Pontier v. Garland

• Court: District Court, S.D. California
• Decided: December 11, 2024
• Docket: 3:24-cv-00966
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL PONTIER, Case No.: 24-cv-00966-AJB-JLB Plaintiff, 12 ORDER GRANTING DEFENDANT’S v. MOTION TO PARTIALLY DISMISS 13 PLAINTIFF’S COMPLAINT MERRICK B. GARLAND, in his official 14 capacity as ATTORNEY GENERAL OF (Doc. No. 7) 15 THE UNITED STATES, Defendant. 16

17 Presently pending before the Court is Defendant Attorney General Merrick 18 Garland’s Motion to Partially Dismiss Plaintiff Daniel Pontier’s Complaint pursuant to 19 Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 7.) Plaintiff filed an opposition to the 20 motion to dismiss (Doc. No. 9), to which Defendant replied (Doc. No. 10). Pursuant to 21 Civil Local Rule 7.1.d.1, the Court finds the instant matter suitable for determination on 22 the papers and without oral argument. For the reasons stated herein, the Court GRANTS 23 the Motion to Partially Dismiss Plaintiff’s Complaint. 24 I. BACKGROUND 25 This case is an employment discrimination and retaliation suit against Attorney 26 General Merrick B. Garland, sued here in his official capacity as the head of the 27 Department of Justice and federal Bureau of Prisons (“BOP” or “Agency”). 28 1 A. Plaintiff’s Employment 2 Plaintiff is a former employee of the BOP, primarily as a Correctional Systems 3 Officer (“CSO”), from 2003 until January 2020. (Complaint (“Compl.”), Doc. No. 1, ¶¶ 3, 4 5.) Beginning around 2008–2009, Plaintiff worked at the BOP’s Metropolitan Correctional 5 Center in downtown San Diego, California. (Id. ¶ 5.) 6 Plaintiff states he is a Black and Latino gay male who has been diagnosed with 7 anxiety, depression, and a panic disorder, all of which were known by Defendant. (Id. ¶ 8.) 8 He asserts that for a period of years, he was subjected to a hostile work environment on the 9 basis of sex and/or sexual orientation and, after reporting the continuing harassment to 10 supervisors, was subjected to retaliation from BOP management. (Id. ¶ 9.) 11 Plaintiff alleges his co-worker, Officer Gallegos, began to publicly make anti-gay 12 comments, both behind his back and when he was present, and she frequently used 13 homosexual slurs and “jokes.” (Id. ¶ 13.) Plaintiff reported these hostile comments to his 14 supervisors, who were dismissive of his concerns. (Id. ¶ 14.) On or about May 27, 2016, 15 Officer Gallegos “outed” Plaintiff as a gay man to a number of his co-workers in a high- 16 traffic area of the workplace, including employees from different departments and inmates. 17 (Id. ¶ 15.) 18 B. Plaintiff’s EEO Complaints, Alleged Retaliation, and Subsequent EEO 19 Proceedings 20 On September 22, 2016, Plaintiff contacted his department’s Equal Employment 21 Opportunity (“EEO”) point-of-contact and requested informal or pre-complaint 22 counseling. (Id. ¶ 16.) Thereafter, Plaintiff filed a formal EEO complaint (BOP-2016- 23 01176) based on the hostile work environment he was subjected to, his supervisor’s 24 indifference to his complaints, and retaliation by BOP management for Plaintiff reporting 25 the harassment. (Id. ¶ 17.) As Plaintiff’s formal EEO complaint was accepted and referred 26 for investigation, his department’s managers and supervisors continued to punish Plaintiff 27 for making reports of discrimination and harassment. (Id. ¶ 18.) For example, Defendant 28 separated Officer Gallegos and Plaintiff by leaving Officer Gallegos in place and assigning 1 Plaintiff to work in the mail room. (Id. ¶ 21.) While the reassignment was temporary, 2 Defendant moved Plaintiff to a different shift once placed back in his regular assignment 3 as a CSO. (Id.) Officer Gallego, by contrast, was not moved to another department and her 4 schedule was unchanged. (Id.) 5 After the close of the EEO investigation in BOP-2016-01176, but before the 6 requested EEOC hearing in July 2021, Defendant continued to retaliate against Plaintiff. 7 (Id. ¶ 23.) Thus, Plaintiff initiated a new EEO proceeding to seek redress for the new 8 violations, and after the pre-complaint counseling phase, filed a second formal EEO 9 complaint (BOP-2019-01605). (Id. ¶ 24.) This second EEO complaint addressed 10 Defendant’s discrimination and retaliation that occurred in 2019 and briefly in January 11 2020. (Id. ¶ 25.) 