Opinion
CIVIL 23-00026
09-30-2024
YE-KYOUNG KIM, Plaintiff, v. UNIVERSITY OF GUAM, et al., Defendants.
DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS; AND DENYING PLANTIFF'S REQUEST FOR ENTRY OF DEFAULT
Frances M. Tydingco-Gatewood, Chief Judge.
Before the court is Defendants University of Guam. Anita Borja Enriquez, Anthony R. Camacho. Carlos R. Taitano. Sharleen Q. Santos-Bamba. Cathleen Moore-Linn, and Joseph Gumataotao's (collectively. "Defendants”) Motion to Dismiss Plaintiff Ye-Kyoung Kim's Complaint for employment discrimination and retaliation. Mot.. ECF Nos. 18-19. Also before the court is Plaintiff s Request for Entry of Default. Request, ECF No. 29. The Plaintiff is proceeding pro se. The court has reviewed the record, the relevant case law, and deems this matter suitable for submission without oral argument.
For the reasons stated below, the court hereby GRANTS IN PART and DENTES IN PART Defendants' Motion to Dismiss, allowing Plaintiff leave to amend in certain respects. The court also DENTES Plaintiff s Request for Entry of Default. As explained below. Plaintiff is permitted leave to amend her Complaint within 60 days of this Decision and Order. Otherwise, the Plaintiff s Complaint is dismissed with prejudice.
I. Factual Allegations
The court assumes the following relevant allegations of the Complaint are true for purposes of this Motion to Dismiss. See, e.g, Parks Sell, of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).
Plaintiff Ye-Kyoung Kim (“Plaintiff') is an Asian woman and Korean national. See Compl. at 10. Attach. 1. ECF No. I. In 2021. she was 53 years of age. Id. at Attach. 1. Plaintiff earned a Ph.D. from The Ohio State University and has experience teaching in higher education. See id. at 10.
Citations to the record refer to CMECF pagination, not page numbers provided by the filer.
Defendant University of Guam (“University”) is a higher education institution located in Mangilao. Guam. Compl. Attach. 7. ECF No. 1. The University is home to two colleges and three professional schools. Id. As of August 2021. the University had about 3.900 students. 90% of which were of Asian or Pacific Islander ancestry. See id. Defendants Enriquez, Camacho. Taitano, Santos-Bamba, Moore-Linn, and Gumataotao (collectively, "Individual Defendants”) were university employees at all times relevant to this case. Id. at 2-3, 7.
Plaintiff identifies the Individual Defendants' job titles as follows: Ms. Borja. President: Mr. Camacho. University General Counsel; Mr. Taitano. Director of Global Learning and Engagement: Ms. Santos-Bamba. Interim Senior Vice President and Provost: Ms. Moore-Linn. Executive Director Research Corporation: and Mr. Gumataotao. Chief Human Resources Officer. Compl. at 2. 7, ECF No. 1.
A. 2007-2010
Plaintiff s allegations begin as early as August 2007 when she joined the University's School of Education as a tenure track professor in TESOL and IT. Compl. at 10. Attach. 5, ECF No. 1. Plaintiff alleges that at the start of the 2007-2008 academic school year, she was treated differently from other first-year assistant professors-for example, she had to teach seven classes instead of three. Id. at Attach. 5. Then, during the 2008-2009 academic year, she alleges that she was treated unfairly in several respects: (1) her pay was incorrectly set and left uncorrected; (2) she experienced several inappropriate comments about her identity as both a woman and a Korean woman: (3) she was not invited to regular academic activities, such as faculty meetings; (4) she was not provided proper teaching equipment, such as a projector; and (5) she was excluded from email discussions and messages by other staff. Id.
Compl. at 10. ECF No. 1. TESOL stands for "Teaching English to Speakers of Other Languages.” E.g.. Lislm Yin v. Columbia Int'l Univ.. 335 F.Supp.3d 803. 807 n.l (D.S.C. 2018). Plaintiff does not allege sufficient information to determine what “IT” is abbreviating, but the court assumes this stands for "Information Technology.”
Plaintiff submitted a request for reappointment in January 2009 to correct her pay, but she remained in reappointment procedures until at least September 2009. Id. On September 9. 2009. Plaintiff filed her first charge of discrimination with the Equal Employment Opportunity Commission ("EEOC''), alleging that the University discriminated against her based on her sex. race, and national origin. Id. On January 12, 2010. Plaintiff and the University signed a settlement agreement facilitated by the EEOC. Id. at 29. Plaintiff resigned the same day. Id. at 11.
Plaintiff indicates that she attached sixteen documents to her Complaint, including the above-mentioned settlement agreement. Compl. at 29-30. ECF No. 1. However, neither the settlement agreement (marked as "Attachment 6"), nor attachments 2, 4. 8-11, and 15-16. were included in her filing. See Compl. at 29-61. ECF No. 1.
B. 2014-2017
Between August 2014 and May 2017. Plaintiff worked as an adjunct professor of computer science at the University's College of Natural and Applied Sciences. Compl. at 20. ECF No. 1. During this time. Plaintiff alleges that she was overlooked for several positions at the University, including Assistant Professor of TESOL in the School of Education. Associate Professor of Linguistics in the College of Liberal Ails and Social Sciences. Director of the Office of Research and Sponsored Programs, and Academic Advisor at the Student Center. Id. at 22. Plaintiff further alleges that, unlike other candidates, she did not receive an interview. Id. She also notes that unlike other candidates, she was not a University of Guam graduate or of Chamorro descent. Id.
In one instance from 2017. Plaintiff learned of a job opening for Dean of the University's Student Services Center, so she reached out to the search committee chair. Dr. Lee Yudin, for more information. Id. at 21. When she spoke with Dr. Yudin. Plaintiff alleges that his first response to her interest in the position was to inquire about her visa status. Id. When Plaintiff informed him that she was married to a U.S. citizen, she claims that he responded that she was not qualified for the position. Id. Plaintiff decided not to apply because she perceived "racism and bias” from Dr. Yudin. Id.
C. 2020
Several years later, on September 15. 2020. Plaintiff applied for the role of Extension Agent IIP Assistant Professor in Community. Economic, and Resource Development at the College of Natural and Applied Sciences. Compl. at 22. ECF No. 1. On September 23. 2020, Plaintiff was invited to interview via Zoom with Dr. Kuan-Ju Chen, who was recently appointed Assistant Professor of Agricultural Economics and the search committee chair for this position. Id. at 23. Prior to her interview, Plaintiff submitted additional application materials, such as a five-minute lecture video and letters of recommendation, as requested by Dr. Chen. Id. at 23. Plaintiff alleges that she had concerns about Dr. Chen's suitability to chair the search committee because of his “recent appointment” and “limited contributions” to the college. Id.
Plaintiff interviewed for the position on October 1. 2020. Compl. at 23. ECF No. 1.
However, she alleges two principal concerns with her interview. First. Plaintiff alleges that the interview started twenty minutes late due to technical issues and was later delayed an additional hour. Id. Second. Plaintiff alleges that the committee was predominately composed of "young Pacific Islanders” "connected through UOG alumni networks” and individuals without Ph.Ds.. despite the position "ideally require[ing] a Ph.D.” Id.
