Robinson v. Ahuja

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 DOUGLAS E. ROBINSON, Case No. 20-cv-07907-JSC

8 Plaintiff,

ORDER RE: MOTION TO DISMISS

v.

9

Re: Dkt. No. 13

10 MICHAEL J. RIGAS,

Defendant.

11

12

13 Plaintiff Douglas E. Robinson, a federal employee proceeding without representation by an

14 attorney, brings claims for employment discrimination and retaliation.1 (Dkt. No. 1.)2 Before the

15 Court is Defendant’s motion to dismiss on the grounds that Plaintiff’s complaint was not timely

16 served, he failed to exhaust his administrative remedies, and he fails to state a claim. (Dkt. No.

17 13.) The Court sua sponte granted Plaintiff additional time to file an opposition, and he did so.

18 (Dkt. Nos. 14, 16.) After carefully considering the briefing, and having had the benefit of oral

19 argument on July 22, 2021, the Court GRANTS in part and DENIES in part Defendant’s motion

20 to dismiss for the reasons explained below.

21 BACKGROUND

22 I. Complaint Allegations

23 Plaintiff is an employee of the United States Office of Personnel Management (“OPM”)

24 and teleworks full-time from his home in Pinole, California. He is an African American man and

25 was about 68 years old when the time period at issue began. He alleges that when he was hired, in

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1 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. §

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636(c). (Dkt. Nos. 5, 7.)

1 2006, OPM did not instruct him “on his duty to report suspected discrete acts of discrimination, or

2 on the distinction between discrete acts of discrimination and either pattern or practice

3 discrimination or discrimination resulting in an ongoing hostile work environment.” (Dkt. No. 1

4 at 9.)

5 As of 2010, Plaintiff’s role was Human Resource Specialist (“HR Specialist”) at the GS-

6 12/13 grade, “a career development position that was accompanied by [OPM’s] promise that after

7 performing in the position for a year with a ‘Fully Successful’ annual performance evaluation, [he]

8 would be promoted from a Grade 12 . . . to a Grade 13.” (Id. at 8–10.) However, “Plaintiff was

9 never shown or given a policy or procedure regarding promotion criteria or standards of

10 performance for his developmental position by his acting manager . . . at the time of [] hire. Based

11 on information that [P]laintiff was able to glean from [OPM’s] custom and practice, and belief

12 thereon, the promotion criteria for a career development position is (i) 12 months of experience in

13 the current development position, and (ii) at least ‘Satisfactory’ performance at the current grade

14 level.” (Id. at 10.)

15 The gravamen of Plaintiff’s complaint is that, despite performing well for four years, he

16 was not promoted to Grade 13 while similarly situated white and younger employees were.

17 During the time period at issue, fiscal years (“FY”) 2011 to 2014, OPM employed 33 full-time HR

18 Specialists, about 10 of whom were in “developmental positions.” Of the 33, 24 were white, eight

19 (including Plaintiff) were Black or African American, and one was Asian. Two employees

20 (including Plaintiff) were age 60 or older. From FY 2011 to 2014, OPM promoted 13 employees

21 to Grade 13, only one of whom was Black or African American and none of whom were over age

22 50. The highest classification in the department was Grade 15; all four HR Specialists at Grades

23 14 or 15 were white.

24 HR Strategy Group Manager Jason Parman, who is white, led Plaintiff’s department.

25 According to Plaintiff, Mr. Parman “manifested an intent to hire and promote individuals sharing

26 his unique cultural values, to the exclusion of [P]laintiff.” (Id. at 13.) Throughout the time period

27 at issue, Plaintiff alleges that white employees were given preferential treatment in the form of

1 to complete their leadership projects more quickly.

2 In FY 2011, Plaintiff was rated “Exceeds Fully Satisfactory” by Mr. Parman and received

3 an overall annual evaluation of “Exceeds Fully Successful.” Plaintiff was not promoted, but a

4 similarly situated white employee evaluated as “Satisfactory” was.