12 On or about January 30, 2019, Defendant furloughed Plaintiff, pretextually placing 13 him on administrative leave and ordering Plaintiff to undergo a Fitness for Duty 14 examination before he would be permitted to return to work. (Id. ¶ 26.) The predicate for 15 this furlough arose from an off-duty phone call from one of Plaintiff’s supervisors, 16 Supervisor Zuniga, to Plaintiff. (Id. ¶ 27.) At the time of the phone call, Plaintiff had been 17 drinking alcohol, “as had become a more frequent habit at the time, a consequence of his 18 spiking anxiety and depression because of the hostile work environment he encountered on 19 a daily basis at work with no apparent end in sight.” (Id. ¶ 30.) Supervisor Zuniga alleged 20 Plaintiff made some statements on the phone call that were interpreted as a threat. (Id. 21 ¶ 31.) Following Plaintiff’s Fitness for Duty examination, Plaintiff was found unfit for duty 22 as a CSO and that Plaintiff’s “current course of treatment (if any) would “not substantially 23 improve functional ability[.]” (Id. ¶ 33.) 24 On or about November 14, 2019, Defendant issued a Notice of Proposed Removal 25 letter to Plaintiff. (Id. ¶ 35.) Thereafter, Plaintiff amended his second EEO complaint to 26 include Defendant’s stated intent to terminate his employment with the BOP. (Id.) On or 27 about January 13, 2020, Defendant then issued a Notice of Removal to Plaintiff. (Id. ¶ 36.) 28 Plaintiff immediately notified EEO of the new adverse employment action while the 1 investigation was still open and ongoing. (Id. ¶ 37.) When the investigation closed on his 2 2019 EEO complaint, Plaintiff requested an EEO hearing for those claims and requested 3 the two matters be joined as one. (Id. ¶ 39.) The EEOC declined to merge the two EEO 4 complaints, and Plaintiff withdrew his request for hearing and opted to wait for Defendant 5 to issue a Final Agency Decision (“FAD”). (Id. ¶ 40.) 6 On September 30, 2021, Administrative Judge Robbins-Umel issued her Decision 7 on Plaintiff’s EEO complaint, finding that Plaintiff proved by a preponderance of the 8 evidence that Defendant subjected Plaintiff to harassment based on sexual orientation, and 9 that Defendant retaliated against Plaintiff for his reporting harassment based on sexual 10 orientation when management transferred Plaintiff to the mail room and reassigned him to 11 the evening shift. (Id. ¶ 43.) Administrative Judge Robbins-Umel awarded Plaintiff 12 damages and attorney’s fees. (Id.) 13 On March 5, 2024, Defendant issued its FAD on the BOP-2019-01605 complaint 14 and Rights of Appeal Letter. (Id. ¶ 46.) In the FAD, Defendant found it was not liable for 15 the claims raised in Plaintiff’s second EEO complaint. (Id.) Defendant thereafter placed 16 Plaintiff on administrative leave and ultimately terminated his employment. (Id.) 17 C. Procedural History 18 Plaintiff filed the Complaint in this Court on May 31, 2024, alleging three causes of 19 action: (1) discrimination on the basis of sex, sexual orientation, and/or disability in 20 violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16 21 (“Title VII”), and the Rehabilitation Act of 1973, 29 U.S.C. § 791 (the “Rehabilitation 22 Act”); (2) retaliation/reprisal in violation of Title VII, 42 U.S.C. § 2000e-5; and (3) failure 23 to accommodate disability in violation of the Rehabilitation Act. (See Compl.) 24 On August 13, 2024, Defendant moved for partial dismissal of Plaintiff’s claims; 25 specifically, Defendant moved to dismiss Plaintiff’s claims related to his removal for 26 failure to exhaust his administrative remedies, and his discrimination claims based on sex 27 and sexual orientation for failure to state a claim. (Doc. No. 7.) Plaintiff filed his response 28 on August 28, 2024. (Doc. No. 9.) On September 3, 2024, Defendant filed its Reply, and 1 states it “will withdraw its motion to dismiss [Plaintiff’s removal] claim for failure to 2 exhaust, while reserving the right to revisit it at summary judgment following development 3 of his issue during fact discovery.” (Doc. No. 10 at 2.) Thus, the Court solely addresses 4 whether Plaintiff’s discrimination claim passes muster under Federal Rule of Civil 5 Procedure 12(b)(6). 