345 (2014) (quotation marks and citations omitted). 17 Furthermore, “[a] right-to-sue letter from the EEOC is not a substitute for a right-to-sue letter from 18 the [CRD] for the purpose of state law claims under FEHA.” James v. United Furniture Workers 19 Local 89262, No. 21-CV-03893-JCS, 2021 WL 3616776, at *9 (N.D. Cal. Aug. 16, 2021) (citing 20 Martin v. Lockheed Missiles & Space Co., 29 Cal. App. 4th 1718, 1726 (1994) (“[An] EEOC 21 right-to-sue notice technically [does] not satisfy the jurisdictional requirement that [a plaintiff] 22 have exhausted her administrative remedies as to the asserted violations of [FEHA].”)). 23 Because Plaintiff does not allege she obtained a right-to-sue letter from CRD or DFEH, she 24 has not plausibly alleged timely exhaustion of administrative remedies and fails to state a FEHA 25 claim. Plaintiff argues EEOC and CRD “operate under a formal work sharing agreement that 26 allows charges filed with one agency to be deemed constructively filed with the other,” such that 27 her EEOC charge suffices to exhaust administrative remedies under FEHA. (Dkt. No. 11 at 11.) 1 “Based on cross-filing agreements between the EEOC and the DFEH, an administrative charge 2 filed with the EEOC might in at least some circumstances also place the DFEH on notice of a 3 plaintiff’s claims.” See James, 2021 WL 3616776, at *10 (citation omitted). However, Plaintiff 4 must also allege “either that [s]he received a right to sue letter from the DFEH or that a year 5 passed without the DFEH taking action on [her] claim.” Id. at *10 (explaining because 6 “California law allows the DFEH a period of one year before it is required to act,” allegations a 7 year has passed since the charge are also sufficient) (citing Reed v. UBS Sec., LLC, No. C 09-5237 8 MHP, 2010 WL 3119200, at *4 (N.D. Cal. Aug. 3, 2010)). 9 To argue she does not need to allege receipt of a DFEH or CRD right-to-sue letter, Plaintiff 10 relies on Surrell v. California Water Service Co., 518 F.3d 1097 (9th Cir. 2008). In Surrell, the 11 Ninth Circuit held because Title VII’s exhaustion requirements are non-jurisdictional, “a plaintiff 12 entitled to receive a right-to-sue letter from the EEOC . . . may proceed [with Title VII claims] 13 absent such a letter, provided she has received a right-to-sue letter from the appropriate state 14 agency.” Id. at 1105. Here, Plaintiff instead seeks to proceed with her FEHA claims absent a 15 right-to-sue letter from the appropriate state agency because she has received a right-to-sue letter 16 from the EEOC. So, Surrell is inapposite. 17 As Plaintiff has not plausibly alleged timely exhaustion of administrative remedies, the 18 Court grants Defendants’ motion to dismiss her FEHA claims. 19 CONCLUSION 20 For the reasons stated above, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s 21 First and Third Causes of Action for sex discrimination and retaliation under Title VII and her 22 Fourth and Fifth Causes of Action under FEHA. However, the Court DENIES Defendants’ 23 motion to dismiss Plaintiff’s Second Cause of Action for sexual harassment under Title VII. 24 Regardless, because Plaintiff may plausibly allege other adverse employment actions or 25 administrative exhaustion of her FEHA claims, the Court grants Plaintiff leave to amend her 26 complaint. See Yagman v. Garcetti, 852 F.3d 859, 863 (9th Cir. 2017) (“[A] district court should 27 grant leave to amend . . . unless it determines that the pleading could not possibly be cured by the ] amended complaint is May 29, 2026. Plaintiff may not add new claims or defendants without the 2 || Court’s leave. If Plaintiff does not file an amended complaint, the case will proceed on Plaintiffs 3 Second Cause of Action. 4 This Order disposes of Docket No. 7. 5 IT IS SO ORDERED. 6 || Dated: April 30, 2026 7 8 net JACQUELINE SCOTT CORL 9 United States District Judge 10 1] a 12
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