“[W]e have held that only non-trivial employment actions that 8 would deter reasonable employees complaining about Title VII violations will constitute 9 actionable retaliation.”
How later courts described this case
- “[W]e have held that only non-trivial employment actions that 8 would deter reasonable employees complaining about Title VII violations will constitute 9 actionable retaliation.”
- noting that judicial notice is appropriate for “undisputed matters of 19 public record, including documents on file in federal or state courts”
- concluding that 2 performance evaluation “was not an adverse employment action because it was subject to 3 modification by the [defendant]”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 MISTY DANIELLE BROWN, Case No. 19-cv-05797-JSC
8 Plaintiff,
ORDER RE: DEFENDANT’S MOTION
9 v. TO DISMISS
10 MEGAN BRENNAN, Re: Dkt. No. 20
Defendant.
11
12 Misty Danielle Brown, representing herself, sues her employer the Postmaster General of
13 the United States Postal Service (“Defendant”) alleging employment discrimination under Title
14 VII of the Civil Rights Act of 1964; specifically, retaliation arising from a disability
15 discrimination complaint Plaintiff filed with the Equal Employment Opportunity Commission
16 (“EEOC”).1 (Dkt. No. 1.)2 Now before the Court is Defendant’s motion to dismiss pursuant to
17 Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. No. 20.) After careful
18 consideration of the parties’ briefing and having had the benefit of oral argument on February 6,
19 2020, the Court GRANTS Defendant’s motion because Plaintiff fails to state a claim for
20 retaliation under Title VII.
21 BACKGROUND
22 I. Complaint Allegations
23 Plaintiff has been employed by Defendant since 1998. She suffered “an industrial job-
24 related injury” in May of 2004. (Dkt. No. 1 at ¶ 6.) In 2010, “Plaintiff was assigned to a full-time
25 modified limited duty job as a Carrier Technician” at the USPS Bayview Station in San Francisco,
26
1 Both parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. §
27
636(c). (Dkt. Nos. 6 & 25.)
1 California. (Id.) Plaintiff was demoted in January 2013; following her demotion she contacted the
2 regional Equal Employment Opportunity (“EEO”) office through her representative. (Id.)
3 Plaintiff subsequently filed a formal complaint with the Equal Employment Opportunity
4 Commission (“EEOC”) and was allegedly subjected to retaliatory treatment that is the subject of
5 another action in this District; that action is currently on appeal. See Brown v. Brennan, No. 3:16-
6 cv-06972-EDL (“Brown I”).
7 The gravamen of Plaintiff’s complaint is that Defendant subjected her to the following
8 retaliatory treatment for filing an appeal in August 2014 with the EEOC’s Office of Federal
9 Operations in connection with the above-referenced EEOC complaint: (1) on August 28, 2014,
10 Defendant altered eight hours of Plaintiff’s previously-approved sick leave to “leave without pay”
11 and subsequently did not pay her for that time; and (2) between September 27, 2014 and October
12 9, 2014, Defendant failed to provide Plaintiff with timely notice of her work assignments. (Id. at
13 ¶¶ 7, 11; see also id. at 13.) On October 20, 2014, Plaintiff filed a complaint with the regional
14 EEO office regarding this alleged discrimination. (Id. at ¶ 13.) She then filed a formal EEOC
15 complaint “on or about November 20, 2014.” (Id.) The EEOC issued its decision in June 2019,
16 and Plaintiff received a notice-of-right-to-sue letter on June 18, 2019. (Id. at ¶ 14; see also id. at
17 9.)
18 Due to Defendant’s conduct, Plaintiff has “suffer[ed] serious economic and emotional
19 damage” and been “on unpaid leave since late 2014.” (Id. at ¶ 11.)
20 II. Procedural History
21 Plaintiff filed her complaint in September 2019, alleging two Title VII claims for
22 retaliation for “engaging in prior EEO activity.” (Id. at ¶¶ 4-5, 15-19.) The Court granted
23 Plaintiff’s application to proceed in forma pauperis, reviewed the complaint pursuant to 28 U.S.C.
24 § 1915(e)(2), and directed the Clerk of Court to issue the summons. (Dkt. No. 7.) Defendant
25 moved to dismiss thereafter. (Dkt. No. 20.) The motion is fully briefed, (see Dkt. Nos. 31 & 33),
26 and the Court heard oral argument on February 6, 2020.
