# Brown v. Brennan

> District Court, N.D. California · March 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10067214

## Case

- **Court:** District Court, N.D. California
- **Decided:** March 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10067214

## How later opinions describe it (automated extraction)

- concluding that 3 performance evaluation “was not an adverse employment action because it was subject to 4 modification by the [defendant]”
- concluding 10 that action was not final for Title VII retaliation purposes where defendant accommodated 11 plaintiff’s preferences after plaintiff complained about the challenged conduct
- finding that improper 13 designation of the plaintiff’s time as unpaid and unapproved leave did not constitute an adverse 14 employment action because “it was temporary and corrected shortly after [the plaintiff] 15 complained”
- finding that 27 employee’s being “marked tardy” for a shift was not an adverse employment action because the 1 schedule

## Opinion text

1
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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: MOTION TO DISMISS
v.
9
Re: Dkt. No. 52
10 MEGAN BRENNAN,
Defendant.
11

12 Misty Danielle Brown, representing herself, sues her employer the Postmaster General of
13 the United States Postal Service (“Defendant”) and brings retaliation claims in her amended
14 complaint under the Rehabilitation Act, 29 U.S.C. § 701; specifically, retaliation arising from a
15 disability discrimination complaint Ms. Brown filed with the Equal Employment Opportunity
16 Commission’s (“EEOC’s”) Office of Federal Operations. (Dkt. No. 49.)1 Before the Court is
17 Defendant’s motion to dismiss Ms. Brown’s amended complaint pursuant to Federal Rule of Civil
18 Procedure Rule 12(b)(6).2 Defendant argues that Ms. Brown fails to allege facts sufficient to
19 support a plausible inference that she suffered an adverse employment action. After careful
20 consideration of the parties’ briefing, and having had the benefit of oral argument on March 25,
21 2021, the Court GRANTS Defendant’s motion. Ms. Brown fails to state claims for retaliation
22 under the Rehabilitation Act.
23
24

