Opinion
3:21-cv-01669-HL
08-01-2023
LENA ARISTON, Plaintiffs, v. U.S. POSTAL SERVICE; LOUIS DEJOY, Postmaster General of the United States; U.S. MERIT SYSTEMS PROTECTION BOARD, Defendants.
FINDINGS AND RECOMMENDATION
ANDREW HALLMAN UNITED STATES MAGISTRATE JUDGE
Plaintiff Lena Ariston brings this action against Defendants United States Postal Service (“USPS”), Louis Dejoy, Postmaster General of the United States, and the United States Merit Systems Protection Board (“MSPB”) (collectively “Defendants”), asserting multiple violations of the law with respect to her employment with USPS. Defendants have moved to dismiss Plaintiff's complaint for failure to state a claim for relief. ECF 31. This Court heard oral argument on Defendants' motion on March 21, 2023. ECF 37. For reasons set forth below, Defendants' motions should be GRANTED in part and DENIED in part.
The Court recites the following facts from Plaintiff's complaint and assumes that they are true for the purpose of reviewing the pending Rule 12(b)(6) motion. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007).
Plaintiff is a member of multiple classes protected by Title VII of the Civil Rights Act of 1964 (“Title VII”) including age (57 at time of resignation), sex (female), and race (Hispanic). Second Am. Compl. (“SAC”) ¶ 16, ECF 30.
In 1986, Plaintiff began working for the USPS. Id. ¶ 17. In 2015, Plaintiff became Postmaster for Eugene, Oregon, holding that position until her resignation on December 31, 2020. Id. ¶¶ 17, 141. The Postmaster position included relocation benefits, but Portland District Manager Tyrone Williams twice refused to approve the benefits for Plaintiff without explanation even though such benefits were “routinely approved” for others. Id. ¶ 30.
Beginning in 2018, Plaintiff came under the supervision of Anthony Spina-Denson (“Mr. Spina-Denson”) and was micromanaged, stripped of authority, and harassed by Mr. Spina-Denson “every day for three years.” Id. ¶ 23. Plaintiff complied with all of Mr. Spina-Denson's directions, including “phone calls at all hours of the day and night, and his demands that she be available 24/7.” Id. ¶ 24. Mr. Spina-Denson undermined Plaintiff's authority by instructing Plaintiff's subordinates to report directly to him, ignored or overturned Plaintiff's hiring recommendations, and subjected Plaintiff to verbal abuse and threats of discipline. Id. ¶¶ 29, 43-44, 47-49, 51-53, 55-58, 64-65, 68-72, 76-89, 98, 105, 108-13, 118. Plaintiff's credibility was “destroyed,” her decisions were frequently overturned by Mr. Spina-Denson, and Plaintiff was blamed for any failures resulting from Mr. Spina-Denson's decisions. Id. ¶ 25.
Plaintiff was prohibited from working at her office in the Eugene Main Post Office and required her to work out of a conference room at the Southside office, interfering with her ability to supervise her employees and conduct her work. Id. In one instance during November 2018, Plaintiff was directed by Mr. Spina-Denson to conduct interviews from her car in a parking lot outside the Southside office, during which she suffered pain from writing in that position because of her tendonitis, and felt humiliated because other employees could see her working from her car. Id. ¶ 50. Mr. Spina-Denson would not invite Plaintiff to meet the Postmaster General when the opportunity arose on November 16, 2018, suggesting that he would only invite individuals “within commute distance.” Id. ¶ 54. Caucasian Postmasters of the same or lower levels, travelling from the same or greater distance as Plaintiff would have, attended the meeting. Id.
Plaintiff made hiring decisions and avoided job opportunities out of concern that Mr. Spina-Denson would retaliate. Id. ¶¶ 34, 62, 73, 119. Plaintiff was repeatedly required to attend work events or commit to tasks on non-scheduled days, sometimes travelling more than 58 miles each way to attend. Id. ¶¶ 38, 87. When Plaintiff was selected as the best route inspector in the Portland District for 2018 and selected to go to Las Vegas, Mr. Spina-Denson “became enraged,” told Plaintiff that she “was not going anywhere” and refused to allow Plaintiff to travel. Id. ¶ 40. Mr. Spina-Denson did not display any such alleged conduct with his male or Caucasian employees. Pl.'s Resp. 10-14, ECF 32.
Mr. Spina-Denson supervised five Postmasters across Oregon from his office in Portland. SAC ¶ 26, ECF 30. Even so, Mr. Spina-Denson “often spent 3-4 days per week in Eugene simply to harass [and] discriminate against” Plaintiff. Id. ¶ 26.
