Robinson v. Ahuja

Opinion

1 2 3 6 7 DOUGLAS E. ROBINSON, Case No. 20-cv-07907-JSC

8 Plaintiff, ORDER RE: MOTION TO DISMISS 9 v. FIRST AMENDED COMPLAINT

10 KIRAN AHUJA, Re: Dkt. No. 23 Defendant. 11

12 13 Plaintiff initiated this federal employment discrimination lawsuit in November 2020, and 14 Defendant moved to dismiss the complaint.1 (Dkt. Nos. 1, 13.)2 The Court denied the motion as 15 to Plaintiff’s claim for disparate treatment race discrimination regarding the failure to promote in 16 FY 2014. The Court dismissed with leave to amend Plaintiff’s claims for hostile work 17 environment, retaliation, and age discrimination, and dismissed with prejudice Plaintiff’s request 18 for punitive damages. (Dkt. No. 18 at 14–15.) In granting leave to amend, the Court noted that 19 Plaintiff could not add any new claims (as opposed to amended claims) without first seeking the 20 Court’s permission. (Id. at 15.) 21 Thereafter, Plaintiff filed a First Amended Complaint (“FAC”). (Dkt. No. 20.) Now 22 before the Court is Defendant’s motion to dismiss. (Dkt. No. 23.) Plaintiff filed an opposition 16 23 days after the deadline.3 (Dkt. No. 27.) After carefully considering the parties’ briefing, and 24 25 1 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 5, 7.) 26 2 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents. 27 3 Although Plaintiff is proceeding without representation by a lawyer, he remains bound by the 1 having had the benefit of oral argument on November 18, 2021, the Court GRANTS in part and 2 DENIES in part Defendant’s motion to dismiss. 4 The Court incorporates by reference its summary of the allegations in Plaintiff’s original 5 complaint. (See Dkt. No. 18 at 1–4.) The FAC includes additional factual allegations in support 6 of Plaintiff’s claims for hostile work environment, retaliation, and age discrimination. (See Dkt. 7 No. 20.) 8 I. Hostile Work Environment 9 Hostile work environment is a theory of race discrimination under Title VII of the Civil 10 Rights Act of 1964 (“Title VII”). See Manatt v. Bank of Am., NA, 339 F.3d 792, 797 (9th Cir. 11 2003). To state a claim for hostile work environment, a plaintiff must allege that: “(1) he was 12 subjected to verbal or physical conduct because of his race, (2) the conduct was unwelcome, and 13 (3) the conduct was sufficiently severe or pervasive to alter the conditions of his employment and 14 create an abusive work environment. In considering whether the discriminatory conduct was 15 severe or pervasive, we look to all the circumstances, including the frequency of the 16 discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere 17 offensive utterance; and whether it unreasonably interferes with an employee’s work 18 performance.” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1122 & n.3 (9th Cir. 19 2008). Plaintiff alleges that he suffered “discriminatory statements, threats, and conduct,” was 20 forced to “participate in . . . their policy of refusing promotions based on race,” and endured 21 “toxicity” from a white manager who “openly proclaimed that he was recruiting people that are 22 like him.” (Dkt. No. 20 ¶¶ 73, 77, 82.) 23 A. Administrative Exhaustion 24 To bring a claim of discrimination under Title VII, including a hostile work environment 25 claim, a federal employee must timely exhaust his administrative remedies. Leong v. Potter, 347 26 F.3d 1117, 1121–22 (9th Cir. 2003). In particular, the specific claims made in the district court 27 1 action must have been presented in the Equal Employment Opportunity (“EEO”) administrative 2 process. Id. at 1122. Plaintiff’s administrative complaint stated,

