1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT DISTRICT OF GUAM 7
8 CITADEL T. SABLAN, Civil Case No. 10-00013 9 Plaintiff, 10 vs. OPINION AND ORDER RE: MOTION TO DISMISS 11 A.B. WON PAT INTERNATIONAL AIRPORT AUTHORITY, GUAM, 12 Defendant. 13 14
15 Before the court is the “Motion to Dismiss” filed by Defendant A.B WON PAT 16 INTERNATIONAL AIRPORT AUTHORITY, GUAM. See Docket No. 3. For the reasons given 17 below, the court hereby GRANTS that motion in its entirety. 18 I. BACKGROUND 19 The facts in this case are as follows.1 Plaintiff CITADEL T. SABLAN is an employee of 20 Defendant A.B. WON PAT INTERNATIONAL AIRPORT AUTHORITY, GUAM (“the Airport”). 21 See Docket No. 1 (“the Complaint”) at ¶4. The Complaint does not indicate what specific position 22 she holds. 23 On December 13, 2008, someone asked Plaintiff to help an Airport police officer transport 24 a male arrestee. See Docket No. 1 at ¶6. At some time later, though, a supervisor in the Airport 25 police told Plaintiff that she could not carry out this duty, because she is female. See id. at ¶7. 26 Plaintiff complained of this action to the Equal Employment Opportunity Commission 27 1 This statement of facts is based on the complaint. See Docket No. 1. On a motion to dismiss, the court must 28 take as true all factual allegations underlying or contained in the claims under attack. See Ashcroft v. Iqbal, 556 U.S. 1 (“EEOC”). See Docket No. 1 at ¶8; see also id., Exh. 1. The EEOC “determined that there is 2 reasonable cause to believe that [Plaintiff] was denied terms & [sic] conditions of employment 3 because she is female.” See id., Exh. 1. The EEOC also invited the parties to engage in 4 “conciliation discussions.” See id. However, these discussions either did not take place or bore no 5 fruit, because the Department of Justice later authorized Plaintiff to file a lawsuit to vindicate her 6 claims. See id., Exh. 2. Plaintiff did so on June 7, 2010. See generally Docket No. 1. 7 On July 6, 2010, Defendant moved to dismiss the Complaint. See Docket No. 3 (“the 8 Motion”); see also Docket Nos. 4, 5 (related materials). On August 2, 2010, Plaintiff opposed the 9 Motion. See Docket No. 9. Finally, Defendant replied in support of its Motion on August 16, 2010. 10 See Docket No. 10. 11 II. JURISDICTION AND VENUE 12 The claims are within the court’s federal question jurisdiction. See 28 U.S.C. § 1331; cf. 42 13 U.S.C. § 2000e-5(f)(3). Venue is proper in this judicial district, the District of Guam, because 14 Defendant resides here and because a substantial part of the events or omissions giving rise to the 15 claim occurred here. See 28 U.S.C. § 1391(b)(1), -(2); cf. 42 U.S.C. § 2000e-5(f)(3). 16 III. APPLICABLE STANDARDS 17 A pleading that states a claim for relief must contain, among other things, “a short and plain 18 statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Rule 19 12(b)(6) of the Federal Rules of Civil Procedure permits a Defendant to raise by motion the defense 20 that the complaint “fail[s] to state a claim upon which relief can be granted.” FED. R. CIV. P. 21 12(b)(6). 22 Although a complaint does not need “detailed factual allegations, . . . a plaintiff’s obligation 23 to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, 24 and a formulaic recitation of the elements of a cause of action will not do . . . .” Bell Atlantic Corp. 25 v. Twombly, 550 U.S. 544, 555 (2007). And although the court “must take all of the factual 26 allegations in the complaint as true, [the court is] not bound to accept as true a legal conclusion 27 couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1950 (2009) 28 1 (quotation marks omitted). So, to survive a 12(b)(6) motion to dismiss, a complaint “must contain 2 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 3 Id. (quoting Twombly, 550 U.S. at 570)). 4 Iqbal suggests a two-step process for determining whether a motion to dismiss should be 5 granted. The first step is to “identif[y] pleadings that, because they are no more than conclusions, 6 are not entitled to the assumption of truth.” Iqbal, 129 S. Ct. at 1950. These are to be discarded. 