25
1 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the
ECF-generated page numbers at the top of the documents. Additionally, on January 13, 2021 Ms.
26
Brown filed an amended complaint and subsequent “edited amended complaint.” (Dkt. Nos. 48 &
49.) The Court regards Ms. Brown’s “edited amended complaint” as the operative complaint, and
27
refers to it as the “amended complaint” or the “FAC.”
1 BACKGROUND
2 I. Amended Complaint Allegations
3 Ms. Brown has been employed by Defendant since 1998. In May 2004, Ms. Brown
4 suffered a knee injury while performing her duties. Following her injury, Ms. Brown underwent
5 several surgeries and required “work restrictions per her doctors.” (Dkt. No. 49 at 2 ¶ 6.) Ms.
6 Brown was assigned to a “full-time modified limited duty Carrier Technician position” in
7 September 2010 at Bayview Station in San Francisco, California, and was able to perform her job
8 duties with reasonable accommodations. (Id. at 2 ¶¶ 7-8.) On January 12, 2013, Ms. Brown was
9 demoted to an “unassigned modified full-time regular City Carrier” position; following her
10 demotion, Ms. Brown contacted her regional EEOC office through her representative. (Id. at 2 ¶
11 9.) Ms. Brown subsequently filed a complaint with the EEOC and was allegedly subject to
12 retaliatory conduct that is the subject of another action in this District; that action is currently on
13 appeal. (Dkt. No. 49 at 2-3 ¶ 9.) See Brown v. Brennan, No. 3:16-cv-06972-EDL (“Brown I”).
14 The gravamen of Ms. Brown’s amended complaint is that Defendant subjected her to the
15 following retaliatory treatment for filing an appeal in August 2014 with the EEOC’s Office of
16 Federal Operations in connection with the above-referenced EEOC complaint: (1) on August 28,
17 2014, Defendant altered 8 hours of Ms. Brown’s previously-approved sick leave to “leave without
18 pay” and that Defendant still has yet to make “a proper adjustment to [this] designation” or
19 provide a reasonable explanation—despite Ms. Brown’s requests and in violation of its own
20 policies—for the alteration; and (2) between September 27, 2014 and October 9, 2014, Defendant
21 denied Ms. Brown timely notice of her daily and weekly work assignments. (Dkt. No. 49 at 3-4 ¶¶
22 11, 17-18.) On October 20, 2014, Ms. Brown filed “an EEO charge” with the regional EEO office
23 regarding this alleged discrimination. (Id. at 6 ¶ 23.) She then filed a formal EEOC complaint “on
24 or about November 20, 2014.” (Id.) Ms. Brown received a notice-of-right-to-sue letter from the
25 EEOC on June 18, 2019. (Id.)
26 II. Procedural History
27 Ms. Brown filed her complaint in September 2019, alleging two Title VII claims for
1 Plaintiff’s application to proceed in forma pauperis, reviewed the complaint pursuant to 28 U.S.C.
2 § 1915(e)(2), and directed the Clerk of Court to issue the summons. (Dkt. No. 7.) Defendant
3 moved to dismiss thereafter. (Dkt. No. 20.) The Court granted Defendant’s motion to dismiss,
4 and gave Ms. Brown leave to amend her complaint. (Dkt. No. 37 at 10.) Ms. Brown filed the
5 amended complaint on January 13, 2021. (Dkt. No. 49.) The motion is fully briefed, and the
6 Court heard oral argument on March 25, 2021.
7 DISCUSSION
8 Defendant moves to dismiss Ms. Brown’s amended complaint under Federal Rule of Civil
9 Procedure 12(b)(6) for failure to state a claim.
10 A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of a complaint as
11 failing to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
12 Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facial plausibility standard is not a “probability
13 requirement” but mandates “more than a sheer possibility that a defendant has acted unlawfully.”
14 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). Thus,
15 a complaint “that offers labels and conclusions or a formulaic recitation of the elements of a cause
16 of action” is insufficient, as is a complaint that “tenders naked assertion[s] devoid of further
17 factual enhancement.” Id. (internal quotation marks and citation omitted). When a plaintiff files a