3 My complaint is that from October 1, 2011 thru the current date, I have not been promoted to GS-201-13 [sic], full performance level 4 because of a continuous systematic pattern of employment discrimination. I am over the age of 50, and an African American 5 male. This employment discrimination includes pay, assignments and denial of promotional opportunities for other vacancies at OPM 6 and other federal agencies. There is a concentration of employees who are over the age of 40, African American, male and female and 7 not being promoted. The remedy I seek is immediate promotion to the GS-13 level with all back pay from October 1, 2011 to the present 8 with interest and all entitled benefits, and end the employment discrimination and favoritism in HR Strategies. 9 10 (Dkt. No. 23-1 at 3.)4 This complaint does not allege a claim for a racially hostile work 11 environment; instead, it alleges a claim for racial disparate treatment in promotions. 12 Nonetheless, courts in the Ninth Circuit construe the language of EEO complaints “with 13 utmost liberality since they are made by those unschooled in the technicalities of formal pleading.” 14 B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002). Thus, the hostile work 15 environment claim may nonetheless be deemed exhausted if it falls “within the scope of the 16 [EEO]’s actual investigation or an [EEO] investigation that could reasonably be expected to grow 17 out of the charge.” Vasquez v. City of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2003). 18 Allegations of discrimination not included in the plaintiff’s administrative charge may still be 19 considered by a federal court if “the new claims are like or reasonably related to the allegations 20 contained in the [EEO] charge.” B.K.B., 276 F.3d at 1100 (cleaned up). “In determining whether 21 a plaintiff has exhausted allegations that []he did not specify in [his] administrative charge, it is 22

