# Barton v. Harker

> District Court, S.D. California · May 8, 2023

URL: https://www.frixlaw.com/law-library/cases/10087679

## Case

- **Court:** District Court, S.D. California
- **Decided:** May 8, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

1
FILED
3
MAY 08 2023 |
4
CLERK. US. DISTRICT COURT
5 SOUTHERN DISTRICT OF CALIFORNIA
BY DEPUTY
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
i KRISTINE BARTON, Case No.: 3:21-cv-01332-BEN-JLB
12 Plaintiff,
3 ORDER DENYING
Vv. DEFENDANT’S MOTION TO
14 DISMISS SECOND AMENDED
CARLOS DEL TORO, Secretary of the COMPLAINT
15 Navy,
6 Defendant. [ECF No. 18]
17
18 Plaintiff Kristine Barton (“Plaintiff”) is suing Defendant Carlos Del Toro, in his

19 official capacity as Secretary of the Navy for violations of three statutes: (1) Title VII of

the Civil Rights Act (“Title VII”), as amended, 42 U.S.C. § 2000e-16(a) and 42 U.S.C. §
>] 2000e-2(a); (2) the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §
633a; and (3) the Vocational Rehabilitation Act (““VRA”), as amended, 29 U.S.C. § 794a

73 and 42 U.S.C. § 12112(b)(4) .! Plaintiffs Second Amended Complaint (“SAC”) lists the

following three claims for relief, each pled under all three statutes: Discrimination,

26 |!) This case was originally brought against then Acting Secretary of the Navy Thomas
27 ||Harker. In accordance with Rule 25(d) of the Federal Rules of Civil Procedure, Secretary
g Del Toro is automatically substituted for former Acting Secretary Harker as a named
2 party upon his appointment.

1 || Discrimination based on Hostile Work Environment, and Discrimination based on
2 ||Reprisal. See generally SAC, ECF No. 17.
3 Before the Court is Defendant’s Motion to Dismiss the SAC. ECF No. 18. For the
4 ||reasons set forth below, the motion is DENIED.
5 BACKGROUND?
6 Plaintiff was a registered nurse employed by the Department of the Navy. □□□
7 In 2017, she accepted a temporary assignment to a Naval Hospital in Sigonella, Italy.
8 ||/d.4 15. Plaintiff alleges after her arrival in Italy, she received hostile treatment from
9 || hospital leadership as well as other supervisory members of the hospital staff. Jd. □□ 16-
10 || 18. In mid 2018, Plaintiff was granted FMLA leave to attend to her adult son who
11 ||resided in the United States. Jd. 921. Plaintiff's FMLA leave ran from June 30, 2018, to
12 || August 28, 2018. Jd. 922. During her leave, the Naval Hospital Security Officer
13 || submitted a report to the Department of Defense’s Consolidated Adjudications Facility
14 ||regarding some of Plaintiff's purported financial difficulties. Jd. 428. Because of this
15 ||report, Plaintiffs security clearance was temporarily removed in July 2018. /d. □ 31.
16 || Because having a security clearance was a “baseline requirement” for a position as a
17 nurse, Plaintiff needed to be transferred to another position. Jd.
18 On March 22, 2019, Plaintiff was reassigned within the hospital to a “greeter”
19 || position which did not require a security clearance. Jd. 33. Plaintiff asserts a host of
20 ||alleged discriminatory behavior was directed towards her while working in this position,
21 including: the duties of her position as a greeter were ill-defined, and Plaintiff was
22 ||subject to arbitrary restrictions while on shift; Plaintiff received multiple, overly harsh
23 ||reprimands from Command staff, some of which occurred in public areas; Plaintiff
24 ||received two unjustifiably negative performance reviews in 2019 and 2020; and Plaintiff
25
0200ttstsSs—S

27 The following overview of the facts is drawn from Plaintiff's SAC, ECF No. 17,
which the Court assumes as true in analyzing the instant motion to dismiss. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). The Court is not making factual findings.