Plaintiff alleges that the interview was conducted by eight members, only two of which were "non-Paciflc Islanders holding Ph.Ds." Compl. at 23. ECF No. 1.
Plaintiff alleges that she was not informed of her application status after the interview despite attempts to "seek clarity.” Compl. at 23-24. ECF No. 1. On October 27. 2020. Plaintiff discovered Joseph Tuquero. a member of the search committee, was granted tenure as Extension Agent III/Assistant Professor in the College of Natural and Applied Sciences/CE&O on October 22, 2020. Id. at 25. Plaintiff identified Mr. Tuquero as a Filipino local Pacific Islander and UOG alumni who did not have Ph.D. Id. Plaintiff further alleges that Mr. Tuquero held an Agent II position in 2015. was promoted to Extension Agent III/Instructor on August 19. 2019. and then promoted to the current position on October 5, 2020. which she characterizes as a “rapid promotion.” Id.
Plaintiff does not allege facts sufficient to discern what "CE&O" is abbreviating.
Plaintiff alleges that she spoke with one of her references. Dr. Zoltan Szekely, an Associate Professor of Mathematics at the University, via Facebook message about her application. Compl. at 25, ECF No. 1. She claims that Dr. Szekely stated, among other things, that Dr. Yudin would prefer a given candidate, that "things would happen in his favor,” and that hiring "is very heavy on emotions.” Id. Plaintiff also claims to have spoken with Dr. Frank Lee, a former professor of computer science at the University, who (in reference to hiring between 2014 - and 2017) stated that the final decisions "often aligned with the Dean's preferences.” Id. at 26.
Plaintiff cites to Attachment 16 of her Complaint, which was not filed. See supra, note 4.
On October 29, 2020. Plaintiff raised concerns about the hiring process with the University's Human Resources Office ("HR Office”) but did not receive a response. Compl. at 26, ECF No. 1. On October 30. 2020. Plaintiff discovered that Dr. Tim C. Dela Cruz was promoted to a College of Natural and Applied Sciences/CE&O position but claims that the University did not specify his new role in the announcement. Id. at 27. Nonetheless. Plaintiff claims that “UOG Staffing Patterns revealed discrepancies in his hiring date and role, suggesting that he did not meet eligibility for the Extension Agent III/Assistant Professor position I was rejected for.” Id. Plaintiff states that both Mr. Tuquero and Dr. Dela Cruz were younger. Pacific Islander, and less qualified than her. Id.
Plaintiff alleges that Dr. Dela Cruz holds a Ph.D. in Guam Sex Trader Studies and sewed as Executive Director of GALA. She states that the College of Natural and Applied Sciences/CE&O position that he was appointed to requires a broader community focus than she assumes his LGBTQI-related professional experiences provide. See Compl. at 27, ECF No. 1.
Plaintiff alleges that she then communicated with Dr. Ronald McNinch, an Associate Professor of Public Administration at the University, “who indicated that UOG positions are based on "rank in person' rather than 'rank in position.'” Id.
D. 2021-2022
On August 26. 2021. Plaintiff applied for Associate Director of the University's Global Learning and Engagement Office (“Global Learning Office”), a senior-level academic administrator position. Compl. at 11. ECF No. 1. The position required a master's degree with two years of progressively responsible and relevant leadership experience in at least two of five areas. Compl. Attach. 7, ECF No. 1. The posting also stated preferred qualifications for individuals with “[s]uccessful, relevant experience and personal networks on Guam and the Pacific Islands and in the Asia-Pacific region”; “[a]ccomplishments in securing grants and contracts, building shared agendas, and negotiating strategic partnerships”; and "[p]roject and outreach program management, contact administration communication, teamwork, problemsolving. and customer service.” Id. Plaintiff claims that, at the time she applied, the Global Learning Office lacked diversity, and was primarily made up of "individuals around 30 years of age from the Pacific Islander staff members, specifically the Chamorro ethnic group.” Id. at 11.
The areas were: (a) "demonstrated entrepreneurial business success"; (b) "professional development, personal enrichment or community programs"; (c) “profitable management of similar operations"; (d) "marketing and or management of successful, commercial, public and for-profit enterprise": and (e) “events management both virtual and in-person." Compl. Attach. 7. ECF No. 1.
On October 27, 2021. Carlos Taitano. Director of Global Learning and Engagement and chair of the position's search committee, and Geena Nuque, a program assistant, emailed Plaintiff about scheduling an interview for the following day. Compl. at 11, ECF No. 1. Before her interview, Plaintiff spoke with Mr. Taitano over the phone to ask questions about the interview, including its duration and who her interviewers would be. Id. Plaintiff claims that she received minimal information. Id.
Plaintiff interviewed for the position on October 28, 2021, via Zoom. Compl. at 12, ECF No. 1. She was interviewed by Mr. Taitano, Cathleen Moore-Linn. Margaret Hattori-Uchima. and Sharleen Santos-Bamba. Id. at 12-13. Plaintiff states that her interviewers were three Chamorro members and one white member who had "resided in Guam for nearly five decades.” Id. Plaintiff further states that Mr. Taitano and Ms. Moore-Linn "lacked the doctoral qualifications” for their positions and that Dr. Hattori-Uchima had familial ties to the Global Learning Office. Id. at 13.
Dr. Hattori-Uchima has since passed away. Compl. at 13. ECF No 1.
Plaintiff takes issue with the formation of the search committee. Specifically, she alleges that the committee was improperly formed because the University policy required that there should have been five members on the committee who were “appointed by the appropriate Vice President and approved by the President.” Compl. at 13, ECF No. 1. Plaintiff also alleges that Mr. Taitano was improperly appointed chair of the search committee. Id. at 15.
Plaintiff appears to combine a citation to the University's Personnel Rules and Regulations Manual and the Rules. Regulations. Policy Manual. See Compl. at 13. ECF No. 1. The court assumes that Plaintiff intended to cite to the Rules. Regulations. Policy Manual because it contains the specific provision that she refers to in her Complaint. Id. A PDF version of that manual is publicly available and can be accessed here: https://www.uog.edu/resources/files/rrpm/uog-rrpm-Feb-17-2000.pdf. Even so. it appears that Plaintiff misreads that policy to require the appointment of five members on page 119 of the Rules, Regulations, Policy Manual. Plaintiff also references various Board of Regents' University policies from an "over 400-page EEOC Freedom of Information Act (FOIA) documentation." Compl. at 16, ECF No. 1. Plaintiff did not provide these policies as attachments, nor did she reference any specific provisions and. therefore, the court will not consider them at this time.
On November 30, 2021. Plaintiff received an email from Joseph Gumataotao, the University's Acting Chief Human Resources Officer, informing her that another candidate was selected. Id. at 17. The email stated:
The University was extremely fortunate to receive responses from a number of well qualified candidates for the position of Associate Director. Global Learning and Engagement. Announcement #107-21. Upon much deliberation, another candidate has been selected.
We appreciate and thank you for the time you spent applying and interviewing for this position. We wish you success in future endeavors.Id. at 17. Attach. 13. Mr. Gumataotao included other HR Office staff members on the email, which Plaintiff states was "inappropriately” done. Id. at 18. Attach. 12.
