MARIO DE VERA v. UNITED AIRLINES, INC.

• Court: District Court, N.D. California
• Decided: February 23, 2026
• Docket: 3:25-cv-07814
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARIO DE VERA, Case No. 25-cv-07814-JSC

8 Plaintiff, ORDER GRANTING MOTION TO 9 v. DISMISS

10 UNITED AIRLINES, INC., Re: Dkt. Nos. 12, 33, 36 Defendant. 11

12 13 Plaintiff Mario De Vera, proceeding without attorney representation, filed this state-law 14 employment discrimination action in Alameda County Superior Court against his employer, 15 United Airlines, Inc (“United”). He alleges he was fraudulently enticed to take an early retirement 16 buy out and that when later he was rehired, Defendant retaliated against him. (Dkt. No. 1-2.)1 17 Now pending before the Court is Defendant’s motion to dismiss. Because Mr. De Vera fails to 18 state a claim for wrongful termination, age discrimination, retaliation, or harassment, but has not 19 benefitted from prior opportunities to amend, the Court GRANTS the motion to dismiss with leave 20 to amend for all claims that appear timely. 21 A. Complaint Allegations 22 Mr. De Vera’s complaint asserts four causes of action against Defendant: (1) wrongful 23 termination, (2) age discrimination, (3) retaliation, and (4) harassment. (Dkt. No. 1-2.) Mr. De 24 Vera did not cite a specific statutory basis for any of these claims in his page-and-a-half 25

26 1 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the 27 ECF-generated page numbers at the top of the documents. The ECF-generated page numbers in the Exhibits for Defendant’s request for judicial notice (Dkt. No. 12-2) are difficult to discern, but 1 complaint.2 However, Plaintiff attached to his complaint a right-to-sue notice from the California 2 Civil Rights Department (“CRD”), which allows him to sue under California’s Fair Employment 3 and Housing Act (“FEHA”). (Dkt. No. 1-2 at 8.) Plaintiff’s opposition confirms he intends to sue 4 “under FEHA and common law.” (Dkt. No. 33 at 1-2.) 5 The first two claims stem from an “early out” program Mr. De Vera accepted. (Dkt. No 1- 6 2 at 6 ¶¶ 1-2.) First, United “enticed” him and other “older” employees to participate in the 7 program by luring them into believing they would receive the same flight benefits as retirees. (Id. 8 ¶ 1.) United did not disclose it retained the “right to amend, modify or delete” the travel pass 9 benefit program “at any time,” and had United disclosed this “very important material fact,” he 10 and others would “not [have] take[n] the early out deal.” (Id.) United’s lack of disclosure 11 constitutes wrongful termination because it caused him to lose his job and his seniority within the 12 company. (Id. (“I lost my job and seniority due to company’s deceit and non-disclosure of a very 13 important material fact.”).) Since United enticed “older employees over forty” into the early out, 14 United’s conduct also constitutes age discrimination. (Id. ¶ 2.) 15 The last two claims stem from Mr. De Vera’s employment after he was “rehired.” (Id. at 6 16 ¶ 3, 7 ¶ 1.) United “retaliated against [him] for [his] complaint and trying to get a system board 17 ordered by the federal court on [a] previous complaint,” and “tried to fire” him. (Id. at 6 ¶ 3.) 18 Finally, United harassed him by “trying to extend [his] probationary period when it was officially 19 over.” (Id. at 7 ¶ 1.) 20 B. Procedural Background 21 On July 29, 2025, Plaintiff filed his case in Alameda Superior Court. (Dkt. No. 1-2; Case 22 No. 25CV133281.) Defendant removed the action to federal court based on federal question and 23 diversity subject matter jurisdiction, and subsequently moved to dismiss pursuant to Fed. R. Civ. 24 P. 12(b)(1) and 12(b)(6). (Dkt. No. 12-1.) In connection with the motion to dismiss, United 25 requests judicial notice of three documents related to Mr. De Vera’s prior case against United, 26

