Opinion
2:22-cv-05555-ODW (PVCx)
07-29-2024
JA'NAYE GRANBERRY, Plaintiffs, v. DENIS R. MCDONOUGH, Defendants.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [38]
OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Plaintiff Ja'Naye Granberry, proceeding pro se, filed her Second Amended Complaint against Defendant Denis R. McDonough, Secretary of the Department of Veterans Affairs, asserting one claim for unlawful retaliation by her supervisor, Robert Lopez. (Second Am. Compl. (“SAC”), ECF No. 37.) McDonough now moves to dismiss Granberry's Second Amended Complaint under Federal Rule of Civil Procedure (“Rule”) 12(b)(6). (Mot. Dismiss (“Mot.” or “Motion”), ECF No. 38.) For the following reasons, the Court GRANTS the Motion and DIMISSES Granberry's Complaint WITH LEAVE TO AMEND.
Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed.R.Civ.P. 78; C.D Cal. L.R. 7-15.
All factual references derive from Plaintiff's Second Amended Complaint or attached exhibits, unless otherwise noted, and well-pleaded factual allegations are accepted as true for purposes of this Motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
At the time relevant to this action, Granberry was a Program Support Assistant with the Department of Veterans Affairs Medical Center in West Los Angeles. (SAC 1.) According to Granberry, she filed an EEO complaint in July 2014, and then Lopez “engaged in retaliatory harassment” continuously for eleven months. (Id. at 12.) Granberry details multiple events to support her claim. (Id. ¶¶ 1-23.)
When citing the SAC, the Court cites paragraphs where available and otherwise cites the pagination found in the body of the pleading papers.
On September 29, 2014, Lopez asked a human resources representative “for information to retaliate” against Granberry. (Id. at 8, ¶ 22.) In October 2014, he gave her an unfavorable performance review. (Id. ¶ 21.) On November 19, 2014, Lopez assigned work to one of Granberry's colleagues “to create . . . hostility.” (Id. ¶ 18.) On December 16, 2014, Granberry reported to her union that Lopez made condescending remarks toward her. (Id. ¶ 15.) In January 2015, Lopez neglected to transfer a call to Granberry. (Id. ¶ 14.) In February 2015, a coworker told Granberry that Lopez was looking for her, making her feel like Lopez was “checking” on her. (Id. ¶ 13.) On April 24, 2015, Lopez sent Granberry an email about her leaving early on dates when he was not in the office, which she submits shows that he surveilled her. (Id. ¶ 11-2.)
Granberry numbers two paragraphs eleven. For clarity, the Court cites the first paragraph eleven as “11-1” and the second paragraph eleven as “11-2.”
On June 23, 2015, Lopez criticized Granberry for not knowing about an assignment he later acknowledged that he failed to send. (Id. ¶¶ 10, 11-1.) On June 25, 2015, Lopez yelled at Granberry about checking Lopez's emails as soon as she arrived at the office, and later, he sent her an email falsely accusing her of not arriving at her desk until 8:30 a.m. (SAC ¶¶ 7, 9.) That same day, Granberry emailed her union and Lopez's supervisor, and also called to file a second EEO complaint. (Id. ¶ 8.) Finally, on June 29, 2015, Lopez was removed as Granberry's supervisor but still sent her emails intentionally misspelling her name and assigning her work outside her service. (Id. ¶ 3.)
On August 3, 2022, Granberry filed a federal Complaint, asserting claims for hostile work environment, employment discrimination, and retaliation. (Compl., ECF No. 1.) McDonough moved to dismiss Granberry's Complaint, and the Court granted the motion with leave to amend. (Order Granting Mot. Dismiss Compl., ECF No. 18.) On August 21, 2023, Granberry filed her First Amended Complaint asserting claims for hostile work environment and retaliation. (First Am. Compl. (“FAC”), ECF No. 21.) As before, McDonough moved to dismiss the First Amended Complaint, and the Court granted the motion with leave to amend. (Order Granting Mot. Dismiss FAC, ECF No. 34.) On April 29, 2024, Granberry filed her Second Amended Complaint, asserting one cause of action for retaliation. (SAC.) McDonough now moves to dismiss the Second Amended Complaint pursuant to Rule 12(b)(6). (Mot.) The Motion is fully briefed. (Opp'n, ECF No. 39; Reply, ECF No. 40.)
III. LEGAL STANDARD
A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable legal theory or insufficient facts pleaded to support an otherwise cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To survive a dismissal motion, a complaint need only satisfy the minimal notice pleading requirements of Rule 8(a)(2)-a short and plain statement of the claim. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
The determination of whether a complaint satisfies the plausibility standard is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. A court is generally limited to the pleadings and must construe all “factual allegations set forth in the complaint . . . as true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly accept conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
Where a district court grants a motion to dismiss, it should generally provide leave to amend unless it is clear the complaint could not be saved by any amendment. See Fed.R.Civ.P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). Thus, leave to amend “is properly denied . . . if amendment would be futile.” Carrico v. City and Cty. of San Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011).