5 In FY 2012, Plaintiff was rated “Fully Satisfactory” by Mr. Parman. Plaintiff was not

6 promoted.

7 In FY 2013, Plaintiff’s supervisor went on leave. At the end of the year “when [P]laintiff

8 asked for a promotion, there was no person sufficiently familiar with the quality of [P]laintiff’s

9 work to assess the promotion request,” and Plaintiff was not promoted. (Id. at 11.) A similarly

10 situated white employee was promoted after having been in his position for less than a year, and a

11 similarly situated white employee was promoted to Plaintiff’s supervisor without having

12 experience in Plaintiff’s position.

13 In FY 2014, for the first three quarters, Plaintiff had four temporary supervisors while his

14 supervisor was on leave. All four evaluated his performance as “Fully Successful.” Nevertheless,

15 Mr. Parman rated Plaintiff “Minimally Satisfactory” on his mid-year evaluation, and in doing so

16 misrepresented that two temporary supervisors had rated Plaintiff poorly. During the last quarter

17 of FY 2014, Plaintiff had a temporary supervisor named Laura Knowles who gave him negative

18 feedback. For Plaintiff’s annual evaluation, Mr. Parman “gave [Ms.] Knowles’ performance

19 rating ‘controlling weight’ despite her lack of experience in a supervisory role, and lack of

20 technical background sufficient to fairly evaluate Plaintiff’s performance.” (Id. at 13 (emphasis

21 omitted).) Mr. Parman “imposed additional criteria . . . on Plaintiff,” including: requiring

22 Plaintiff, but not a similarly situated employee, to demonstrate Grade 13 knowledge, skills, and

23 abilities prior to promotion; and requiring Plaintiff, but not a similarly situated employee, to

24 manage a large-dollar project prior to promotion. (Id. at 13–14.) Plaintiff was not promoted that

25 year.

26 Plaintiff brings claims for discrimination on the basis of race and age—including “failure

27 to promote[,] failure to provide career development assignments, disparate treatment, and hostile

1 (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”).3

2 II. Procedural History

3 Plaintiff contacted the OPM’s Equal Employment Opportunity (“EEO”) office on

4 November 7, 2014. He alleged “that discriminatory conduct had occurred from October 1, 2011

5 through and including October 31, 2014.” (Id. at 14.)4 After interviewing with the EEO office,

6 Plaintiff filed a formal complaint on or around February 11, 2015. An administrative law judge

7 dismissed the complaint based on a finding of no discrimination; the Office of Field Operations

8 affirmed on August 6, 2020; and Plaintiff filed suit on November 6, 2020. (Id. at 28, 5.)

9 DISCUSSION

10 Defendant moves to dismiss under Federal Rule of Civil Procedure 4(m) for failure to

11 timely serve; for failure to exhaust administrative remedies; and under Rule 12(b)(6) for failure to

12 state a claim.

13 I. Timely Service

14 Plaintiff filed this action on November 6, 2020. (Dkt. No. 1.) On January 29, 2021, the

15 Court ordered Plaintiff to serve Defendant and continued a case management conference to allow

16 for service. (Dkt. No. 6.) Plaintiff has not yet filed proof of service, but, according to Defendant,

17 service was completed on March 8, 2021—122 days after filing. (Dkt. No. 13 at 13–14; Dkt. No.

18 13-3 at 31.)

19 “If a defendant is not served within 90 days after the complaint is filed, the court—on

20 motion or on its own after notice to the plaintiff—must dismiss the action without prejudice

21 against that defendant or order that service be made within a specified time. But if the plaintiff

22 shows good cause for the failure, the court must extend the time for service for an appropriate

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3 In one instance, Plaintiff’s complaint cites the Equal Pay Act (“EPA”), (Dkt. No. 1 at 3), which

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prohibits employers from discriminating on the basis of sex in paying wages. 29 U.S.C. §

206(d)(1). However, he cites elsewhere only to Title VII and the ADEA, and provides no factual

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allegations that he was paid lower wages on the basis of sex. To the extent that Plaintiff brings a

claim under the EPA, the claim is DISMISSED with leave to amend.

