Opinion
3:20-cv-00212-YY
06-14-2022
MONICA FERGUSON, Plaintiff, v. SECRETARY OF VETERANS AFFAIRS, Defendant.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE.
FINDINGS
Plaintiff Monica Ferguson has brought suit against defendant, her former employer, alleging retaliatory discrimination on two grounds. See Second Am. Compl., ECF 53. Defendant has filed a motion to dismiss (ECF 55) pursuant to Federal Rule of Civil Procedure 12(b)(6) against plaintiff's Second Amended Complaint (ECF 53). First, defendant asserts that plaintiff failed to adequately exhaust her administrative remedies by waiting more than the required 45 days to seek Equal Employment Opportunity (“EEO”) counseling within defendant's administrative process for handling such claims after she learned of defendant's alleged retaliatory employment action. Second, defendant argues that even if plaintiff's claim is deemed timely, her complaint should still be dismissed because it fails to allege facts sufficient to a show a causal link between defendant's alleged retaliatory conduct and plaintiff's protected activity.
Assuming, without deciding, that plaintiff's claims were timely initiated or that the deadline should be equitably tolled, plaintiff's complaint does not sufficiently allege a causal connection between her protected activity and defendant's alleged retaliation. Plaintiff first engaged in protected activity in 2010 and 2011 by initiating discrimination claims through defendant's EEO process. Her allegation that defendant retaliated against her by “improperly” releasing her employment records in November of 2017 and some unspecified time before February of 2019 are too far removed in time and too vague, respectively, to plausibly infer that her protected activity was a but-for cause of defendant's alleged retaliation. Plaintiff's complaint should be dismissed without leave to amend because plaintiff did not seek leave in her briefing, she has not shown how she could allege a plausible claim for retaliatory discrimination, and she has had previous opportunities to amend her complaint.
I. Motion to Dismiss Standards
To state a claim for relief, a pleading 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). This standard “does not require ‘detailed factual allegations,' ” but does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' ” Id. (quoting Twombly, 550 U.S. at 555). To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Id. (quoting Twombly, 550 U.S. at 570).
In evaluating a motion to dismiss, the court must accept the allegations of material fact as true and construe those allegations in the light most favorable to the non-moving party. ParksSch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In addition to the allegations in the complaint, the court may consider documents that are attached to or incorporated by reference in the complaint, where the parties do not contest the authenticity of those documents, as well as matters capable of judicial notice. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).
II. Background
Plaintiff began working for defendant in January of 2003. Second Am. Compl. ¶ 17, ECF 53. In July of 2010, plaintiff initiated a discrimination complaint against defendant based on her gender and pregnancy; no lawsuit resulted. Id. ¶ 23. Plaintiff filed another discrimination complaint through defendant's Equal Employment Opportunity (“EEO”) process in 2011 based on her national origin and pregnancy, and alleged retaliation for her first complaint. Id.
In July of 2013, the clinical director at defendant's facility where plaintiff was working issued a notice of proposed removal of plaintiff from employment and revocation of her clinical privileges, based on plaintiff's alleged failures to meet the standard of patient care during 2011 and 2012. Id. ¶ 20; First Keller Decl., Ex. 1 at 110-115, ECF 42-1. Plaintiff amended her stillpending second discrimination complaint to add allegations related to her proposed termination and revocation of clinical privileges. Sec. Am. Compl. ¶ 24, ECF 53. Defendant terminated plaintiff's employment and revoked her clinical privileges in October of 2013. Id. ¶ 22.
The exhibits to the First and Second Keller Declarations are properly considered in resolving this motion to dismiss because the administrative record of plaintiff's claims before the Equal Employment Opportunity Commission (“EEOC”) are “judicially noticeable matters of public record.” Lacayo v. Donahoe, No. 14-CV-04077-JSC, 2015 WL 993448, at *9 (N.D. Cal. Mar. 4, 2015).
In 2017, an administrative law judge ruled, after a hearing spanning several days, that defendant did not discriminate against plaintiff. First Keller Decl., Ex. 2 at 7, 36-37, ECF 42-2. Plaintiff appealed, and the final decision upholding the ALJ's determination was issued on December 21, 2018. Id., Ex. 3 at 7, ECF 43-3.
In late December of 2018, plaintiff learned that defendant had released some of her employment records to the Oregon State Nursing Board in November of 2017; the Board had requested the records to aide an administrative investigation into plaintiff. Sec. Am. Compl. ¶¶ 28, 31, ECF 53. The Board subsequently proposed revoking plaintiff's nursing licenses. Id. ¶ 28. Sometime in February of 2019, plaintiff learned that defendant had also released her records to the Office of Inspector General; the Inspector General then notified plaintiff that it intended to exclude plaintiff from federal health care programs. Id. ¶ 32.