7 See id. After discarding those unsupported legal conclusions, the second step is to take any 8 remaining well-pleaded factual allegations, “assume their veracity and then determine whether they 9 plausibly give rise to an entitlement to relief.” Id. 10 As for the meaning of the term “plausibly,” “[a] claim has facial plausibility when the 11 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 12 defendant is liable for the misconduct alleged.” Id. at 1949. 13 This standard 14 . . . is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where 15 a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and 16 plausibility of “entitlement to relief.” 17 Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Application of this standard is “a 18 context-specific task that requires the reviewing court to draw on its judicial experience and common 19 sense.” Id. at 1950. And this standard applies to “all civil actions”—“antitrust and discrimination 20 suits alike.” Id. at 1953. 21 In short, “a complaint may survive a motion to dismiss only if, taking all well-pleaded factual 22 allegations as true, it contains enough facts to ‘state a claim to relief that is plausible on its face.’” 23 Hebbe v. Pliler, 611 F.3d 1202, 1205 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). 24 IV. DISCUSSION 25 The Complaint implicates two statutory schemes: Title VII of the Civil Rights Act of 1964 26 (“Title VII”), and the Age Discrimination in Employment Act of 1967 (“ADEA”). See Docket No. 27 1 at ¶1. 28 1 Title VII makes it illegal for an employer: 2 (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his 3 compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national 4 origin; or 5 (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any 6 individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, 7 religion, sex, or national origin. 8 42 U.S.C. § 2000e-2(a)(1), -(2). 9 The ADEA tracks the language of Title VII and proscribes the same discriminatory conduct 10 when the discrimination is based on the individual’s age. See 29 U.S.C. § 623(a)(1), -(2). 11 “A plaintiff may show violations of these statutes [i.e., Title VII or the ADEA] by proving 12 disparate treatment or disparate impact, or by proving the existence of a hostile work environment.” 13 Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1109 (9th Cir. 1991), 14 superseded by statute on other grounds as recognized in Dominguez-Curry v. Nevada 15 Transportation Dept., 424 F.3d 1027, 1041 (9th Cir. 2005). 16 Thus, under both statutory schemes, there are three sub-theories on which Plaintiff could 17 proceed: (1) disparate treatment; (2) disparate impact; and (3) hostile work environment. 18 Finally, there is some uncertainty about how claims under Title VII and the ADEA should 19 be evaluated in the context of a Rule 12(b)(6) motion to dismiss. 20 For both statutory schemes, each of the three sub-theories has a set of elements that establish 21 a prima facie case. See, e.g., Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) 22 (elements of prima facie disparate treatment case under Title VII); Diaz v. Eagle Produce Ltd. 23 Partnership, 521 F.3d 1201, 1207 (9th Cir. 2008) (elements of prima facie disparate treatment case 24 under the ADEA). And in 2002, the Supreme Court held that an employment discrimination 25 plaintiff—proceeding under Title VII and under the ADEA—need not plead a prima facie case in 26 order to survive a Rule 12(b)(6) motion to dismiss. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 27 515 (2002). 28 1 Twombly and Iqbal confused matters. In those cases, of course, the Supreme Court 2 announced and refined the “plausibility standard” of pleading, under which a complaint cannot 3 survive a Rule 12(b)(6) motion to dismiss unless it contains “well-pleaded facts” that are not “merely 4 consistent with” a defendant’s liability but positively “allow[] the court to draw the reasonable 5 inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949-50. 6 Although neither case expressly overruled Swierkiewicz,2 it was immediately clear that it would be 7 hard to put the plausibility standard into practice without requiring of an employment discrimination 8 complaint exactly what Swierkiewicz said that Rule 8 did not require. 