27 PRELIMINARY ISSUES
1 the sufficiency of a complaint” on a motion to dismiss under Rule 12(b)(6). Khoja v. Orexigen
2 Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). There are, however, “two exceptions to this
3 rule: the incorporation-by-reference doctrine, and judicial notice under Federal Rule of Evidence
4 201.” Id. In support of its motion, Defendant asks the Court to take judicial notice of several
5 exhibits and asserts that the incorporation-by-reference doctrine applies to another.
6 I. Judicial Notice
7 Pursuant to Rule 201(b), a judicially noticed adjudicative fact must be one “that is not
8 subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial
9 jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot
10 reasonably be questioned.” Fed. R. Evid. 201(b).
11 Defendant requests judicial notice of the following: (1) records maintained by the National
12 EEO Investigative Services Office of the United States Postal Service (“USPS”) regarding the
13 EEO claims filed by Plaintiff; (2) documents filed in Brown I; and (3) that “September 27, 2014
14 was a Saturday. October 9, 2014 was a Thursday. Two Sundays fell between September 27, 2014
15 and October 9, 2014.” (Dkt. No. 22 at ¶¶ 1, 2, 4.) Plaintiff does not oppose judicial notice of the
16 proffered facts, (see generally Dkt. No. 31), and the Court concludes that they are proper subjects
17 of judicial notice as undisputed matters of public record. See Harris v. Cty. of Orange, 682 F.3d
18 1126, 1132 (9th Cir. 2012) (noting that judicial notice is appropriate for “undisputed matters of
19 public record, including documents on file in federal or state courts”) (internal citation omitted);
20 see also Lacayo v. Donahoe, No. 14-cv-04077-JSC, 2015 WL 993448, at *9 (N.D. Cal. Mar. 4,
21 2015) (“In the context of employment discrimination cases in particular, it is well established that
22 courts may consider the administrative record of a plaintiff’s claims before the EEOC as judicially
23 noticeable matters of public record.”) (collecting cases). Accordingly, the Court GRANTS
24 Defendant’s request for judicial notice of exhibits A-J to the declaration of Leslie Cedola, EEO
25 Manager for the National EEO Investigative Services Office of the USPS, (Dkt. No. 21 – 21-10,
26 Exs. A-J), and the court’s order granting defendant’s motion for summary judgment in Brown v.
27 Brennan, No. 3:16-cv-06972-EDL, (Dkt. No. 22-2, Ex. B). The Court also takes judicial notice of
1 II. Incorporation by Reference
2 Courts may consider documents under the incorporation-by-reference doctrine if: (1) “the
3 complaint necessarily relies upon a document or the contents of the document are alleged in a
4 complaint,” and (2) the document’s authenticity is not in question and there are no disputed issues
5 as to the document’s relevance.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir.
6 2010). Defendant asserts that the December 2014 USPS “Step B Decision” regarding the
7 grievance Plaintiff’s union filed related to the alleged retaliatory conduct at issue is incorporated
8 by reference because the complaint “alleges the contents of the grievance decision.” (Dkt. No. 22
9 at ¶ 3.) The Court agrees. The complaint directly references the contents of the USPS grievance
10 decision as it relates to Plaintiff’s second cause of action for retaliation:
11 Plaintiff’s grievance with the USPS regarding her assignments was
resolved by recognizing that, 1) Plaintiff must be allowed to opt on
12 [sic] any assignment that she can perform with her medical
restrictions, 2) that she must be provided with a limited duty job offer,
13 including all letter carrier duties she is capable of performing, and 3)
that the management violated the applicable collective bargaining
14 agreement (“National Agreement”) by failing to provide, or post [the]
assignment schedule in the Bayview Station.
15
16 (Dkt. No. 1 at ¶ 19.) The complaint also attaches as an exhibit a document related to the grievance
17 proceedings. (See id. at 15.) Further, Plaintiff does not dispute the document’s authenticity or its
18 relevance. Accordingly, the grievance decision is incorporated by reference and may be
19 considered in adjudicating Defendant’s motion.
20 DISCUSSION
21 Defendant moves to dismiss Plaintiff’s complaint under Federal Rule of Civil Procedure
22 12(b)(1) for lack of subject matter jurisdiction. Alternatively, Defendant moves to dismiss the
23 complaint under Rule 12(b)(6) for failure to state a claim. However, Defendant’s reply briefing
24 demonstrates that Defendant’s only substantive argument is that the complaint fails to state a Title
25 VII claim for retaliation. (See Dkt. No. 34 at 2.) The Court thus addresses Defendant’s motion
26 under the Rule 12(b)(6) standard only.