6 II. LEGAL STANDARD 7 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal 8 sufficiency of the pleadings and allows a court to dismiss a complaint if the plaintiff has 9 failed to state a claim upon which relief can be granted. See Conservation Force v. Salazar, 10 646 F.3d 1240, 1241 (9th Cir. 2011) (citing Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 11 2001)). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading that states a claim 12 for relief contain “a short and plain statement of the claim showing that the pleader is 13 entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). The function of this pleading requirement is to 14 “‘give the defendant fair notice of what the . . . claim is and the grounds upon which it 15 rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 16 355 U.S. 41, 47 (1957)). 17 A complaint will survive a Rule 12(b)(6) motion to dismiss if it contains “enough 18 facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial 19 plausibility when the plaintiff pleads factual content that allows the court to draw the 20 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 21 Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers ‘labels and conclusions’ or ‘a 22 formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting 23 Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, 24 supported by mere conclusory statements, do not suffice.” Id. “While legal conclusions can 25 provide the framework of a complaint, they must be supported by factual allegations.” Id. 26 at 679. Accordingly, dismissal for failure to state a claim is proper where the claim “lacks 27 a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 28 1 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008); see Los 2 Angeles Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 800 (9th Cir. 2017). 3 In reviewing a Rule 12(b)(6) motion to dismiss, a district court must “‘accept the 4 factual allegations of the complaint as true and construe them in the light most favorable 5 to the plaintiff.’” Los Angeles Lakers, 869 F.3d at 800 (quoting AE ex rel. Hernandez v. 6 Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012)). But a court need not accept “legal 7 conclusions” as true. Iqbal, 556 U.S. at 678. “Further, it is improper for a court to assume 8 the claimant “can prove facts that it has not alleged or that the defendants have violated the 9 . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. 10 Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). In addition, a court may 11 consider documents incorporated into the complaint by reference and items that are proper 12 subjects of judicial notice. See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 13 2010). If the court dismisses a complaint for failure to state a claim, it must then determine 14 whether to grant leave to amend. See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 15 1995). “A district court should grant leave to amend . . . unless it determines that the 16 pleading could not possibly be cured by the allegation of other facts.” Id. 17 III. DISCUSSION 18 As relevant here, Plaintiff brings his first cause of action in part for discrimination 19 on the basis of sex and sexual orientation under Title VII. (Compl. ¶¶ 48–54.) Defendant 20 moves to dismiss Plaintiff’s first claim for discrimination under Rule 12(b)(6), arguing 21 Plaintiff’s Title VII claim is subject to dismissal because Plaintiff fails to make a prima 22 facie showing of discrimination based on sex and sexual orientation. (Doc. No. 7 at 5.) 23 Because Defendant solely moves to dismiss Plaintiff’s first claim to the extent it relies on 24 discrimination based on sex or sexual orientation, the Court finds Defendant’s motion 25 waived as to Plaintiff’s disability claim under the Rehabilitation Act. (See id. at 5–6.) 26 Title VII prohibits a covered “employer” from discharging or discriminating 27 “against any individual with respect to his compensation, terms, conditions, or privileges 28 of employment, because of such individual’s race, color, religion, sex, or national origin[.]” 