Plaintiff attempted several methods to avoid or seek relief from Mr. Spina-Denson's conduct. Id. ¶ 28. In May 2018 and again in February 2020, Plaintiff applied for a transfer to a position as postmaster of Salem, Oregon, but the position was awarded “to a Caucasian female with less postal experience,” with Mr. Spina-Denson denying Plaintiff's requests. Id. ¶¶ 28, 32, 115-16. Mr. Spina-Denson had told Plaintiff that lateral transfers were not allowed, but said that “of course laterals are acceptable” when discussing a request submitted by a Caucasian male in October 2018. Id. ¶ 45. Mr. Spina-Denson later approved a lateral transfer by a Caucasian female in December 2019. Id. ¶ 103. In September 2018, Plaintiff applied for a downgrade to a Salem position despite Mr. Spina-Denson “influenc[ing] . . . Plaintiff to withdraw her application,” but “a younger, Caucasian female Postmaster, with less management and delivery experience” was promoted into the position instead. Id. ¶ 28, 37. In September 2018, Plaintiff states that Mr. Spina-Denson directed her not to attend an event that could have provided new job opportunities and that Mr. Spina-Denson claimed he “didn't know [Plaintiff was] looking for another job,” despite having been on two review boards for other jobs Plaintiff had applied for. Id. ¶ 41.
In September 2018, and again in January 2020, Plaintiff filed Equal Employment Opportunity (“EEO”) complaints against Mr. Spina-Denson after speaking with EEO counselors, alleging harassment, discrimination, and retaliation based on protected characteristics. Id. ¶¶ 28, 46, 91, 114. Plaintiff states that “harassment [by Mr. Spina-Denson] increased” after filing each complaint. Id. ¶ 28(b). On December 17, 2018, Plaintiff attended an EEO mediation with Mr. Spina-Denson. Id. ¶ 60. The following day, Mr. Spina-Denson “pressure[d]” and bullied Plaintiff until she “reluctantly” selected his preferred candidate for a promotion. Id. ¶¶ 60-61, 63.
Plaintiff contacted Human Resources multiple times to alert them to Mr. Spina-Denson's behavior. Id. ¶¶ 28, 61-62, 95-96. Complaints were made to HR by Plaintiff or on Plaintiff's behalf, leading to investigations that did not result in discipline. Id. ¶¶ 28, 66-67, 92, 95-96. Mr. Spina-Denson intimidated Plaintiff in response to these processes and opened an investigative interview for Plaintiff in alleged retaliation. Id. ¶¶ 97, 99-102, 104.
In September 2018, Mr. Spina-Denson asked Plaintiff, then 55 years old, when she would be retiring. Id. ¶ 42. The question made Plaintiff feel like she was being pushed out of her position. Id..
In March 2020, Plaintiff successfully took a temporary transfer as Acting Eugene Plant Manager to distance herself from Mr. Spina-Denson. Id. ¶¶ 28, 105, 107-08. As Acting Eugene Plant Manager, Plaintiff was given greater responsibilities and expectations than the previous plant manager, a male aged approximately 30-40. Id. ¶ 117. Plaintiff then volunteered for a transfer to Medford in February 2020, working in temporary quarters to keep distancing herself from Mr. Spina-Denson and rejected opportunities to apply to her “ideal job” of Salem Postmaster due to her fear of Mr. Spina-Denson. Id. ¶ 118-19.
On May 29, 2020, Plaintiff was given a three-day notice to return to her original postmaster position despite having been given assurances that her current position in Medford was to be extended. Id. ¶ 120-23. Instead of reporting, Plaintiff requested sick leave under the Family and Medical Leave Act (“FMLA”) from May 1, 2020, to May 28, 2020, and submitted supporting medical documentation following a medical appointment, having accrued more than a year of leave. Id. ¶ 129-38. Plaintiff's FMLA was approved but Mr. Spina-Denson instead issued Plaintiff leave without pay from May 9, 2020, to May 12, 2020, which “was done on purpose.” Id. ¶¶ 130-39. Mr. Spina-Denson did not rectify Plaintiff's pay status after receiving notice of her FMLA approval. Id. ¶ 137. Plaintiff did not return to work. Id. ¶¶ 138-39. Plaintiff resigned on December 31, 2020, with the recommendation of her physician, because “she could no longer endure the abuse” of working with Mr. Spina-Denson. Id. ¶¶ 139-44.
At least one other female employee, Southside Supervisor Kathleen Clardy, similarly resigned because of Mr. Spina-Denson's conduct. Id. ¶ 75. Further, manager Heather Westlake, a Caucasian female employee, made complaints to HR and filed two complaints with the Equal Employment Opportunity Commission (“EEOC”) against Mr. Spina-Denson. Id. ¶ 16. Mr. Spina-Denson would interrupt Ms. Westlake by swearing and using hostile language when she tried to answer his questions and would often interrupt Ms. Westlake when she addressed her employees. Id.
Plaintiff filed an appeal with the MSPB on January 26, 2021, alleging constructive discharge based on harassment, retaliation, and discrimination based on her age, race, ethnicity, and gender. Id. ¶ 4. Plaintiff's appeal was denied by MSPB as a final decision on October 19, 2021, following a holding that Plaintiff had not established a nonfrivolous allegation that she retired under duress. Id. ¶¶ 5-6. At the same time, the EEOC dismissed Plaintiff's two complaints. Id. ¶¶ 6-7.
The MSPB is a quasi-judicial agency that may “review certain serious personnel actions against federal employees.” Perry v. Merit Sys. Prot. Bd., 582 U.S. 420 (2017).
Plaintiff filed her initial complaint in this action on November 17, 2021. ECF 1. After the parties conferred regarding a motion to dismiss the complaint, ECF 13, 15, Plaintiff filed a First Amended Complaint. ECF 17. Defendants then moved to dismiss Plaintiff's First Amended Complaint. ECF 21. This Court heard oral argument on Defendants' motion and, after advising Plaintiff as to some of deficiencies in her complaint, granted Plaintiff's motion for leave to amend. ECF 29.
