Owens v. Toro

• Court: District Court, S.D. California
• Decided: March 26, 2024
• Docket: 3:18-cv-01579
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAM C. OWENS, Case No.: 3:18-cv-01579-JAH-JLB

12 Plaintiff, ORDER: 13 v. (1) GRANTING IN PART AND 14 CARLOS DEL TORO, DENYING IN PART DEFENDANT’S Secretary of the Navy, 15 MOTION TO DISMISS Defendant. PLAINTIFF’S SECOND AMENDED 16 COMPLAINT [ECF No. 36]; AND 17 (2) GRANTING DEFENDANT’S 18 REQUEST FOR JUDICIAL NOTICE, 19 [ECF No. 38]. 20 21 INTRODUCTION 22 On July 12, 2018, Plaintiff William C. Owens (“Plaintiff”) filed a complaint against 23 Defendant Richard V. Spencer, Secretary of the Navy, alleging causes of action for 24 discrimination and retaliation. ECF No. 1. This Court previously dismissed Plaintiff’s 25 complaint on May 22, 2019, finding that Plaintiff engaged in improper claim splitting, as 26 the action arose from the same nucleus of facts as another case involving the same parties 27 before the Court. ECF No. 13. Plaintiff appealed, and the Ninth Circuit reversed the 28 1 judgment and remanded for further proceedings, finding the claims were not duplicative as 2 the causes of action were not the same, did not arise out of the same nucleus of facts, and 3 used different evidence. ECF No. 20 (“Mandate”). 4 Pending before the Court is Defendant Carlos Del Toro’s, Secretary of the Navy, 5 (“Defendant”) Motion to Dismiss the Second Amended and Consolidated Complaint and 6 Request for Judicial Notice. ECF No. 38 (“Motion” or “Mot.”); ECF No. 38-1 (“RJN”). 7 Plaintiff filed an Opposition to the Motion and Defendant filed a Reply. ECF No. 44 8 (“Opp’n”); ECF No. 45 (“Reply”). The Motion is decided on the parties’ briefs without 9 oral argument pursuant to Civil Local Rule 7.1.d.1. After a thorough review of the record 10 and for the reasons set forth below, Defendant’s Motion to Dismiss is GRANTED IN 11 PART and DENIED IN PART and Defendant’s Request for Judicial Notice is 12 GRANTED. 13 BACKGROUND 14 Plaintiff is a former Supervisory Contract Specialist and was employed by the 15 Department of the Navy at the Southwest Regional Maintenance Center, located in San 16 Diego, California, until his dismissal on May 25, 2016. Plaintiff alleges, inter alia, that he 17 was subjected to vulgar language, harassment, violent physical contact, and that he was 18 passed over for promotions and transfers based on his race, color, age, and disability. See 19 ECF No. 36 (Second Amended and Consolidated Complaint, “SAC”) ¶¶ 11-93. Plaintiff 20 also claims the alleged discriminatory conduct created a hostile work environment. See id. 21 Defendant’s alleged violative conduct dates back to 2011, spanning through Plaintiff’s 22 termination in 2016. Id. Over the five year period, Plaintiff alleges to have filed seven 23 complaints with the Department of the Navy’s Equal Employment Opportunity Office 24 (“EEO”), which he alleges resulted in retaliation. See id. ¶¶ 6-10, 48, 54, 56, 58. Plaintiff 25 contends to have administratively exhausted his grievances with his former employer and 26 now seeks redress with this Court. Id. ¶¶ 6-10. Plaintiff brings the instant lawsuit under 27 Title VII of the Civil Rights Act of 1964 (“Title VII”), the Federal Vocational 28 Rehabilitation Act (“Rehabilitation Act”), and the Age Discrimination in Employment Act 1 (“ADEA”), asserting claims of disability discrimination, retaliation for prior EEO activity, 2 age discrimination, race discrimination, and hostile work environment. Id. ¶¶ 94-119, 125- 3 134.1 Defendant seeks dismissal of Plaintiff’s SAC pursuant to Federal Rules of Civil 4 Procedure 12(b)(1) and 12(b)(6). 5 LEGAL STANDARDS 6 I. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) 7 The federal court is one of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. 