1 42 U.S.C. § 2000e-2(a)(1). The United States Supreme Court has distinguished between 2 two types of discrimination: “discrete discriminatory acts” and “hostile environment 3 claims.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002), superseded by 4 statute on other grounds, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 5 Stat. 5. Discrete retaliatory or discriminatory acts occur on the day it happens and is a one- 6 time occurrence. Id. at 110–11. Examples are “failure to promote, denial of transfer, or 7 refusal to hire.” Id. at 114. On the other hand, a hostile work environment involves repeated 8 conduct and occurs over a series of days or years and a single act of harassment may not 9 be actionable on its own. Id. at 115. A hostile work environment is comprised of “separate 10 acts that collectively constitute one ‘unlawful employment practice.’” Id. at 117. 11 Defendant asserts the majority of the factual allegations in Plaintiff’s Complaint 12 arise from his 2016 EEO complaint, which have already been adjudicated and are not 13 before this Court. (Doc. No. 7 at 5.) Rather, the new allegations, raised in the second EEO 14 complaint, solely relate to Plaintiff being placed on administrative duty after his 15 conversation with Supervisor Zuniga, the subsequent Fitness for Duty exam, the resulting 16 Notice of Removal, and ultimately, Plaintiff’s termination. (Id.) To this point, the Court 17 agrees that its review is limited to the events arising from Plaintiff’s second EEO 18 complaint, as Plaintiff’s first EEO complaint was previously adjudicated in his favor. 19 Defendant further asserts Plaintiff’s recitation of facts fails to allege an inference that the 20 Agency’s actions as to these events were motivated by his sex or sexual orientation. (Id.) 21 Plaintiff responds that his Complaint states a valid claim, as the discriminatory motive 22 suggested by the adverse employment actions is part of a continuing pattern of conduct 23 deriving from the actions underlying his earlier EEO complaint. (Doc. No. 9 at 7.) 24 A. Discrete Discriminatory Acts 25 To establish a prima facie case of sex discrimination under Title VII, a plaintiff must 26 show: (1) he belongs to a protected class, (2) he performed his job satisfactorily, (3) he 27 suffered an adverse employment action, and (4) the employer treated him differently 28 because of his membership in the protected class. Cornwell v. Electra Cent. Credit Union, 1 439 F.3d 1018, 1028 (9th Cir. 2006). The fourth element—that the plaintiff was subjected 2 to adverse employment action because of his membership in a protected class—can be 3 alleged either through direct evidence of discrimination, such as a supervisor’s derogatory 4 comment about his race or gender, see, e.g., E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1050 5 (9th Cir. 2009), or through circumstantial evidence, which may include allegations that 6 similarly situated individuals outside the plaintiff’s protected class were treated more 7 favorably or that other circumstances surrounding the at-issue employment action give rise 8 to an inference of discrimination, see Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1105– 9 06 (9th Cir. 2008). “While an employment discrimination plaintiff need not plead a prima 10 facie case of discrimination to survive a motion to dismiss, courts generally take each 11 element in turn in determining whether [a plaintiff] has stated a plausible claim for relief.” 12 Howell v. STRM LLC – Garden of Eden, No. 20-cv-00123-JSC, 2020 WL 5816582 at *3 13 (N.D. Cal. Sept. 30, 2020) (quoting Brown v. FPI Mgmt., Inc., No. C–11–05414–YGR, 14 2012 WL 629182, at *3 (N.D. Cal. Feb. 27, 2012)) (internal quotation marks omitted). 15 Plaintiff has alleged the first element of a Title VII claim, as the Complaint identifies 16 Plaintiff as a gay man. (Compl. ¶ 8); Bostock v. Clayton Cnty., 590 U.S. 644, 662 (2020) 17 (finding that discrimination based on sexual orientation is also a form of sex discrimination 18 under Title VII because “[f]or an employer to discriminate against employees for being 19 homosexual or transgender, the employer must intentionally discriminate against 20 individual men and women in part because of sex”). Therefore, Plaintiff is part of a 21 protected class based on his sex and sexual orientation. 