Plaintiff filed her Second Amended Complaint in this action on November 30, 2022. ECF 30. In it, she alleges that she was subject to a constructive discharge by USPS due to the hostile work environment and discrimination based on her age, race, and sex caused by Mr. Spina-Denson, Manager of Post Office Operations in Eugene, Oregon. SAC ¶¶ 2-3, ECF 30. Plaintiff further alleges that Mr. Spina-Denson retaliated against her for protected activities. Id. ¶¶ 2-3, 176. Plaintiff also seeks judicial review of her appeal filed with the Merit Systems Protection Board (“MSPB”) incorporating the above allegations, alleging that the MSPB failed to act. Id. ¶¶ 4-8, 214. Defendants again moved to dismiss, ECF 31, which is discussed in detail below.
STANDARD OF REVIEW
Under Rule 12(b)(6), a party may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A court may dismiss “based on the lack of cognizable legal theory or the absence of sufficient facts alleged” under a cognizable legal theory. UMG Recordings, Inc. v. Shelter Cap. Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also CallerID4u, Inc. v. MCI Commc'ns Servs. Inc., 880 F.3d 1048, 1061 (9th Cir. 2018). “A claim has facial plausibility when the plaintiff pleads factual content that 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); Teixeira v. Cty. of Alameda, 873 F.3d 670, 678 (9th Cir. 2017). The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Twombly, 550 U.S. at 556. When a plaintiff's complaint pleads facts that are “merely consistent with” a defendant's liability, the plaintiff's complaint “stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. at 557 (brackets omitted).
The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Teixeira, 873 F.3d at 678; see also Iqbal, 556 U.S. at 679; Kwan v. SanMedica Int'l, 854 F.3d 1088, 1096 (9th Cir. 2017). The pleading standard under Rule 8 “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555); see also Fed.R.Civ.P. 8(a)(2). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678 (internal citations omitted); Kwan, 854 F.3d at 1096. A complaint also does not suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Twombly, 550 U.S. at 557. “Rule 8 does not empower [the] respondent to plead the bare elements of his cause of action . . . and expect his complaint to survive a motion to dismiss.” Iqbal, 556 U.S. at 687.
DISCUSSION
Defendants argue that all of Plaintiff's claims in their Second Amended Complaint should be dismissed for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). Defs.' Mot. Dismiss 3-5, ECF 31. Specifically, Defendants argue:
• Plaintiff's first and fourth claims of discrimination under Title VII and the Age Discrimination in Employment Act (“ADEA”) do not plausibly allege that Plaintiff's protected characteristics were the but-for cause of any adverse employment actions she faced. Defs.' Mot. Dismiss 6-12, ECF 31.
• Plaintiff fails to allege a causal link between the acts of retaliation and protected activity in her third claim. Defs.' Mot. Dismiss 18-22, ECF 31.
• The public-sector provisions of Title VII and the ADEA do not support claims of hostile work environment. Defs.' Mot. Dismiss 12-14, ECF 31. In addition, the alleged harassing conduct was not racial, sexual, or ageist in nature. Defs.' Mot. Dismiss 14-16, ECF 31.
• Plaintiff's sixth claim for constructive discharge, arising from intolerable working conditions, fails to allege that working conditions were intolerable at the time Plaintiff resigned. Defs.' Mot. Dismiss 17, ECF 31.
• Plaintiff's seventh claim for failure to act under the Administrative Procedure Act (“APA”) is preempted by the Civil Service Reform Act (“CSRA”). Defs.' Mot. Dismiss 22, ECF 31.Defendants ask that the Court dismiss these claims with prejudice. Defs.' Mot. Dismiss 22-23, ECF 31. Plaintiff opposes the motion on all grounds and, in the alternative, asks that the Court grant leave to amend. Pl.'s Resp. 38, ECF 32.
I. Discrimination
Title VII prohibits employment discrimination based on race or sex, 42 U.S.C. § 2000e-2(a)(1), and the ADEA prohibits employment discrimination based on age. 29 U.S.C. § 623(a).
“A postal employee may bring suit under § 2000e-2(a)(1) pursuant to 42 U.S.C. § 2000e-16.” Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000) (citing Ayon v. Sampson, 547 F.2d 446, 450 (9th Cir. 1976)). Section 2000e-16 provides in relevant part that “[a]ll personnel actions affecting employees . . . in the United States Postal Service . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-16(a).
The federal provision of the ADEA provides in relevant part that “[a]ll personnel actions affecting employees . . . in the United States Postal Service . . . shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a).
To establish a prima facie case of discrimination based on circumstantial evidence, a plaintiff must demonstrate: (1) the plaintiff belongs to a protected class; (2) the plaintiff was performing according to her employer's legitimate expectations; (3) the plaintiff was subject to an adverse employment action; and (4) similarly situated individuals outside plaintiff's protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. Reynaga v. Roseburg Forest Prod., 847 F.3d 678, 690-91 (9th Cir. 2017) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). At the motion to dismiss stage, a plaintiff only needs to allege facts supporting a plausible inference of discrimination and “need not meet the McDonnell Douglas burden-shifting test.” Nw. Infrastructure LLC v. City of Portland, No. 3:21-CV-00843-MO, 2021 WL 5912153, at *6 (D. Or. Dec. 14, 2021) (citing Swierkiewicz v. SoremaN.A., 534 U.S. 506, 510 (2002) and Austin v. Univ. of Or., 925 F.3d 1133, 1136-37 (9th Cir. 2019)).