26

4 In one instance, Plaintiff’s complaint states that the discriminatory acts occurred “through Fiscal

Year 2019.” (Dkt. No. 1 at 4.) However, he states elsewhere that the relevant time period is

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October 2011 through October 2014, and alleges no facts after October 2014 other than procedural

1 period.” Fed. R. Civ. P. 4(m). “Rule 4(m) provides two avenues for relief. The first is

2 mandatory: the district court must extend time for service upon a showing of good cause. The

3 second is discretionary: if good cause is not established, the district court may extend time for

4 service upon a showing of excusable neglect. Exercise of discretion to extend time to complete

5 service is appropriate when, for example, a statute-of-limitations bar would operate to prevent re-

6 filing of the action.” Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009) (citations

7 omitted). “In making extension decisions under Rule 4(m) a district court may consider factors

8 like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual

9 service.” Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (internal quotation marks and

10 citation omitted).

11 Federal employees have 90 days from receipt of notice of final administrative action to file

12 a civil discrimination action. 42 U.S.C. § 2000e-16(c). Here, Plaintiff alleges he received notice

13 of final administrative action on or around August 6, 2020. (Dkt. No. 1 at 28.) As such, the 90-

14 day statute of limitations would operate to prevent refiling if the Court dismissed the complaint

15 without prejudice. Moreover, Plaintiff did effectuate service, 32 days after the deadline.

16 Dismissal for failure to timely serve is not warranted, especially in light of Plaintiff’s

17 unrepresented status. See In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001) (“Courts have

18 discretion under Rule 4(m), absent a showing of good cause, to extend the time for service or to

19 dismiss the action without prejudice.”).

20 II. Administrative Exhaustion

21 A. Title VII

22 To bring a claim of discrimination under Title VII, a federal employee must timely exhaust

23 his administrative remedies. Leong v. Potter, 347 F.3d 1117, 1121–22 (9th Cir. 2003). The

24 employee “must initiate contact with a[n EEO] Counselor within 45 days of the matter alleged to

25 be discriminatory or, in the case of personnel action, within 45 days of the effective date of the

26 action.” 29 C.F.R. § 1614.105(a)(1). Failure to initiate administrative action within the 45-day

27 time period may be “fatal” to an employee’s discrimination claims in federal court, absent waiver,

1 C.F.R. § 1614.604(c); Leong, 347 F.3d at 1122–23.

2 It is presently unsettled whether Title VII’s exhaustion requirement for federal employees

3 is jurisdictional or a mandatory processing rule. The Ninth Circuit has explained, “Although

4 failure to file an [EEO] complaint is not a complete bar to district court jurisdiction, substantial

5 compliance with the exhaustion requirement is a jurisdictional pre-requisite.” Leong, 347 F.3d at

6 1122. “[T]he jurisdictional scope of a Title VII claimant’s court action depends upon the scope of

7 both the [EEO] charge and the [EEO] investigation. The district court has jurisdiction over any

8 charges of discrimination that are like or reasonably related to the allegations in the [EEO] charge,

9 or that fall within the [EEO] investigation which can reasonably be expected to grow out [of] the

10 charge of discrimination.” Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001)

11 (internal quotation marks and citations omitted). However, the Supreme Court more recently

12 instructed that, at least as to private sector employees, Title VII’s administrative exhaustion

13 requirement is a mandatory processing rule rather than jurisdictional. Fort Bend Cnty. v. Davis,

14 139 S. Ct. 1843, 1851 (2019). Because Fort Bend did not address the requirement’s function as to

15 federal employees, see id. at 1847 n.1, there is some uncertainty whether the Ninth Circuit’s

16 earlier holdings have survived. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)

17 (“[W]here intervening Supreme Court authority is clearly irreconcilable with our prior circuit

18 authority[,] . . . district courts should consider themselves bound by the intervening higher

19 authority and reject the prior opinion of this court as having been effectively overruled.”);

20 Williams v. Wolf, 2019 WL 6311381, at *5–6 (N.D. Cal. Nov. 25, 2019) (analyzing jurisdictional

21 issue in light of Fort Bend). Defendant argues that the requirement continues to be jurisdictional

22 in the federal employment context, although it does not move to dismiss for lack of subject matter

23 jurisdiction under Federal Rule of Civil Procedure 12(b)(1).