27 2 While Plaintiff’s opposition also refers to Title VII, Defendant does not move to dismiss claims 1 Mario De Vera v. United Airlines, Inc., 3:12-cv-05644-LB (N. D. Cal. 2012), for breach of 2 contract and breach of fiduciary duty. (Dkt. No. 12-2.)3 3 LEGAL STANDARD 4 A complaint must contain a “short and plain statement of the claim showing that the 5 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To meet this requirement, the complaint 6 must provide “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic 7 Corp. v. Twombly, 550 U.S. 544, 570 (2007). On a 12(b)(6) motion to dismiss, courts “accept 8 factual allegations in the complaint as true and construe the pleadings in the light most favorable 9 to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th 10 Cir. 2008). But “only pleaded facts, as opposed to legal conclusions, are entitled to assumption of 11 the truth.” United States v. Corinthian Colleges, 655 F.3d 984, 991 (9th Cir. 2011). Courts may 12 also review “documents referred to in the complaint” at the 12(b)(6) stage. Alpha Venture Cap. 13 Partners LP v. Pourhassan, 30 F.4th 920, 924 (9th Cir. 2022). 14 Pleadings filed by unrepresented parties must be liberally construed on a defendant’s 15 motion to dismiss for failure to state a claim. Ortez v. Washington Cnty. Oregon, 88 F.3d 804, 16 807 (9th Cir. 1996). Still, the court cannot supply essential elements of the claim the plaintiff did 17 not plead. Ivey v. Bd. Of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 18 Additionally, “[a] district court should not dismiss a pro se complaint without leave to amend 19 unless it is absolutely clear that the deficiencies of the complaint could not be cured by 20 amendment.” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (cleaned up). 21 DISCUSSION 22 Defendant moves to dismiss arguing (1) the wrongful termination claim is preempted 23 under the Railway Labor Act; (2) the discrimination, retaliation, and harassment claims are time- 24

25 3 There, Plaintiff sued Defendant in this District for breach of contract and breach of fiduciary 26 duty after United modified the travel benefits it provided under the early out program and because United failed to disclose Plaintiff would not be considered a retiree if he accepted the program. 27 The court granted United’s motion for summary judgment, finding the contract claims were preempted by the Railway Labor Act because they would require the court to evaluate the CBA 1 barred; and (3) Plaintiff fails to state a claim for all four causes of action. Defendant also requests 2 judicial notice; the Court addresses this first. 3 A. Judicial Notice 4 United requests judicial notice of three documents from Mr. De Vera’s prior case in this 5 District against United for breach of contract and breach of fiduciary duty: (1) the order granting 6 United Airlines, Inc’s Motion for Summary Judgment from March 7, 2014 in Mario De Vera v. 7 United Airlines, Inc., 3:12-cv-05664-LB (N.D. Cal. 2012) (ECF No. 68); (2) the amended 8 summary judgment order from March 24, 2014 in the same case (ECF No. 70); and (3) the notice 9 of removal containing Plaintiff’s prior complaint in that case (ECF No. 1). 10 Pursuant to Federal Rule of Evidence 201, a court can take judicial notice of facts if they 11 are “not subject to reasonable dispute” because they are either “generally known within the trial 12 court's territorial jurisdiction” or “can be accurately and readily determined from sources whose 13 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). A court may take judicial 14 notice of “proceedings in other courts, both within and without the federal judicial system, if those 15 proceedings have a direct relation to matters at issue.” U.S. ex rel. Robinson Rancheria Citizens 16 Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). This includes “undisputed matters of 17 public record, including documents on file in federal or state courts.” Harris v. Cnty. of Orange, 18 682 F.3d 1126, 1132 (9th Cir. 2012). Court orders and other court documents are proper subjects 19 of judicial notice, id., as are records of court proceedings. Dawson v. Mahoney, 451 F.3d 550, 551 20 n.1 (9th Cir. 2006). 21 The Court grants Defendant’s request for judicial notice. Claims in Mr. De Vera’s prior 22 and current suit both derive from the modification of the terms of United’s early out employee 23 buyout program. So, the order, amended order, and request for removal from the prior case all 24 have a “direct relation” to the matters at issue in this proceeding. Borneo, Inc., 971 F.2d at 248. 