Assuming the truth of all allegations in the complaint, there is no dispute that Plaintiff belongs to a protected class, that Plaintiff was performing according to her employer's legitimate expectations, and that Plaintiff suffered adverse employment actions. Defendants only dispute that Plaintiff has alleged a plausible inference of discrimination. Defs.' Mot. Dismiss 7-12, ECF 31.
Defendants argue that the alleged similarly situated individuals do not establish an inference of discrimination under Title VII because they were not similarly situated “in all material respects.” Defs.' Mot. Dismiss 7-8, ECF 31 (quoting Sheets v. City of Winslow, 859 F. App'x. 161, 162 (9th Cir. 2021)). Defendants also argue the age comparators were not young enough to establish an inference of discrimination under the ADEA. Plaintiff responds that an inference of race discrimination exists based on Mr. Spina-Denson denying her transfers that he awarded to Caucasian employees and that an inference of age discrimination exists based on Mr. Spina-Denson's comments on Plaintiff's age. SAC ¶¶ 28, 44-45, 54, 115-116, ECF 30; Pl.'s Resp. 8-14, 18-19, ECF 32.
A plaintiff may show an inference of discrimination “through comparison to similarly situated individuals, or any other circumstances surrounding the adverse employment action [that] give rise to an inference of discrimination.” Reynaga, 847 F.3d at 691. The comparative employee must be similar enough under the circumstances to establish a plausible inference of discrimination. Compare Reynaga, 847 F.3d at 691 (holding that plaintiff showed an inference of discrimination by showing he was fired for walking off a job while a non-Hispanic employee was neither fired nor significantly reprimanded after complaints about their hostile behavior) with Sheets, 859 F. App'x. at 162 (dismissing a complaint that alleged a “white officer . . .was not terminated after committing several . . . policy violations” but failed to allege “the willful policy violation” plaintiff was accused of, leaving the court unable to determine whether the employees were similarly situated).
When alleging age discrimination, a similarly situated individual must be “substantially younger,” such that the difference in age would be significant enough to warrant an inference of bias. See Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207-09 (9th Cir. 2008) (a nine-and-a-half-year difference between employees hired and fired failed to establish an inference of discrimination).
Here, Defendants argue Plaintiff fails to state a claim for discrimination based on race or sex because Plaintiff only alleged that lower-level employees were granted transfers denied to Plaintiff, and lower level employees are “generally deemed not . . . similarly situated.” Defs.' Mot. Dismiss 9, ECF 31 (quoting Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003)). This Court disagrees. Plaintiff is not relying solely on comparator evidence; rather, Plaintiff has alleged other circumstances surrounding the adverse employment action that give rise to an inference of discrimination. See Reynaga, 847 F.3d at 691. For example, Mr. Spina-Denson told her there was a policy against the lateral transfers he subsequently granted Acting Manager Barabin, a Caucasian male, and Supervisor Beck, a Caucasian female. SAC ¶¶ 28, 45, 103, ECF 30; Pl.'s Resp. 10-13, ECF 32. Mr. Spina-Denson denied her a “once in a lifetime” chance to meet the Postmaster General because she was not within a stated “commute distance,” though “Caucasian Postmasters” beyond that commute distance had been allowed to attend. SAC ¶ 54, ECF 30. Finally, Mr. Spina-Denson similarly undermined and belittled Manager Westlake and Supervisor Clardy, both female, unlike how he treated “male managers.” Id. ¶¶ 16, 75. These allegations are sufficient to “give rise to an inference of discrimination” under the liberal pleading standard. Austin v. Univ. of Or., 925 F.3d at 1137 (stating the liberal standard). Thus, Plaintiff's race or sex discrimination claims should survive Defendants' motion to dismiss.
However, Plaintiff's ADEA claim of discrimination should be dismissed because she has not alleged any factual examples where similarly situated individuals “substantially younger” than her were afforded benefits she was denied, nor provided any other inference of age discrimination. In Diaz, a difference of almost ten years between the plaintiff and the comparative employees was insufficient to create “an inference of age discrimination.” Diaz, 521 F.3d at 1207-09. Plaintiff has not described the age of any individuals that received benefits she was denied. Plaintiff argues that she has alleged additional circumstances that plausibly give rise to an inference of age discrimination, but Plaintiff's complaint only alleges that she was once asked when she would retire and that another younger manager was not asked to conduct the same tasks as her. SAC ¶¶ 42, 117, ECF 30. This Court is not persuaded that these circumstances demonstrate discrimination. See Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438 (9th Cir. 1990) (“[S]tray remarks unrelated to any decision process are not enough to support an inference of age discrimination.”). Thus, this Court concludes that Plaintiffs' age discrimination claim cannot survive a motion to dismiss.