24 The Court need not resolve this issue. At the hearing on this motion, Plaintiff conceded

25 that one EEO complaint, filed on November 7, 2014, is the basis for administrative exhaustion.

26 Plaintiff contacted an EEO counselor at that time and alleged “that discriminatory conduct had

27 occurred from October 1, 2011 through and including October 31, 2014.” (Dkt. No. 1 at 14.) On

1 September 23, 2014 and November 7, 2014—the 45-day window that Title VII affords federal

2 employees. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (“[D]iscrete

3 discriminatory acts are not actionable if time barred, even when they are related to acts alleged in

4 timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging

5 that act.”); Cherosky v. Henderson, 330 F.3d 1243, 1245–48 (9th Cir. 2003). For this reason,

6 Plaintiff’s claims as to discrete acts before September 23, 2014—including the failure to promote

7 him in FY 2011, 2012, and 2013—were not administratively exhausted and are effectively time-

8 barred. See Morgan, 536 U.S. at 114 (“Discrete acts [include] failure to promote[.]”).

9 Administrative exhaustion also requires that the employee’s claims in the EEO process be

10 sufficiently similar to the claims brought to court. A court may consider “all claims of

11 discrimination that fall within the scope of the [EEO]’s actual investigation or an [EEO]

12 investigation that could reasonably be expected to grow out of the charge.” Vasquez v. City of Los

13 Angeles, 349 F.3d 634, 644 (9th Cir. 2003). “Civil claims [are] reasonably related to allegations in

14 the [administrative complaint] to the extent that those claims are consistent with the plaintiff’s

15 original theory of the case.” B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002).

16 Plaintiff’s administrative complaint stated,

17 My complaint is that from October 1, 2011 thru the current date, I

have not been promoted to GS-201-13 [sic], full performance level

18 because of a continuous systematic pattern of employment

discrimination. I am over the age of 50, and an African American

19 male. This employment discrimination includes pay, assignments

and denial of promotional opportunities for other vacancies at OPM

20 and other federal agencies. There is a concentration of employees

who are over the age of 40, African American, male and female and

21 not being promoted. The remedy I seek is immediate promotion to

the GS-13 level with all back pay from October 1, 2011 to the present

22 with interest and all entitled benefits, and end the employment

discrimination and favoritism in HR Strategies.

23

24 (Dkt. No. 13-1 at 3.)5 Plaintiff also identified the “date(s) of the alleged discriminatory event” as

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5 The Court takes judicial notice of Plaintiff’s administrative complaint, attached to Defendant’s

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motion to dismiss. “[D]ocuments whose contents are alleged in a complaint and whose

authenticity no party questions, but which are not physically attached to the pleading, may be

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considered in ruling on a Rule 12(b)(6) motion to dismiss.” Branch v. Tunnell, 14 F.3d 449, 454

1 September 30, 2011, September 30, 2012, September 30, 2013, and September 30, 2014. (Id. at

2 1.) Defendant argues that Plaintiff’s administrative complaint is too vague to be construed as

3 reasonably similar to his claims in this lawsuit. To the contrary, the administrative complaint sets

4 out a theory that Plaintiff was not promoted from Grade 12 to Grade 13 because of his race and

5 age, and seeks that promotion as a remedy. The administrative complaint also identifies

6 September 30, 2014 as the date of a discrete act of discrimination, which is within the 45-day

7 window. Thus, the only Title VII claim that is not time-barred—the failure to promote in FY

8 2014—is reasonably related to allegations in Plaintiff’s administrative complaint. And, because

9 the FY 2014 conduct was properly exhausted, the jurisdictional issue is moot.