25 Additionally, these documents are undisputed “[c]ourt orders and other court documents,” proper 26 subjects of judicial notice. Harris, 682 F.3d at 1132. Judicial notice is limited to the existence of 27 these documents, not the truth of the matters contained within them because “when a court takes 1 but for the existence of the opinion, which is not subject to reasonable dispute over its 2 authenticity.” Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001) (cleaned up). 3 B. Railway Labor Act Preemption 4 United contends the Railway Labor Act (“RLA”) preempts Mr. De Vera’s claims related to 5 his termination, so Court lacks subject matter jurisdiction. (Dkt. No. 12-1 at 9-11); see Fed. R. 6 Civ. P. 12(b)(1). “The RLA creates a comprehensive framework for resolving labor disputes in 7 the rail and airline industries.” Alaska Airlines Inc. v. Schurke, 898 F.3d 904, 916 (9th Cir. 2018) 8 (citation omitted); see 45 U.S.C. §§ 151-65, 181-88.4 The RLA may preempt a labor dispute if 9 “plaintiff contends that an employer’s actions violated rights protected by the CBA.” Espinal v. 10 Nw. Airlines, 90 F.3d 1452, 1456 (9th Cir. 1996). 11 To determine if the claim is preempted, “courts must look to the source of the right 12 asserted by the plaintiff.” Id. Courts apply a two-part test. Alaska Airlines, 898 F.3d at 920.5 13 First, they “evaluate the legal character of the claim,” preempting a claim if it “arises entirely from 14 a right or duty of the CBA,” meaning “the CBA is the only source of the right the plaintiff seeks to 15 vindicate.” Id. at 920-21. Meanwhile, a claim is not preempted “where a plaintiff contends that 16 an employer’s actions violated a state-law obligation, wholly independent of its obligations under 17 the CBA.” Espinal, 90 F.3d at 1456. And claims are not preempted at the first step if they “just 18 refer to a CBA-defined right; rely in part on a CBA's terms of employment; [or] run parallel to a 19 CBA violation.” Alaska Airlines, 898 F.3d at 921 (citations omitted). At the second step, courts 20 ask if litigating the claim “requires interpretation of a CBA,” preempting claims “to the extent they 21 involve an active dispute over the meaning of contract terms.” Id. (cleaned up). 22 23 24 4 Within this framework, labor disputes are categorized as “major” or “minor,” with minor 25 disputes subject to preemption. Espinal v. Nw. Airlines, 90 F.3d 1452, 1456 (9th Cir. 1996). 26 5 United argues Mr. De Vera’s claims are “minor,” and thus preempted under the RLA; it does not apply the two-part preemption test. (See Dkt. No. 12-1 at 9-11.) But the Ninth Circuit has 27 explained the test applies when a plaintiff raises claims under state law. Columbia Exp. Terminal, LLC, 23 F.4th at 844; Alaska Airlines, 898 F.3d at 920. Here, Mr. De Vera suggests his claims are 1 Applying the two-step test for RLA preemption, the first question is if Mr. De Vera’s claim 2 for “wrongful termination via illegal early out” involves a benefit that derives exclusively from his 3 CBA. Here, in his wrongful termination claim, Mr. De Vera alleges United “enticed” him and 4 other older employees to participate in the early out program “by rewarding them with the same as 5 retirees flight benefits when it needed to cut staffing after filing bankruptcy.” (Dkt. No. 1-2 at 6 ¶ 6 1.) He argues United did not disclose a provision stating “[t]he company has the right to amend, 7 modify, or delete” the travel pass benefit program. (Id.) United contends the union-negotiated 8 early out program and travel benefits derive from the CBA negotiated by Plaintiff’s union. (Dkt. 9 No. 12-1 at 11.) But the Complaint’s allegations do not reference a CBA. Even if the Court 10 understood Plaintiff’s opposition to admit he is a signatory to the CBA,6 without more allegations 11 regarding the claim Mr. De Vera raises or the benefits under his CBA, the Court cannot conclude 12 as a matter of law, based on this limited record, the CBA is the exclusive source of his rights, or if 13 the claim involves an independent state-law obligation. Espinal, 90 F.3d at 1456. Without more 14 allegations, the Court also declines to consider if Mr. De Vera’s claim “depends on an 15 interpretation of the CBA” at step two of the preemption test, Alaska, 846 F.3d at 1089, as United 16 contends. (See Dkt. No. 12-1 at 11 ¶ 2.) Because United has not established Plaintiff’s first claim 17 is preempted, the Court denies Defendant’s 12(b)(1) motion to dismiss without prejudice. 