On January 4, 2019, plaintiff initiated a privacy complaint with defendant regarding the alleged improper release of her employment records to the Board. Id. ¶ 4. Defendant resolved her privacy complaint in writing on January 10, 2019, finding that the release of records to the Board did not violate the Privacy Act of 1974, 5 U.S.C. § 552a(b)(7). On February 28 and March 1, 2019, plaintiff initiated an electronic inquiry with the Seattle Field Office of the Equal Employment Opportunity Commission (“EEOC”) regarding the release of her records to the Board and the Inspector General. Sec. Am. Compl. ¶ 5, ECF 53; First Keller Decl., Ex. 1 at 4851, 62-65, ECF 42-1. A representative from the EEOC informed plaintiff that she needed to file her complaint directly with one of defendant's EEO counselors. First Keller Decl., Ex. 1 at 61, ECF 42-1. Plaintiff initiated contact with an EEO counselor on April 2, 2019. Sec. Am. Compl. ¶ 7, ECF 53; First Keller Decl., Ex. 1 at 1, ECF 42-1.
After completing the VA's administrative process for the record release claims pertaining to both the Board and Inspector General, plaintiff filed the present suit on February 10, 2020. ECF 2. Defendant moved to dismiss the original complaint. ECF 41. In response, plaintiff filed an amended complaint with the court's leave, and then filed the Second Amended Complaint, which is the operative complaint here. ECF 48, 50, 53.
Plaintiff has brought three other lawsuits related to her employment with defendant in this district. See Ferguson v. Wilkie, No. 3:20-cv-250-JR; Ferguson v. Oregon State Board of Nursing, No. 3:20-cv-02273-MO; Ferguson v. Pakseresht, No. 3:20-cv-1853-SI. All were dismissed.
Defendant moves to dismiss the Second Amended Complaint on several grounds, including that plaintiff did not adequately exhaust her administrative remedies by failing to file her complaint with one of defendant's EEO counselors before the 45-day deadline to do so expired. Mot. Dismiss 10-13, ECF 55. Further, defendant argues that, even if the complaint is deemed timely, it fails to adequately plead a case for retaliation because the substantial time that elapsed between plaintiff's earlier discrimination claims in 2010 and 2011 and the release of records to the Board in November of 2017 and to the Inspector General at some unspecified time before February of 2019 cannot establish the necessary “causal link” between her protected activity and the alleged adverse employment action. Id. at 16-20.
III. Discussion
A. Title VII Timeliness, Exhaustion, and Equitable Tolling
Title VII prohibits discrimination based on “race, color, religion, sex, or national origin for all “personnel actions affecting federal employees and applicants for federal employment.” 42 U.S.C. § 2000e-16(a); see also Kraus v. Presidio Tr. Facilities Div./Residential Mgmt.Branch, 572 F.3d 1039, 1043 (9th Cir. 2009). Title VII requires federal employees who believe they have been discriminated against to exhaust all administrative remedies with the relevant federal agency before bringing a lawsuit in federal court. 42 U.S.C. § 2000e-16(c); Kraus, 572 F.3d at 1043.
To begin the administrative process, an “aggrieved person” must first file an informal complaint with an EEO counselor within 45 days of the alleged discriminatory conduct. 29 C.F.R. § 1614.105(a). “Title VII's regulatory deadlines for administrative exhaustion are not a jurisdictional requirement; rather, they are conditions precedent to filing an action which are subject to waiver, estoppel, or equitable tolling.” Grounds v. United States by and through Dep'tof Energy, No. 3:17-cv-01190-HZ, 2019 WL 1270928, at *2 (D. Or. Mar. 18, 2019). A failure to comply with these regulatory deadlines is “fatal to a federal employee's discrimination claim in federal court.” Kraus, 572 F.3d at 1043) (quoting Lyons v. England, 307 F.3d 1092, 1105 (9th Cir. 2002)).
Equitable tolling “may apply to the requirement that a claim of discrimination be filed with the agency within the applicable limitations period.” Johnson v. Henderson, 314 F.3d 409, 414 (9th Cir. 2002) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)) (additional citations omitted). Equitable tolling “excuse[s] a claimant's failure to comply with the time limitations where she had neither actual nor constructive notice of the filing period.” Id.(quoting Leorna v. United States Dep't of State, 105 F.3d 548, 551 (9th Cir. 1997)). Alternatively, the filing deadline may be tolled where “extraordinary circumstances beyond the plaintiff's control made it impossible to file a claim on time.” See Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999), as amended (Mar. 22, 1999).