9 For this reason, at least one federal appellate court has concluded that Twombly and Iqbal 10 overruled Swierkiewicz sub silentio. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 11 2009) (“We have to conclude, therefore, that because Conley has been specifically repudiated by 12 both Twombly and Iqbal, so too has Swierkiewicz, at least insofar as it concerns pleading 13 requirements and relies on Conley.); see also Swanson v. Citibank, N.A., 614 F.3d 400, 407-412 (7th 14 Cir. 2010) (Posner, J., dissenting). Many scholarly observers have agreed. See, e.g., Suzanna 15 Sherry, Foundational Facts and Doctrinal Change, 2011 U. ILL. L. REV. ___ (forthcoming 2011), 16 available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1577247 (thinking express 17 overruling of Swierkiewicz likely in the next few years, because “Swierkiewicz is clearly in the 18 crosshairs”); A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. REV. 431, 476 (2008) (“[t]he 19 plausibility pleading standard announced by the Court in Twombly is no different from the Second 20 Circuit’s heightened pleading standard that the Court rejected in Swierkiewicz”); Suja A. Thomas, 21 The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, 14 LEWIS 22 & CLARK L. REV. 15, 35 (2010) (suggesting that “employment discrimination plaintiffs will 23 effectively need to plead a prima facie case and possibly more to survive a motion to dismiss,” 24 because “it can be reasoned that based on the language in Swierkiewicz, Iqbal, and Twombly, and 25 based on the similarities in the summary judgment and motion to dismiss standards that Swierkiewicz 26 27 2 Twombly reaffirmed the substance of Swierkiewicz (see Twombly, 550 U.S. at 569-570), while Iqbal did not mention that case—a curious omission, since Iqbal was itself a discrimination case. 28 1 effectively does not survive”). 2 Most courts have not gone so far, because lower-court judges are not to deem a Supreme 3 Court decision overruled sub silentio, even if it is plainly inconsistent with a later one. See, e.g., 4 Agostini v. Felton, 521 U.S. 203, 237 (1997). They have instead struggled to reconcile Swierkiewicz 5 with plausibility pleading. 6 Now, when evaluating employment discrimination complaints in the context of a Rule 7 12(b)(6) motion to dismiss, district courts in the Ninth Circuit are proceeding on the premise that 8 although it may not be necessary that the complaint have facts constituting all the elements of a 9 prima facie in order to survive the motion to dismiss, those elements are nonetheless relevant to the 10 court’s analysis of the sufficiency of the complaint. See, e.g., Webb v. County of Trinity, ___ F. 11 Supp. 2d ___, 2010 WL 3210768, at *6 (E.D. Cal. Aug. 10, 2010) (looking to elements of prima 12 facie employment discrimination case in analyzing Rule 12(b)(6) motion to dismiss); Monaghan v. 13 El Dorado County Water Agency, No. 2:10-CV-0434 FCD GGH, 2010 WL 3033780, at *4-5 (E.D. 14 Cal. Jul. 30, 2010) (same); O’Donnell v. U.S. Bancorp Equipment Finance, Inc., No. C10-0941 15 TEH, 2010 WL 2198203, at *2-3 (N.D. Cal. May 28, 2010) (same); Rezentes v. Sears, Roebuck & 16 Co., Civ. No. 10-00054 SOM/KSC, 2010 WL 1905011, at *5 (D. Haw. May 10, 2010) (same). This 17 is consistent with what many other district courts are doing. See, e.g., Anh Truong v. Dart Container 18 Corp., Civil Action No. 09-3348, 2010 WL 4237944, at *3-4 (E.D. Pa. Oct. 26, 2010) (looking to 19 elements of prima facie employment discrimination case in analyzing Rule 12(b)(6) motion to 20 dismiss); Ferdinand-Davenport v. Children’s Guild, ___F. Supp. 2d ___, 2010 WL 3911060, at *5 21 (D. Md. Oct. 6, 2010) (same); Jackson v. New York State Dept. of Labor, 709 F. Supp. 2d 218, 226- 22 28 (S.D.N.Y. 2010) (same); Doverspike v. Intern. Ordinance Technologies, No. 09-CV-00473F, 23 2010 WL 986513, at *4 (W.D.N.Y. Mar. 17, 2010) (same); Chacko v. Worldwide Flight Services, 24 Inc., No. 08-CV-2363 (NGG)(JO), 2010 WL 424025, at *3 (E.D.N.Y. Feb. 3, 2010) (same). 