23 4 The Court takes judicial notice of Plaintiff’s administrative complaint, attached to Defendant’s motion to dismiss. “[D]ocuments whose contents are alleged in a complaint and whose 24 authenticity no party questions, but which are not physically attached to the pleading, may be 25 considered in ruling on a Rule 12(b)(6) motion to dismiss.” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 26 (9th Cir. 2002). “Although mere mention of the existence of a document is insufficient to incorporate the contents of a document, the document is incorporated when its contents are 27 described and the document is integral to the complaint.” Tunac v. United States, 897 F.3d 1197, 1 appropriate to consider such factors as the alleged basis of the discrimination, dates of 2 discriminatory acts specified within the charge, perpetrators of discrimination named in the 3 charge, and any locations at which discrimination is alleged to have occurred.” Id. “In addition, 4 the court should consider plaintiff’s civil claims to be reasonably related to allegations in the 5 charge to the extent that those claims are consistent with the plaintiff’s original theory of the 6 case.” Id. 7 None of these factors plausibly support an inference that Plaintiff exhausted a claim for a 8 racially hostile work environment. Plaintiff’s administrative complaint did allege race as the basis 9 of discrimination, which could apply equally to a hostile work environment claim and a disparate 10 treatment failure to promote claim. But the complaint identified as “date(s) of alleged 11 discriminatory event” September 30, 2011, September 30, 2012, September 30, 2013, and 12 September 30, 2014, which are discrete dates on which he was not promoted. (Dkt. No. 23-1 at 13 1.) Plaintiff identified “the resolution(s) you are seeking” as “[p]romotion to GS 13, with back 14 pay, interest, retirement and TSP contributions. Forward pay for missed or lost opportunity 15 promotional cost to the GS 14 both internal and external[.]” (Id. at 2.) The complaint’s reference 16 to “a continuous systematic pattern of employment discrimination” comes the closest to claiming a 17 hostile work environment, but falls short. (Id. at 3.) Thus, the administrative complaint focuses 18 squarely on failure to promote. A hostile work environment claim is not “consistent” with that 19 “original theory of the case” and has not been administratively exhausted as a matter of law. 20 B.K.B., 276 F.3d at 1100. 21 Accordingly, the motion to dismiss Plaintiff’s hostile work environment claim for failure 22 to exhaust administrative remedies is GRANTED. 23 II. Retaliation 24 To state a claim for retaliation under Title VII or the Age Discrimination in Employment 25 Act (“ADEA”), a plaintiff must allege that: (1) “[]he engaged in a protected activity”; (2) his 26 employer “subjected [him] to an adverse employment action”; and (3) there is a causal link 27 “between the protected activity and the adverse action.” Poland v. Chertoff, 494 F.3d 1174, 1179– 1 and September 2014 by “informally questioning the propriety of the promotions of similarly 2 situated Caucasian employees.” (Dkt. No. 20 ¶ 61.) He alleges that, as a result, he suffered 3 adverse employment actions including a poor performance evaluation and denial of promotion on 4 September 30, 2014. (Id. ¶¶ 62–63, 67.) 5 A. Administrative Exhaustion 6 As with the hostile work environment claim, Plaintiff’s retaliation claim must have been 7 timely exhausted and be reasonably related to claims brought in his administrative complaint. 8 Leong v. Potter, 347 F.3d 1117, 1121–22 (9th Cir. 2003); B.K.B. v. Maui Police Dep’t, 276 F.3d 9 1091, 1100 (9th Cir. 2002). Plaintiff’s administrative complaint set out a theory of discriminatory 10 failure to promote. (See Dkt. No. 23-1 at 3.) Plaintiff complained that he was denied a promotion 11 because of his race and age, not as retaliation for any action he had taken. Thus, Plaintiff’s current 12 claim of retaliation is not “consistent” with his original theory of the case in his administrative 13 complaint, and has not been administratively exhausted. B.K.B., 276 F.3d at 1100. 14 Accordingly, the motion to dismiss Plaintiff’s retaliation claim for failure to exhaust 15 administrative remedies is GRANTED. 16 * * * 17 Because Plaintiff’s claims for hostile work environment and retaliation must be dismissed 18 on grounds of exhaustion, the Court need not reach Defendant’s alternative argument that the FAC 19 fails to state a claim for each. 20 III. Age Discrimination 21 To state a claim for age discrimination under the ADEA, a plaintiff must allege that he 22 was: “(1) at least forty years old, (2) qualified for the position for which an application was 23 submitted, (3) denied the position, and (4) the promotion was given to a substantially younger 24 person” or the “circumstances otherwise giv[e] rise to an inference of age discrimination.” Shelley 25 v. Geren, 666 F.3d 599, 608 (9th Cir. 2012); Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 26 1207 (9th Cir. 2008) (cleaned up). In dismissing this claim from Plaintiff’s original complaint, the 27 Court determined that Plaintiff had adequately alleged elements (1), (2), and (3). (Dkt. No. 18 at 1 were promoted in FY 2014. The other relevant circumstances—that only one employee in the 2 department other than Plaintiff was over 60—did not plausibly give rise to an inference of 3 discrimination. 4 The FAC identifies Laura Knowles as a 30-year-old white woman who was hired in 2009 5 as a “GS 9/11/12/13” HR Specialist. (Dkt. No. 20 ¶ 92, 49.) In FY 2014, Ms. Knowles received a 6 120-day temporary promotion to Plaintiff’s acting manager, which appears to be a Grade 14 7 position; thereafter, the promotion became permanent. (Id. ¶¶ 50–51, 29.) Defendant argues that 8 Ms. Knowles is not a proper comparator because she was not similarly situated to Plaintiff. 