Suarez v. Del Toro

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARIA SUAREZ, Case No.: 22-cv-00021-GPC

12 Petitioner, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 14 CARLOS DEL TORO, Secretary, U.S.

Dept. of the Navy, 15 [ECF No. 33] Respondent. 16

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25 \ \ \ 26 27 1 On February 10, 2022, Defendant Carlos Del Toro (“Defendant”) filed a Motion to 2 Dismiss pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). The Court set a 3 briefing schedule, and the parties have fully briefed the matter. ECF Nos. 35, 36. Based 4 upon the parties’ papers, the Court HEREBY GRANTS Defendant’s Motion to Dismiss. 5 Because this matter is suitable for disposition on the papers without oral argument, the 6 Court HEREBY VACATES the motion hearing previously set for April 8, 2022. 7 I. BACKGROUND 8 A. Factual Background 9 Plaintiff, proceeding pro se,1 filed the operative Second Amended Complaint on 10 July 23, 2021. ECF No. 12 (“SAC”). The SAC alleges that Plaintiff worked as an Equal 11 Employment Specialist for the Department of the Navy from January 11, 2016 through 12 April 30, 2018. SAC ¶ 5. In that role, she was responsible for processing and resolving 13 informal and formal complaints of discrimination and reprisal centered on alleged Title 14 VII violations. Id. She also managed the Equal Employment Opportunity (EEO) process 15 and advised complainants as to the Alternative Dispute Resolution (ADR) process 16 available to them. Id. In April 2017, Plaintiff was assigned to process Reasonable 17 Accommodation (RA) cases without any formal training. Id. 18 1. Interactions with Hamilton McWhorter 19 In 2017, Plaintiff requested assistance from her supervisor, Hamilton McWhorter 20 (“McWhorter”) in processing two RA requests, because she did not feel comfortable 21 processing them without formal training. Id. ¶ 17. McWhorter emailed Plaintiff and 22 allegedly humiliated and chastised her for requesting his assistance, saying: “I will not 23 process your RA requests . . . You are a senior EEO specialist and should have a full 24 understanding of all aspects of EEO processes and your role during other processes . . . 25

26 1 Plaintiff has since retained counsel. ECF Nos. 24, 32. 27 1 You have been getting paid as a full functioning Specialist for quite some time, so to hear 2 that you are experiencing difficulties with RA requests/case management is quite 3 concerning for me.” Id. ¶ 17. This email caused Plaintiff to feel anxious and unable to 4 sleep at night. Id. In addition, in April 2017 McWhorter directed Plaintiff to handle her 5 co-worker Mario Villalba’s assigned formal complaint even though Plaintiff had 6 previously expressed concerns about handling RA cases without formal training. Id. at 7 23. 8 According to Plaintiff, in early July she sent McWhorter a request that she be 9 allowed to attend a training with the Defense Equal Opportunity Management Institute 10 (DEOMI), which Plaintiff felt would provide needed training as to RA matters. Id. ¶ 18. 11 McWhorter responded that he had sent out a call for applications to the training on June 12 22, 2017 and that Plaintiff had failed to apply. McWhorter also stated that “I cannot force 13 you to attend professional development training . . . There aren’t too many formal 14 classrooms that will teach you about the reasonable accommodation process . . . There 15 are webinars, case law, and [the] EEOC web-site . . . You can gain this knowledge the 16 same way we stay on top of EEO laws, by conducting research.” Id. ¶ 19. Plaintiff 17 protests that she could not have applied when McWhorter sent out the call for 18 applications because she was on extended sick leave from June 15, 2017 to July 5, 2017, 19 and that McWhorter improperly denied her the opportunity to attend the training despite 20 her repeated requests on July 7 and July 11, 2017. Id. ¶ 23-24. 21 Throughout this time period, Plaintiff kept McWhorter informed that she had been 22 off work during the months of May and June 2017 due to stress and anxiety, including 23 panic and asthma attacks. Id. ¶ 25. Plaintiff submitted medical leave (FMLA) forms to 24 McWhorter upon her return to work on July 5, 2017. Id. 25 Finally, Plaintiff alleges that McWhorter harassed her via email on August 9, 2017. 