25 Common to all these cases is the recognition that although the elements of a prima facie 26 employment discrimination case constitute “an evidentiary standard, not a pleading requirement” 27 (Swierkiewicz, 534 U.S. at 514), Twombly and Iqbal have indisputably pushed pleading standards 28 1 a bit back in the direction of fact pleading. Courts therefore must look at a complaint in light of the 2 relevant “evidentiary standard,” in order to decide whether it “contain[s] sufficient factual matter, 3 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S. Ct. at 1949 4 (quoting Twombly, 550 U.S. at 570). The idea, then, is not that Swierkiewicz has been overruled, 5 but rather that, after Twombly and Iqbal, an employment discrimination plaintiff must get closer to 6 alleging a prima facie case than was necessary a few years ago. 7 With those principles in view, the court turns to the Complaint. 8 A. Title VII 9 Title VII proscribes several types of discrimination. See generally 42 U.S.C. § 2000e-2(a)(1), 10 -(2) (citing discrimination based on race, color, religion, sex, or national origin). Plaintiff’s Title VII 11 claim is based on sex discrimination. See Docket No. 1 at ¶10. 12 1. Disparate Treatment 13 The elements of a prima facie disparate treatment case are as follows: (1) Plaintiff belongs 14 to a protected class; (2) she was qualified for her position; (3) she was subject to an adverse 15 employment action; and (4) similarly situated individuals outside her protected class were treated 16 more favorably. See Davis, 520 F.3d at 1089. And, as stated above, while a plaintiff need not allege 17 facts constituting all elements of a prima facie disparate treatment case in order to survive a motion 18 to dismiss, courts are now looking to those elements to analyze a motion to dismiss—so as to decide, 19 in the light of “judicial experience and common sense,” whether the challenged complaint 20 “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on 21 its face.’” Iqbal, 129 S. Ct. at 1949-50 (quoting Twombly, 550 U.S. at 570). 22 i. Protected class 23 Plaintiff alleges facts showing that she is a member of a protected class. See Docket No. 1 24 at ¶7. This element is adequately alleged. 25 ii. Qualification for position 26 Plaintiff alleges no facts suggesting that she is qualified for her position. In fact, Plaintiff 27 does not even allege what position she holds; she merely alleges that she is “an employee” of the 28 1 Airport.3 Docket No. 1 at ¶4. There is no factual matter alleged in the Complaint from which the 2 court could infer that Plaintiff is qualified for her position. Therefore, this element is not adequately 3 alleged. 4 iii. Adverse employment action 5 In Title VII disparate treatment cases, “[a]n action is an adverse employment action if it 6 materially affects the terms, conditions, or privileges of employment.” 9th Cir. Model Civ. Jury 7 Instr. 10.4A2 (“Adverse Employment Action” in Disparate Treatment Cases) (citing Chuang v. Univ. 8 of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1126 (9th Cir. 2000)). See also Davis, 520 F.3d at 9 1089 (defining “adverse employment action” as “one that materially affect[s] the compensation, 10 terms, conditions, or privileges of employment”) (quotation marks and ellipsis omitted). Cf. 9th Cir. 11 Model Civ. Jury Instr. 10.4A1 (“Adverse Employment Action” in Retaliation Cases). 12 Cases flesh out this definition. “Among those employment decisions that can constitute an 13 adverse employment action are termination, dissemination of a negative employment reference, 14 issuance of an undeserved negative performance review and refusal to consider for promotion.” 15 Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). “[A]ssigning more, or more 16 burdensome, work responsibilities, is [also] an adverse employment action.” Davis, 520 F.3d at 17 1089 (citing Kang v. U. Lim America, Inc., 296 F.3d 810, 818-19 (9th Cir. 2002)). By contrast, an 18 employer’s failure to respond to grievances is not an adverse employment action, because “it [does] 19 not materially affect the compensation, terms, conditions, or privileges of . . . employment.” 