Plaintiff alleges that the hiring process concluded with "Ms. [Amanda Francel] Blas, an internal [Global Learning Office] employee, receiving a promotion and a $20,000 (or 42%) pay increase after just 30 months, facilitated by her ethnic peers on the interview or search committee, including her supervisor, the [Global Learning and Engagement] Director.” Compl. at 16, ECF No. 1. Plaintiff claims that she was the only candidate, among three others, who possessed a doctoral degree and "robust background in global learning and engagement, including significant experience in instruction, research, and service at a senior level.” Id. at 16.
On December 1. 2021. Plaintiff filed a written complaint against the search committee with Mr. Gumataotao. Compl. at 18. Attach. 13. ECF No. 1. In her email. Plaintiff stated that the University's failure to hire her was part of a pattern of promoting “less qualified local Pacific Islanders though inadequate hiring procedures.” Id. Mr. Gumataotao provided Plaintiff with information about how to file an Equal Employment Opportunity (“EEO”) charge claim. Id. at Attach. 13.
On January 7 and January 10. 2022. Plaintiff spoke with the University's EEO counselor. Ms. Darlene Blas, who. Plaintiff claims, did not take subsequent action on her complaint. Compl. at 19. ECF No. 1. Then. Plaintiff alleges that Mr. Gumataotao. as Acting Chief Human Resources Officer, "made the complaint process a deadlock.” Id. at 19. Plaintiff eventually informed the University's HR Office that she would escalate her complaint to the EEOC. Id. at 20.
Plaintiff refers to Ms. Blas's first name as “Darleen" throughout her Complaint. E.g.. Compl. at 19, ECF No. 1. The court uses the proper spelling of Ms. Blas's name. “Darlene,"' as indicated in her emails with Plaintiff. See id at Attach. 13.
II Relevant Procedural History
Plaintiff filed a charge of discrimination with the EEOC on April 28, 2022 ("EEOC Charge”). Compl. at 6. Attach. 1, ECF No. 1 (EEOC Charge No. 486-2022-00620). Plaintiff s EEOC Charge claimed discrimination on the basis of “Race (Asian), National Origin (Korean) and Age (53) in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967” for not being hired for Associate Director of Global Learning and Engagement despite being "well qualified.” Id. at Attach. 1. Plaintiff also claimed that she was "retaliated against for complaining about discrimination” to Mr. Gumataotao as the University's Acting Chief Human Resources Officer. Id. The EEOC issued Plaintiff a Notice of Right to Sue letter on August 24, 2023. Id. at Attach. 3.
On November 21. 2023. Plaintiff filed her Complaint in this court, alleging that the Defendants violated Title VII of the Civil Rights Act of 1964 (“Title VIL') and the Age Discrimination in Employment Act of 1967 ("ADEA”). Compl. at 3, ECF No. 1. Specifically. Plaintiff alleges that Defendants discriminated against her on the basis of race, national origin, and age for failing to hire her for the position of Associate Director of Global Learning and Engagement and for setting unequal terms and conditions of her employment. Id. at 4. Plaintiff also alleges that Defendants retaliated against her for past EEOC claims she filed against the University. Id. at 4.
On December 11, 2023, twenty days after Plaintiff filed her Complaint. Defendants filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6). Mot., ECF Nos. 18-19. Defendants argue that Plaintiff failed to state a claim upon which relief can be granted because (1) she alleged insufficient facts to support her claims of discrimination under Title VII and the ADEA, and (2) the court lacks jurisdiction because six of the individual defendants were not included in Plaintiff s EEOC Charge and because some of Plaintiff s claims are untimely. Mot. at 5. ECF No. 19. However, on December 14, 2023. Defendants' counsel received notice from the clerk's office that their Motion to Dismiss was deficiently filed because counsel failed to file Notice to Pro Se Litigations re Rule 12 Motions under Civil Local Rule 12 and a certificate of service following their Motion to Dismiss. ECF No. 21. Defendants cured these deficiencies on December 15. 2023. ECF Nos. 22, 24.
On December 21, 2023. Plaintiff filed a Request for Entry of Default, arguing that Defendants' failure to timely file warrants entry of default. Request at 2-3. ECF No. 29-1. And. on December 26. 2023. Defendants filed their opposition to this request explaining the procedural history described above. Obj. to Request at 1-3, ECF No. 30. Plaintiff filed a reply on January 18. 2024. arguing that Defendants' deficiency caused her "procedural and substantive prejudice.” Resp. at 3. ECF No. 35.
The court notes that litigants are ordinarily required to serve and file replies within fourteen days of the filing of an opposition, which would make Plaintiff s reply due on January 9, 2024. See CVLR 7(f).
On January 2, 2024. Plaintiff filed her Opposition to Defendants' Motion to Dismiss. ECF No. 31. Defendants filed their Reply on January 16. 2024. ECF No. 34.
III. Jurisdiction and Venue
Plaintiff s Title VII and ADEA claims are properly within the court's subject matter jurisdiction. 28 U.S.C § 1331 (federal question jurisdiction); 42 U.S.C. § 2000e-5(f)(3) (Title Vil's jurisdictional provision); 29 U.S.C. § 626(c)(1) (ADEA's jurisdictional provision); see also Fort Bend County, Texas v. Davis, 587 U.S. 541. 550-51 (2019); Noise v. Ass'n of Flight Attendants-CWA, AFL-CIO. 722 F.Supp.2d 1181. 1190 (D. Haw. 2010). Venue is proper because a substantial pail of the events described in Plaintiff s complaint occurred on Guam. See 28 U.S.C. § 1391(b)(1).
IV. Standard of Review
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief.'' FED. R. CIV. P. 8(a)(2). To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must assert factual allegations that “suggest that the claim has at least a plausible chance of success.” Levitt v. Yelp! Inc., 765 F.3d 1123, 1134-35 (9th Cir. 2014) (citation omitted). A claim has a plausible chance of success if it “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal. 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The court must "draw on its judicial experience and common sense” to determine the plausibility of a claim given the specific context of each case. Id. at 679.
The court's review is limited to the contents of the complaint. See Noise, HI F.Supp.2d at 1191 (citing Sprewell v. Golden State Warriors. 266 F.3d 979, 988 (9th Cir. 2001)). However, the court may consider certain materials outside the complaint, such as its attachments. Id. (citing United States v. Ritchie. 342 F.3d 903, 908 (9th Cir. 2003)). And while the court must accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party, it is not required to accept legal conclusions "couched as ... factual allegation[s]” as tine. Iqbal. 556 U.S. at 679 (quoting Twombly, 550 U.S. 544. 555); Manzarekv. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (citation omitted).
The court liberally construes pro se complaints because it has a "duty to ensure that pro se litigants do not lose their right to be heard ... due to ignorance of procedural requirements.” Redd-Oyedele v. Santa Clara Cnty. Off. of Educ., 2023 WL 2769093. at *2 (N.D. Cal. Mar. 31, 2023) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 969. 699 (9th Cir. 1988)); see also Woods v. Carey\ 525 F.3d 886, 889-90 (9th Cir. 2008); Akhtar v. Mesa. 698 F.3d 1202. 1212 (9th Cir. 2012). Nonetheless, the court will not "supply essential elements of the claim that were not initially pled.” Redd-Oyedele. 2023 WL 2769093, at *2 (citing Rupert v. Bond. 68 F.Supp.3d 1142, 1153 (N.D. Cal. 2014); Ivey v. Bd. of Regents of Univ, of Alaska, 673 F.2d 266, 268 (9th Cir. 1982)).