18 C. Exhaustion of Administrative Remedies 19 United moves to dismiss Mr. De Vera’s discrimination, harassment, and retaliation claims 20 to the extent they are brought under FEHA because he failed to exhaust his administrative 21 remedies and because the claims are time-barred. (See Dkt. No. 12-1 at 11-12.) “Before filing a 22 civil action alleging FEHA violations, an employee must exhaust his or her administrative 23 remedies.” Wills v. Superior Ct., 195 Cal. App. 4th 143, 153 (2011), as modified on denial of 24 reh’g (May 12, 2011); see also Cal. Gov. Code § 12965. Exhaustion requires filing an 25 administrative complaint with the California Civil Rights Department (“CRD”) and obtaining a 26 right-to-sue letter. See Kim v. Konad USA Distribution, Inc., 226 Cal. App. 4th 1336, 1345 27 1 (2014); Cal. Gov. Code § 12960. Under FEHA, an individual can bring a complaint to the CRD 2 for any unlawful action that occurred within the previous three years. Cal. Gov. Code § 3 12960(e)(5). And after the complainant receives his right-to-sue notice, he has one year to file a 4 civil action arising from the events in his CRD complaint. Cal. Gov. Code § 12965(c)(1)(C). 5 Here, Plaintiff’s complaint attaches a CRD right-to-sue notice dated July 29, 2024. (Dkt. 6 No. 1-2 at 8.) Per the notice, Mr. De Vera filed a complaint with CRD, which “dual filed” the 7 charge with the U.S. Equal Employment Opportunity Commission (“EEOC”). (Id.) The notice 8 spells out: “[T]his Right to Sue Notice allows you to file a private lawsuit in State court.” (Id.) 9 Plaintiff filed his complaint one year later, on July 29, 2025. (Id. at 4.) 10 United argues the July 2024 notice cannot revive Mr. De Vera’s discrimination, 11 harassment, and retaliation claims since they arise from the early out program Mr. De Vera elected 12 to participate in “nearly seventeen years ago.” (Dkt. No. 12-1 at 12.) To the extent Mr. De Vera’s 13 claims relate to United’s conduct when Mr. De Vera joined the early out program in 2008, the 14 alleged conduct occurred more than three years before Mr. De Vera filed his right-to-sue notice 15 with CRD and thus are untimely. Cal. Gov. Code § 12960(e)(5). But Mr. De Vera may also be 16 asserting discrimination, harassment, and retaliation claims arising from conduct that occurred 17 after July 2021. (Dkt. No. 1-2 at 6 ¶ 3, 7 ¶ 1.) For example, he claims United retaliated against 18 him by attempting to fire him when he was “rehired” and harassed him by trying to extend his 19 probationary period. (Id.) United has not shown such claims are untimely because United’s 20 actions could have occurred within three years of Mr. De Vera filing a CRD complaint and 21 obtaining a right-to-sue notice. 22 D. Failure to State a Claim 23 United also moves to dismiss all claims for failure to state a claim pursuant to Fed. R. Civ. 24 P. 12(b)(6). (See Dkt. No. 12-1 at 13-17.) 25 a. Wrongful Termination 26 On its face, the complaint is unclear as to whether the wrongful termination claim is 27 derivative of Plaintiff’s age discrimination claim and whether it is based on common law, FEHA, 1 because “the Complaint actually admits Plaintiff has not been terminated.” (Id. at 13.) While 2 under the doctrine of constructive discharge, an employee does not need to be “actually fired” to 3 bring a wrongful termination claim, Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1244-45 4 (1994), “constructive discharge occurs only when an employer terminates employment by forcing 5 the employee to resign.” Mullins v. Rockwell Internat. Corp., 15 Cal. 4th 731, 737 (1997). 6 Because the complaint does not allege facts that plausibly support an inference Mr. De Vera’s 7 employment was terminated or that he otherwise ended his employment with United within three 8 years of filing his CRD complaint, he does not allege a timely wrongful termination claim; so, the 9 claim must be dismissed. 