18 complaint without an attorney, as Ms. Brown does here, the Court must “construe the pleadings
19 liberally . . . to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342
20 (9th Cir. 2010) (internal quotation marks and citation omitted).
21 I. The Amended Complaint Fails to State a Claim for Retaliation
22 Courts apply the same standard when analyzing retaliation claims under the Rehabilitation
23 Act or Title VII of the Civil Rights Act of 1964 (“Title VII”). See Scott v. Mabus, 618 F. App’x
24 897, 901 (9th Cir. 2015) (“The same [Title VII] standards apply with respect to a retaliation claim
25 based on the exercise of rights under the Rehabilitation Act.”) (citing Coons v. Sec’y of U.S. Dep’t
26 of Treasury, 383 F.3d 879, 887 (9th Cir.2004)). To state a claim for retaliation under this
27 standard, a plaintiff must allege that: (1) “she engaged in a protected activity”; (2) her employer
1 protected activity and the adverse action.” Manatt v. Bank of Am., NA, 339 F.3d 792, 800 (9th Cir.
2 2003). The amended complaint brings a claim for retaliation under the Rehabilitation Act based
3 on 2 instances of alleged retaliatory treatment: Defendant altered 8 hours of prior-approved
4 dependent sick leave as “leave without pay” in August 2014 and failed to provide a reasonable
5 explanation for—or follow its own procedures to remedy—this alteration; and (2) between
6 September 27, 2014 and October 9, 2014, Defendant failed to provide Ms. Brown with timely
7 notice of her work schedule and assignments. (Dkt. No. 49 at 6 ¶ 29.) As discussed below, the
8 amended complaint fails to adequately plead a Rehabilitation Act retaliation claim as to both
9 instances of alleged retaliation.
10 A. Protected Activity
11 Defendant asserts that Ms. Brown’s claims fail in part because she has not alleged the first
12 element, that she engaged in protected activity, required for her retaliation claim. (Dkt. No. 52 at
13 15.) The Court disagrees. Ms. Brown alleges that Defendant “violated the Rehabilitation Act” by
14 retaliating against her “[i]mmediately after [she] fil[ed] the EEO appeal[.]” (Dkt. No. 49 at 6 ¶¶
15 26, 29.) The complaint specifies that the retaliation took place after Ms. Brown filed “an appeal of
16 a charge of disability discrimination and retaliation [with] the [EEO’s] Office of Federal
17 Operations” in connection with the complaint and conduct at issue in Brown I. (Id. at 6 ¶ 27.)
18 The Court previously determined that Ms. Brown failed to “plead the underlying statutory
19 basis for the protected activity at issue in her retaliation claim[.]” (Dkt. No. 37 at 6.) The
20 amended complaint clarifies that the underlying statutory basis for the protected activity at issue in
21 her retaliation claim (the August 2014 appeal to the EEOC) is disability discrimination brought
22 under the Rehabilitation Act. (Dkt. Nos. 49 at 6 ¶ 27, 37 at 6.) Because Ms. Brown’s retaliation
23 claim is brought under the Rehabilitation Act, and that is the same statute under which she alleged
24 the protected activity, she has sufficiently alleged that she engaged in protected activity. See
25 Passatino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir. 2000); see
26 also McCarthy v. Brennan, No. 15-cv-03308-JSC, 2016 WL 946099, at *12 (N.D. Cal. Mar. 14,
27 2016) (“[t]here is no doubt that filing grievances and pursuing constitutional and statutory
1 B. Adverse Employment Actions
2 To satisfy the second element of a retaliation claim under Title VII, and therefore the
3 second element of a retaliation claim under the Rehabilitation Act, a plaintiff must ultimately
4 show “that a reasonable employee would have found the challenged action materially adverse,
5 which in this context means it well might have dissuaded a reasonable worker from making or
6 supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
7 68 (2006) (internal quotation marks and citation omitted); see also Brooks v. City of San Mateo,
8 229 F.3d 917, 928 (9th Cir. 2000) (“[W]e have held that only non-trivial employment actions that