26 Id. ¶ 27. According to Plaintiff, she first sent him an email with a greeting. Then, on 27 1 McWhorter’s request, she forwarded him some information in a previous email, this time 2 without a body or greeting. McWhorter then “humiliated” and “berated” Plaintiff again 3 by requesting that she include a greeting or message in the body of the email, because 4 simply forwarding an email without more was unprofessional. Id. Plaintiff forwarded this 5 email from McWhorter to her supervisor, Therese Guy, indicating that she felt this was 6 harassment. Id. Plaintiff had an anxiety attack and experienced shortness of breath and 7 shaking hands as a result of this email. Id. She had to go to an urgent care and then was 8 placed off work by her psychiatrist through September 1, 2017. Id. 9 2. Interactions with Mario Villalba 10 Plaintiff alleges that her coworker, Mario Villalba (“Villalba”) harassed her and 11 created a hostile work environment by repeatedly using abusive language, pointing his 12 middle finger at Plaintiff, and asking her when she was going to retire. Id. ¶ 29. Villalba 13 reportedly also told McWhorter and James Cummins, Plaintiff’s co-worker at the time, 14 that Plaintiff should retire. Id. Plaintiff told her supervisor, Guy, about these comments 15 but no action was taken. Id. 16 On May 5, 2017, Plaintiff had an anxiety attack at work and filed an EEO 17 discrimination complaint. Shortly after Plaintiff’s return to work on May 16, 2017, 18 Villalba came into her office and started gesturing at Plaintiff with his middle finger and 19 repeatedly yelling expletives. Id. ¶ 32. When Plaintiff tried to put her head down, Villalba 20 yelled that she should look at him. Id. Plaintiff also alleges that Villalba “bent down and 21 pointed his middle finger on his buttocks” and said, “whoever wants to get me fired, fuck 22 them!” Id. Plaintiff tried to report this incident to HR Director Stephanie Wright and to 23 her former supervisor, Danny Kealoha, but neither were in their office at the time. Id. The 24 incident made Plaintiff very anxious and unable to sleep. Id. 25 26 27 1 3. Interactions with Therese Guy 2 Plaintiff alleges that she kept Therese Guy, her supervisor, informed of the 3 situation with McWhorter by forwarding the harassing emails from McWhorter to 4 Plaintiff, but that Guy did not respond to the emails or take any action. SAC ¶ 22, 27. 5 Guy also failed to hold Villalba and McWhorter accountable for saying that Plaintiff 6 should retire. Id. ¶ 29. Plaintiff also argues that Guy discriminated against Plaintiff based 7 on her disabilities (asthma, depression, and anxiety) and "took reprisal actions against me 8 for filing an EEO Complaint against her." Id. ¶ 33. Guy reportedly denied Plaintiff an 9 ADA reasonable accommodation, refused to reassign RA cases to other EEO specialists 10 until Plaintiff was fully trained, and failed to engage in an interactive process for 11 disability accommodation with Plaintiff. Id. When Plaintiff informed Guy that she felt 12 overwhelmed by her caseload, Guy allegedly informed Plaintiff that the entire team had a 13 full workload, and failed to accommodate Plaintiff or reassign any of her cases. Plaintiff 14 also alleges that Guy denied Plaintiff the opportunity to attend an EEO training in New 15 Orleans, LA, scheduled for April of 2017. Id. ¶ 41. Guy instead chose Villalba to attend, 16 purportedly because he was a more consistent worker. Id. However, according to 17 Plaintiff, Villalba was only handling RA cases, while Plaintiff was processing a wide 18 variety of complaints and responsibilities. Id. In sum, Plaintiff contends that Guy 19 ultimately took reprisal actions against her for filing an EEO complaint and a worker's 20 compensation claim and forced her to retire from federal employment. 21 4. Interactions with James Cummins 22 James Cummins, who later became Plaintiff’s supervisor, allegedly discriminated 23 against her based on disability and took reprisal actions against Plaintiff for filing an EEO 24 complaint and a worker’s compensation claim. Id. ¶ 42. After experiencing dizzy spells 25 and shortness of breath, Plaintiff informed Cummins that she was diagnosed with vertigo 26 and was feeling dizzy at work. Id. She then verbally requested an ADA reasonable 27 1 accommodation to work from home two times a week, which Cummins denied because 2 he reasoned that if Plaintiff felt dizzy at work, she would feel dizzy at home. Id. In May 3 2017, Plaintiff had a severe vertigo attack at work and fainted while at Villalba’s cubicle. 