B. Title VII Causation and Temporal Proximity
The parties largely focused their briefing on whether plaintiff timely initiated her complaint within defendant's EEO process, and whether her apparent failure to initiate contact within the required 45-day window after she learned of defendant's allegedly retaliatory actions should be excused by the doctrine of equitable tolling. Plaintiff seems to concede the lack of timeliness in initiating her retaliation complaints; instead, she asserts that the deadlines should be equitably tolled because, among other things, she reasonably believed that as a former federal employee, she did not need to engage in defendant's administrative process for discrimination claims. Resp. 3-6, ECF 56. But even assuming, without deciding, that plaintiff's claims were either timely or that the deadlines upon which their timeliness depend were equitably tolled, plaintiff's claims fail as a matter of law because they are not supported by facts plausibly alleging the but-for causation required to state a discriminatory retaliation claim under Title VII. See Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013) (holding that a plaintiff bringing a retaliation claim must establish that the protected activity was a but-for cause of the employer's adverse action); see also Dawson v. Entek Int'l, 630 F.3d 928, 936 (9th Cir. 2011) (providing the elements of unlawful retaliation claim: 1) the employee engaged in a protected activity; 2) the employer subsequently took an adverse action against the employee; and 3) a causal link exists between the two) (citation omitted).
As plaintiff readily admits, her allegations rely “heavily, ” indeed exclusively, on the closeness of time between her alleged protected activity-her earlier pursuit of discrimination claims in 2010 and 2011-and the alleged retaliatory action at issue here-defendant's allegedly improper reporting of her employment records to the Oregon State Board of Nursing in 2017 and the DHS Office of Inspector General at some unspecified time before February of 2019. Resp. 7, ECF 56; Sec. Am. Compl. ¶ 37, ECF 53. The approximately six- or seven-year gap between these events, without any other evidence of causation, makes plaintiff's retaliation claim implausible. See Hines v. California Pub. Utilities Comm'n, No. C-10-2813 EMC, 2010 WL 4691652, at *1 (N.D. Cal. Nov. 8, 2010).
First, plaintiff does not allege the date when defendant released her records to the Inspector General with any specificity beyond “some point prior to February 2019.” Sec. Am. Compl. ¶ 8, ECF 53; Pl. Resp. 7, ECF 56 (admitting that the timing of records release to the Inspector General is “unknown”). Because plaintiff relies solely on the temporal proximity between her initial EEOC complaints in 2010 and 2011 and the alleged improper release of her records, her complaint fails to plausibly allege a causal connection between these events. See Villiarimo, 281 F.3d at 1065; Jinadasa v. Brigham Young Univ.-Hawaii, No. CIV. 14-00441 SOM/BM, 2015 WL 3407832, at *6 (D. Haw. May 27, 2015) (dismissing retaliation claim where plaintiff did not “for instance, even provide an approximate time frame for the allegedly retaliatory actions.”).
As for defendant's allegedly improper record release to the Board in November of 2017, “the cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be ‘very close.' ” Clark Cnty. Sch.Dist. v. Breeden, 532 U.S. 268, 273 (2001) (quoting O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 1992)); see also Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (explaining that to establish causation, the adverse employment action “must have occurred fairly soon after the employee's protected expression”). Here, the seven- or eightyear span between plaintiff's EEOC claims filed in 2010 and 2011 and the alleged improper release in 2017 is too long to infer causation. See Villiarimo, 281 F.3d at 1065 (citing cases where intervals of four months, five months, eight months, and one year were “too long to raise an inference of discrimination”).
Plaintiff asserts that the temporal proximity analysis should consider that the alleged retaliation occurred while the appeal of her 2011 discrimination complaint was still pending. Resp. 7, ECF 56. She does not, however, offer any authority to support her position. The test of causation from Breeden and its progeny firmly establish, even if the cases do not directly state as much, that the critical analytical moment is when the employer learns of the protected activity, without considering the passage of time that may result from any continued litigation based on the protected activity. See Breeden, 532 U.S. at 273 (“First, there is no indication that [the employer] even knew about the right-to-sue letter when she proposed transferring respondent. And second, if one presumes she knew about it, one must also presume that she (or her predecessor) knew almost two years earlier about the protected action (filing of the EEOC complaint) that the letter supposedly disclosed.”) (emphasis in original). Further, there is no basis for finding that the final adjudication of a pending appeal by a neutral third party could stand in as an employee's protected activity upon which the temporal proximity analysis could rely. See Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982) (“The plaintiff must first establish a prima facie case of retaliation by showing that she engaged in a protected activity, that she was thereafter subjected by her employer to adverse employment action, and that a causal link exists between the two.”) (emphasis added).