8 of America, 511 U.S. 375, 377 (1994). Before reaching the merits of any dispute, a court 9 must first confirm it has subject matter jurisdiction over the suit. See Steel Co. v. Citizens 10 for a Better Environ., 523 U.S. 83, 95 (1998). Under Federal Rule of Civil Procedure 11 12(b)(1), a defendant may seek to dismiss a complaint for lack of subject matter 12 jurisdiction. A jurisdictional challenge may be made either facially or factually through 13 the submission of extrinsic evidence. Warren v. Fox Family Worldwide, Inc., 328 F.3d 14 1136, 1139 (9th Cir. 2003) (citations omitted). With respect to a facial challenge, the 15 moving party asserts that the allegations are insufficient on their face to convey the district 16 court subject matter jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th 17 Cir. 2004). As to a factual attack, the moving party disputes the truth of a plaintiff’s 18 allegations, which otherwise would invoke subject matter jurisdiction. Id. 19 In analyzing a factual attack on jurisdiction, “the district court may review evidence 20 beyond the complaint, without converting the motion to dismiss into a motion for summary 21 judgment.” Id. (citations omitted). However, once the moving party converts the motion 22 to dismiss into a factual motion through affidavits or supplemental evidence, the burden 23 shifts to the opposing party to present affidavits or additional evidence to establish subject 24 25 1 Plaintiff also asks this Court to overturn the Equal Employment Opportunity Commission 26 (“EEOC”) Administrative Judge’s determination through a separate cause of action, (id. ¶¶ 27 120-124); however, given that the purpose of this Court’s instant review is to determine whether to overturn the EEOC Administrative Judge’s decision, the Court need not address 28 1 matter jurisdiction. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). 2 II. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) 3 A motion to dismiss can be granted when there is no claim upon which relief can be 4 granted. Fed. R. Civ. Pro. 12(b)(6). In evaluating a motion to dismiss, the Court accepts 5 as true the facts alleged in the complaint and draws all inferences in the light most favorable 6 to the non-moving party. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, the Court 7 is not bound to accept as true legal conclusions presented as allegations of fact. Id. While 8 recitation of the elements of a cause of action is not sufficient, a well-pleaded complaint 9 may proceed even if the likelihood of recovery is remote. Bell Atlantic Corp. v. Twombly, 10 550 U.S. 544, 555-56 (2007). If a complaint is dismissed under Rule 12(b)(6), the court 11 should “grant leave to amend even if no request to amend the pleading was made, unless it 12 determines that the pleading could not possibly be cured by the allegation of other 13 facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotations 14 and citations omitted). 15 DISCUSSION 16 I. Request for Judicial Notice 17 As a threshold matter, Defendant asks this Court to take judicial notice of four 18 Exhibits (referencing five Final Agency Decisions (“FADs”))2 in support of his Motion, 19 which are referenced in the SAC. RJN at 23; SAC ¶¶ 6, 8, 10. Defendant also requests 20 that this Court take judicial notice of the documents on file in the following Southern 21

22 23 2 Defendant requests this Court take judicial notice of the following EEO Final Agency Decisions (“FADs”) which were made in response to Plaintiff’s administrative complaints 24 to the EEOC: (1) Case No. 12-55262-00215 (ECF No. 38-2, RJN, Ex. 1) (“FAD 1”); (2) 25 DON No. 16-55262-00948 (ECF No. 38-3, RJN, Ex. 2) (“FAD 2”); (3) DON No. 16- 55262-01347 (ECF No. 38-3, RJN, Ex. 2) (“FAD 3”); (4) DON No. 16-55262-02751 (ECF 26 No. 38-4, RJN, Ex. 3) (“FAD 4”); (5) DON No. 14-55262-00955 (ECF No. 38-5, RJN, Ex. 27 4) (“FAD 5”). 3 Unless otherwise stated, page numbers referenced herein refer to page numbers generated 28 1 District of California cases: (1) 3:18-cv-0791-BAS-WVG; (2) 3:18-cv-1579-JAH-JLB; 2 (3) 3:18-cv-1796-JAH-JLB; (4) 3:18-cv-1852-JAH-JLB; and (5) 3:19-cv-0012-JAH-JLB. 3 Mot. at 3, n.1. 4 Although generally a district court may not consider evidence outside the pleadings 5 when ruling on a Rule 12(b)(6) motion, Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 6 988, 998 (9th Cir. 2018), it may take judicial notice of “matters of public record” without 7 converting into a motion for summary judgment. United States v. 14.02 Acres of Land 8 More or Less in Fresno County et al., 547 F.3d 943, 955 (9th Cir. 2008) (“Judicial notice 9 is appropriate for records and reports of administrative bodies.”) (internal citations and 10 quotations omitted). The Court takes judicial notice of Exhibits 1-4 because these 11 documents are records from an administrative body. See, e.g., Ortiz v. Mayorkas, 2023 12 WL 