V. Discussion
Defendants argue two principal points in their Motion to Dismiss. First. Plaintiff s Complaint should be dismissed because she alleges insufficient facts to support her Title VII and ADEA claims. Mot. at 5, ECF No. 19. Second. Plaintiff s Complaint should be dismissed because the court lacks jurisdiction to hear Plaintiff s Complaint in four respects. Id.
The court first addresses Defendants' jurisdictional arguments because they seek to limit the court's ability to hear this case.
A. Defendants' “Jurisdictional” Arguments
Defendants argue that the court does not have jurisdiction with respect to certain aspects of Plaintiff s Complaint case because (1) the Plaintiff did not name the six Individual Defendants in her EEOC Charge; (2) the Individual Defendants are employees and not employers; (3) some of Plaintiff s claims are untimely; and (4) some of Plaintiff s allegations are being raised for the first time and she has not exhausted her administrative remedies. Mot. at 5, 20-25. ECF No. 19. The court addresses each argument in turn but. as will be explained, arguments styled as "jurisdictional” are analyzed for failure to state a claim, not for lack of jurisdiction.
1. Individual Defendants Omitted from Plaintiffs EEOC Charge
Defendants first argue that the court lacks jurisdiction to hear Plaintiff s claims against the Individual Defendants because she did not name them in her EEOC Charge, thus failing to provide notice and an opportunity to respond during the administrative proceedings. Mot. at 2021. ECF No. 19. Plaintiff argues that she included the Individual Defendants in her complaint based on their "direct involvement and influential roles in the alleged discriminatory practices.” Opp'nat 26-27, ECF No. 31.
Defendants raise this argument as a “jurisdictional bar” to the court hearing Plaintiff s claims but cite to Sanchez v. Pacific Power Co., 147 F.3d 1097 (9th Cir. 1998), for the proposition that failure to name an employer “is not a jurisdictional bar.” Mot. at 21. ECF No. 19. Although the court recognizes that Plaintiff s failure to include all Individual Defendants in her EEOC Charge may be a reason to have the claims against those defendants dismissed, it is not a jurisdictional bar. Rather, naming employers in an EEOC charge is a condition precedent to filing an action that is properly analyzed as a failure to state a claim under Title VII and the ADEA. See, e.g, Nowick v. Gammed, 351 F.Supp.2d 1025, 1035 (D. Haw. 2004) (finding that failure to include a defendant in an EEOC charge is not a jurisdictional bar under Title VII); Sanchez. 147 F.3d at 1101 (same under the ADEA).
Turning to the substance of Defendants' argument, although plaintiffs may generally only sue those named in the EEOC charge, there are exceptions to this rule. Sosa v. Hiraoka. 920 F.2d 1451, 1458 (9th Cir. 1990). “Defendants not named in the EEOC complaint can be sued under Title VII where such individuals should have anticipated being named in a Title VII action arising from the complaint.” EEOC v. Nat'J Educ. Ass 'n, Alaska, 422 F.3d 840, 847 (9th Cir. 2005) (citing Sosa, 920 F.2d atl458); see also Ortez v. Washington County, State of Or., 88 F.3d 804, 808 (9th Cir. 1998). In fact, "[w]here the EEOC or defendants themselves ‘should have anticipated' that the claimant would name those defendants in a Title VII suit, the court has jurisdiction over those defendants even though they were not named in the EEOC charge.” Sosa, 920 F.2d at 1458-59. The same is true for claims made under the ADEA. See, e.g.. Bryant v. OptumRX Pharmacy, Inc., 2016 WL 10592413, at *3 (C.D. Cal. Apr. 29, 2016).
Plaintiff s EEOC Charge names Defendants University of Guam and Gumataotao. Compl. at 32. ECF No. 1. The University is named as the employer, and Mr. Gumataotao is named in the particulars section. Compl. Attach. 1. ECF No. 1. In this respect. Plaintiff properly named both as defendants because she included them in her EEOC Charge. See Sosa, 920 F.2d 1458.
Unlike Mr. Gumataotao. Plaintiff did not name the remaining Individual Defendants- Enriquez. Camacho. Taitano. Santos-Bamba, or Moore-Linn-in her EEOC Charge. See Compl. Attach. 1. ECF No. 1. Nonetheless, it is reasonable to assume that certain Individual Defendants should have anticipated being named in Plaintiff s Complaint. See Sosa. 920 F.2d at 1458-59; Bryant, 2016 WL 10592413, at *3. Ms. Enriquez is a proper defendant in this case because she appointed the Search Committee for the Associate Director position and can reasonably anticipate having been named in this action due to her role in selecting the employees who would select and interview candidates. See Compl. at 13-14. ECF No. 1; Nat 7 Educ. Ass 'n, Alaska, 422 F.3d at 847. Plaintiff also properly named Mr. Taitano as a defendant because he chaired the Search Committee for the Associate Director of Global Learning and Engagement and could reasonably expect being named for his responsibilities on the Search Committee. See Compl. at 13, ECF No. 1; Nat'l Educ. Ass'n, Alaska. 422 F.3d at 847. Similarly. Plaintiff properly named Ms. Santos-Bamba and Ms. Moore-Linn as defendants because they were members of the Search Committee. See Compl. at 13. ECF No. I; Nat'l Educ. Ass 'n, Alaska. 422 F.3d at 847.
Like the other Individual Defendants, Plaintiff did not name Mr. Camacho in her EEOC Charge. See Compl. Attach. 1. ECF No. 1. However, unlike the other Individual Defendants. Plaintiff did not sufficiently allege facts that would support Mr. Camacho, as the University's attorney, from being named in this case. Plaintiff only identifies Mr. Camacho as explaining how the search committee was appointed and the process for hiring decisions in his response to Plaintiff s EEOC Charge. Id. at 13-16. Thus, Mr. Camacho cannot reasonably be expected to anticipate being named in Plaintiff s Complaint as alleged.
Plaintiff references Mr. Camacho's response to her EEOC Charge as Attachment 10 to her Complaint which, as noted above, was not filed. See supra note 4.
Accordingly, Defendants' Motion to Dismiss is denied regarding Plaintiff s inclusion of Defendant Gumataotao. Defendants' Motion to Dismiss is also denied regarding Plaintiff s inclusion of Defendants Enriquez. Taitano. Santos-Barnaba, and Moore-Linne. Finally. Defendants' Motion to Dismiss is granted, allowing Plaintiff leave to amend, regarding her inclusion of Mr. Camacho in the Complaint should she be able to allege facts sufficient to show his role in the alleged discrimination and retaliation.
The court addresses Plaintiff s leave to amend at greater length below.