22 As to the second element, Plaintiff affirmatively alleges he performed his job 23 adequately. Specifically, the Complaint states that “[b]y all accounts, Plaintiff was an 24 outstanding correctional officer. Over the years of his employment with the BOP, Plaintiff 25 consistently received positive performance reviews.” (Compl. ¶ 6); see, e.g., Sheppard v. 26 David Evans & Assoc., 694 F.3d 1045, 1050 (9th Cir. 2012) (finding the plaintiff plausibly 27 alleged the second element where she alleged that her performance was “satisfactory or 28 better” and that “she received consistently good performance reviews”); Brown, 2012 WL 1 629182, at *4 (finding the plaintiff plausibly alleged the second element where she alleged 2 that she performed her job satisfactorily, received positive performance reviews, and was 3 asked to help train other employees). Because Plaintiff alleges he performed his job 4 adequately, he has established the second element of a Title VII claim. 5 Plaintiff has satisfied the third element. Plaintiff alleges he was placed on 6 administrative suspension, demanded to undergo a fitness-for-duty psychological 7 examination before permitted to return to work, received a Notice of Proposed Removal, 8 and was ultimately terminated because of his protected status as a gay male. (Compl. ¶ 52.) 9 An adverse employment action generally is one that “materially affect[s] the compensation, 10 terms, conditions, or privileges of . . . employment.” Chuang v. Univ. of Cal. Davis, 225 11 F.3d 1115, 1126 (9th Cir. 2000). As to the fitness for duty exam, “[u]nder EEOC’s 12 regulations, employers are allowed to require medical examinations, such as Fitness for 13 Duty examinations, in an effort to comply with the interactive process and discover 14 necessary accommodations.” Carlson v. City of Spokane, No. 13–CV–0320–TOR, 2014 15 WL 5334264, at *10 (E.D. Wash. Oct. 20, 2014) (citing 29 C.F.R. § 1630.14(c)(1)(i)). 16 Here, Plaintiff does not allege facts showing that the fitness exam materially affected his 17 compensation or the terms, conditions, or privileges of his employment, so it does not 18 constitute an adverse employment action. See McCarthy v. Brennan, No. 15-cv-03308- 19 JSC, 2016 WL 946099, at *5 (N.D. Cal. Mar. 14, 2016) (holding that a fitness exam—on 20 its own—was not an actionable adverse employment action); McFadden v. El Centro, No. 21 13CV1580 JM DHB, 2014 WL 3002364, at *3 (S.D. Cal. July 2, 2014) (holding that 22 requiring the plaintiff to submit to a fitness exam, without more, was not an actionable 23 adverse employment action); Bellusa v. Bd. of Educ. of the Oakland Unified Sch. Dist., No. 24 C-13-2930 JSC, 2013 WL 6443374, at *8 (N.D. Cal. Dec. 9, 2013) (noting that the plaintiff 25 must allege more to show that even repeated fitness exam orders were adverse employment 26 actions, but finding an adverse employment action based on other conduct). Moreover, it 27 should not go without mention that Defendant only scheduled the fitness exam after 28 Plaintiff made remarks to his supervisor which were found threatening. (See Compl. ¶ 31.) 1 Additionally, Plaintiff has not alleged any facts regarding his administrative leave as to 2 whether it affected any term, condition, or benefit of employment, including whether the 3 leave was paid or unpaid. (See generally id.) Thus, without more, the Court finds this does 4 not constitute an adverse employment action. See Franks v. City of Santa Ana, No. SACV 5 15-108 JVS (DFMx), 2015 WL 13919157, at *3–4 (C.D. Cal. Apr. 27, 2015) (holding the 6 plaintiff sufficiently pled an adverse employment action based on administrative leave 7 where she was ordered not to have contact with numerous individuals and had to surrender 8 her city vehicle and duty weapon); Gannon v. Potter, No. C 05-2299 SBA, 2006 WL 9 3422215, at *4–5 (N.D. Cal. Nov. 28, 2006) (holding that paid administrative leave is not 10 an adverse employment action and noting several Circuits have reached the same result). 