3398543, at *3 (S.D. Cal. May 11, 2023) (granting defendant’s request for judicial 13 notice of Final Agency Decision in EEO proceeding); Williams v. Santos, 2022 WL 14 2176582, at *2 (C.D. Cal. June 15, 2022) (same). The Court also takes judicial notice of 15 the five Southern District of California cases, see supra, but only to the extent those cases 16 exist and not with respect to any disputed facts within the record. See Lee v. City of Los 17 Angeles, 250 F.3d 668, 690 (9th Cir. 2001) (“a court may not take judicial notice of a fact 18 that is ‘subject to reasonable dispute’”) (citing Fed. R. Evid. 201(b)). Accordingly, 19 Defendant’s request for judicial notice is GRANTED. 20 II. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) 21 Defendant argues this Court does not have subject matter jurisdiction over certain of 22 Plaintiff’s allegations because they were not administratively exhausted. Mot. at 6-7. 23 Defendant suggests that because Plaintiff’s SAC includes specific allegations that are not 24 identified in the FADs attached to Defendant’s Motion, Plaintiff must have never 25 previously raised the allegations and therefore never exhausted them in the administrative 26 process. Id. at 6-7. Plaintiff opposes Defendant’s argument contending that Defendant 27 lacks substantial facts to demonstrate that Plaintiff never raised or never exhausted the 28 administrative process. Opp’n at 6. 1 A plaintiff who brings claims of discrimination against a federal employer may seek 2 relief under Title VII, the Rehabilitation Act, and the ADEA. Under the Ninth Circuit, a 3 plaintiff must exhaust administrative remedies with the Equal Employment Opportunity 4 Commission (“EEOC”) for both Title VII and the Rehabilitation Act in order to establish 5 subject matter jurisdiction in a district court. B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 6 1099 (9th Cir. 2002) as amended (Feb. 20, 2002); Leong v. Potter, 347 F.3d 1117, 1121 7 (9th Cir. 2003). The ADEA, however, “contains no express requirement that a federal 8 employee complainant seek administrative relief.” Stevens v. Dep’t of Treasury, 500 U.S. 9 1, 12, (1991) (Stevens, J., concurring and dissenting). That said, under the ADEA, an 10 employee who seeks to file suit without pursuing administrative remedies must give the 11 EEOC notice of intent to sue at least thirty (30) days before filing suit. Bankston v. White, 12 345 F.3d 768, 770 (9th Cir. 2003); see 29 U.S.C. § 633a(d) (permitting suit without filing 13 EEOC complaint but requiring notice to EEOC of intent to sue); 29 C.F.R. § 1614.201(a) 14 (“As an alternative to filing a complaint under this part, an aggrieved individual may file a 15 civil action in a United States district court under the ADEA[.]”). 16 In order to exhaust administrative remedies, a plaintiff is required to file a timely4 17 charge with the EEOC to give the agency opportunity to investigate the charge. 42 U.S.C. 18 § 2000e–5(b). The Ninth Circuit has held that a federal employee has administratively 19 exhausted and therefore a district court has jurisdiction over “any charges of discrimination 20 that are ‘like or reasonably related to’ the allegations made before the EEOC, as well as 21 charges that are within the scope of an EEOC investigation that reasonably could be 22 expected to grow out of the allegations.” Leong, 347 F.3d at 1122 (quoting Sosa v. 23 Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990)). Indeed, the scope of plaintiff’s court action 24 is contingent upon the scope of the EEOC charge and investigation. Id. Thus, the factual 25 statements contained within the administrative charge are “the crucial element” in making 26 27 4 Individuals may file an administrative complaint not more than 180 days after the 28 1 such a determination. B.K.B., 276 F.3d at 1100. 