2. Individual Defendants in Their Personal Capacities
Second. Defendants argue that the court lacks jurisdiction over Plaintiff s claims against the Individual Defendants under both Title VII and the ADEA because the statutes limit civil liability to employers. Mot. at 21-22, ECF No. 19. Defendants also argue that the court lacks jurisdiction because, even when individuals can be sued as employers, they must be named in their official capacities, which Plaintiff has not done. Id. Plaintiff counters that she named the Individual Defendants because they “significantly influenced [her] employment conditions and decisions” "by virtue of their positions [as University officials] and actions.” Opp'n at 27-28, ECF No. 31.
The court again notes that Defendants raise this argument as a jurisdictional bar that is more accurately analyzed as a failure to state a cognizable claim for liability under Title VII and the ADEA. Cf. Sanchez, 147 F.3d at 1101.
The court agrees with the Defendants with respect to their argument that the Plaintiff cannot bring claims against the Defendants in their individual capacities. “The liability schemes under Title VII and ADEA ‘both limit civil liability to the employer.'” Bounchanh v. Wa State Health CareAnth., 2019 WL 6052405. at *4 (W.D. Wash. Nov. 15, 2019) (quoting Miller v. Maxwell's bit'1 Inc., 991 F.2d 583. 587-88 (9th Cir. 1993) (“Congress did not intend to impose individual liability on employees. Title VII [and the ADEA] limit[] liability to employers with fifteen or more employees.”)). Individuals may only be held liable in their official capacities under the theory of respondeat superior. See Miller. 991 F.2d at 587-88; Ortez, 88 F.3d at 808.
Accordingly, Defendants' Motion to Dismiss is granted with respect to Plaintiff s Title VII and ADEA claims against the Individual Defendants in their individual capacities. The court finds, however, that Plaintiff alleged sufficient information about the Individual Defendants' positions at the University and their role as agents of the University to have sufficiently alleged the Individual Defendants in their official capacities. See Ortez, 88 F.3d at 808; see also Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“[The court has] an obligation where the p[laintiff] is pro se, particularly in civil rights cases, to construe the pleadings liberally to afford the plaintiff] the benefit of any doubt.”)). In this regard. Defendants' Motion to Dismiss is denied.
The court notes that if Plaintiff chooses to amend her Complaint in accordance with this Decision and Order, she is encouraged to clarify that she names the Individual Defendants in their official capacities.
3. Untimely Claims
Next. Defendants argue that the court lacks jurisdiction to hear Plaintiff s claims because her allegations are untimely, particularly with respect to events that occurred before November 30. 2021 (180 days before Plaintiff filed her EEOC Charge). Mot. at 23-24. ECF No. 19. The court understands Plaintiff s opposition to be that her allegations fall under the "continuing violation doctrine” and should therefore be considered. Opp'n at 28, ECF No. 31. The court largely agrees with the Defendants but differs in one respect.
Defendants' argument that the untimeliness of Plaintiff s allegations is a jurisdictional bar in this case is incorrect. “Title Vil's charge-filing requirement is a processing rule, albeit a mandatory one. not a jurisdictional prescription delineating the adjudicatory authority of courts.” Davis, 587 U.S. at 551. This also applies to the ADEA. See Ahmed v. Wormuth, 2023 WL 4205765, at *5 (N.D. Cal. June 26. 2023); cf. Bounchanh, 2019 WL 6052405, at *4 (citing 29 U.S.C. § 626(e)). Thus, the court considers Defendants' argument regarding Plaintiff s adherence to Title VIFs and the ADEA's procedural obligations under Rule 12(b)(6), not as a question of its jurisdiction under Rule 12(b)(1).
A plaintiff must file an EEOC charge within 180 days “after the alleged unlawful employment practice occurred” under both Title VII and the ADEA. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(1)(A); see also Nat'l R.R. Passenger Corp .v. Morgan, 536 U.S. 101, 122 (2002) (explaining how "each discrete [discriminatory] act starts a new clock for filing charges alleging that act”). When the EEOC receives a charge, the employer is notified and the EEOC investigates the allegations. Davis, 587 U.S. at 544. At that point, the EEOC either finds "reasonable cause” to believe the charge is true or. as it did here, determines that there is "no reasonable cause to believe that the charge is tine.” Id. at 544-45. In the later circumstance, the EEOC dismisses the charge and notifies the complainant of their right to sue. Id. at 545. The complainant must then commence a civil action against the allegedly offending employer within 90 days. Id.
Here. Plaintiff alleged unlawful employment practices that occurred between August 26, 2021-the date she applied for Associate Director of Global Learning and Engagement- and November 30. 2021-the date she was informed that she was not selected for the position. Compl. Attach. 1, ECF No. 1. Plaintiff s 180-day clock began on November 30. 2021. as the date of the alleged discriminatory act. See 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(1)(A).
Plaintiff timely filed her EEOC Charge on April 28. 2022. about one month before the 180-day deadline. See 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(1)(A). However. Plaintiff alleges several other positions that she applied to and was rejected for before November 30. 2021. See supra 2-5. To the extent that Plaintiff s claims are based on events that occurred before November 30. 2021. Plaintiff has failed to allege that she exhausted administrative remedies for those events. Those allegations are time barred under Title VII and the ADEA. See Barker v. McFerran, 2023 WL 6933357, at *3-4 (N.D. Cal. Oct. 18. 2023)
Plaintiff argues that the court should nonetheless consider her allegations prior to November 30. 2021, timely because of the “continuing violations doctrine." Opp'n at 28. ECF No. 31. Defendants argue that the continuing violation doctrine does not apply to Plaintiff because it does not apply to discrete acts of discrimination. Reply at 16. ECF No. 34. The court agrees with Defendants.
The continuing violation doctrine allows a court to consider alleged unlawful conduct that would otherwise be time-barred. Cherosky v. Henderson, 330 F.3d 1243. 1246 (9th Cir. 2003) (citing Morgan, 536 U.S. at 122). hi the context of claims made under Title VII and the ADEA. the continuing violations doctrine is only applicable to hostile work environment claims, not claims for discrimination (e.g., failure to hire) or retaliation. See Morgan, 536 U.S. at 105. 114 (holding that ”[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice'”). Unlike in hostile work environment claims, claims for discrimination and retaliation constitute "discrete conduct” that are not actionable unless they occur within the statutory time period, “even when they are related to acts alleged in timely filed charges.” Id. at 113, 115.
Therefore. Plaintiff s claims of discrimination that predate November 30. 2021. are time baned because the Complaint fails to allege that Plaintiff exhausted her administrative remedies for those acts. See Barker. 2023 WL 6933357, at *3-4. The court grants Defendants' Motion to Dismiss regarding allegations of discrimination that occurred prior to November 30. 2021.
The court notes that “[p]rior, time-barred acts may not form the basis for liability, but may nevertheless be admissible as background evidence in support of a timely claim." Lelaind v. City- & County of San Francisco. 576 F.Supp.2d 1079. 1092 n.4 (N.D. Cal. 2008) (noting, however, that this determination is governed by the Federal Rules of Evidence).
If Plaintiff amends her Complaint, she must focus on facts that are related to her failure to be hired on November 30, 2021 (i.e., the time frame referenced in her EEOC Charge).