10 b. Age Discrimination 11 While Mr. De Vera does not allege a statutory basis for his age discrimination claim, the 12 right-to-sue notice attached to his complaint, filed with CRD and EEOC, allows him to bring an 13 action at least under FEHA. (Dkt. No. 1-2 at 8.) Courts in the Ninth Circuit construe the language 14 of administrative complaints “with utmost liberality since they are made by those unschooled in 15 the technicalities of formal pleading.” B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 16 2002). So, FEHA is the presumed basis for Mr. De Vera’s age discrimination claim, as well as his 17 retaliation and harassment claims, even though it is not stated in the complaint. (See Dkt. No. 33 18 at 1-2 (referencing FEHA and Title VII7 as the basis of the claims).) 19 To establish age discrimination under FEHA, Mr. De Vera must show “(1) he was a 20 member of a protected class; (2) he was performing competently in the position he held; (3) he 21 suffered an adverse employment action, such as termination, demotion, or denial of an available 22 job; and (4) some other circumstance suggests discriminatory motive.” Juell v. Forest Pharms., 23 Inc., 456 F. Supp. 2d 1141, 1150 (E.D. Cal. 2006). 24

25 7 Mr. De Vera cites Title VII once in his opposition. (Dkt. No. 33 at 1.) Title VII of the Civil 26 Rights Act, 42 U.S.C. § 2000e-2, does not prohibit discrimination based on age, but the Age Discrimination in Employment Act of 1967 (“ADEA”) does. 29 U.S.C. § 623(a)(2); see Smith v. 27 City of Jackson, Miss., 544 U.S. 228, 233 (2005) (explaining the history of ADEA and its differences from Title VII). Since a federal statute does not appear on the face of Mr. De Vera’s 1 Mr. De Vera’s allegations do not meet the required elements. He does not allege facts that 2 plausibly support an inference he suffered an “adverse employment action” within three years of 3 his CRD complaint. United suggests the adverse action was an unsuccessful attempt to fire Mr. 4 De Vera, but this action is referenced within his claim for retaliation, not age discrimination. (Dkt. 5 No. 12-1 at 13; see Dkt. No. 1-2 at 6 ¶ 3 (“Defendant tried to fire me instead but luckily the HR 6 who tried to fire me was on vacation and couldn’t finish firing me.”).) Additionally, Mr. De Vera 7 has not pled facts suggesting United had a discriminatory motive with respect to employees over 8 40; if anything, he appears to suggest Defendant’s motive was “cut[ting] staffing after filing 9 bankruptcy.” (Dkt. No. 1-2 at 6 ¶ 3.) So, this claim must also be dismissed. 10 c. Retaliation 11 To establish a FEHA retaliation claim, Mr. De Vera must show he “(1) [ ] engaged in a 12 protected activity, (2) [ ] was subjected to an adverse employment action, and (3) there is a causal 13 link between the protected activity and the adverse employment action.” Steele v. Youthful 14 Offender Parole Bd., 162 Cal. App. 4th 1241, 1252 (2008). 15 Mr. De Vera states United “retaliated against [him] for [his] complaint and trying to get a 16 system board ordered by the federal court on [a] previous complaint.” (Dkt. No. 1-2 at 6 ¶ 3.) 17 This statement does not allege facts that plausibly support an inference he engaged in a “protected 18 activity.” While his CRD complaint could be a “protected activity,” Mr. De Vera does not 19 mention the CRD complaint in his retaliation claim. (Id.) In his opposition, Mr. De Vera also 20 attaches correspondence with his union to show “he’s been retaliated on and harassed due to his 21 workplace safety complaints.” (Dkt. No. 33 at 2; see Dkt. No 33-1.) But the Court cannot 22 consider these documents because they are not incorporated in his complaint. See Schneider v. 23 Cal. Dep’t. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“In determining the propriety of a 24 Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff’s moving papers, 25 such as a memorandum in opposition to a defendant’s motion to dismiss.”). Because Mr. De Vera 26 does not allege facts that plausibly state a retaliation claim, the claim is dismissed. 27 1 d. Harassment 2 Mr. De Vera may establish a FEHA harassment claim by showing he “(1) [ ] is a member 3 of a protected class; (2) [ ] was subjected to unwelcome harassment; (3) the harassment was based 4 on [his] protected status; (4) the harassment unreasonably interfered with [his] work performance 5 by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable 6 for the harassment.” Galvan v. Dameron Hosp. Assn., 37 Cal. App. 5th 549, 563 (2019). 