IV. DISCUSSION
McDonough moves to dismiss Granberry's retaliation claim on the grounds that the sole incident that could support it, the October 2014 performance review, is time-barred. (Mot. 8-9.) Granberry contests that she has alleged conduct in addition to the October 2014 performance review that supports her retaliation claim. (Opp'n 2-4.) Whether Granberry's other allegations are enough depends on whether they would be time-barred and whether she has pled sufficient facts to show that Lopez retaliated against her.
A. October 2014 Performance Review
McDonough points out that Granberry must have reported the October 2014 performance review to the EEO within forty-five days for the conduct to be actionable. (Id.) Otherwise, it is time-barred, and the Court may not consider it as a part of her retaliation claim. (Id.)
An employee raising a discrimination claim must “initiate contact with a Counselor within 45 days of the date of the matter alleged.” 29 C.F.R. § 1614.105(a)(1). If the employee does not contact the EEO before that time expires, their claim is time-barred. Cherosky v. Henderson, 330 F.3d 1243, 1245 (9th Cir. 2003). To determine what claims are time-barred, courts look to the date the employee contacted the EEO, and then look back forty-five days. E.g., id. at 1245-46. Only conduct within that forty-five-day period is actionable. Id.
Granberry initiated the second EEO complaint on June 25, 2015. (SAC 7.) Therefore, the Court looks to June 25, 2015, and then looks back forty-five days to determine the time-barred allegations. See Cherosky, 330 F.3d at 1245. Forty-five days before June 25 is May 11, meaning only conduct between May 11 and June 25 is actionable. Because the October 2014 performance review is outside that forty-five-day period, it is indeed time-barred.
Thus, the Court may not consider the October 2014 performance review as giving rise to a cause of action. However, Granberry's Second Amended Complaint contains multiple other events that she asserts amount to retaliation. (SAC 1-2.)
B. Granberry's Remaining Allegations
Granberry argues that the Court should not dismiss her claim because her allegations are enough to show that Lopez engaged in a “pattern of harassment” following her first EEO complaint. (Opp'n 2.) For these allegations to support Granberry's retaliation claim, (1) they must not be time-barred; and (2) they must contain sufficient facts to show that Lopez retaliated against her.
1. Remaining Allegations Are Not Time-Barred
Granberry asserts that none of her allegations is time-barred, arguing that the “Continuing Violation Doctrine” permits liability against employers for unlawful conduct outside the statutorily allowed period. (SAC 10; Opp'n 3.) However, the continuing violations doctrine has limits.
The continuing violation doctrine is not a backdoor through which a plaintiff can simply “pull-in” otherwise time-barred allegations. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.101, 112-13 (2002). Courts applying the doctrine previously permitted otherwise time-barred claims if plaintiffs alleged a “continuing practice” or a “discriminatory system.” Bird v. Dep't of Hum. Res., 935 F.3d 738, 746 (9th Cir. 2019) (citations omitted). The Supreme Court has cabined the continuing violations doctrine, finding that “discrete . . . acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id. (alterations in original) (internal quotation marks omitted) (quoting Morgan, 536 U.S. at 113). Under Ninth Circuit precedent, the continuing violations doctrine is available only where a plaintiff alleges a hostile work environment. Id. at 748. So, for the doctrine to apply, Granberry must allege a hostile work environment.
McDonough contends that Granberry cannot rely on hostile work environment allegations to bring in events that are otherwise time-barred when she removed hostile work environment as a cause of action. (Mot. 9.) Yet, Granberry does not need to maintain a separate cause of action to allege hostile work environment as supporting a retaliation claim. The Ninth Circuit has found that “[h]arassment is obviously actionable” when committed in “retaliation for engaging in protected activity.” Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000). The court in Ray defined retaliatory harassment as conduct that is “sufficiently severe or pervasive to alter the conditions of . . . employment. Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Notably, this is the definition for a hostile work environment. See id. at 1244-45. Hence, Granberry may allege that Lopez retaliated against her by creating a hostile work environment.
Granberry's Second Amended Complaint several times refers to “retaliatory harassment,” (SAC 1, 2, 7, 8), the term that the Ninth Circuit has used interchangeably with hostile work environment, see Ray, 217 F.3d at 1244-45. While Granberry acknowledges in her Opposition that she no longer claims hostile work environment as a cause of action, she clarifies that her retaliation claim rests on a hostile work environment theory. (Opp'n 2-3.) Therefore, Granberry's papers show that she alleges a hostile work environment to support her retaliation claim.
Many of Granberry's allegations involve conduct that would otherwise be time-barred. (See SAC ¶¶ 11, 13, 14, 15, 18, 20, 21, 22.) Yet, the continuing violations doctrine permits the Court to consider those allegations to the extent Granberry alleges that they represent a hostile work environment. Bird, 935 F.3d at 748. However, to survive a motion to dismiss, Granberry's Second Amended Complaint must still contain sufficient facts to show that Lopez retaliated against her.