4. Administrative Exhaustion of New Allegations
Finally. Defendants' last jurisdictional argument pertains to the court's supposed lack of jurisdiction to consider Plaintiff s Title VII claims because some of her allegations were not included in the EEOC Charge. Mot. at 24. ECF No. 19. Specifically. Defendants argue that Plaintiff s allegations of “various critical procedural failures in the handling of her EEO complaint to UOG about her not being hired for the Associate Director of Global Learning and Engagement position in January. 2022” should not be considered because Plaintiff raised them for the first time in her Complaint. Id. at 25. Plaintiff counters that her inclusion of these procedural failures in the handling of her EEO complaint is “warranted due to the emergent nature of these adverse actions” and "constitute significant indirect evidence in [her] claims of race, national origin, and age-based case of discrimination.” Opp'n at 29. ECF No. 31.
The court again notes that Title Vil's charge-filing requirement is "not a jurisdictional prescription delineating the adjudicatory authority of the courts." Davis, 587 U.S. at 551. The court analyzes Defendants' argument under Rule 12(b)(6) for failure to state a claim.
“Substantial compliance” with administrative exhaustion is required under Title VII. See Williams v. Wolf. 2019 WL 6311381. at *6 (N.D. Cal. Nov. 25, 2019) (citing Sommatino v. United States, 255 F.3d 704. 708 (9th Cir. 2001)); cf Sosa. 920 F.2d at 1456. The court's review of a plaintiff s allegations depends upon the "scope of both the EEOC charge and the EEOC investigation.” Sommatino, 255 F.3d at 709 (quoting Paige v. State of California. 102 F.3d 1035. 1041 (9th Cir. 1996)). "Substantial compliance” with administrative exhaustion means that the court may consider allegations in a complaint that are not in the EEOC charge if the allegations are "like or reasonably related to the allegations contained in the EEOC charge.” Sosa, 920 F.2d at 1456 (quoting Green v. LA. Cnty. Superintendent of Schs.. 883 F.2d 1472. 1475-76 (9th Cir. 1989)). An allegation is "like or reasonably related to allegations contained in the EEOC charge” if "the original EEOC investigation would have encompassed the additional charges.” or they "fall within the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Green. 883 F.2d at 1476 (explaining further that the remedial purpose of Title VII warrants a liberal construction of this requirement); Sommatino, 255 F.3d at 709 (citing Deppe v. United Airlines, 217 F.3d 1262. 1267 (9th Cir. 2000)).
Plaintiff alleges facts that occurred after November 30, 2021. Specifically. Plaintiff alleges that she attempted to speak with the University about the alleged discrimination on January 7 and 10. 2022. Compl. at 18. ECF No. 1. She further alleges that she spoke with Ms. Darlene Blas about her employment discrimination complaint, and that Ms. Blas took no action on her complaint. Id. at 19. Finally, Plaintiff alleges that Mr. Gumataotao further inhibited the progress of her internal complaint after he assumed the role of Acting Chief Human Resources Officer. Id. These facts, as alleged after November 30, 2021, are “reasonably related to” Plaintiff s allegations in her EEOC Charge. See Sosa. 920 F.2d at 1456. Plaintiff alleged attempts to file an EEO complaint with the University regarding her rejection from the Assistant Director of Global Learning and Engagement position can reasonably be assumed to have grown out the conduct alleged in her EEOC Charge. See Green. 883 F.2d at 1476. Therefore, the court finds that the facts Plaintiff alleged after November 30. 2021. are reasonably related to the EEOC charge, and the court may consider them.
Defendants' Motion to Dismiss with respect to allegations of Plaintiff s “various critical procedural failures” after November 30. 2021. is therefore denied.
B. Plaintiffs Discrimination Claims
Having addressed Defendants' arguments above and determined the relevant scope of Plaintiff s allegations for consideration, the court turns to Defendants' arguments regarding whether Plaintiff s Title VII and ADEA claims fail to state a claim upon which relief can be granted. To briefly summarize, the court has limited its review to allegations of discrimination on the basis of race, national origin, and age and her allegations of retaliation as they related to her failure to be hired for Assistant Director of Global Learning and Engagement on November 30. 2021. The court has further limited the named Defendants, such that the University and all Individual Defendants-except Mr. Camacho who has been dismissed-are to be considered in their official capacities only.
Plaintiff alleges that Defendants discriminated against her based on her race and national origin, in violation of Title VII. and her age. in violation of the ADEA. Compl. at 9. Attach. 1, ECF No. 1. Plaintiff s Complaint indicates three categories of discriminatory conduct: (1) failure to hire; (2) unequal terms and conditions of employment; and (3) retaliation. Compl.. ECF No. 1.
Defendants move to dismiss arguing that Plaintiff has no direct evidence of discrimination, fails to allege a prima facie case of discrimination, and does not allege plausible claims for discrimination. Mot. at 8-20. ECF No. 19.
Before addressing the sufficiency of Plaintiff s allegations of discrimination and retaliation, the court first addresses Defendants' argument about Plaintiff s supposed need for "direct evidence of discrimination.'' Mot. at 8-9, ECF No. 19. Contrary to what Defendants seem to suggest. Plaintiff is not required to prove her discrimination and retaliation claims at this stage. Rather. Plaintiff is only required to assert factual allegations that "suggest that the claim has at least a plausible chance of success.” Levitt, 765 F.3d at 1134-35. And even if Plaintiff was required to prove her claims of discrimination at this stage, direct or circumstantial evidence may be submitted. See. Brooks-Joseph v. City of Seattle. 697 F.Supp.3d 1085. 1097 (W.D. Wash. 2023), reconsideration denied, 2024 WL 1173802 (W.D. Wash. Mar. 19. 2024).
1. Title VII Disparate Treatment Claims
Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex. or national origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff may demonstrate discrimination under a theory of disparate treatment. Ricci v. DeStefano, 557 U.S. 557, 577 (2009). Disparate treatment occurs when an employer "has treated a particular person less favorable than others because of a protected trait.” Id. (internal quotations omitted) (quoting Watson v. Fort Worth Bank & Tr., 487 U.S. 977. 985-86 (1988)). A plaintiff must show, through direct or circumstantial evidence, that the "motive to discriminate was one of the employer's motives.” E.g., Kamara v. Adams & Assocs., Inc., 2017 WL 4340255. at *2 (E.D. Cal. Sept. 29. 2017); see also Bayless v. Bd. of Trs. of Clark Cnty. Sell. Dist., 2022 WL 5206659, at *3 (D. Nev. Oct. 4. 2022).
Generally, a claim for disparate treatment requires Plaintiff to sufficiently allege that: (1) she is a member of a protected class; (2) she is qualified for her position: (3) she experienced an adverse employment action; and (4) similarly situated individuals outside her protected class were treated more favorably, or other circumstances indicate discriminatory intent. See Sheets v. City of Winslow, 859 Fed.Appx. 161, 162 (9th Cir. 2021) (quoting Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)); see also Welch v. Or. Health & Sci. Univ.. 2024 WL 3106930. at *5-6 (D. Or. May 17, 2024) (citing, e.g., Sheppard v. David Evans & Assocs.. 694 F.3d 1045 (9th Cir. 2012)) (discussing how the elements of a prima facie case are relevant to a court's assessment of whether a plaintiff meets the pleading standard). Additionally, "adverse employment action[s] must be significant, and trivial harms such as petty slights or minor annoyances are not actionable.” Green v. City & Cnty. of San Francisco, 2021 WL 3810243, at *32 (N.D. Cal. Aug. 26, 2021) (citing Burlington N. & SantaFeRy. v. White, 548 U.S. 53, 68 (2006); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).