2 Here, Defendant’s factual attack on this Court’s subject matter jurisdiction—relying 3 exclusively on FADs (Exhibits 1-4)—is unpersuasive.5 Mot. at 6. Without more, Exhibits 4 1-4 do not address the totality of Plaintiff’s prior claims against the EEOC. Indeed, 5 Plaintiff alleges to have filed a total of seven complaints with the EEOC, (SAC at ¶¶ 6-10), 6 but Exhibits 1-4 contain Final Administrative Decisions for just five of those seven 7 complaints. RJN at 2. Thus, the Court cannot sufficiently compare the allegations in 8 Plaintiff’s SAC with only those claims addressed in the FADs to determine administrative 9 exhaustion. See Leong, 347 F.3d at 1122 (“The specific claims made in district court 10 ordinarily must be presented to the EEOC.”). And, even if the FADs did address all seven 11 of Plaintiff’s alleged complaints, Defendant’s exclusive reliance on FADs fails to consider 12 that the FADs may not address each and every claim asserted by the Plaintiff against the 13 EEOC. See, e.g., B.K.B, 276 F.3d at 1009 (“The EEOC’s failure to address a claim asserted 14 by the plaintiff in her charge has no bearing on whether the plaintiff has exhausted her 15 administrative remedies with regard to that claim.”). 16 More importantly, FADs are not the appropriate documents with which to challenge 17 administrative exhaustion. Indeed, a plaintiff’s charges against the EEOC must be 18 “sufficiently precise to . . . describe generally the action or practices complained of.” 29 19 C.F.R. § 1601.12. That is, the charges brought by Plaintiff against the EEOC are what is 20 necessary to raise a factual jurisdictional challenge—not an agency’s FAD. See, e.g., 21 Blackman-Baham v. Kelly, 2017 WL 679514, at *16 (N.D. Cal. Feb. 21, 2017) (“the Court 22 looks to the underlying EEO Complaint to determine whether Plaintiff has exhausted her 23 claims”); Collins v. McDonald, 2016 WL 11744753, at *6 (C.D. Cal. June 2, 2016) (when 24 determining administrative exhaustion “district courts should consider whether the new 25 26 27 5 Defendant does not raise a facial challenge with respect to the Court’s subject matter 28 1 claims were actually considered in the administrative proceedings”) (citing Bell v. Donley, 2 724 F. Supp. 2d 1, 11-12 (D.D.C. 2010)). 3 Defendant cites to Newbold-Reese v. Shinseki, 2010 WL 11549569 (C.D. Cal. June 4 28, 2010) arguing that the Court should dismiss certain of Plaintiff’s allegations because 5 they were never raised and never administratively exhausted. Mot. at 7. However, 6 Newbold-Reese is distinct because in that case the court relied on the plaintiff’s EEO 7 complaints in determining administrative exhaustion. 2010 WL 11549569 at *3-4 8 (explaining that “Plaintiff properly exhausted her administrative remedies in connection 9 with the specific [relation] claim in her EEO Complaint,” but did not “file a formal EEO 10 Complaint in connection with the [harassment and constructive discharge] claims”). By 11 contrast, here, the most the Court can extrapolate from Defendant’s exclusive reliance on 12 the FADs is what has been administratively exhausted (i.e., what claims the Court has 13 subject matter jurisdiction over), not what has never been raised by Plaintiff to the EEOC.6 14 Accordingly, Defendant’s 12(b)(1) claim with respect to allegations contained in 15 SAC ¶¶ 11, 13, 15-19, 20-22, 25-32, 34-47, 51-52, 54-66, and 93 is DENIED. 16 III. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) 17 Defendant sets forth two additional grounds for dismissal under Rule 12(b)(6). First, 18 Defendant contends that certain of Plaintiff’s allegations regarding his termination are 19 barred by the doctrine of res judicata (i.e., claim preclusion)7 because some of Plaintiff’s 20 allegations “mirror his claims” in Owens v. Spencer, No. 3:18-cv-01796-JAH-JLB. Mot. 21 at 7, n.3. Second, Defendant contends many of Plaintiff’s allegations are untimely because 22 Plaintiff failed to make contact with an EEO counselor within forty-five (45) days of the 23

24 25 6 Indeed, on occasion, the EEOC may even fail to address specific claims raised by a plaintiff. See, e.g., Yamaguchi v. U.S. Dep’t of the Air Force, 109 F.3d 1475, 1480 (9th 26 Cir. 1997) (“In its investigation and decision, the EEOC only addressed Yamaguchi’s 27 sexual harassment allegations against Clark, not her claim of sex discrimination.”). 7 “Claim preclusion” has since replaced the term “res judicata” in the interest in precision. 28 1 alleged discriminatory acts as required under 29 C.F.R § 1614.105(a)(1). Mot. at 7-8. The 2 Court will address each argument in turn. 3 a. Claim Preclusion 4 As general rule, claim preclusion bars a subsequent suit arising from claims that 5 were previously raised or claims that could have been raised in the prior action. Claim 6 preclusion applies when the earlier suit: (1) involved the same claim or cause of action as 7 the subsequent suit; (2) reached a final judgment on the merits; and (3) involved the same 8 parties or privies. Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005) 9 (citations and quotations omitted). To determine if subsequent claims constitute the same 10 claim or cause of action, the Court considers: “(1) whether rights or interests established 11 in the prior judgment would be destroyed or impaired by prosecution of the second action; 12 (2) whether substantially the same evidence is presented in the two actions; (3) whether the 13 two suits involve infringement of the same right; and (4) whether the two suits arise out of 14 the same transactional nucleus of facts.” Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir. 15 1980). “The last of these criteria is the most important.” Costantini v. Trans World 16 Airlines, 681 F.2d 1199, 1202 (9th Cir. 1982) (citing Harris, 621 F.2d at 343). 17 Here, the Court finds claim preclusion does not bar Plaintiff’s claims. Indeed, in the 18 Mandate, the Ninth Circuit previously held that: 19 [Plaintiff’s] actions8 are not duplicative [of Owens v. Spencer, No. 3:18-cv- 20 01796-JAH-JLB] because the causes of actions are not the same, as the actions 21 do not arise out of the same transactional nucleus of facts and do not involve substantially the same evidence. 22 23 Mandate at 2 (citing Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 689 (9th Cir. 24 2007), overruled on other grounds by Taylor v. Sturgell, 533 U.S. 880 (2008)). And, 25

26 27 8 In its Mandate, the Ninth Circuit considered all of Plaintiff’s active suits including: 3:18- cv-1579, 3:19-cv-0012, and 3:18-cv-1852. Mandate at 2. 28 1 though the Mandate reversed dismissal finding the doctrine of claim-splitting did not apply 2 to this matter, Adams makes clear that the Ninth Circuit borrows its claim-splitting analysis 3 from claim preclusion. Adams, 487 F.3d at 688 (“To determine whether a suit is 4 duplicative, we borrow from the test for claim preclusion.”). Because this Court is 5 required to follow the Mandate and must refrain from varying or examining it except to 6 the extent necessary to execute its directive, the Court DENIES Defendant’s motion to 7 dismiss based on claim preclusion. 8 b. Timeliness 9 The federal rules promulgated by the EEOC set forth specific “[p]re-complaint 10 processing” requirements for federal employees alleging discrimination by a governmental 11 agency. See 29 C.F.R. § 1614.105. Before bringing an administrative complaint, a federal 12 employee “must consult a[n EEO] Counselor” to try to informally resolve the matter and 13 “must initiate contact with a Counselor within 45 days of the date of the matter alleged to 14 be discriminatory[.]” 29 C.F.R. § 1614.105(a); see also Monk v. Dejoy, 2023 WL 2870363, 15 at *6 (N.D. Cal. Apr. 10, 2023) (“[t]his 45-day requirement is considered, in the context of 16 Rule 12(b)(6) analysis, as a condition precedent to suit”). Notwithstanding waiver, 17 estoppel, or equitable tolling, “failure to comply with this regulation [is] . . . fatal to a 18 federal employee’s discrimination claim in federal court.” Kraus v. Presidio Tr. Facilities 19 Div./Residential Mgmt. Branch, 572 F.3d 1039, 1043 (9th Cir. 2009) (alteration and 20 omission in original). 21 The start of the 45-day clock “depends on whether the claim is based on discrete acts 22 or a single discriminatory employment practice.” Blackman-Baham, 2017 WL 679514, at 23 *14. “Each discrete discriminatory act starts a new clock for filing charges alleging that 24 act.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Thus, discrete 25 discriminatory acts (e.g., allegations of unlawful termination, refusal to promote, hire, or 26 transfer) are not actionable if time barred. Blackman-Baham, 2017 WL 679514, at *14. 