In sum, Plaintiff's complaint plausibly alleges that she was discriminated against on the basis of race or sex. But Plaintiff fails to plausibly allege she was discriminated against on the basis of age. Defendants' motion to dismiss Count One should therefore be DENIED and Defendants' motion to dismiss Count Four should be GRANTED.
II. Retaliation
Title VII prohibits employers from discriminating against an employee for “oppos[ing] any [unlawful] practice” under Title VII or participating in any Title VII “investigation, proceeding, or hearing . . ..” 42 U.S.C. § 2000e-3(a).
Defendants move to dismiss Plaintiff's retaliation claim for two reasons: first, Plaintiff brings her Title VII claim under the private sector instead of the public-sector provision; and second, Plaintiff failed to plead that her protected activity caused the alleged retaliation, either through temporal inference or direct evidence of retaliatory intent. Defs.' Mot. Dismiss 20-22, ECF 31; Defs.' Reply 4-6, ECF 34. Plaintiff responds that the private-sector provision is incorporated into the public-sector provision cited in her complaint. Pl.'s Resp. 29, ECF 32. Plaintiff further responds that the “close proximity in time” between her protected activity of participating in EEO processes and subsequent adverse employment actions establishes causation. Pl.'s Resp. 35-36, ECF 32.
With respect to Defendants' first ground for dismissal - that Plaintiff brings her Title VII claim under the private sector instead of the public-sector provision, Defs.' Mot. Dismiss 20-22, ECF 31 - this Court agrees with Plaintiff that “[a] postal employee may bring suit under § 2000e-3(a) pursuant to 42 U.S.C. § 2000e-16.” Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000) (citing Ayon v. Sampson, 547 F.2d 446, 450 (9th Cir. 1976)). Title VII private-sector provisions also protect federal employees. White v. Gen. Servs. Admin., 652 F.2d 913, 917 (9th Cir. 1981) (“(B)y drafting [§ 2000e-16)] to prohibit ‘any discrimination,' Congress intended to bar the federal government from engaging in all those forms of discrimination identified in [§ 2000e-3)], and others as well.”); see also Komis v. Sec'y of U.S. Dep't of Lab., 918 F.3d 289, 294 (3d Cir. 2019) (“Although the language of § 2000e-16(a) differs from the language of the private-sector . . . provisions, many courts have consistently interpreted § 2000e-16(a) to give federal employees the same rights as private employees.”). Thus, while the legal basis for Plaintiff's retaliation could have been pleaded with more clarity, this Court disagrees that it is a basis for dismissal.
Turning to the merits of Plaintiff's claims for retaliation, to establish a prima facie case for retaliation, a plaintiff must demonstrate: (1) the plaintiff is engaged in a protected activity; (2) the employer subjected the plaintiff to an adverse employment action; and (3) there is a causal link between the plaintiff's protected activity and the employer's actions. Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987).
A plaintiff engages in protected activity when they “[oppose] any practice made . . . unlawful . . . by [Title VII],” or “[participate] in any manner in an investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). A plaintiff engages in protected activity by opposing conduct that the plaintiff has an objectively reasonable belief violates Title VII. Trent v. Valley Elect. Assn., 41 F.3d 524, 526 (9th Cir. 2001). A plaintiff engages in protected activity under the participation clause by contacting the EEOC or an EEO counselor. Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997). Additionally, attending EEO mediation sessions is participation in a proceeding under Title VII. Kelley v. City of Albuquerque, 542 F.3d 802, 813-14 (10th Cir. 2008).
An employment action is adverse if it “might . . . dissuade[] a reasonable worker from making or supporting a charge of discrimination.” Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). In Burlington, the Supreme Court concluded that “the antiretaliation provision, unlike the [antidiscrimination] provision, is not limited to discriminatory actions that affect the terms and conditions of employment ....” Id. at 64; see also Henderson, 217 F.3d at 1242-43 (“[A]n action is cognizable as an adverse employment action [in retaliation claims] if it is reasonably likely to deter employees from engaging in protected activity”).
To establish that an adverse employment action had a causal link to a protected activity, a plaintiff must show that defendant's “desire to retaliate was the but-for cause of the challenged employment action.” Univ. of Tex. Sw. Med. Ctr. V. Nassar, 670 U.S. 338, 352 (2013). Temporal proximity can be “strong evidence of retaliation.” Christian v. Umpqua Bank, No. 3:16-CV-01938-IM, 2022 WL 43879, at *4 (D. Or. Jan. 5, 2022) (citing Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1069 (9th Cir. 2003) (nine days between an employee filing complaints and adverse employment actions sufficient to create inference of causality)).
Defendants argue that Plaintiff failed to plead that her protected activity caused the alleged retaliation, either through temporal inference or evidence of retaliatory intent. Defs.' Mot. Dismiss 20-22, ECF 31; Defs.' Reply 4-6, ECF 34. This Court disagrees, and concludes that Plaintiff has plausibly alleged facts that give rise to a retaliation claim under Title VII.