10 B. ADEA

11 The ADEA also requires administrative exhaustion. A federal employee can exhaust

12 through the same procedure described above, with a 45-day window to contact the EEO after an

13 alleged discriminatory act, or he may “bypass” by giving notice to the Equal Employment

14 Opportunity Commission of the alleged discriminatory act within 180 days and notice of his intent

15 to sue at least 30 days before doing so. Whitman v. Mineta, 541 F.3d 929, 932 (9th Cir. 2008); 29

16 U.S.C. § 633a(d). Plaintiff’s ADEA claims are on par with his Title VII claims: they are

17 exhausted only as to the failure to promote in FY 2014, a discrete act that occurred within 45 days

18 before he contacted the EEO office.

19 * * *

20 The motion to dismiss for failure to exhaust administrative remedies is DENIED as to the

21 failure to promote in FY 2014, but GRANTED as to acts that occurred before September 23, 2014.

22 III. Failure to State a Claim

23 A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege

24 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

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incorporate the contents of a document, the document is incorporated when its contents are

described and the document is integral to the complaint.” Tunac v. United States, 897 F.3d 1197,

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1207 n.8 (9th Cir. 2018) (internal quotation marks and citation omitted). Plaintiff’s complaint

1 550 U.S. 544, 570 (2007). A facial plausibility standard is not a “probability requirement” but

2 mandates “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal,

3 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). For purposes of ruling

4 on a Rule 12(b)(6) motion, the court “accept[s] factual allegations in the complaint as true and

5 construe[s] the pleadings in the light most favorable to the non-moving party.” Manzarek v. St.

6 Paul Fire & Mar. Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). “[D]ismissal may be based on

7 either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a

8 cognizable legal theory.” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir.

9 2008) (internal quotation marks and citations omitted); see also Neitzke v. Williams, 490 U.S. 319,

10 326 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue

11 of law.”).

12 Even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), under

13 which a party is only required to make “a short and plain statement of the claim showing that the

14 pleader is entitled to relief,” a “pleading that offers ‘labels and conclusions’ or ‘a formulaic

15 recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting

16 Twombly, 550 U.S. at 555). “[C]onclusory allegations of law and unwarranted inferences are

17 insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.

18 2004); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“[A]llegations in a complaint

19 or counterclaim may not simply recite the elements of a cause of action, but must contain

20 sufficient allegations of underlying facts to give fair notice and to enable the opposing party to

21 defend itself effectively.”), cert. denied, 132 S. Ct. 2101 (2012). The court must be able to “draw

22 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

23 at 663. “Determining whether a complaint states a plausible claim for relief . . . [is] a context-

24 specific task that requires the reviewing court to draw on its judicial experience and common

25 sense.” Id. at 663–64.

26 When a plaintiff proceeds without representation by an attorney, “particularly in civil

27 rights cases,” the court must “construe the pleadings liberally . . . to afford the petitioner the

1 marks and citation omitted). Nevertheless, the Court may not “supply essential elements of the

2 claim that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266,

3 268 (9th Cir. 1982).

4 A. Race Discrimination Claims

5 Plaintiff complains of “failure to promote,” “unequal terms and conditions of []

6 employment,” “failure to provide career development assignments,” “disparate treatment,” and

7 “hostile work environment,” “based on my race and age.” (Dkt. No. 1 at 4, 9.) Under the Title

8 VII framework, failure to promote, unequal terms and conditions of employment, and failure to

9 provide career development assignments are disparate treatment race discrimination claims. See

10 Ricci v. DeStefano, 557 U.S. 557, 577 (2009) (“Disparate-treatment cases present the most easily

11 understood type of discrimination, and occur where an employer has treated a particular person

12 less favorably than others because of a protected trait. A disparate-treatment plaintiff must

13 establish that the defendant had a discriminatory intent or motive for taking a job-related action.”).