27 A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of a complaint as
1 Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facial plausibility standard is not a “probability
2 requirement” but mandates “more than a sheer possibility that a defendant has acted unlawfully.”
3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). Thus,
4 a complaint “that offers labels and conclusions or a formulaic recitation of the elements of a cause
5 of action” is insufficient, as is a complaint that “tenders naked assertion[s] devoid of further
6 factual enhancement.” Id. (internal quotation marks and citation omitted). When a plaintiff files a
7 complaint without an attorney, as Plaintiff does here, the Court must “construe the pleadings
8 liberally . . . to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342
9 (9th Cir. 2010) (internal quotation marks and citation omitted).
10 I. The Complaint Fails to State a Claim for Retaliation
11 To state a claim for retaliation under Title VII, a plaintiff must allege that: (1) “she
12 engaged in a protected activity”; (2) her employer “subjected her to an adverse employment
13 action”; and (3) there is a causal link “between the protected activity and the adverse action.”
14 Manatt v. Bank of Am., NA, 339 F.3d 792, 800 (9th Cir. 2003). The complaint brings two claims
15 for retaliation based on two instances of alleged retaliatory treatment: (1) Defendant altered and
16 deleted eight hours of Plaintiff’s dependent sick leave in August 2014; and (2) between September
17 27, 2014 and October 9, 2014, Defendant failed to provide Plaintiff with timely notice of her work
18 schedule and assignments. (Id. at ¶¶ 7, 11.) As discussed below, the complaint fails to adequately
19 plead a Title VII retaliation claim as to both instances of alleged retaliation.
20 A. Protected Activity
21 Defendant asserts that Plaintiff’s claims fail for the threshold reason “that she has not
22 alleged a Title VII protected activity that could support her claim of retaliation under that statute.”
23 (Dkt. No. 34 at 2.) The Court agrees. Plaintiff’s form complaint states that her claims are
24 “brought pursuant to Title VII” for “[r]etaliation for engaging in prior EEO activity.” (Dkt. No. 1
25 at ¶¶ 3-4.) The complaint further alleges that the “conduct is discriminatory with respect to the
26 following: Retaliation for engaging in prior EEO activity.” The complaint specifies that the
27 retaliation took place after Plaintiff filed an appeal in August 2014 with the EEOC’s Office of
1 allegations are insufficient to allege protected activity under Title VII.
2 “There is no doubt that filing grievances and pursuing constitutional and statutory
3 remedies are protected activities.” McCarthy v. Brennan, No. 15-cv-03308-JSC, 2016 WL
4 946099, at *12 (N.D. Cal. Mar. 14, 2016) (internal quotation marks and citations omitted).
5 However, as this Court has explained:
6 [A]lthough [p]laintiff has alleged that he engaged in prior protected
activity in the form of EEO claims and union grievances, he fails to
7 identify the statute(s) under which he brought those claims or the
nature of those claims. This is problematic because a plaintiff may
8 bring a retaliation claim only under the statute under which he alleged
the protected activity—that is, a Title VII retaliation claim can only
9 allege reprisal for engaging in prior protected activity reporting race,
religion, gender, and national origin discrimination; an [Age
10 Discrimination in Employment Act of 1967] retaliation claim can
only allege reprisal for engaging in prior protected activity reporting
11 age discrimination; and so on.
12 Id. (citing Passatino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir.
13 2000) (noting that a plaintiff may establish the first element of a prima facie retaliation claim
14 under Title VII by showing that she engaged in activity protected under Title VII)). Plaintiff’s
15 opposition asserts that “she is not a lawyer but a Pro Se Plaintiff and simply used the Employment
16 Discrimination Complaint she uploaded under the templates for Pro Se [plaintiffs].” (Dkt. No. 31
17 at 4-5.)