First, Plaintiff has plausibly alleged that she engaged in at least five instances of protected activity through participation in EEO processes. SAC ¶ 178, ECF 30. Plaintiff alleges that she spoke with EEO counselors twice, filed two EEO complaints alleging racial and sexual discrimination, and participated in one EEO mediation with Mr. Spina-Denson. SAC ¶¶ 46, 60, 114, ECF 30. Defendants only describe Plaintiff's two EEO complaints as instances of ‘participation' in proceedings, but do not otherwise dispute that Plaintiff has plausibly alleged that she engaged in protected activity. Defs.' Mot. Dismiss 20-21, ECF 31; Defs.' Reply 8-9, ECF 34. Along with the protected activities acknowledged by Defendants, this Court also recognizes Plaintiff's EEO mediation with Mr. Spina-Denson on December 17, 2018, as ‘participation' in a proceeding under Title VII. SAC ¶ 60, ECF 30. EEO mediations are recognized as a ‘Title VII proceeding.' Kelley, 542 F.3d at 813-14. Moreover, the EEO mediation attended by Plaintiff and Mr. Spina-Denson was in relation to Plaintiff's complaints alleging discriminatory behavior. SAC ¶ 60, ECF 30.
Second, Plaintiff has plausibly alleged that she experienced adverse employment actions by describing a pattern of bullying and loss of material duties that dissuaded her from continuing to engage in these protected activities. SAC ¶¶ 97-103, ECF 30; Pl.'s Resp. 33-37, ECF 32. Defendants argue that an employment action is only adverse if it is a ‘personnel action': referring to “employment-related decisions, such as appointment, promotion, work assignment, compensation, and performance reviews.” Defs.' Mot. Dismiss, 18-19, ECF 31 (quoting Babb v. Wilkie, 140 S.Ct. 1168, 1173 (2020)). But the Supreme Court's holding in Burlington that “the antiretaliation provision [of Title VII] . . . is not limited to discriminatory actions that affect the terms and conditions of employment” contradicts Defendant's argument. Burlington, 548 U.S. at 68. Further, the Ninth Circuit has continued to apply the Burlington standard in retaliation cases following Babb. See MacIntyre v. Carroll Coll., 48 F.4th 950, 955 (9th Cir. 2022) (noting that “retaliation claims may be brought against a much broader range of employer conduct than substantive claims of discrimination” and listing examples) (citations and quotations omitted); see also Nohara v. DeJoy, 2023 WL 3791637, at *4 (D. Haw. June 2, 2023) (citing the Burlington standard for retaliation claims and citing Babb on unrelated grounds). For Plaintiff's retaliation claim, actions that “might have dissuaded a reasonable [employee] from making or supporting a charge of discrimination” are adverse. Burlington, 548 U.S. at 68.
Here, it is plausible that the alleged pattern of bullying and loss of material duties, such as discussed in detail below, was reasonably likely to deter future protected activity. Thus, Plaintiff has alleged an adverse employment action for her retaliation claim.
Third, Plaintiff has plausibly alleged a causal link between her participation in protected activities and Defendants' adverse employment actions by describing actions that occurred as little as the following day. Plaintiff alleged that the morning after the December 17, 2018, EEO mediation with Mr. Spina-Denson, Mr. Spina-Denson called her and “continued to pressure and harass Plaintiff” to select Mr. Spina-Denson's favored candidate for promotion. SAC ¶¶ 60-62, ECF 30; Pl.'s Resp. 36, ECF 32. Plaintiff, fearful of “reprisal,” agreed to select Mr. Spina-Denson's favored candidate. Id. That same day, Mr. Spina-Denson continued to raise the subject of mediation with Plaintiff against her wishes and “badgered Plaintiff” such that she “knew retaliation would follow.” SAC ¶ 63, ECF 30. It is plausible that a reasonable person would be dissuaded from continuing to engage in protected activity that resulted in “badgering” and “pressuring,” and an inference of causality can be drawn when such conduct occurs one day after the protected activity. See Stegall, 350 F.3d at 1069.
In sum, Defendants' motion to dismiss Count Three should be DENIED.
III. Hostile Work Environment and Constructive Discharge
Title VII guarantees “the right to work in an environment free from discriminatory intimidation, ridicule, and insult.” Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir. 2008) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). As discussed above, this Court recognizes that Title VII private-sector protections similarly protect federal employees. See Discussion § II supra.
To establish a prima facie case of a hostile work environment, a plaintiff must demonstrate: (1) the plaintiff was subject to verbal or physical conduct of a racial or sexual nature; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment. Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998). A plaintiff may also fulfill the first element by showing that they were subject to conduct based on her age. See e.g., Swirski v. Protec Bldg. Servs., Inc., 2021 WL 5771222, at *8 (S.D. Cal. Dec. 6, 2021).
Conduct of a racial or sexual nature includes derogatory epithets or physical acts that pertain directly to a plaintiff's sex or race. See Fried v. Wynn Las Vegas, LLC, 18 F.4th 643, 649 (9th Cir. 2021). Conduct, however offensive, that did not occur because of a plaintiff's sex or race does not support a hostile work environment claim. Id. (statements that plaintiff “might want to [consider] . . . cooking for work” was not sexual conduct in light of plaintiff's culinary degree); Rodriguez v. Cent. Sch. Dist. 13J, 2012 WL 6756945, at *6 (D. Or. Nov. 14, 2012) (plaintiffs should specifically allege “how defendant . . . treated plaintiff differently due to her . . . protected class”). Plausible claims of discrimination, particularly those based on circumstantial evidence, are not alone sufficient to establish that a plaintiff was subjected to racial or sexual conduct themselves. See, e.g., Gibson v. King Cnty., 256 Fed.Appx. 39, 42 (9th Cir. 2007) (evidence of a discriminatory failure-to-promote did not give rise to a hostile work environment); Lalau v. City & Cnty. of Honolulu, 938 F.Supp.2d 1000, 1013-17 (D. Haw. 2013) (circumstantial evidence supported age and national origin discrimination claims but not hostile work environment claims).