Failure to hire is a common manifestation of disparate treatment. Brooks-Joseph. 697 F.Supp.3d at 1097 (citing McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802 (1973)). As adapted to fail-to-hire claims, a plaintiff must show the following to plausibly allege a claim for disparate treatment under Title VII: (a) she belongs to a protected class; (b) she was qualified for the position; (c) she was rejected despite her qualifications; and (d) the position remained open. McDonnell Douglas. 411 U.S. at 802.
Of the four factors. Plaintiff only plausibly alleges the first. Plaintiff correctly indicates that she belongs to a protected class with respect to race and national origin. In both her EEOC Charge and Complaint. Plaintiff identifies that she is Asian and a Korean national. E.g, Compl. at 9. 14-18. Attach. 1. ECF No. 1. Plaintiff does not. however, plausibly allege the remaining three factors. In numerous instances throughout her Complaint. Plaintiff references that she “a more qualified Korean professional.” and that Ms. Amanda Francel Blas was “less qualified (i.g. [sic], lack of the highest standard of expertise and experience in instruction, research, and services) or unqualified (i.e., with no earned doctoral degree).” Compl. at 15. ECF No. 1. Yet Plaintiff does not specifically allege how she was actually qualified for the Associate Director role. Rather, she relies on the assumption that she “was the singular applicant possessing an earned doctoral degree and a robust background in global learning and engagement, including significant experience in instruction, research, and service at a senior level.” Id. at 15-16, 28. Additionally. Plaintiff failed to include relevant attachments, including Attachments 4 and 8. that may shed light on her qualifications for the position. Regardless. Plaintiff appears to overlook the stated requirements for the Associate Director of Global Learning and Engagement position as posted by the University. For example, the minimum requirements are a master's degree (not a doctoral degree) and "progressively responsible leadership experience in two or more” listed areas. Compl. Attach. 7, ECF No. 1. Even though Plaintiff alleges that she was rejected for the position, she has also not alleged that the position remained open or that "similarly situated individuals outside her protected class were treated more favorably.” See McDonnell Douglas, 411 U.S. at 802. Instead. Plaintiff only indicates that Ms. Blas was hired in her place, was less qualified, and had “close ties” to the Search Committee who shared “Chamorro ethnicity and worldview.” Compl. at 15-16, ECF No. 1.
Plaintiff also indicated that she experienced “unequal terms and conditions of employment.” Compl. at 4. ECF No. 1. Other than identifying her membership in a protected class. Plaintiff has not sufficiently alleged that she was qualified for the position, what the unequal tenns and conditions of employment were, or that similarly situated individuals outside her protected class were treated more favorably. See Sheets, 859 Fed.Appx. at 162. Although Plaintiff alleges that one-day notice for her interview was “highly irregular" and "unprofessional" and takes issue with how the Search Committee was formed. Plaintiff has not sufficiently alleged nonconclusory allegations sufficient to plead elements of discrimination under Title VII. Compl. at 3-4. ECF No. 1.
Although detailed factual pleadings are not required. Plaintiff must allege more than conclusory allegations. See Iqbal, 556 U.S. at 679. Plaintiff has not alleged facts sufficient to suggest that her Title VII discrimination claims have even "a plausible chance of success" on the merits. See Levitt, 765 F.3d at 1134-35. Accordingly, the court grants Defendants' Motion to Dismiss, but allows Plaintiff leave to amend.
2. ADEA Disparate Treatment Claims
The ADEA makes it unlawful for employers "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1). This prohibition applies to "individuals who are at least 40 years of age.” 29 U.S.C. § 631(a). As under Title VII. a plaintiff may demonstrate discrimination under the ADEA under a theory of disparate treatment. Palmer v. United States, 794 F.2d 534. 536 (9th Cir. 1986); Rose v. Wells Fargo & Co., 902 F.2d 1417. 1421 (9th Cir. 1990) (explaining that disparate treatment alleged under the ADEA requires Plaintiff to allege that "the employer treats some people less favorably than others because of their age”). Unlike Title VII. however, the ADEA requires that claims of age discrimination allege that age was the “but-for” cause of the employer's adverse decision. See Barnes v. Saul, 840 Fed.Appx. 943, 945 n.1 (9th Cir. 2020) (citing Babb v. Wilkie, 589 U.S. 399. 402 (2020)); see also Bayless, 2022 WL 5206659. at *3; Hazen Paper Co. v. Biggins, 507 U.S. 604. 606 (1993) (“[T]here is no disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee's age.”).
Under the ADEA. for a failure to hire claim, a plaintiff must plausibly allege that she was (1) at least forty years old, (2) qualified for the position for which an application was submitted. (3) denied the position, and (4) the position was given to a substantially younger person. See Barker, 2023 WL 6933357. at *3 (citing Shelley v. Geren, 666 F.3d 599. 606 (9th Cir. 2012)) (failure to promote).
Here, Plaintiff does not sufficiently allege facts that support the inference that she was not hired or treated differently with respect to her terms and conditions of employment because of her age. As in her Title VII claims. Plaintiff has only alleged that she falls beyond the proper age threshold (over forty years old) and was rejected for the position. See Compl. at 4. Attach. 1, ECF No. 1. Plaintiff has also not sufficiently alleged that she was qualified for the position or that her comparators were "substantially younger” than her. and that she was treated differently because of it. See Barker. 2023 WL 6933357. at *3. Plaintiff only alleges that the Global Learning Office "consisted predominately of individuals around 30 years of age” and that Ms. Blas was “a less qualified younger” applicant “close to 30 years of age.” Compl. at 11. 17-18. ECF No. 1.
Plaintiff has also indicated that she experienced "unequal terms and conditions of employment.” Id. at 4. But. as above. Plaintiff does not sufficiently allege facts supporting the inference that she was treated differently regarding her "terms and conditions of employment” because of her age.
Accordingly, the court grants Defendants' Motion to Dismiss regarding Plaintiff s ADEA claims, but allows Plaintiff leave to amend.
3. Retaliation
Plaintiff also alleges that she was retaliated against in violation of Title VII and the ADEA. Compl. at 4, 10. ECF No. 1. Defendants move to dismiss, arguing that there is “no direct evidence that the non-selection of the Plaintiff for the Associate Director of Global Learning and Engagement position was an act of retaliation." Mot. at 14. ECF No. 19.