9 Plaintiff did not seek the temporary or permanent promotion that went to Ms. Knowles. Instead, 10 Plaintiff sought a promotion to Grade 13, which went to Yvonne Ryan and Jason Hohman 11 (although not necessarily in FY 2014)—two white employees whose ages are not identified. (Id. ¶ 12 59.) While the allegation about Ms. Knowles does not indicate that the promotion Plaintiff sought 13 “was given to a substantially younger person,” it is relevant to “circumstances otherwise giving 14 rise to an inference of age discrimination.” Shelley, 666 F.3d at 608; Diaz, 521 F.3d at 1207 15 (cleaned up). “An inference of discrimination can be established by . . . showing that others not in 16 their protected class were treated more favorably.” Diaz, 521 F.3d at 1207–08; see Shelley, 666 17 F.3d at 615 (Bybee, J., concurring in part) (“It is true that the fourth traditional element for 18 establishing a prima facie case in failure to promote cases . . . —that the employee be replaced by 19 someone substantially younger—is not a strict requirement. A plaintiff can produce more 20 probative evidence of discrimination . . . .”). The allegations that only one employee in the 21 department other than Plaintiff was over 60, and that a substantially younger white person was 22 promoted to a higher grade than Plaintiff “without having any previous supervisory or technical 23 experience in organizational design or position classification,” (Dkt. No. 20 ¶¶ 25, 51), “nudge” an 24 inference of discrimination “across the line from conceivable to plausible.” Bell Atl. Corp. v. 25 Twombly, 550 U.S. 544, 570 (2007). 26 Accordingly, the FAC adequately alleges element (4) of a claim for age discrimination. 27 “While a plaintiff need not plead facts constituting all elements of a prima facie employment 1 to those elements to analyze a motion to dismiss, so as to decide, in light of judicial experience 2 and common sense, whether the challenged complaint contains sufficient factual matter, accepted 3 as true, to state a claim for relief that is plausible on its face.” Achal v. Gate Gourmet, Inc., 114 F. 4 Supp. 3d 781, 796–97 (N.D. Cal. 2015). The motion to dismiss for failure to state a claim for age 5 discrimination is DENIED. 6 IV. Additional Claims for Disparate Treatment Race Discrimination 7 In its previous order, the Court determined, “To the extent that unequal terms and 8 conditions of employment and the failure to provide career development assignments occurred 9 before September 23, 2014, disparate treatment claims regarding that conduct are time-barred.” 10 (Dkt. No. 18 at 10.) According to Defendant, the FAC “continues to allege that Plaintiff was 11 subject to disparate treatment for failure to provide career development assignments.” (Dkt. No. 12 23 at 21.) Defendant moves to dismiss any claims for disparate treatment race discrimination 13 other than the failure to promote in FY 2014. 14 To the extent Plaintiff brings disparate treatment claims for conduct other than the failure 15 to promote in FY 2014, (see Dkt. No. 20 ¶¶ 59–60, 67), they are either time-barred or 16 insufficiently pleaded because they fail to “give the defendants ‘fair notice’ of the claim and the 17 ‘grounds upon which it rests.’” Coleman v. Beard, No. 14-CV-05508-YGR (PR), 2015 WL 18 395662, at *4 (N.D. Cal. Jan. 29, 2015) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). 19 Accordingly, the motion to dismiss disparate treatment race discrimination claims other 20 than the failure to promote in FY 2014 is GRANTED. However, as the Court noted in the 21 previous order, while alleged conduct prior to September 23, 2014 cannot give rise to a distinct 22 claim, it may be relevant to Plaintiff’s claim for failure to promote in FY 2014. (Dkt. No. 18 at 23 11–12 (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).) 24 V. Attorneys’ Fees 25 The FAC includes a request for attorneys’ fees. (Dkt. No. 20 ¶¶ 70, 86, 94, 101.) 26 Attorneys’ fees are not available to Plaintiff because he is proceeding without representation by a 27 lawyer. Kay v. Ehrler, 499 U.S. 432, 435 (1991); U.S. Sec. & Exch. Comm’n v. Chapman, 602 F. 1 attorneys’ fees. Because such relief is not available to Plaintiff as a matter of law, amendment 2 || would be futile and the dismissal is with prejudice so long as Plaintiff remains unrepresented in 3 this action. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). 5 For the reasons explained above, Defendant’s motion to dismiss is GRANTED with 6 || respect to failure to exhaust administrative remedies as to hostile work environment and 7 retaliation. With respect to failure to state a claim, the motion is DENIED as to age 8 discrimination, but GRANTED as to disparate treatment race discrimination other than the failure 9 || to promote in FY 2014. The motion is GRANTED as to attorneys’ fees, without prejudice to 10 || Plaintiff seeking fees should he obtain legal representation in this action. 11 In summary: 12 1. Plaintiff may proceed with his claims for disparate treatment race discrimination 5 13 under Title VII and for age discrimination under the ADEA, both arising from the FY 2014 failure 14 to promote. 15 2. Plaintiffs claims for hostile work environment and retaliation are DISMISSED 16 without leave to amend, as the deficiencies could not be cured by additional facts. See Lopez v. 3 17 || Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). 18 3. Plaintiffs request for attorneys’ fees is DISMISSED so long as he remains 19 || unrepresented in this action. 20 A further Case Management Conference is scheduled for January 20, 2022 at 1:30 p.m. by 21 Zoom videoconference. A joint case management statement is due seven days in advance. 22 This Order disposes of Docket No. 23. 24 Dated: November 29, 2021 25 Deus Sot □□ 26 JACQUELINE SCOTT CORLE United States Magistrate Judge 27 28