20 Chuang, 225 F.3d at 1126. See also Kortan v. California Youth Authority, 217 F.3d 1104, 1113 (9th 21 Cir. 2000) (no adverse employment action where the plaintiff “was not demoted, was not stripped 22 of work responsibilities, was not handed different or more burdensome work responsibilities, was 23 not fired or suspended, was not denied any raises, and was not reduced in salary or in any other 24 benefit”). 25 Here, Plaintiff does not allege facts showing an adverse employment action. The only action 26 3 While it seems that Plaintiff is some kind of police officer, “[i]t is not, however, proper to assume that [she] 27 can prove facts that [she] has not alleged . . . .” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). 28 1 Plaintiff complains of is being told she could not help transport a male arrestee because she is 2 female. See Docket No. 1 at ¶¶6-7. Plaintiff does not allege that this sort of work is within her usual 3 job duties, because she does not allege what position she holds, let alone what her usual job duties 4 are. See Section IV(A)(1)(ii), “Qualification for position,” supra. While the complained-of action 5 may constitute being “stripped of work responsibilities” or being “handed different or more 6 burdensome work responsibilities,” the court cannot reach this conclusion, absent well-plead facts 7 going to (1) what her usual job duties are, and (2) the duration of the change (i.e., whether her duties 8 and responsibilities were permanently altered, or whether this was a one-time event). 9 Thus, as far as her allegations go, Plaintiff “was not demoted, was not stripped of work 10 responsibilities, was not handed different or more burdensome work responsibilities, was not fired 11 or suspended, was not denied any raises, and was not reduced in salary or in any other benefit.” 12 Kortan, 217 F.3d at 1113. Accordingly, there is no factual matter alleged in the Complaint from 13 which the court could infer that Plaintiff suffered an adverse employment action. Therefore, this 14 element is not adequately alleged. 15 iv. More favorable treatment to comparable employees outside of protected class 16 17 Plaintiff does not allege that similarly situated individuals outside her protected class were 18 treated more favorably. She does not allege that anyone completed the assignment, let alone a male 19 employee. Therefore, this element is not adequately alleged. 20 In sum, as to her Title VII disparate treatment claim, the only element Plaintiff adequately 21 alleges is her membership in a protected class. There are no well-plead facts suggesting that she was 22 qualified for her position, that she was subject to an adverse employment action, or that similarly 23 situated individuals outside her protected class were treated more favorably. See Davis, 520 F.3d 24 at 1089. Although a plaintiff need not allege facts constituting all elements of a prima facie 25 disparate treatment case in order to survive a motion to dismiss, the challenged complaint must still 26 “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 27 face.’” Iqbal, 129 S. Ct. at 1949-50 (quoting Twombly, 550 U.S. at 570)). Absent so many elements 28 1 of the prima facie case—elements, moreover, that depend on factual matter that is surely within 2 Plaintiff’s possession (i.e., her job title, her qualifications, her job duties, etc.)—the Complaint fails 3 to state a claim to relief that is plausible on its face. Accordingly, the Complaint is dismissed, so far 4 as it purports to articulate a disparate treatment theory under Title VII. 5 2. Disparate Impact 6 “To establish a prima facie case of disparate impact under Title VII, [Plaintiff] must: (1) 7 show a significant disparate impact on a protected class or group; (2) identify the specific 8 employment practices or selection criteria at issue; and (3) show a causal relationship between the 9 challenged practices or criteria and the disparate impact.” Hemmings v. Tidyman’s Inc., 285 F.3d 10 1174, 1190 (9th Cir. 2002). The focus in a disparate impact case is usually “on statistical disparities, 11 rather than specific incidents, and on competing explanations for those disparities.” Watson v. Fort 12 Worth Bank & Trust, 487 U.S. 977, 987 (1988). 