18 The Court recognizes that Plaintiff is proceeding pro se and that Brown I concerned an
19 EEO proceeding for disability discrimination brought under the Rehabilitation Act, 29 U.S.C. §
20 701. (See Dkt. No. 22-2, Ex. B at 12.) Although Plaintiff’s opposition does not clarify that this
21 action also arises under the Rehabilitation Act, it does repeatedly reference the prior protected
22 activity in Brown I, and it is thus likely that the instant action arises under the same statute. (See
23 Dkt. No. 22-2, Ex. B at 12.) Courts apply the same standard when analyzing retaliation claims
24 under the Rehabilitation Act or Title VII. McCarthy, 2016 WL 946099, at *12 n.13 (citing Pardi
25 v. Kaiser Found. Hosps., 389 F.3d 840, 850 n.5 (9th Cir. 2004); Coons v. Sec’y of the U.S. Dep’t
26 of Treasury, 383 F.3d 879, 884 (9th Cir. 2004). Thus, Plaintiff’s failure to plead the underlying
27 statutory basis for the protected activity at issue in her retaliation claim could be cured by
1 B. Adverse Employment Actions
2 To satisfy the second element of a Title VII retaliation claim, a plaintiff must ultimately
3 show “that a reasonable employee would have found the challenged action materially adverse,
4 which in this context means it well might have dissuaded a reasonable worker from making or
5 supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
6 68 (2006) (internal quotation marks and citation omitted); see also Brooks v. City of San Mateo,
7 229 F.3d 917, 928 (9th Cir. 2000) (“[W]e have held that only non-trivial employment actions that
8 would deter reasonable employees complaining about Title VII violations will constitute
9 actionable retaliation.”). Examples of adverse employment actions include: “actions materially
10 affecting compensation, terms, conditions, or privileges of employment,” and termination.
11 McCarthy, 2016 WL 946099, at *13 (internal quotation marks, alterations, and citation omitted).
12 The Court addresses each alleged adverse employment action in turn.
13 1. Deletion of eight hours of approved sick leave
14 Plaintiff alleges that Defendant manually altered her approved sick leave and changed it to
15 “leave without pay,” thereby “deleting” eight hours of paid sick leave. (Dkt. No. 1 at ¶ 7.)
16 Plaintiff further alleges that upon discovering the discrepancy the following pay period and prior
17 to filing her EEO complaint: “Plaintiff requested an employee emergency advanced payment
18 from prior Bayview Station supervisor Kiwanni Warren for the eight hours dependent sick leave
19 pay that was deleted and changed to leave without pay in hopes of being paid in a timely manner.”
20 (Id. at ¶ 8.) Defendant denied Plaintiff’s request for emergency advance pay and instead “offered
21 a pay adjustment.” (Id.) Plaintiff alleges that the pay adjustment would have caused her “further
22 adversit[y]” by “delaying [her] pay for an additional two to four weeks” and placing her in a
23 higher tax bracket. (Id.) In other words, Plaintiff alleges that Defendant offered to remedy the
24 employment action when Plaintiff brought it to her supervisor’s attention, but Plaintiff refused that
25 correction.
26 The complaint does not plausibly allege a materially adverse employment action that “well
27 might have dissuaded a reasonable [person] from making or supporting a charge of
1 final to constitute an adverse employment action.” Brooks, 229 F.3d at 929-930 (concluding that
2 performance evaluation “was not an adverse employment action because it was subject to
3 modification by the [defendant]”). Drawing all reasonable inferences in Plaintiff’s favor, Plaintiff
4 herself alleges that the action was not final; instead, Plaintiff brought it to her supervisor’s
5 attention and Defendant attempted to correct the problem by offering “a pay adjustment.” See id.
6 (concluding that action was not final for Title VII retaliation purposes where defendant
7 accommodated plaintiff’s preferences after plaintiff complained about the challenged conduct).
8 Second, where the action is corrected it cannot serve as the basis for a Title VII retaliation
9 claim. Kortan v. California Youth Auth., 217 F.3d 1104, 1113 (9th Cir. 2000). As alleged here,
10 Defendant attempted to correct the action and Plaintiff refused the pay adjustment because it
11 would delay payment for another two to four weeks and put her in a higher tax bracket. Thus, the
12 only substantive harm alleged by Defendant’s action is a two to four-week delay in payment of
13 eight hours of wages. That delay does not plausibly rise to the level of an adverse employment
14 action that would deter a reasonable employee from pursuing a charge of discrimination. In
15 Kortan, for example, the defendant gave the plaintiff an undeserved negative performance
16 evaluation; however, the evaluation, when challenged, was corrected. The Ninth Circuit held that
17 the negative performance evaluation therefore did not rise to level of an adverse employment
18 action as a matter of law:
19 Kortan was not demoted, was not stripped of work responsibilities,
was not handed different or more burdensome work responsibilities,
20 was not fired or suspended, was not denied any raises, and was not
reduced in salary or in any other benefit. Thus, Kortan has not shown
21 that her evaluation was discriminatory or retaliatory, or was such an
“intolerable” act that it would force an employee to quit.