Conduct is sufficiently severe or pervasive to create a hostile work environment when it is both subjectively and objectively hostile under a totality of the circumstances. The objective component of this test is considered from the perspective of a “reasonable person belonging to the [class] of the plaintiff.” See Galdamez v. Potter, 415 F.3d 1015, 1023 (9th Cir. 2005) (citing Vasquez, 349 F.3d at 642. Infrequent remarks, including racial epithets, insensitive or denigrating commentary or stereotyping, occurring a month or more apart are not sufficiently severe or pervasive to create a hostile work environment. Fried, 18 F.4th at 649 (summarizing Ninth Circuit decisions that rejected hostile work environment claims).
A constructive discharge claim “can be regarded as an aggravated case of . . . harassment or hostile work environment.” Pa. State Police v. Suders, 542 U.S. 129, 131 (2004); see also Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000) (“Where a plaintiff fails to demonstrate the . . . harassment necessary to support a hostile work environment claim, it will be impossible for her to meet the higher standard of constructive discharge.”).
Defendant moves to dismiss Plaintiff's hostile work environment and constructive discharge claims on several grounds, including that Plaintiff failed to plead that she was subject to conduct of a sexual, racial or ageist nature that was “severe or pervasive.” Defs.' Mot. Dismiss 12-16, ECF 31; Defs.' Reply 4-5, ECF 34. This Court agrees that Plaintiff has not plausibly alleged facts indicating that she was subject to verbal or physical conduct based on her race, sex, or age.
This Court finds that it is unnecessary to consider Defendants alternative arguments for dismissal of Plaintiff's claims, which are noted above.
Plaintiff alleges that she was subject to “harassment based on gender and race,” but these are bare legal conclusions that Plaintiff does not support with factual allegations. Pls Resp. 2026, ECF 32; SAC 169, 198, ECF 30. Though Plaintiff's complaint describes a variety of unwelcome and offensive conduct, Plaintiff does not allege conduct that was sexual, racial, or ageist in nature. Plaintiff's complaint describes one instance when she was asked “when she would be retiring,” but an isolated remark is neither severe nor pervasive conduct. SAC ¶ 42, ECF 30. Like Fried, in which defendant's offensive comments that did not pertain to the plaintiff's sex or race did not give rise to a hostile work environment claim, Plaintiff has not alleged that Defendants' offensive comments were of a sexist or racist nature. Fried v. Wynn Las Vegas, LLC, 18 F.4th 643, 649 (9th Cir. 2021) (hostile work environment claim did not arise out of offensive comments often disconnected from race or sex).
In Fried, summary judgement in favor of defendants on plaintiff's hostile work environment claim was reversed on the basis that defendant failed to adequately respond when plaintiff received overt sexual propositions from a customer. Fried, 18 F.4th at 652-53. Plaintiff alleges no similar facts in her complaint.
To be sure, Plaintiff alleges that Caucasians and males received preferential treatment. SAC ¶¶ 28, 45-46, 54, 103, 117, ECF 30. However, while these allegations may suffice as circumstantial evidence for a discrimination claim under Title VII or the ADEA, they do not plausibly suggest that the workplace was permeated with racial, sexual, or ageist conduct sufficiently severe or pervasive to create a hostile work environment. See, e.g., Gibson, 256 Fed.Appx. at 42; Lalau, 938 F.Supp.2d at 1013-17. In short, there are no allegations in the complaint that would plausibly suggest that Plaintiff was subject to harassment on the basis of her age, sex, or gender.
In sum, Plaintiff has not plausibly alleged that she was harassed based on sex and race, or age, as alleged in counts three and five. Because Plaintiff has not plausibly alleged a hostile work environment claim, Plaintiff's constructive discharge claim in count six also fails. Defendants' motion to dismiss count two, count five, and count six should be GRANTED.
IV. Failure to Act under the APA
The CSRA, enacted in 1978, provides federal employees with statutory remedies for “prohibited personnel practices” and “adverse actions.” 5 U.S.C. § 2302; 5 U.S.C. § 7502; 5 U.S.C. § 7512. The congressional intent of the CSRA, insofar as federal employees were concerned, was “to permit federal court review as provided in the CSRA or not at all.” Veit v. Heckler, 746 F.2d 508, 511 (9th Cir. 1984). The Ninth Circuit has accepted “the CSRA as the bedrock of our analysis” and “denied judicial review outside the relief provided by the CSRA.” Andersen v. United States, 8 F.3d 25 (9th Cir. 1993). General provisions of the APA do not afford federal court review for federal employees beyond review expressly authorized by the CSRA. Veit, 746 F.2d at 511; see also Elgin v. Dep't of Treasury, 567 U.S. 1, 11 (2012) (holding that federal employees cannot “resort to judicial review outside of the CSRA scheme”).