13 The Complaint concerns Plaintiff only; it does not mention a larger protected class (let alone 14 any impact or harm that class may be suffering), and it does not mention any specific employment 15 practices or selection criteria. It therefore does not contain “factual content that allows the court to 16 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 17 S. Ct. at 1949. Accordingly, the Complaint is dismissed, so far as it purports to articulate a disparate 18 impact theory under Title VII. 19 3. Hostile Work Environment 20 “To make a prima facie case of a hostile work environment, a [Title VII plaintiff] must show 21 that: (1) she was subjected to verbal or physical conduct of a sexual nature; (2) this conduct was 22 unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of the 23 victim’s employment and create an abusive working environment.” Craig v. M & O Agencies, Inc., 24 496 F.3d 1047, 1055 (9th Cir. 2007) (quotation marks omitted). “Additionally, ‘[t]he working 25 environment must both subjectively and objectively be perceived as abusive.’” Id. (quoting Harris 26 v. Forklift Sys., Inc., 510 U.S. 17, 20-21 (1993)). “Finally, to find a violation of Title VII, ‘conduct 27 must be extreme to amount to a change in the terms and conditions of employment.’” Id. (quoting 28 1 Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). “[S]imple teasing, offhand comments, 2 and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 3 terms and conditions of employment.” Id. (citing Faragher, 524 U.S. at 788). “If a single incident 4 can ever suffice to support a hostile work environment claim, the incident must be extremely 5 severe.” Brooks, 229 F.3d at 926. 6 In short, “[w]orkplace conduct is not measured in isolation; instead, whether an environment 7 is sufficiently hostile or abusive must be judged by looking at all the circumstances, including the 8 frequency of the discriminatory conduct; its severity; whether it is physically threatening or 9 humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an 10 employee’s work performance.” Clark County School Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) 11 (quotation marks omitted). 12 i. Verbal or physical conduct of a sexual nature 13 The only conduct at issue here is a single statement, in which a Guam Airport Police Acting 14 Supervisor told Plaintiff that she could not carry out a certain task because she is female. See Docket 15 No. 1 at ¶7. 16 While the statement clearly implicates Plaintiff’s gender, it does not appear to be “conduct 17 of a sexual nature” of the sort actionable on a Title VII hostile work environment theory. In the 18 cases, “conduct of a sexual nature” is something more like outright sexual harassment, consisting 19 in actions related to sexual attraction, and derogatory, abusive language directed at women because 20 they are women. See, e.g., Little v. Windermere Relocation, Inc., 301 F.3d 958, 967-68 (9th Cir. 21 2002) (involving a plaintiff who was raped three times in one night by a business associate whose 22 actions were essentially condoned by the employer); Draper v. Coeur Rochester, Inc., 147 F.3d 23 1104, 1105-06 (9th Cir. 1998) (involving an employee who made sexual remarks to a female 24 co-worker over the loudspeakers at work and commented about her body to male co-workers); Fuller 25 v. City of Oakland, Cal., 47 F.3d 1522, 1527-28 (9th Cir. 1995) (reversing a grant of summary 26 judgment for the defendant city, finding that the behavior of plaintiff’s ex-boyfriend—repeatedly 27 calling her house and hanging up, threatening to kill himself, running her off the road and getting 28 1 her unlisted number—constituted an actionable claim under Title VII). See also 9th Cir. Model Civ. 2 Jury Instr. 10.2A (Elements of Harassment in Title VII Hostile Work Environment cases) (giving 3 “sexual advances” and “requests for sexual conduct” as examples of “verbal or physical conduct of 4 a sexual nature”). 5 The sole action Plaintiff complaints of does not resemble “verbal or physical conduct of a 6 sexual nature” within the meaning of a Title VII hostile work environment theory. Accordingly, 7 there is no factual matter alleged in the Complaint from which the court could infer that Plaintiff was 8 subject to such conduct. Therefore, this element is not adequately alleged. 