22
23 Kortan, 217 F.3d at 1113. The same is true of Plaintiff’s allegations here. The alleged delay in
24 paying her for eight hours of work does not plausibly rise to the level of an adverse employment
25 action that would deter a reasonable employee from pursuing a charge of discrimination.
26 Plaintiff’s opposition asserts that she was “greatly dependent upon her fixed income to
27 provide for her dependent children,” and the “estimated amount of eight hours totaling three
1 No. 31 at 6.) The Court recognizes that hardship. However, the action that produced that hardship
2 was not final, and was instead correctable; indeed, Plaintiff alleges that Defendant offered a
3 correction which Plaintiff refused. Thus, it does not constitute an adverse employment action for
4 purposes of a Title VII or Rehabilitation Act retaliation claim.
5 2. Failure to provide timely notice of work assignments
6 Plaintiff’s second claim for retaliation alleges that Defendant failed to provide Plaintiff
7 with timely notice of her work schedule/assignments between September 27, 2014 and October 9,
8 2014. (Dkt. No. 1 at ¶ 11.) Defendant asserts that this employment action fails for the same
9 reasons discussed above; specifically, it was not a “final” action as alleged but was instead
10 temporary and “apparently remedied . . . shortly after Plaintiff[ ] complained.” (Dkt. No. 20 at
11 15.) The Court agrees. Plaintiff’s complaint alleges that the issue was resolved by the USPS
12 internal grievance process in December 2014. (See Dkt. No. 1 at ¶ 11 (“Plaintiff was denied
13 timely assignments from September 2014 leading up to October 9, 2014. Plaintiff’s grievance
14 with the USPS regarding her assignments was resolved . . . .”); see also Dkt. No. 22-1, Ex. A
15 (December 2014 USPS “Step B Decision” resolving Plaintiff’s grievance related to Defendant’s
16 “fail[ure] to post a weekly schedule for [Plaintiff]” by requiring Defendant to “post a weekly
17 schedule in the Bayview office”).) Thus, Defendant’s failure to timely notify Plaintiff of her
18 assignments is not an adverse employment action because it was not final; indeed, according to
19 Plaintiff, Defendant remedied the action through its grievance process. See Brooks, 229 F.3d at
20 930 (affirming district court’s rejection of retaliation claim where plaintiff complained about the
21 challenged action to defendant and defendant remedied the action).
22 As Plaintiff credibly explained at oral argument, Defendant’s conduct did have an adverse
23 impact on her personally and, indeed, caused her to never return to work. But the test of an
24 adverse employment action is not whether the challenged conduct would dissuade the particular
25 plaintiff from pursuing a charge of discrimination; instead, it is an objective test. See White, 548
26 U.S. at 68-69 (noting that an objective standard for determining whether an employer’s conduct
27 would deter a reasonable employee from engaging in protected activity “avoids the uncertainties
1 subjective feelings”). Under binding Ninth Circuit law the facts, as alleged, do not satisfy that
2 || objective test.
3 TK
4 Accordingly, the Court grants Defendant’s motion to dismiss. Because Plaintiff is self-
5 represented and proceeding in forma pauperis, she must be given leave to amend her “complaint
6 || unless it is absolutely clear that the deficiencies of the complaint could not be cured by
7 amendment.” See Franklin vy. Murphy, 745 F.2d 1221, 1228 n.9 (9th Cir. 1984) (internal quotation
8 marks and citation omitted). It is not absolutely clear that she could not plead more facts that,
9 drawing all inferences in her favor, could support a finding that the challenged conduct was an
10 adverse employment decision.
11 CONCLUSION
12 For the reasons stated above, the Court GRANTS Defendant’s motion to dismiss with
13 leave to amend. Plaintiff is given permission to replead her retaliation claims; she is not given
14 || permission to add any other claims. In addition, the retaliation claims should specify whether they
3 15 are brought under Title VU or the Rehabilitation Act and the nature of the underlying protected
a 16 activity (for example, specify whether the underlying protected activity is a complaint about
3 17 disability discrimination or some other protected activity). Finally, Plaintiff must allege facts
18 sufficient to support a plausible inference that she suffered an adverse employment action in
19 || retaliation for her appeal.
20 Any amended complaint must be filed within 21 days of this Order. Failure to file an
21 amended complaint by that deadline will result in dismissal of the complaint with prejudice.
22 This Order disposes of Docket No. 20.
23 IT IS SO ORDERED.
24 Dated: February 7, 2020
25 Dts toy,
JAQQUELINE SCOTT CORL
26 United States Magistrate Judge
27
28