4 Id. Villalba called 911 and Plaintiff was taken to the emergency room at Naval Medical 5 Hospital for treatment. Id. Afterward, Plaintiff provided Cummins with medical 6 documentation of this incident. 7 On March 27, 2018, Cummins gave Plaintiff a memo for unsatisfactory attendance 8 from March 2017 through March 2018, though he was not Plaintiff’s supervisor from 9 March 2017 through August 2017. Id. ¶ 45. Plaintiff alleges that Cummins made false 10 statements in this memo, and that Plaintiff had provided medical documentation to Guy, 11 her supervisor at the time, and her leave was approved. Id. In this memo, Cummins also 12 indicated that if Plaintiff did not make herself immediately available for regular full-time 13 duty, action might be taken to remove her from federal service. Id. ¶ 47. Plaintiff alleges 14 that this memo forced her to retire from federal service. Id. Cummins also charged 15 Plaintiff with 20.83 hours of Absent Without Leave (AWOL). Id. ¶ 46. Plaintiff alleges 16 this was improper and unwarranted because she had provided Cummins with the 17 necessary medical documentation for her absences, including the time when she had to be 18 taken to the emergency room at Naval Hospital. Id. Finally, Plaintiff alleges that 19 Cummins spoke with Jill Salaszny, an HR representative, to “see what course of action 20 they could take to terminate me from my employment with the Dept. of the Navy without 21 being incriminated for their actions.” Id. ¶ 48. 22 B. Procedural Background 23 On May 5, 2017, Plaintiff filed an informal EEO complaint with the Defendant, 24 followed by a formal EEO complaint in September 2017. Id. ¶ 6. Defendant investigated 25 these complaints but reached no decision or resolution on them. Id. On July 16, 2018, 26 Plaintiff requested a hearing with the EEOC. Id. ¶ 7. On March 25, 2021, the EEOC 27 1 provided Plaintiff with a Decision and Order Granting the Agency’s Motion for Decision 2 Without a Hearing. Id. ¶ 8. On April 8, 2021, the Department of the Navy issued a Final 3 Order and a Notice of Right to Sue. Id. ¶ 9. Plaintiff filed her initial Complaint on July 2, 4 2021, in the Northern District of California, and the case was transferred to this Court on 5 January 7, 2022. ECF No. 29. 6 II. DISCUSSION 7 A. Legal Standard under Rule 12(b)(6) 8 A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint, i.e. 9 whether the complaint lacks either a cognizable legal theory or facts sufficient to support 10 such a theory. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (citations omitted). 11 For a complaint to survive a Rule 12(b)(6) motion to dismiss, it must contain “sufficient 12 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 14 U.S. 544, 570 (2007)). In reviewing the motion, the Court accepts the allegations in the 15 complaint as true and construes the pleadings in the light most favorable to the non- 16 moving party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th 17 Cir. 2008). However, threadbare recitals of the elements of a cause of action, supported 18 by mere conclusory statements, do not suffice. Iqbal, 556 U.S. at 678 (citing Twombly, 19 550 U.S. at 555). The court is also not required to accept as true mere legal conclusions. 20 Id. Determination of whether a complaint states a plausible claim is “context specific, 21 requiring the reviewing court to draw on its experience and common sense.” Id. at 663- 22 64. Dismissal without leave to amend is improper unless it is clear that amendment would 23 be futile. Id. 24 25 26 27 1 B. Whether Plaintiff’s Claims are Sufficiently Pled to Survive a Rule 12(b)(6) 2 Motion 3 1. Subject Matter Jurisdiction 4 As an initial matter, to establish subject matter jurisdiction in this Court over 5 Plaintiff’s Title VII claims, Plaintiff must have exhausted her administrative remedies by 6 filing a timely charge with the EEOC. See Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 7 644 (9th Cir. 2003). Because Plaintiff’s claims fall within the scope of the EEOC’s 8 investigation, and because she was issued a right to sue letter, Plaintiff has exhausted her 9 administrative remedies and the Court may proceed to a consideration of the merits. 