Title VII and the ADEA make it unlawful for an employer to retaliate against an employee because the employee “has opposed any practice made an unlawful employment practice.” 42 U.S.C. § 2000e-3(a); see also 29 U.S.C. § 623(d) (ADEA); Poland v. Chertoff. 494 F.3d 1174, 1180 n.l (9th Cir. 2007) (explaining how Title VII and ADEA anti-retaliation provisions are parallel statutes). A claim for retaliation under both Title VII and the ADEA requires the plaintiff to plausibly allege that “(1) [she] engaged in a protected activity; (2) [her] employer subjected [her] to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action.” Ray v. Henderson. 217 F.3d 1234, 1240 (9th Cir. 2000) (Title VII); see also Hashimoto v. Dalton, 118 F.3d 671. 675 n.l (9th Cir. 1997) (explaining that cases interpreting Title VII are “frequently relied upon in interpreting” the ADEA)). A plaintiff need not make a prima facie case for retaliation. Rather, only a short and plain statement of the claim showing that they are entitled to relief is necessary. Ortez, 88 F.3d at 808.
Plaintiff has not met this threshold. Plaintiff s Complaint has not clearly alleged what protected activities she believes were the subject of retaliation beyond conduct that occurred prior to November 30. 2021 (which she characterizes as “retaliation subsequent to my objections to [discriminatory] practices” that occurred in between 2007 and 2010), and her interactions with the HR Office between December 2021 and April 2022 after she made her EEO complaint. Compl. 10. 19-20. Plaintiff further fails to allege a “causal link" between the protected activity and the adverse action. Ray, 217 F.3d at 1240; see also Barker. 2023 WL 9633357, at *7.
Accordingly, the court grants Defendants' Motion to Dismiss with respect to Plaintiff s retaliation claim, but allows the Plaintiff leave to amend in light of the foregoing.
C. Leave to Amend
“Under Federal Rule of Civil Procedure 15(a), leave to amend shall be freely given when justice so requires.” Carvalho v. Equifax Info. Servs., LLC. 629 F.3d 876, 892 (9th Cir. 2010). The court has discretion to deny leave to amend due to “undue delay, bad faith or dilatory motivate on part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, [or] futility of amendment.” Id. (quoting Foman v. Davis. 371 U.S. 178. 182 (1962)). But dismissal without leave to amend is generally improper unless it is clear that “the complaint could not be saved by any amendment.” Intri-Plex Techs, v. Crest Grp.. 499 F.3d 1048. 1056 (9th Cir. 2007); see also Lopez v. Smith. 203 F.3d 1122, 1131 (9th Cir. 2000) (discussing how the “rule favoring liberality in amendments to pleadings is particularly important for the pro se litigant”).
As alleged. Plaintiff s theory regarding the Defendants' discrimination and retaliation against her is factually insufficient to survive dismissal under Rule 12(b)(6). Even so. the court does not find any of the aforementioned factors from Foman v. Davis weighing in favor of denying Plaintiff leave to amend. See Carvalho, 629 F.3d at 892. Therefore. Plaintiff is allowed leave to amend her Complaint within 60 days of this Decision and Order. Plaintiff must plead additional, specific facts regarding the alleged discrimination and retaliation related to her application and rejection for Assistant Director of Global Learning and Engagement to survive the applicable pleading standard. In particular. Plaintiff should consider:
The court is also not dismissing Plaintiffs Complaint and requiring her to refile because "[f]orcing plaintiffs with deficient but curable complaints to file new actions, rather than simply amending their initial complaints only serves to undermine the goal of judicial economy.” Unified Data Sens., LLC v. Federal Trade Comm'n, 39 F.4th 1200, 1213 (9th Cir. 2022) (Smith. J. dissenting in part) (citing Lopez. 203 F.3d at 1130).
The court is not obligated to advise a pro se litigant on how to cure the defects in her complaint but does so here out of courtesy to the Plaintiff See Pliler v. Ford. 542 U.S. 225, 232 (2004).
• Alleging Mr. Camacho's role, in his official capacity as the University's General Counsel, in her Title VII and ADEA discrimination and retaliation claims, if applicable, as explained supra Section V(A)(1);
• Specifying that the Individual Defendants are being sued in their official, not personal, capacities, if applicable, as explained supra Section V(A)(2); and
• Alleging, with greater specificity, her claims for disparate treatment and retaliation under Title VII and the ADEA. including the factors articulated supra Section V(B). if applicable.
If Plaintiff does not replead within the time frame provided, her Complaint will be dismissed.
VI. Plaintiffs Request for Default
After Defendants filed their Motion to Dismiss. Plaintiff filed a Request for Default on December 21.2023. ECF No. 29-1. Plaintiff argues that Defendants exceeded the twenty-one-day response period to respond to her Complaint because she did not receive (1) a response to her Complaint, (2) Notice to Pro Se Litigants required by Rule 12 of this court's local rules, and (3) a certificate of service confinning service was made to her physical address. Request at 2-3, ECF No. 29-1.
Defendants opposed this Request on December 26, 2023. Opp'n. ECF No. 30. In their Objection. Defendants explained that their Motion to Dismiss was filed on December 11, 2023- nineteen days after Plaintiff s Complaint was served. See id. at 1-2. And, when Defendants received notice from the clerk's office of their deficiency for failure to file Notice to Pro Se Litigants and a certificate of service on December 14, 2023. Defendants corrected the deficiency the following day. December 15. 2023. Opp'n at 1-2. ECF No. 30; see also ECF Nos. 22. 24.
Under Federal Rule of Civil Procedure 55(a). “when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or others, the clerk must enter the party's default.” FED. R. Crv. P. 55(a); see also CVLR 77 (authorizing the clerk of the District Court of Guam to enter order for default in accordance with Federal Rule of Civil Procedure 55).
Although Defendants did not file an accompanying Notice to Pro Se Litigants or a certificate of service as required under the local rules on December 11. they did not “failf] to plead or otherwise defend.” FED. R. Crv. P. 55(a); see, e.g.. Duran v. City of Porterville, 2022 WL 2392540. at *1 (E.D. Cal. July 1, 2022); Morales-Alfonso v. Garcia, 2017 WL 1650222, at *1-2 (D. Ariz. May 2, 2017). Rather. Defendants timely filed their Motion to Dismiss, and corrected their deficient filing on December 15. 2023. ECF Nos. 22, 24. 30. As such, the clerk of this court correctly did not enter the Defendants' default.
Plaintiff s Request for Default is therefore denied.
VIL Conclusion
For the foregoing reasons. Defendants' Motion to Dismiss is GRANTED IN PART AND DENTED IN PART. Specifically, the Motion to Dismiss is GRANTED WITHOUT LEAVE TO AMEND with respect to Plaintiff s inclusion of the Individual Defendants in their personal capacities. The Motion to Dismiss is GRANTED WITH LEAVE TO AMEND as to Plaintiff s claims for discrimination and retaliation under Title VII. subject to the factual limitations described and to Plaintiff s inclusion of Mr. Camacho in the case. Finally, the Motion to Dismiss is DENIED as to Plaintiff s inclusion of the remaining Individual Defendants in their official capacities, except Mr. Camacho as alleged.
Additionally, Plaintiff s Motion for Default is DENTED.
If Plaintiff wishes to file an amended complaint correcting the deficiencies identified above, she must do so within 60 days of this Decision and Order. Plaintiff may not add new claims or parties without leave of the court or stipulation by the parties pursuant to Federal Rule of Civil Procedure 15. If no such amended complaint is filed by that date, the Complaint will be dismissed with prejudice.
SO ORDERED.