14 To the extent that unequal terms and conditions of employment and the failure to provide career

15 development assignments occurred before September 23, 2014, disparate treatment claims

16 regarding that conduct are time-barred, as discussed above. Likewise, disparate treatment claims

17 regarding the failure to promote in FY 2011, 2012, and 2013 are time-barred. As such, the legal

18 sufficiency of Plaintiff’s disparate treatment race discrimination claim rests on the alleged failure

19 to promote in FY 2014.

20 To the extent Plaintiff alleges a hostile work environment claim, the Court construes that

21 as a separate theory of race discrimination under Title VII. See Brooks v. City of San Mateo, 229

22 F.3d 917, 923 (9th Cir. 2000) (“A hostile work environment claim involves a workplace

23 atmosphere so discriminatory and abusive that it unreasonably interferes with the job performance

24 of those harassed . . . [and] alter[s] the conditions of [] employment.”).

25 1. Disparate Treatment

26 To establish a prima facie case of disparate treatment discrimination, a plaintiff must show:

27 “(1) he belongs to a protected class; (2) he was qualified for the position; (3) he was subject to an

1 treated more favorably” or “other circumstances surrounding the adverse employment action give

2 rise to an inference of discrimination.” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th

3 Cir. 2010); Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123 (9th Cir. 2000). “While a plaintiff

4 need not plead facts constituting all elements of a prima facie employment discrimination case in

5 order to survive a Rule 12(b)(6) motion to dismiss, courts nevertheless look to those elements to

6 analyze a motion to dismiss, so as to decide, in light of judicial experience and common sense,

7 whether the challenged complaint contains sufficient factual matter, accepted as true, to state a

8 claim for relief that is plausible on its face.” Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781,

9 796–97 (N.D. Cal. 2015).

10 The complaint satisfies elements (1) and (3); Plaintiff is an African American employee

11 and was not promoted in FY 2014. As to element (2), the complaint sets forth specific facts to

12 adequately allege that Plaintiff was qualified for the promotion he was denied. Defendant’s

13 argument that Plaintiff was not qualified for Grade 13 in 2014 due to his poor annual evaluation

14 construes the complaint too narrowly. (Dkt. No. 13 at 21–22.) Rather, the complaint alleges that

15 Plaintiff was qualified for Grade 13 because he had received good annual evaluations for several

16 years and because most of the people who supervised him in FY 2014 gave him good ratings.

17 Plaintiff alleges that Mr. Parman misrepresented those supervisors’ ratings to give Plaintiff a

18 “Minimally Satisfactory” mid-year evaluation. He alleges that, after Ms. Knowles gave Plaintiff

19 negative feedback later in FY 2014, Mr. Parman gave that feedback “controlling weight” in the

20 annual evaluation. (Dkt. No. 1 at 13.) Overall, Plaintiff contends that his FY 2014 annual

21 evaluation held him to a higher standard than other similarly situated employees. He also alleges

22 that, through FY 2014, he served as a classification course instructor and an administrative law

23 judge selection panelist, and that OPM reserves such roles for “expert” HR classifiers. Accepting

24 the factual allegations as true, the complaint adequately alleges that Plaintiff was qualified to be

25 promoted to Grade 13.

26 Regarding element (4), the complaint alleges circumstances that give rise to an inference of

27 discrimination. Although Plaintiff is time-barred from bringing claims for failure to promote in

1 sufficiency of the alleged conduct in FY 2014. See Nat’l R.R. Passenger Corp. v. Morgan, 536

2 U.S. 101, 113 (2002) (“The existence of past acts and the employee’s prior knowledge of their

3 occurrence, however, does not bar employees from filing charges about related discrete acts so

4 long as the acts are independently discriminatory and charges addressing those acts are themselves

5 timely filed. Nor does the statute bar an employee from using the prior acts as background

6 evidence in support of a timely claim.”). The complaint alleges that the department had 33 full-

7 time HR Specialists, 24 of whom were white and eight of whom were African American; the four

8 HR Specialists at the highest classifications, Grades 14 and 15, were white; 13 HR Specialists

9 were promoted to Grade 13, one of whom was African American; and neither Plaintiff’s FY 2011

10 rating of “Exceeds Fully Successful” nor his FY 2012 rating of “Fully Satisfactory” led to a

11 promotion. These specific factual allegations “nudge” an inference of discrimination “across the

12 line from conceivable to plausible.” Twombly, 550 U.S. at 570.