7 Mr. De Vera’s harassment claim is a single sentence long, alleging “Defendant harassed 8 me by trying to extend my probationary period when it was officially over.” (Dkt. No 1-2 at 7 ¶ 9 1.) Plaintiff must include more than “labels and conclusions” in his grounds for relief. Twombly, 10 550 U.S. at 555. This allegation is insufficient. First, it does not allege facts that plausibly 11 support an inference United tried to extend his probationary period. Second, even if he plausibly 12 alleged such conduct, it does not satisfy the requirements to state a harassment claim. For 13 example, because it references a single wrongful act, it does not show “a concerted pattern of 14 harassment” as required. Jones v. Dep’t. of Corr. & Rehabilitation 152 Cal. App. 4th 1367, 1377- 15 1378 (2007). The claim is therefore dismissed. 16 CONCLUSION 17 For the reasons stated above, Mr. De Vera fails to state a claim for wrongful termination, 18 age discrimination, retaliation, or harassment. In his opposition, Mr. De Vera requests leave to 19 amend for his age discrimination, retaliation, and harassment claims under FEHA. (See Dkt. No. 20 33 at 1-2 (“Plaintiff would like to ask the court leave to amend his complaint as well as to put 21 down the violations under FEHA and also include managers that harassed and discriminated 22 against him for age over 40 and their retaliatory and harassing actions.”).) To the extent Plaintiff’s 23 claims are based on actions that occurred more than three years before Plaintiff filed his right-to- 24 sue notice with CRD, Plaintiff cannot cure the deficiencies in the claims, and amendment would 25 be futile. Accordingly, claims based on actions that occurred more than three years before 26 Plaintiff filed his right-to-sue notice with CRD are DISMISSED with prejudice.8 27 1 For all other claims, the Court GRANTS the motion to dismiss with leave to amend. To 2 || cure the deficiencies in his complaint, Mr. De Vera must allege facts consistent with these claims 3 based on actions within three years of filing his right-to-sue notice with CRD or otherwise within 4 || the applicable statute of limitations. Plaintiff should attach any supporting documentation he 5 wants the Court to consider to his amended complaint, such as the correspondence he attached to 6 || his opposition. Plaintiff's amended complaint must be filed by March 20, 2026. Plaintiff is 7 || warned his failure to file an amended complaint by that date will lead to entry of judgment in 8 || Defendant’s favor. Plaintiff may not add any new defendants to the amended complaint without 9 || first receiving permission from the Court. 10 The Court reminds Plaintiff he may seek assistance from the Legal Help Center, a free 11 service of the Volunteer Legal Services Program, by calling 415-782-8982 or emailing a 12 fedpro @ sfbar.org.

13 This Order disposes of Docket No. 12.

v 14 IT IS SO ORDERED. O 15 || Dated: February 23, 2026 16 ’ 17 net CQWELINE SCOTT CORL 18 United States District Judge 19 20 1 timely under the continuing violation doctrine. (Dkt. No. 33 at 2.) The continuing violation 99 || doctrine can apply to harassment, discrimination, and retaliation claims under FEHA “where a plaintiff alleges a continuing course of unlawful conduct” occurring in part beyond statutory 3 period. Lelaind v. City & Cnty. Of San Francisco, 576 F. Supp. 2d 1079, 1093 (N.D. Cal. 2008); see Richards vy. CH2M Hill, Inc., 26 Cal. 4th 798, 822-23 (2001) (applying the doctrine to claims 24 for disability accommodation and harassment); Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1057 (2005) (extending the doctrine to retaliation claims). But “[t]o establish a “continuing course 25 of conduct” for purposes of FEHA, a plaintiff must show that the employer’s actions were (1) sufficiently similar in kind; (2) have occurred with reasonable frequency; and (3) have not 26 || acquired a degree of permanence.” Lelaind, 576 F. Supp. 2d at 1093 (cleaned up). Mr. De Vera has not explained how the doctrine would link his claims related to his separation with United to 07 his timely claims. Even where a plaintiff is continuously employed, a one-year gap in incidents of harassment can bar application of the doctrine. Brennan v. Townsend & O'Leary Enters., Inc., 28 199 Cal. App. 4th 1336, 1355 (2011). So, if claims are based on Plaintiffs separation with United more than three years before July 2021, the doctrine would not save Mr. De Vera’s claims.