10 2. Disparate Treatment Under Title VII 11 In order to establish a prima facie case of discrimination, a plaintiff must show (1) 12 that she belongs to a protected class; (2) that she was qualified for the position; (3) that 13 she was subject to an adverse employment action; and (4) that similarly situated 14 individuals outside her protected class were treated more favorably. Leong v. Potter, 347 15 F.3d 1117, 1124 (9th Cir. 2003) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 16 702, 802 (1973). An adverse employment action is one that “materially affects the 17 compensation, terms, conditions, or privileges of employment.” Davis v. Team Elec. Co., 18 520 F.3d 1080, 1089 (9th Cir. 2008). “Adverse employment actions may include not only 19 actions an employer affirmatively takes against an employee (e.g. firing or demoting the 20 employee) but also situations in which the employer denies an employee a material 21 employment benefit or opportunity that was otherwise available to her.” Campbell v. 22 Hawaii Dept. of Educ., 892 F.3d 1005, 1013 (9th Cir. 2018) (citing cases in which 23 denials of promotion and transfer opportunities were considered adverse employment 24 actions). 25 Defendant argues that the incidents Plaintiff complains of are not adverse 26 employment actions. ECF No. 33 at 14. In addition, Defendant argues that Plaintiff does 27 1 not sufficiently allege that her supervisors and coworkers treated her differently than 2 other similarly situated employees not in her protected classes. Id. Plaintiff counters that 3 because she was tasked with a more burdensome workload involving RA requests, this 4 constitutes an adverse employment action. ECF No. 35 at 11. In addition, Plaintiff argues 5 that Cummins erroneously charged her with over 20 hours of AWOL, resulting in lost 6 pay, which constitutes a materially adverse employment action. Id. at 12. Finally, 7 Plaintiff argues that her male coworkers were not subject to the same conditions and 8 adverse treatment as she was. Id. 9 The Court agrees that, even taking all of Plaintiff’s allegations as true and 10 construing the pleadings in the light most favorable to the non-moving party, Plaintiff has 11 not adequately alleged that she was subject to an adverse employment action due to a 12 protected characteristic. A disparate treatment plaintiff must establish that the defendant 13 had a discriminatory intent or motive for taking a job-related action. Wood v. City of San 14 Diego, 678 F.3d 1075, 1081 (9th Cir. 2012). Though Plaintiff states in a conclusory 15 manner that she was “forced to retire” by her supervisors’ actions, the Court does not find 16 that her allegations support this conclusion. Plaintiff has not pointed to actions that 17 constitute the “force” she mentions. The Court does not find that assigning Plaintiff RA 18 requests constitutes the assignment of more or overly burdensome work responsibilities, 19 since Plaintiff herself acknowledges that RA requests were part of her position 20 description. See SAC ¶ 24. Nor has Plaintiff adequately shown that Guy choosing 21 Villalba to attend a training in New Orleans constitutes an adverse employment action 22 akin to firing, demoting, or denying her a material benefit that was otherwise available to 23 her. 24 Even assuming that these actions, including the emails and the AWOL pay 25 deduction, are actionable adverse employment actions, Plaintiff has not adequately 26 alleged that such actions were taken as a result of her protected characteristics (disability, 27 1 race, gender). “Disparate treatment occurs where an employer has treated a particular 2 person less favorably than other because of a protected trait.” Wood, 678 F.3d at 1081 3 (citing Ricci v. DeStefano, 557 U.S. 557, 577 (2009)) (emphasis added). Of these actions, 4 only the AWOL pay deduction could plausibly be interpreted as having occurred 5 “because” of Plaintiff’s protected characteristic, i.e. perhaps because she had to take 6 leave due to disability. But there, Plaintiff has then failed to allege that she was treated 7 differently to a similarly situated coworker who did not share her protected status—for 8 example, a coworker without protected characteristics who had to take a similar amount 9 of leave and was not designated AWOL. In sum, the Court finds that Plaintiff has not 10 clearly alleged facts showing that she was subject to an adverse employment action 11 affecting the material conditions of her employment. She also has not shown that these 12 alleged actions were “because” of her protected traits. Finally, Plaintiff has failed to show 13 that similarly situated individuals outside of her protected class were treated more 14 favorably. Plaintiff’s claim of disparate treatment under Title VII is therefore 15 DISMISSED WITHOUT PREJUDICE. 