13 Therefore, Plaintiff states a claim for race discrimination on a disparate treatment theory,

14 and the motion to dismiss as to this claim is DENIED.

15 2. Hostile Work Environment

16 To state a claim for hostile work environment on the basis of race under Title VII, a

17 plaintiff must allege that: “(1) he was subjected to verbal or physical conduct because of his race,

18 (2) the conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter

19 the conditions of his employment and create an abusive work environment. In considering

20 whether the discriminatory conduct was severe or pervasive, we look to all the circumstances,

21 including the frequency of the discriminatory conduct; its severity; whether it is physically

22 threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes

23 with an employee’s work performance.” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d

24 1116, 1122 (9th Cir. 2008) (internal quotation marks and citations omitted).

25 The complaint falls short of this standard. Plaintiff does not allege any remarks, physical

26 altercations, or specific interactions that might be construed as harassment. See id. (“A hostile

27 work environment, by its very nature[,] involves repeated conduct.”). Nor does he allege a

1 job-related: OPM’s failure to promote him. Therefore, the Court GRANTS without prejudice

2 Defendant’s motion to dismiss the hostile work environment claim.

3 B. Age Discrimination Claim

4 To state a claim for age discrimination under the ADEA, a plaintiff must allege that he

5 was: “(1) at least forty years old, (2) qualified for the position for which an application was

6 submitted, (3) denied the position, and (4) the promotion was given to a substantially younger

7 person.” Shelley v. Geren, 666 F.3d 899, 608 (9th Cir. 2012).

8 Plaintiff satisfies elements (1) and (3); he was around 71 years old in FY 2014 and was

9 denied a promotion. For the reasons discussed above, the complaint adequately alleges element

10 (2), that Plaintiff was qualified for a promotion to Grade 13. However, element (4) is lacking.

11 The complaint does not identify other, substantially younger employees who were promoted in FY

12 2014. Nor do the surrounding circumstances—only one other employee in the department was

13 over 60, and no employees under 50 were promoted to Grade 13—plausibly give rise to an

14 inference of discrimination. Therefore, the Court GRANTS without prejudice Defendant’s motion

15 to dismiss the age discrimination claim.

16 C. Retaliation Claim

17 To state a claim for retaliation under Title VII or the ADEA, a plaintiff must allege that:

18 (1) “[]he engaged in a protected activity”; (2) his employer “subjected [him] to an adverse

19 employment action”; and (3) there is a causal link “between the protected activity and the adverse

20 action.” Poland v. Chertoff, 494 F.3d 1174, 1179–80, 1180 n.1 (9th Cir. 2007). Plaintiff alleges

21 that OPM “retaliated against [P]laintiff’s complaint of discrimination with respect to the failure to

22 promote, by embarking on a concerted campaign to fabricate a poor performance evaluation to

23 justify [P]laintiff not being promoted. Defendants engaged in a common plan, motivated at least

24 in part by race, for Jason Parman, Laura Knowles, Yvonne Ryan and Michelle Acara to

25 misrepresent the quality of [P]laintiff’s performance to deny [P]laintiff’s promotion from [G]rade

26 GS-12 to GS-13.” (Dkt. No. 1 at 12.)

27 The complaint adequately alleges elements (1) and (2). Initiating the EEO process, which

1 February 11, 2015, are protected activity under Title VII and the ADEA. Brooks v. City of San

2 Mateo, 229 F.3d 917, 928 (9th Cir. 2000). OPM’s failure to promote Plaintiff in FY 2011, 2012,

3 2013, and 2014 are adverse employment actions. Id. (“Among those employment decisions that

4 can constitute an adverse employment action are termination, dissemination of a negative

5 employment reference, issuance of an undeserved negative performance review and refusal to

6 consider for promotion.”). However, because the adverse actions occurred before Plaintiff

7 engaged in protected activity, the complaint does not allege the required causal link. See Miller v.