9 would deter reasonable employees complaining about Title VII violations will constitute
10 actionable retaliation.”). Examples of adverse employment actions include: “actions materially
11 affecting compensation, terms, conditions, or privileges of employment,” and termination.
12 McCarthy, 2016 WL 946099, at *13 (internal quotation marks, alterations, and citation omitted).
13 The Court addresses each alleged adverse employment action in turn.
14 1. Alteration of Eight Hours of Approved Sick Leave
15 Ms. Brown alleges that Defendant manually altered 8 approved hours of sick leave and
16 changed this time to “leave without pay,” thereby “deleting” 8 hours of paid sick leave. (Dkt. No.
17 49 at 3 ¶ 11.) She further alleges that, upon discovering this, she requested “emergency salary
18 pay” pursuant to Defendant’s “Employee Emergency Salary Issued Process.” (Id. at 3 ¶ 12.)
19 Under this process, when an employee “whose pay is decreased by 8 or more hours requests an
20 emergency salary,” her manager or supervisor must complete an “emergency salary authorization”
21 in addition to a “payroll adjustment.” (Dkt. No. 49 at 3 ¶ 12.) The amended complaint alleges and
22 Ms. Brown contended at oral argument that Kiwanni Warren, Ms. Brown’s supervisor, only
23 offered Ms. Brown a payroll adjustment—Ms. Warren did not complete the emergency salary
24 authorization. (Dkt. No. 49 at 3-4 ¶ 13.) Ms. Brown alleges that Ms. Warren’s conduct “would
25 have resulted in delayed pay for two to four weeks and could have placed [her] in a higher tax
26 bracket.” (Id. at 4 ¶ 15.)
27 The amended complaint does not plausibly allege a materially adverse employment action
1 discrimination.” See White, 548 U.S. at 68. First, an employment action must be “sufficiently
2 final to constitute an adverse employment action.” Brooks, 229 F.3d at 929-930 (concluding that
3 performance evaluation “was not an adverse employment action because it was subject to
4 modification by the [defendant]”). Ms. Brown alleges that Defendant “still has yet to make a
5 proper adjustment to [her] improper [time] designation,” and argues in her opposition that she has
6 not been “properly adjusted” for her sick leave wages. (Dkt. Nos. 49 at 4 ¶ 17, 66 at 8.) However,
7 drawing all reasonable inferences in Ms. Brown’s favor, Ms. Brown herself alleges that the action
8 was not final; instead, she brought it to her supervisor’s attention and Defendant attempted to
9 correct the problem by offering “a pay adjustment.” See Brooks, 229 F.3d at 929-930 (concluding
10 that action was not final for Title VII retaliation purposes where defendant accommodated
11 plaintiff’s preferences after plaintiff complained about the challenged conduct); see also Uche-
12 Uwakwe v. Shinseki, 972 F. Supp. 2d 1159, 1181 (C.D. Cal. 2013) (finding that improper
13 designation of the plaintiff’s time as unpaid and unapproved leave did not constitute an adverse
14 employment action because “it was temporary and corrected shortly after [the plaintiff]
15 complained”) (citing Brooks, 229 F.3d at 930).
16 Second, as the Court discussed in its previous Order, where the action is corrected it cannot
17 serve as the basis for a retaliation claim. See Kortan v. California Youth Auth., 217 F.3d 1104,
18 1113 (9th Cir. 2000). As alleged here, Defendant attempted to correct the action. Moreover, the
19 only substantive harm alleged by Defendant’s action is a two to four-week delay in payment of
20 eight hours of wages. (Dkt. No. 49 at 4 ¶ 15.) That delay does not plausibly rise to the level of an
21 adverse employment action that would deter a reasonable employee from pursuing a charge of
22 discrimination. In Kortan, for example, the defendant gave the plaintiff an undeserved negative
23 performance evaluation; however, the evaluation, when challenged, was corrected. The Ninth
24 Circuit held that the negative performance evaluation therefore did not rise to level of an adverse
25 employment action as a matter of law:

26 Kortan was not demoted, was not stripped of work
responsibilities, was not handed different or more burdensome
27 work responsibilities, was not fired or suspended, was not
was discriminatory or retaliatory, or was such an “intolerable”
1 act that it would force an employee to quit.

2 Kortan, 217 F.3d at 1113. The same is true of Ms. Brown’s allegations here. The alleged
3 delay in paying her for eight hours of work does not plausibly rise to the level of an adverse
4 employment action that would deter a reasonable employee from pursuing a charge of
5 discrimination.
6 Ms. Brown alleges that interference with her paychecks has caused her extreme economic
7 anxiety, and states in her opposition that Defendant’s alteration of her wages is still affecting her.
8 (Dkt. Nos. 49 at 6 ¶ 22, 66 at 8.) The Court recognizes this hardship. However, the action that
9 produced that hardship was not final, and was instead correctable; indeed, Plaintiff alleges that
10 Defendant offered a correction in the form of a pay adjustment. Thus, it does not constitute an
11 adverse employment action for purposes of a Rehabilitation Act retaliation claim.
12 2. Failure to Provide Timely Notice of Work Assignments
13 Ms. Brown’s retaliation claim also alleges that Defendant failed to provide her with timely
14 notice of her work assignments between September 27, 2014 and October 9, 2014. (Dkt. No. 49 at
15 4 ¶ 18.) Defendant asserts that this employment action fails for the same reasons as discussed
16 above; specifically, that it was “neither permanent nor final[,]” “remedied . . . shortly after [Ms.
17 Brown] complained[,]” and that it is a trivial, non-material action. (Dkt. No. 52 at 18-19.) The
18 Court agrees. Ms. Brown alleges that Defendant failed to provide her with “timely notice” of her
19 work assignments from September 27, 2014 through October 9, 2014. (Dkt. No. 49 at 4-5 ¶ 18.)
20 Ms. Brown states in her opposition that she had a fixed work schedule, and the gravamen of her
21 claims is that Defendant failed to notify her of her work assignments set within that fixed schedule
22 from September 27, 2014 through October 9, 2014. (Dkt. Nos. 49 at 6-7 ¶¶ 29, 36, 66 at 9.) Ms.
23 Brown does not allege that Defendant’s failure to provide timely notice of daily and weekly
24 assignments during this limited time period constituted a material change in the terms and
25 conditions of her employment. See Dupree v. Apple, Inc., No. 16-CV-00289-LHK, 2017 WL
26 2617978, at *11 (N.D. Cal. June 16, 2017), aff’d, 715 F. App’x 798 (9th Cir. 2018) (finding that
27 employee’s being “marked tardy” for a shift was not an adverse employment action because the
1 schedule) (citing Chuang v. Univ. of California Davis, Bd. of Trustees, 225 F.3d 1115, 1126 (9th
2 Cir. 2000)); see also Bogner v. R&B Sys., Inc., No. CV-10-193-JLQ, 2011 WL 1832750, at *5
3 (E.D. Wash. May 12, 2011) (determining that a change in shift time was not an adverse
4 employment action because “the total time of the shift remained the same and there [was] no
5 evidence the change exploited a unique vulnerability of [the] plaintiff”).
6 While Ms. Brown alleges that from September 27, 2014 to October 9, 2014 she was
7 assigned what she believed to be less desirable routes, the test of an adverse employment action is
8 whether the challenged conduct would dissuade the particular plaintiff from pursuing a charge of
9 discrimination; it is an objective test. See White, 548 U.S. at 68-69 (noting that an objective
10 standard for determining whether an employer’s conduct would deter a reasonable employee from
11 engaging in protected activity “avoids the uncertainties and unfair discrepancies that can plague a
12 judicial effort to determine a plaintiff’s unusual subjective feelings”). For the reasons set forth
13 above, as alleged the facts regarding Defendant’s failure to provide Ms. Brown with notice of
14 work assignments during this limited period do not satisfy that objective test.
15 II. The Amended Complaint Fails to State a Claim for “Hostile Work Environment”
16 Ms. Brown brings a second claim for “Retaliation – Hostile Work Environment” under the
17 Rehabilitation Act. (Dkt. No. 49 at 7 ¶¶ 32-38.) She alleges that Defendant’s retaliatory actions
18 “materially altered [the] terms, conditions and benefits of her employment [and] were sufficient to
19 and created an abusive working environment.” (Id. at 7 ¶ 37.) Defendant argues that Ms. Brown’s
20 second claim is not a “new claim for ‘hostile work environment,’” but is instead a retaliation claim
21 where Ms. Brown alleges the necessary “adverse action was a ‘hostile work environment’
22 resulting from the two instances of allegedly retaliatory conduct.” (Dkt. No. 67 at 15.) Even
23 construing Ms. Brown’s second claim as one for hostile work environment, rather than one for
24 retaliation, she has failed to plead facts sufficient to state a plausible claim for relief.
25 While the Ninth Circuit has not yet officially recognized that a “hostile work environment
26 claim exists in the context of the Rehabilitation Act,” see Williams v. Modly, 796 F. App’x 378,
27 381 (9th Cir. 2020), assuming the claim exists it relies on “a series of separate acts that
1 id. (citing Nat’l Ry. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). Construing Ms.
2 Brown’s claim as a hostile work environment rather than a second retaliation claim, she has failed
3 to plead facts sufficient to show that Defendant’s actions constitute a series so “severe and
4 offensive that they alter[ed] the conditions of [her] employment.” Williams, 796 F. App’x at 381.
5 Ms. Brown alleges that Defendant’s alteration of her time in August 2014 and the failure to notify
6 her regarding her work assignments from September 27, 2014 to October 9, 2014 created an
7 “abusive working environment.” (Dkt. No. 49 at 7 ¶¶ 36-37.) However, isolated incidents such as
8 these that are not serious employment actions are insufficient to make a workplace hostile and
9 alter the conditions of a plaintiff’s employment. See Faragher v. City of Boca Raton, 524 U.S.
10 775, 788 (1998); Candelore v. Clark Cty. Sanitation Dist., 975 F.2d 588, 590 (9th Cir. 1992) (per
11 curiam).
12 * * *
13 Accordingly, the Court grants Defendant’s motion to dismiss. On February 7, 2020 the
14 Court granted Defendant’s motion to dismiss the original complaint for the same reasons the Court
15 grants the motion to dismiss the amended complaint; namely, that the two challenged acts of
16 retaliation do not amount to adverse employment actions as a matter of law. (Dkt. No. 37.) The
17 dismissal order gave Plaintiff 21 days to file an amended complaint. (Id.). Thereafter Plaintiff
18 sought and was granted four extensions of time to file her amended complaint. (Dkt. Nos. 40, 42,
19 44, 46.) She finally filed the amended complaint on January 13, 2021. As explained above, the
20 amended complaint does not cure the deficiencies of the original complaint, and it is apparent that
21 they cannot be cured with further amendment. The dismissal is therefore without leave to amend.
22 CONCLUSION
23 For the reasons stated above, the Court GRANTS Defendant’s motion to dismiss without
24 leave to amend. A separate judgment will be entered.
25 This Order disposes of Dkt. No. 52.
26 IT IS SO ORDERED.
27 //
1 Dated: March 26, 2021
2 ie Sealy
3
4 re
JAQQUELINE SCOTT CORL
5 United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10067214. Public record. Not legal advice.