16 3. Disparate Treatment Under the ADEA 17 The Age Discrimination in Employment Act (ADEA) makes it unlawful to 18 discharge any individual due to that individual’s age. 29 U.S.C. § 623(a)(1). To establish 19 a prima facie case of disparate treatment under the ADEA, a plaintiff must show that she 20 was (1) at least forty years old, (2) performing her job satisfactorily, (3) discharged, and 21 (4) either replaced by substantially younger employees with equal or inferior 22 qualifications, or discharged under circumstances otherwise giving rise to an inference of 23 age discrimination. Diaz v. Eagle Produce Ltd. Partnership, 521 F.3d 1201, 1207 (9th 24 Cir. 2008). An inference of discrimination “can be established by showing the employer 25 had a continuing need for the employees’ skills and services in that their various duties 26 27 1 were still being performed . . . or by showing that others not in their protected class were 2 treated more favorably.” Id. (internal quotation marks omitted). 3 Defendants argue that Plaintiff has failed to establish an adverse employment 4 action such as discharge, and that the only allegation supporting this claim is that 5 Villalba, her co-worker, asked her when she would retire. ECF No. 33 at 15. Defendants 6 also point out that Plaintiff has not alleged that she was replaced by a younger employee 7 after her retirement. Id. Plaintiff argues that her age claim “encompasses all the adverse 8 actions taken against her, including her transfer in or around April 2017 to the new 9 position with additional duties and being charged with AWOL.” ECF No. 35 at 12. 10 Furthermore, Plaintiff argues that the claim survives even though Villalba was merely 11 Plaintiff’s co-worker because Plaintiff has alleged that Guy, Cummins, and McWhorter 12 “all were attempting to rid the Agency of Plaintiff.” Id. 13 Plaintiff has not adequately alleged a claim of disparate treatment under the 14 ADEA. Assuming that Plaintiff has shown that she doing her job satisfactorily, she has 15 not shown that she was discharged due to her age, nor that she was replaced by a younger 16 employee or discharged under circumstances leading to an inference of age 17 discrimination. The only allegation Plaintiff makes relating to her age is that Villalba said 18 she should retire and discussed this with McWhorter. These comments by a co-worker, 19 though they may be hurtful, are not actionable in this context because Plaintiff has not 20 sufficiently alleged that they resulted in any tangible action against her or affected her 21 employment. The conclusory statement that Villalba and McWhorter “discriminated 22 against me because of my age and disability, and because I am a Hispanic female,” 23 without more, does not support Plaintiff’s claim. Plaintiff has not provided facts 24 supporting an inference of age discrimination or that any of the actions complained of in 25 the SAC were caused by or even related to her age. Therefore, Plaintiff has failed to state 26 27 1 a claim as to disparate treatment under the ADEA, and this claim is HEREBY 2 DISMISSED WITHOUT PREJUDICE. 3 4. Disparate Treatment or Failure to Accommodate Under the 4 Rehabilitation Act 5 The Rehabilitation Act of 1973, 29 U.S.C. §791, prohibits employment 6 discrimination by the federal government against those with disabilities, applying the 7 standards of Title I of the Americans with Disabilities Act (ADA). 29 U.S.C. § 791(f). 8 Both Title II of the ADA and the Rehabilitation Act prohibit discrimination on the basis 9 of disability, though the ADA applies only to public entities, while the Rehabilitation Act 10 applies to all federally-funded programs. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th 11 Cir. 2002). To state a prima facie case under the Rehabilitation Act, a plaintiff must 12 demonstrate that she is (1) a person with a disability, (2) who is otherwise qualified for 13 employment, and (3) suffered discrimination because of her disability. McCoy v. Dept. of 14 Army, 789 F.Supp.2d 1221, 1228 (E.D. Cal. 2011). Once an employee requests an 15 accommodation, the employer must engage in an interactive process with the employee 16 to determine the appropriate reasonable accommodation. Weeks v. Union Pac. Railroad 17 Co., 137 F.Supp.3d 1204, 1217 (E.D. Cal. 2015). “An employer who fails to engage in 18 such an interactive process in good faith may incur liability if a reasonable 19 accommodation would have been possible.” Vinson v. Thomas, 288 F.3d 1145, 1154 (9th 20 Cir. 2002). The plaintiff bears the initial burden of showing that a reasonable 21 accommodation was possible. Id. 22 Here, Plaintiff has alleged that she was disabled and otherwise qualified for 23 employment, but she has not shown that she suffered discrimination because of her 24 disability. As for the interactive process allegation, Plaintiff states in a conclusory manner 25 that her supervisor Guy failed to engage in an interactive process with her. SAC ¶ 33. 26 However, Plaintiff has not addressed whether a reasonable accommodation was possible 27 1 or what such an accommodation might look like. It is not clear from the SAC whether 2 Plaintiff’s claim under the Rehabilitation Act involves any other type of allegation other 3 than a failure to reasonably accommodate, and Plaintiff’s opposition briefing focuses 4 only on the failure to accommodate. Therefore, the Court finds that Plaintiff has failed to 5 adequately state a claim as to disparate treatment or failure to accommodate under the 6 Rehabilitation Act, and this claim is also HEREBY DISMISSED WITHOUT 7 PREJUDICE. 8 5. Hostile Work Environment 9 To prevail on a hostile workplace claim based on either race or sex, a plaintiff must 10 show that (1) she was subject to verbal or physical conduct of a racial or sexual nature; 11 (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or 12 pervasive to alter the conditions of the plaintiff’s employment and create an abusive work 13 environment. Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003). “To 14 determine whether conduct was sufficiently severe or pervasive to violate Title VII, we 15 look at all the circumstances, including the frequency of the discriminatory conduct; its 16 severity; whether it is physically threatening or humiliating, or a mere offensive 17 utterance; and whether it unreasonably interferes with an employee’s work performance.” 18 Id. The working environment must be both “subjectively and objectively be perceived as 19 abusive” in order to permit recovery. Id. 20 Plaintiff has alleged subjective hostility here because she complained of her 21 treatment to her supervisors and to the EEOC. See McGinest v. GTE Serv. Corp., 360 22 F.3d 1103, 1113 (9th Cir. 2004) (finding that plaintiff’s complaints established subjective 23 hostility). However, the Court does not find that Plaintiff has alleged objective hostility 24 or conduct severe or pervasive enough to alter the conditions of Plaintiff’s employment 25 and create an abusive work environment. McWhorter’s emails contained criticisms of 26 Plaintiff, but the Court does not find that Plaintiff has adequately alleged that such 27 1 criticisms rise to the level of hostility and abuse. In addition, Plaintiff cites to Pringle v. 2 Wheeler, 478 F.Supp.3d 899 (N.D. Cal. 2020) for the proposition that her AWOL 3 designation from Cummins supports a hostile work environment claim. However, in 4 Pringle, unlike here, the plaintiff was subjected to a pattern of suspension, repeated 5 AWOL designations when he was not absent from work, unwarranted negative 6 performance reviews, and continuous denials of leave requests over the span of five 7 years. Pringle is therefore distinguishable from the present case, in which Plaintiff points 8 only to a single AWOL designation and fails to show “a concerted pattern of harassment 9 of a repeated, routine, or generalized nature.” See Manatt v. Bank of Amer., N.A., 339 10 F.3d 792, 799 (9th Cir. 2003) (finding that two incidents of racial remarks, coupled with 11 other “offhand remarks” made by plaintiff’s co-workers and supervisor, did not constitute 12 a pattern that altered