9 ii. Unwelcomeness of conduct 10 Since (as discussed immediately above) Plaintiff has not alleged any “verbal or physical 11 conduct of a sexual nature” within the meaning of a Title VII hostile work environment theory, there 12 was no such conduct to be welcome or unwelcome. Therefore, this element is not adequately 13 alleged. 14 iii. Sufficiently severe or pervasive to alter conditions of employment and create an abusive working environment 15 16 Again, the complained-of conduct does not seem to be “verbal or physical conduct of a 17 sexual nature” within the meaning of a Title VII hostile work environment theory. See Section 18 IV(A)(3)(i), “Verbal or physical conduct of a sexual nature,” supra. Even if it were, it was not 19 pervasive, as it only occurred once. While it is possible that the statement altered Plaintiff’s 20 conditions of employment, there are no well-plead facts that would permit the court to infer this. See 21 Section IV(A)(1)(iii), “Adverse employment action,” supra. Therefore, this element is not 22 adequately alleged. 23 In sum, as to her Title VII hostile work environment claim, Plaintiff does not adequately 24 allege any of the basic elements. There are no well-plead facts suggesting that she was subjected to 25 verbal or physical conduct of a sexual nature, that any such conduct was unwelcome, or that any such 26 conduct was sufficiently severe or pervasive to alter the conditions of her employment and to create 27 an abusive working environment. See Craig, 496 F.3d at 1055. Although a plaintiff need not allege 28 1 facts constituting all elements of a prima facie hostile work environment case in order to survive a 2 motion to dismiss, the challenged complaint must still “contain sufficient factual matter, accepted 3 as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S. Ct. at 1949-50 (quoting 4 Twombly, 550 U.S. at 570)). Absent all such elements, the Complaint fails to state a claim to relief 5 that is plausible on its face. Accordingly, the Complaint is dismissed, so far as it purports to 6 articulate a hostile work environment theory under Title VII. 7 B. ADEA 8 Insofar as the Motion concerns Plaintiff’s ADEA claim, no detailed analysis is needed. The 9 Complaint has no factual allegations regarding age—it even fails to allege Plaintiff’s age. See 10 generally Docket No. 1. This makes it impossible for “the court to draw the reasonable inference 11 that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. Moreover, 12 Plaintiff failed to oppose dismissal of her ADEA claim. See Docket No. 10 at 2 n.1; cf. Docket No. 13 4. As such, the Motion is deemed unopposed on this point. See Local Rule LR 7.1(f). Therefore, 14 the Complaint is dismissed, so far as it purports to articulate a claim under the ADEA. 15 V. CONCLUSION 16 As indicated above, the Motion is GRANTED, with the Complaint DISMISSED in its 17 entirety.4 18 Rule 15(a) of the Federal Rules of Civil Procedure governs pre-trial amendments to the 19 pleadings. See FED. R. CIV. P. 15(a). “Rule 15(a) is very liberal and leave to amend shall be freely 20 given when justice so requires.” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 21 951 (9th Cir. 2006) (quotation marks omitted). But “a district court need not grant leave to amend 22 where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an 23 undue delay in litigation; or (4) is futile.” Id. 24 \\ 25 26 4 It is important to note, yet again, this is not because Plaintiff does not fully allege prima facie cases under Title VII and ADEA. See Swierkiewicz, 534 U.S. at 515. Rather, this is because the Complaint does not “contain 27 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S. Ct. at 1949-50 (quoting Twombly, 550 U.S. at 570)). 28 1 Defendant suggests that amendment would be futile, but the argument is not persuasive. See 2 |} Docket No. 10 at 4:12-26. No other basis for denying leave to amend exists. Accordingly, leave to 3 || amend is GRANTED. 4 SO ORDERED. 6 NO 7% /s/ Frances M. Tydingco-Gatewood 7 & : J, Chief Judge oka J AJ Dated: Dec 09, 2010 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 14 of 14