Several cases have rejected plaintiff's “continuing knowledge of ongoing litigation” theory. For example, the plaintiff in Hines filed a Title VII lawsuit in August of 2007 and brought a retaliation claim two years later, after the employer issued her a “Corrective Action Memorandum” and suspended her for a week without pay. Hines, 2010 WL 4691652 at *1. The district court dismissed the plaintiff's retaliation claim because “the two-year gap in time” was “insufficient to imply a causal connection between the Title VII lawsuit and the alleged adverse employment action.” Id. at *7. The plaintiff argued that her first lawsuit was still pending when her employer allegedly retaliated against her in 2009, but the court rejected that as a basis for establishing causation, observing that “[c]ourts typically focus on the date a complaint is filed (whether, e.g., an informal complaint, a complaint with an administrative agency, or a complaint in a lawsuit), and not on whether proceedings arising from the complaint were still pending.” Id.; see also Jackson v. Canyon Cnty., No. 1:13-CV-503-REB, 2016 WL 5745087, at *7 (D. Idaho Sept. 30, 2016) (rejecting argument that relevant date for temporal proximity analysis was the date plaintiff's worker's compensation claim was closed-approximately a month before plaintiff's termination-and instead relying on employer's knowledge of plaintiff's initial worker's compensation claim filing date three years prior to termination).
If plaintiff's proposed approach were adopted, it could substantially stretch the temporal proximity test for causation well beyond the Ninth Circuit's current limits which, while not subject to any bright-line rule, are generally thought to extend up to about three months between the protected activity and the alleged retaliatory action. Pratt v. Hawai'i, Dep't of Pub. Safety, 308 F.Supp.3d 1131, 1147 (D. Haw. 2018) (noting that “time ranging from 42 days up to three months has been found sufficient to establish temporal proximity” and collecting cases showing that four months or longer is general not sufficient to demonstrate causation); cf. Coszalter v.City of Salem, 320 F.3d 968, 977-78 (9th Cir. 2003) (cautioning that a “specified time period cannot be a mechanically applied criterion. A rule that any period over a certain time is per se too long (or, conversely, a rule that any period under a certain time is per se short enough) would be unrealistically simplistic.”).
To be sure, retaliatory actions taken during the pendency of an investigation or litigation related to an employee's protected activity can establish causation, but those cases typically included evidence of a “pattern of antagonism following the protected conduct” capable of “giv[ing] rise to the inference of causation.” See Porter v. Cal. Dep't of Corr., 419 F.3d 885, 895 (9th Cir. 2005). In Yartzoff v. Thomas, for instance, the employer transferred the plaintiff's job duties within three months after he filed his first administrative complaint, issued sub-average performance reviews three weeks after a meeting about the investigation between the employer and the plaintiff, and then transferred more job duties away from the plaintiff less than two months after the civil rights investigation had concluded. 809 F.2d 1371, 1376 (9th Cir. 1987). Those repeated and continuous retaliatory acts were closely tied to the ongoing investigation into the plaintiff's discrimination complaint. Id.; see also Porter v. California Dep't of Corrections, 419 F.3d 885, 887-90, 895-96 (9th Cir. 2005) (holding that supervisors' continued harassment, repeated denial of vacation and transfer requests, and other personal attacks in the years following plaintiff's initial EEO complaint were sufficient to establish a genuine issue of material fact as to causation). Here, plaintiff does not offer any evidence of continued alleged retaliatory actions during the pendency of her initial complaints that could establish a chain of causation.
Even if plaintiff's appeal of the VA's final decision to the EEOC on March 21, 2017, could be considered a discrete instance of her “protected activity, ” that too fails to establish causation based on temporal proximity alone. Resp. 7, ECF 56; see Raad v. Fairbanks N. StarBorough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003) (“Protected activity includes the filing of a charge or a complaint, or providing testimony regarding an employer's alleged unlawful practices, as well as engaging in other activity intended to oppose an employer's discriminatory practices.”) (internal quotation marks and alterations omitted). Defendant released plaintiff's records to the Board in November of 2017, and the eight-month interval between these events is too long to infer any causation. See Villiarimo, 281 F.3d at 1065. Because plaintiff has not sought leave to amend, and has had repeated chances to allege facts sufficient to show a plausible causal connection between her initial EEOC complaints in 2010 and 2011 and defendants' allegedly retaliatory conduct several years later, dismissal with prejudice is appropriate.
RECOMMENDATIONS
Defendant's motion to dismiss (ECF 55) should be granted because plaintiff fails to allege facts sufficient to establish a plausible causal connection between her protected activity in 2010 and 2011 and defendant's alleged retaliatory acts occurring years later. Plaintiff's Second Amended Complaint (ECF 53) should be dismissed with prejudice because she has had multiple opportunities to plead facts sufficient to establish causation and has still failed to do so.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Wednesday, June 08, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.