11 However, Plaintiff’s allegations regarding termination materially affect the conditions of 12 employment sufficient to constitute an adverse employment action. See Brooks v. City of 13 San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) (termination constitutes an adverse 14 employment action); Rux v. Starbucks Corp., No. 2:05CV02299MCEEFB, 2007 WL 15 1470134, at *7 (E.D. Cal. May 18, 2007) (“Plaintiff’s termination constitutes [an] adverse 16 employment action.”). 17 Plaintiff fails to adequately allege the fourth element: that Defendant terminated his 18 employment because of his sex or sexual orientation. Under the “discrete discriminatory 19 act” analysis, the Complaint lacks factual allegations of direct evidence of discrimination 20 regarding Plaintiff’s termination, such as an allegation that a supervisor made a derogatory 21 comment about Plaintiff’s sex or sexual orientation. See, e.g., Boeing Co., 577 F.3d at 1050. 22 Nor does Plaintiff allege, for instance, that Defendant did not terminate other heterosexual 23 employees who engaged in similar conduct. See Vasquez v. Cnty. of L.A., 349 F.3d 634, 24 641 (9th Cir. 2003), as amended (Jan. 2, 2004) (“[I]ndividuals are similarly situated when 25 they have similar jobs and display similar conduct”); Lin v. Potter, No. C-10-03757-LB, 26 2011 WL 1522382, at *11–12 (N.D. Cal. Apr. 21, 2011) (finding the plaintiff failed to meet 27 the fourth element where she failed to allege that the employee who received a promotion 28 1 instead of her was similarly situated regarding eligibility for promotion and failed to allege 2 he was a different race than her). 3 B. Hostile Work Environment 4 Next, a prima facie case for a hostile work environment under Title VII requires a 5 plaintiff to show (1) he was subjected to verbal or physical conduct because of his status 6 in a protected class; (2) the conduct was unwelcome; and (3) the conduct “was sufficiently 7 severe or pervasive to alter the conditions of the plaintiff’s employment and create an 8 abusive work environment.” Vasquez, 349 F.3d at 642; see also Nichols v. Azteca Rest. 9 Enter., Inc., 256 F.3d 864, 871 (9th Cir. 2001). The alleged conduct must establish that 10 “the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult.’” 11 Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citation omitted) (quoting 12 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). 13 As noted above, Plaintiff asserts he was discriminated against under Title VII on the 14 basis of his sex and sexual orientation. However, Plaintiff’s allegations do not establish 15 conduct supporting a hostile work environment under Title VII. Plaintiff alleges he was 16 placed on administrative leave after the telephone call with Supervisor Zuniga, in which 17 Plaintiff’s unspecified statements were “interpret[ed] as a threat.” (Compl. ¶ 31.) While on 18 administrative leave, and due to the phone call, Plaintiff underwent a fitness for duty 19 examination, which resulted in a finding that he was unfit for duty. (Id. ¶ 33.) Thereafter, 20 Defendant issued a Notice of Proposed Removal, which ultimately resulted in his removal. 21 (Id. ¶¶ 35, 47.) Plaintiff alleges Defendant’s adverse actions show a continuing pattern of 22 wrongful conduct, which continues in nature from Plaintiff’s first EEO complaint. (Doc. 23 No. 9 at 8–9.) However, Plaintiff fails to allege any facts that he was subjected to verbal or 24 physical conduct because of his status in a protected class that was “sufficiently severe or 25 pervasive to alter the conditions of [his] employment and create an abusive work 26 environment.” Vasquez, 349 F.3d at 642. 27 /// 28 /// 1 |}IV. CONCLUSION 2 Based on the foregoing, the Court DISMISSES WITH LEAVE TO AMEND 3 || Plaintiff's first cause of action to the extent it asserts discrimination on the basis of sex or 4 ||sexual orientation under Title VU. Should Plaintiff choose to do so, he may file an 5 || Amended Complaint by December 27, 2024. Defendant must file a responsive pleadin 6 later than January 10, 2025. 7 8 IT IS SO ORDERED. 9 || Dated: December 11, 2024 © ¢ 10 Hon, Anthony J.Battaglia 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12