27 However, discriminatory employment practices (e.g., hostile work environment) by their 28 very nature involve repeated conduct that may occur “over a series of days or perhaps years 1 and, in direct contrast to discrete acts, a single act of harassment may not be actionable on 2 its own.” Morgan, 536 U.S. at 115. Consequently, as long as at least one act contributing 3 to the alleged discriminatory practice occurs within the statutory time frame, the entire 4 discriminatory employment practice is considered timely. Id. at 117.9 5 Plaintiff has not argued wavier, exhaustion, or equitable tolling to excuse timeliness 6 under 29 C.F.R. § 1614.105(a). The question before this Court is thus whether Plaintiff 7 initiated contact with an EEO Counselor within at least 45 days of the alleged 8 discriminatory events before filing his administrative complaints with the EEOC. 9 Here, Defendant asserts that “many” of Plaintiff’s allegations are untimely because 10 Plaintiff failed to contact an EEO counselor within 45 days of the alleged discriminatory 11 acts, but only points to two specific claims—SAC ¶¶ 75-76 (alleging Plaintiff was 12 subjected to a hostile work environment when moved into a different building away from 13 all personnel without sufficient ventilation and without access to restrooms). Mot. at 7-8. 14 Defendant cites to Exhibit 2 (“FAD 2”) arguing that Plaintiff’s disparate treatment claims 15 were not timely raised and therefore must be dismissed. Mot. at 7. However, the 16 Administrative Judge only dismissed Plaintiff’s claims to the extent they involved discrete 17 discriminatory acts prior to December 12, 2015 (45 days before Plaintiff’s contact with the 18 EEO Counselor). RJN, Ex. 2 at 3. Those claims were not, however, time barred under the 19 hostile work environment analysis. Id. at 3 (“. . . Claims A through D are dismissed to the 20 extent they allege disparate treatment. Nevertheless, Claims A through D will be addressed 21 on the merits as discrete acts for purposes of discussion. The claims will also be considered 22 under a hostile work environment analysis.”). 23 24 25 26 9 Because determining whether a discrimination claim involves a discrete discriminatory 27 act or a discriminatory employment practice is a fact-intensive question, district courts on occasion may decline in addressing timeliness at the pleading stage. Blackman-Baham, 28 1 And, though Plaintiff maintains that he timely raised his claims with the EEOC and 2 exhausted his remedies,10 he does not specify as to if or when he contacted an EEO 3 counselor. See generally SAC. Because neither party has provided the EEO counselor’s 4 reports nor the EEOC complaints in this matter, the Court turns to the FADs provided by 5 Defendant which state: 6 • On October 25, 2011, Plaintiff requested Equal Employment Opportunity 7 (EEO) Counseling. RJN, Ex. 1 at 2. 8 • On January 26, 2016, Plaintiff made contact with an EEO Counselor. RJN, 9 Ex. 2 at 3. 10 The FADs, however, are of minimal help to the Court because they include only two 11 dates for Plaintiff’s alleged seven EEOC complaints. Because the record does not contain 12 allegations or evidence reflecting all instances that Plaintiff initiated contact with an EEO 13 Counselor, the Court cannot conclusively determine timeliness of the alleged 14 discriminatory employment practices. Nevertheless, the Court concludes that Plaintiff is 15 time barred from alleging the following discrete discriminatory acts contained in 16 SAC ¶¶ 75-76, including: (1) “Richard Bauer and Charles Duprey physically escorted the 17 Plaintiff out of building 77 to building 76 four blocks away from the code 400 contract 18 department isolating the Plaintiff,” (SAC ¶ 75); and (2) Plaintiff was “placed in a room 19 without adequate ventilation, [] heating, [and the] windows [were] sealed shut which could 20 not be disturbed due to lead-based paint,” which “had no access to a restroom [sic] to 21 relieve himself of bodily functions” resulting in his admission to the VA hospital 22 emergency room. SAC ¶ 76. Accordingly, the Court GRANTS Defendant’s Motion with 23 respect to those discrete discriminatory acts in SAC ¶¶ 75-76. The Court, however, 24 DENIES Defendant’s Motion with respect to Plaintiff’s remaining allegations and to the 25 extent Plaintiff’s claims in SAC ¶¶75-76 allege a hostile work environment. 26 27 28 l CONCLUSION AND ORDER 2 For the reasons set forth above, IT IS HEREBY ORDERED: 3 (1) Defendant’s Request for Judicial Notice is GRANTED; 4 (2)Defendant’s Motion to Dismiss pursuant to Pursuant to Fed. R. Civ. P. 5 12(b)(1) is DENIED; and 6 (3)Defendant’s Motion to Dismiss pursuant to Pursuant to Fed. R. Civ. P. 7 12(b)(6) is GRANTED IN PART and DENIED IN PART. 8 IT IS SO ORDERED. 9 |} DATED: March 26, 2024 yt M&S 11 2 JOJFIN A. HOUSTON: UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13