8 Fairchild Indus., Inc., 797 F.2d 727, 731 n.1 (9th Cir. 1986) (“[A]n employer who had already

9 decided upon a course of action adverse to the plaintiff prior to learning of the plaintiff’s protected

10 activity did not intend to retaliate.”). Plaintiff does not allege any protected activity, such as

11 formal or informal complaints of discrimination, prior to the dates when he was denied promotion

12 each year. Nor does he identify any adverse actions after he contacted the EEO office on

13 November 7, 2014. Therefore, the complaint fails to state a claim for retaliation under either Title

14 VII or the ADEA. The Court GRANTS without prejudice Defendant’s motion to dismiss the

15 retaliation claim.

16 IV. Punitive Damages

17 The complaint includes a request for punitive damages. Punitive damages are only

18 available under Title VII against private sector employers, 42 U.S.C. § 1981a(b)(1); see Terry v.

19 Ashcroft, 336 F.3d 128, 153 (2d Cir. 2003), and are not available under the ADEA, Ahlmeyer v.

20 Nev. Sys. of Higher Educ., 555 F.3d 1051, 1059 (9th Cir. 2009). Therefore, the Court GRANTS

21 the motion to dismiss as to punitive damages. Because such damages are not available to Plaintiff

22 as a matter of law, amendment would be futile and the dismissal is with prejudice. Lopez v. Smith,

23 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc).

24 CONCLUSION

25 For the reasons explained above, the motion to dismiss is DENIED with respect to Rule

26 4(m). The motion is GRANTED in PART with respect to failure to exhaust administrative

27 remedies, as to time-barred conduct that occurred before September 23, 2014. With respect to

1 GRANTED as to hostile work environment, age discrimination, and retaliation. The motion is

2 GRANTED as to punitive damages.

3 In summary:

4 1. Plaintiff may proceed with his claim for disparate treatment race discrimination

5 || under Title VII, regarding the failure to promote in FY 2014.

6 2. Plaintiffs claims for hostile work environment, age discrimination, and retaliation

7 are DISMISSED with leave to amend.

8 3. Plaintiffs request for punitive damages is DISMISSED with prejudice.

9 4. Plaintiff is granted leave to amend the claims for hostile work environment, age

10 || discrimination, and retaliation if he believes he can allege facts that plausibly state a claim for

11 relief. He may not add any new claims (as opposed to amended claims) without first seeking the

12 || Court’s permission. A First Amended Complaint, if any, shall be filed by August 23, 2021. If

13 || Plaintiff does not file a First Amended Complaint by that date, the case will proceed only on the

14 || race discrimination disparate treatment claim arising from the FY 2014 failure to promote.

3 15 5. The initial case management conference scheduled for August 5, 2021 is continued

a 16 || to September 30, 2021 at 1:30 p.m. If Plaintiff files a First Amended Complaint and Defendant

3 17 moves to dismiss, this conference date may be continued. The Court once again encourages

S 18 || Plaintiff to seek free assistance from the Northern District’s Legal Help Center, 450 Golden Gate

19 Avenue, 15th Floor, Room 2796, San Francisco, CA 94102. In light of the ongoing COVID-19

20 || pandemic, Plaintiff should make a telephone appointment by calling (415) 782-8982.

21 This Order disposes of Docket No. 13.

22 IT IS SO ORDERED.

23 || Dated: July 22, 2021 Std

24 ne

ACQUELINE SCOTT CORLE

25 United States Magistrate Judge

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