2. Remaining Allegations Do Not Support Retaliation Claim
Separate from his argument that Granberry's claim is time-barred, McDonough also argues that the Court should dismiss the Second Amended Complaint because Granberry fails to plead sufficient facts to meet the elements of a retaliation claim. (Mot. 9-10.) To establish a prima facie case, Granberry must plead that: (1) “she engaged in protected activity”; (2) she suffered a materially adverse employment action; and (3) “there was a causal relationship between the two.” Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417, 422 (9th Cir. 2013). Because McDonough does not dispute that Granberry's first EEO complaint qualifies as a protected activity, the Court concludes that Granberry satisfies the first element. (See Mot. 9-10.)
Granberry alleges that she suffered a materially adverse employment action when Lopez engaged in “11 months of continuous retaliatory harassment.” (SAC 2.) For retaliatory harassment or hostile work environment to qualify as a materially adverse employment action, the alleged conduct must be “sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Ray, 217 F.3d at 1245. “It must be both objectively and subjectively offensive.” Id. The sufficient severity or pervasiveness of an employee's conditions depends on the totality of the circumstances, with considerations including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. (quoting Foragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)).
Those circumstances that merely represent isolated offensive events do not meet the severe or pervasive standard for a hostile work environment. Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1189 (9th Cir. 2005). The Ninth Circuit has found that a few snide comments, including “your number's up” and “[i]t's not going to be me that loses my job, it's going to be you” were not frequent enough to rise to the level of “pervasive.” Id. at 1182, 1189. The Ninth Circuit has also found that an occasion when employees made hurtful, prejudicial, and racist jokes and remarks, concluding with the comment “she's a China woman,” was not enough to rise to the level of “severe.” Manatt v. Bank of Am., NA, 339 F.3d 792, 804 (9th Cir. 2003). Circumstances only rise to severe or pervasive when the conduct is openly antagonistic or intimidating or is a regular or repeated occurrence. See Ray, 217 F.3d at 1245 (finding severe when supervisors “regularly yell[ing] at [employee] during staff meetings . . . call[ing] him a “liar,” a “troublemaker,” and a “rabble rouser.”); E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1515 (9th Cir. 1989) (finding pervasive when co-worker “repeatedly engaged in vulgarities, [and] made sexual remarks,” and supervisor “frequently witnessed, laughed at, and herself made these types of comments”), overruled on other grounds by Burrell v. Star Nursery, Inc., 170 F.3d 951 (9th Cir. 1999).
Here, Granberry's allegations do not meet the severe or pervasive threshold. Her timeline describes incidents that occurred once in September, October, November, and December 2014, then once in January, February, and April 2015. (SAC ¶¶ 1022.) The timeline also describes several incidents that occurred in June 2015. (Id. ¶¶ 3, 7-10.) The gaps between these events preclude the court from recognizing them as “regular” or “repeated” occurrences. Instead, they resemble a series of monthly flare-ups in a contentious working relationship, not a hostile work environment.
Moreover, Granberry's allegations range from exceedingly innocuous, like failing to transfer a voicemail, to hotly combative, like yelling in an office. (Id. ¶¶ 7, 14.) None of them appears to be so severe as to dissuade a reasonable person from reporting discriminatory conduct. Granberry contends that she experienced humiliation and emotional distress from events like Lopez's ridicule over the missing assignment. (Id. ¶ 5.) Still, the Court has to address whether a reasonable person under the circumstances would consider such isolated events as establishing an abusive working environment. For the reasons below, Court finds that a reasonable person would not.
The Court does not consider Granberry's allegations that Lopez approached human resources “for information to retaliate” against her or that he assigned work “to create . . . hostility.” (SAC 8, ¶¶ 18, 22.) As these are vague and conclusory, the Court need not consider them. Sprewell, 266 F.3d at 988.
Personalities may conflict in an office, but Title VII “does not set forth a general civility code for the American workplace.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). Surely, many institutions would find certain conduct-condescending and belittling remarks, failure to communicate, micromanagement, unfair criticism, and yelling-to be unacceptable. (See SAC ¶¶3, 7, 9, 10, 11, 13, 14, 15.) That does not mean every inflammatory event makes an office hostile, particularly when the events happen sparsely over a year. Granberry's allegations do not reflect an ongoing campaign of harassment as much as they reflect possible defective management and occasional rises in tension. Therefore, she cannot show that she was subject to a hostile work environment.
Because Granberry fails to plead sufficient facts to show that Lopez created a hostile work environment, she cannot establish that she was subject to a materially adverse employment action. As she fails to allege the second element of a prima facie retaliation claim, the Court declines to reach the causation element. Accordingly, Granberry has not pled sufficient facts to support cause of action for retaliation.
V. CONCLUSION
For the reasons discussed above, the Court GRANTS Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint WITH LEAVE TO AMEND. (ECF No. 38). Plaintiff must file her third Amended Complaint with the Court by no later than August 26, 2024.
IT IS SO ORDERED.