the conditions of plaintiff’s employment and therefore her hostile 13 work environment claim must fail). Finally, Plaintiff points to Villalba’s conduct 14 (pointing his middle finger at her and yelling expletives) as creating a hostile work 15 environment. While Villalba’s conduct as alleged is certainly outside the bounds of 16 civility and professionalism, the Court cannot find that this conduct is sufficient to 17 support Plaintiff’s claim of a hostile work environment. Although Villalba reportedly 18 gestured and swore repeatedly during the interaction, his conduct took place on May 16, 19 2017 (i.e. during one day) and Plaintiff does not allege that this conduct was repeated. 20 Plaintiff has also failed to allege that such comments were of a racial or sexual nature. 21 The Court does not find that this single interaction, though unpleasant and inappropriate, 22 was sufficiently pervasive to alter the conditions of the victim’s employment and create 23 an abusive working environment, as required to sustain Plaintiff’s claim. See Frias v. 24 Corvington, No. 2:11-cv-02178 JAM-GGH, 2012 WL 639338, at *4 (E.D. Cal. Feb. 27, 25 2012) (noting that a single allegations of expletive language usage was insufficient to 26 support plaintiff’s claim). 27 1 Finally, the Court addresses Plaintiff’s allegations that she was forced to resign due 2 to Defendant’s conduct and the creation of a hostile work environment. SAC ¶ 31 (“They 3 [McWhorter and Villalba] were making my work environment so unbearable to force me 4 to retire from the Federal Government.”) This is, in essence, an allegation of constructive 5 discharge. Constructive discharge occurs “when the working conditions deteriorate, as a 6 result of discrimination, to the point that they become sufficiently extraordinary and 7 egregious to overcome the normal motivation of a competent, diligent, and reasonable 8 employee to remain on the job to earn a livelihood and to serve his or her employer.” 9 Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000). “Where a plaintiff fails 10 to demonstrate the severe or pervasive harassment necessary to support a hostile work 11 environment claim, it will be impossible for her to meet the higher standard of 12 constructive discharge: conditions so intolerable that a reasonable person would leave the 13 job.” Id. Here, the Court finds that Plaintiff has failed to support a claim for constructive 14 discharge because she has not alleged facts of conduct sufficiently hostile, severe, or 15 pervasive enough to alter the conditions of her employment, let alone conduct so 16 intolerable that it would drive any reasonable person from the work environment. 17 Plaintiff has therefore failed to adequately allege facts to state a claim of hostile 18 work environment under Title VII, and this claim is HEREBY DISMISSED WITHOUT 19 PREJUDICE. 20 6. Retaliation Under Title VII, ADEA, and Rehabilitation Act 21 The elements of a prima facie retaliation claim are (1) the employee engaged in a 22 protected activity, (2) she suffered an adverse employment action, and (3) there was a 23 causal link between the protected activity and the adverse employment action. Davis, 520 24 F.3d at 1093-94 (citing Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 25 2002)). For purposes of a Title VII retaliation claim, an action is cognizable as an adverse 26 employment action if it is reasonably likely to deter employees from engaging in 27 1 protected activity. Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000). The standard 2 for an adverse action in the context of retaliation is lower than in other discrimination 3 claims under Title VII, the ADEA, and the Rehabilitation Act because the antiretaliation 4 provision of Title VII protects a broader range of activities. Burlington Northern and 5 Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). In the Ninth Circuit, “adverse 6 employment action” is interpreted broadly. Ray, 217 F.3d at 1243 (noting that actions 7 such as lateral transfers, unfavorable job references, and changes in work schedules could 8 constitute adverse employment actions for retaliation claims, but that offensive utterances 9 and ostracism by coworkers do not). 