Here, Plaintiff brings claims against the MSPB under the APA, alleging that “she suffered a legal wrong and/or was adversely affected because of MSPB's failure to act.” SAC ¶ 216, ECF 30. In their motion, Defendants assert that CSRA bars Plaintiff from seeking review of her claims against the MSPB under the APA, an assertion that Plaintiff does not directly challenge. Defs.' Mot. Dismiss 22, ECF 31; Pl.'s Resp. 37, ECF 32. Defendants note that this Court “has jurisdiction to review the Title VII claims [Plaintiff] lost before the MSPB” under 5 U.S.C. § 7703(b)(2) but that this Court may not “entertain an APA claim against the MSPB on the matter.” Defs.' Reply. 7, ECF 34 (citing Veit, 746 F.2d at 511). Finally, Defendants assert that “[i]f Plaintiff were challenging the procedure, rather than the merits of the MSPB decision, she would have a standalone claim she could bring against the [MSPB] under [5 U.S.C. § 7703(a)(2)] (not the APA).” Defs.' Reply at 7 n. 5, ECF 34.
Defendants' arguments are well-taken. Plaintiff cannot resort to judicial review outside the CSRA scheme, Veit, 746 F.2d at 51, which would include review under the APA. Plaintiff can seek judicial review of the MSPB's decision on the merits of her claims under 5 U.S.C. § 7703(a)(2), but the employing agency, not the MSPB, is the proper respondent to those claims. Johnen v. U.S. Merit Sys. Prot. Bd., 882 F.3d 1171, 1174 (9th Cir. 2018). And, because Plaintiff does not raise any procedural challenges to the MSPB's decision, she cannot name the MSPB under 5 U.S.C. § 7703(b)(2). Robbins v. Merit Sys. Prot. Bd., No. 2:21-CV-0621-KJM-DMC, 2022 WL 17476513, at *1 (E.D. Cal. Dec. 6, 2022). For these reasons, Defendant MSPB's motion to dismiss Plaintiff's Seventh Claim should be GRANTED.
V. Dismissal with Prejudice
Defendants ask that the Court dismiss these claims with prejudice. Defs.' Mot. Dismiss 22-23, ECF 31. In response, Plaintiff asks that the Court grant leave to amend all claims it may dismiss. Pl.'s Resp. 38, ECF 32.
Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend “should be freely granted when justice so requires,” bearing in mind that “the underlying purpose of Rule 15 ... [is] to facilitate decision on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). Accordingly, leave to amend generally shall be denied only if allowing the amendment would unduly prejudice the opposing party, cause undue delay, or be futile, or if the moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008). At the same time, a court is justified in denying leave to amend when a plaintiff “repeated[ly] fail[s] to cure deficiencies by amendments previously allowed.” See Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892 (9th Cir. 2010). Indeed, a “district court's discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint.” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (quotation marks omitted).
Plaintiff's second, fifth, and sixth claims for relief, alleging hostile work environment and constructive discharge, should be dismissed with prejudice. Plaintiff has submitted two amended complaints that failed to cure noted deficiencies in these claims. Moreover, Plaintiff's Second Amended Complaint includes 129 paragraphs of factual allegations concerning her treatment during the relevant time period, SAC ¶¶17-146, ECF 30, and there is no suggestion that she could include additional allegations that she was subject to conduct of a sexual, racial, or ageist nature that was either severe or pervasive. Accordingly, this Court concludes that it would be futile to allow Plaintiff another opportunity to amend her claims for hostile work environment and constructive discharge, and those claims should be dismissed with prejudice.
Plaintiffs' fourth claim for relief, alleging discrimination based on age, should be dismissed without prejudice. In her reply, Plaintiff asserted that she could plead additional comparators that would give rise to an inference of discrimination under the ADEA. Pl.'s Resp. 18, ECF 32. Although Plaintiff has had multiple prior opportunities to amend her complaint, this Court cannot say that further amendment would be futile. Plaintiff should therefore be given leave to amend her fourth claim for relief alleging age-based discrimination under the ADEA.
Finally, Plaintiffs' seventh claim for relief against the MSPB should be dismissed with prejudice. Plaintiff can seek judicial review of the MSPB's decision on the merits of her claims against her employing agency under 5 U.S.C. § 7703(a)(2), and she has done so in her first six claims for relief. She cannot seek further relief against the MSPB as to the merits of her claims, under the APA or any other statute. Accordingly, Plaintiffs seventh claim for relief should be dismissed with prejudice.
RECOMMENDATION
For reasons set forth above, Defendants' motion to dismiss, ECF 31, should be GRANTED in part and DENIED in part. Plaintiff's fourth claim for relief, alleging discrimination based on age, should be DISMISSED without prejudice. Plaintiff's second, fifth, and sixth claims for relief, alleging hostile work environment and constructive discharge, should be DISMISSED with prejudice. Plaintiff's seventh claim for relief, alleging a failure to act, should be DISMISSED with prejudice. Defendants' motions to dismiss Plaintiff's remaining claims, including her first claim alleging discrimination based on race or sex, and her third claim for retaliation, should be DENIED. Further, Plaintiff should be allowed thirty (30) days to file an amended complaint curing any pleading deficiencies with respect to her fourth claim for relief.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.