10 Informal and formal complaints with the EEOC are protected activities. Ray v. 11 Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). The question then turns on whether 12 Plaintiff has alleged that she suffered an adverse employment action causally linked to 13 her EEOC complaints. Plaintiff’s opposition briefing focuses on McWhorter’s emails. 14 But Plaintiff does not explain how emails criticizing her work or explaining why formal 15 training was not available would deter a reasonable employee from filing an EEO 16 complaint. In addition, Plaintiff has not adequately alleged that Villalba’s profane 17 outburst is an adverse employment action. Such conduct is akin to the offensive 18 utterances that the Ninth Circuit discussed as unactionable in Ray. As for Cummins’ 19 unsatisfactory attendance memorandum and AWOL charge, even assuming that such 20 actions would deter a reasonable employee from engaging in protected activity, Plaintiff 21 has not shown that Cummins’ actions were causally linked to the protected activity 22 beyond a conclusory statement that they constituted “reprisal actions.” Though temporal 23 proximity may be enough to satisfy the causation element of a prima facie case, see Davis 24 v. Team Elec. Co., 520 F.3d 1080, 1094 (9th Cir. 2008), here, Cummins’ memo and 25 AWOL designation came in March 2018, nearly a year after Plaintiff filed her informal 26 EEO complaint and six months after she filed her formal EEO complaint. This timing 27 1 does not allow the Court to infer causation due to “an adverse employment action [that] 2 follows on the heels of protected activity.” Id. (discussing cases in which eighteen-month 3 gap was found too long to support causation based on timing, but fifty-nine day gap and 4 two month gap were sufficiently proximate). Therefore, the Court finds that Plaintiff has 5 failed to allege sufficient facts supporting her claim for retaliation because, even taking 6 all the allegations as true and in the light most favorable to Plaintiff as the nonmoving 7 party, Plaintiff has not clearly stated that she suffered an adverse employment action such 8 that she would be deterred from engaging in protected activity, nor has she pled a causal 9 link between the protected activity and the adverse employment action. Plaintiff’s 10 retaliation claim is therefore DISMISSED WITHOUT PREJUDICE. 11 7. Retaliation for Filing a Worker’s Compensation Claim 12 None of the federal statutes under which Plaintiff brings her claims support a claim 13 for retaliation for filing a worker’s compensation claim. California has a statutory scheme 14 providing for a substantive right for those pursuing worker’s compensation benefits to be 15 free of retaliation, and therefore federal courts routinely remand such claims in order to 16 avoid undermining the state’s statutory scheme. Quinones v. Target Stores, 2005 WL 17 3157515, at *5 (N.D. Cal. Nov. 23, 2005). It follows that in order to properly plead 18 retaliation for filing a worker’s compensation claim cause of action, Plaintiff must point 19 to the relevant state statute. See Reynolds v. Amer. Nat. Red Cross, 701 F.3d 143, 153 20 (4th Cir. 2012) (Plaintiff’s retaliation claim based on worker’s compensation inquiry fails 21 because it is not covered by the ADA, but rather by retaliation provisions under state 22 law); Harris v. Treasure Canyon Calcium Co., 132 F.Supp.3d 1228, 1246 (D. Idaho 23 2015) (finding that Plaintiff’s retaliation claim must fail because her filing of a worker’s 24 compensation claim was not protected activity under Title VII). Plaintiff does not point to 25 specific facts supporting this claim in her SAC, nor does her opposition briefing provide 26 clarity about the claim other than to state that “Plaintiff is not seeking relief for retaliation 27 1 || under the ADA’s retaliation provision.” ECF No. 35 at 16. Without more, the Court finds 2 || that Plaintiff has failed to state a claim as to retaliation for filing a worker’s compensation 3 claim, and this claim is HEREBY DISMISSED WITHOUT PREJUDICE. 4 |. CONCLUSION 5 For the reasons stated above, the Court GRANTS Defendant’s Motion to Dismiss. 6 || Plaintiff is GRANTED leave to file a Third Amended Complaint. Any Third Amended 7 ||Complaint should be filed within forty-five (45) days of the issuance of this Order. 8 IT IS SO ORDERED. 9 ||Dated: April 6, 2022 72 10 Hon. athe Cae 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 18 28 22-cv-00021-GPC