1 || was not provided proper protective equipment when the Covid-19 pandemic began. □□□
2 36-54.
3 |. LEGAL STANDARD
4 A dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure may be
5 || based on the lack of a cognizable legal theory or absence of sufficient facts to support a
6 cognizable or plausible legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d
7 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When
8 || considering a Rule 12(b)(6) motion, the Court “accept[s] as true facts alleged and draw[s]
9 ||inferences from them in the light most favorable to the plaintiff.” Stacy v. Rederite Otto
10 || Danielsen, 609 F.3d 1033, 1035 (9th Cir. 2010). A plaintiff must not merely allege
11 conceivably unlawful conduct but must allege “enough facts to state a claim to relief that
12 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim
13 facially plausible ‘when the plaintiff pleads factual content that allows the court to
14 || draw the reasonable inference that the defendant is liable for the misconduct alleged.’”
15 || Zixiang Liv. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556
16 || U.S. 662, 678 (2009)). “Threadbare recitals of the elements of a cause of action,
17 supported by mere conclusory statements, do not suffice.” Jgbal, 556 U.S. at 678.
18 It is important to note that plaintiffs alleging discrimination under Title VII do not
19 || have the burden of establishing a prima facie case at the pleadings stage. Swierkiewicz v.
20 || Sorema N.A., 534 U.S. 506, 510-11 (2002). As the Supreme Court noted in Swierkiewicz,
21 || “The prima facie case ... is an evidentiary standard, not a pleading requirement...
22 || [U]nder a notice pleading system, it is not appropriate to require a plaintiff to plead facts
23 || establishing a prima facie case...” 534 U.S. at 510-11. The Court went on to note that it
24 ||had rejected the idea that a Title VII complaint requires heightened ‘particularity’, similar
25 ||to pleadings under Federal Rule of Civil Procedure 9(b). Jd. at 511. However, a plaintiff
26 || must still make “‘sufficient, nonconclusory allegations’ linking the challenged actions to
27 || discrimination.” Chandler v. DeJoy, 2021 WL 673289 at *13 (D. Ariz. 2021) (citing
28 || Austin v. Univ. of Oregon, 925 F.3d 1133, 1138 (9th Cir. 2019)).

1 ||}. ANALYSIS
2 Defendant seeks dismissal of all claims for relief, with some of Defendant’s
3 ||arguments related to specific claims and some pertinent to all claims. ECF No. 18.
+ A. Security Clearance & Relevant Factual Allegations
5 Defendant argues the bulk of Plaintiff's allegations are related to or a natural
6 ||consequence of the revocation of Plaintiff's security clearance, which cannot form the
7 || basis of Plaintiff's claims because security clearance issues are not judicially reviewable.
8 || See Brazil v. U.S. Dept. of Navy, 66 F.3d 193, 196-97 (9th Cir. 1995). In response,
9 || Plaintiff concedes this point, and goes even further, stating, “Plaintiff's security
10 ||clearance...was wholly incidental to the events giving rise to this litigation, and unrelated
11 ||to any cause of action...in the SAC.” ECF No. 19 (emphasis added). The Court agrees it
12 || would not be able to ultimately review allegations related to a revocation of Plaintiff's
13 ||security clearance because the Court would not be able to “determine whether the Navy’s
14 || proffered reasons for its decision were legitimate without necessarily reviewing the
15 || merits of that decision.” Brazil, 66 F.3d at 197. However, not all of Plaintiff's
16 || allegations are directly related to her security clearance revocation.
17 The Court notes Defendant’s related argument that Plaintiff's claims also fail
18 because, without a security clearance, Plaintiff was no longer qualified for her job as a
19 ||nurse. Therefore, Defendant argues, Plaintiff cannot fulfill the second element of a prima
20 || facie case of discrimination. In response, “unartful phrasing in the SAC
21 ||notwithstanding,” Plaintiff argues she was at all times qualified for her job, and further,
22 || maintaining a security clearance was not technically necessary to perform the functions
23 nurse. The Court finds it need not decide this issue. All relevant discriminatory
24 || actions took place while Plaintiff was a greeter, not a nurse. Given allegations relating to
25 Plaintiff's loss of security clearance are, by her own terms, “unrelated to any cause of
26 || action’—whether Plaintiff was qualified for her former position as a nurse is not strictly
27 ||necessary to resolve her discrimination claims.
28

1 B. General Factual Insufficiency
2 Defendant next attacks the general factual sufficiency of Plaintiffs claims. First,
3 ||Defendant argues that without the allegations relating to revocation of Plaintiffs security
4 || clearance, the remaining facts do not give rise to the reasonable inference of
5 || discrimination. Second, Defendant argues the SAC fails to make any specific, non-
6 |/conclusory allegations regarding “similarly situated” employees who received better
7 treatment than Plaintiff. Plaintiff responds by summarily declaring the SAC states a
8 || prima facie case for all claims asserted.
9 In Swierkiewicz, the Supreme Court reviewed the dismissal of a complaint alleging
10 ||employment discrimination based on age and national origin. Swierkiewicz, 534 U.S.
11 Plaintiff Swierkiewicz, a Hungarian national, alleged that his French national
12 || supervisor demoted him and eventually awarded his former position to a much younger
13 || and less experienced employee who was also a French national. /d. at 508. The Court
14 || granted certiorari to resolve a circuit split regarding whether the prima facie elements of a
15 || discrimination claim needed to be established at the pleading stage. /d. at 510. After
16 || making its holding resolving the circuit split, the Court went on to find the specific
17 ||complaint at issue “easily satisfie[d]” the pleading requirements. Jd. at 514. The Court
18 ||noted:
19 “[Swierkiewicz’] complaint detailed the events leading to his termination, provided
0 relevant dates, and included the ages and nationalities of at least some of the
relevant persons involved with his termination. These allegations give respondent
21 fair notice of what petitioner’s claims are and the grounds upon which they rest. ”
22 Id. Citing to Swierkiewicz in a footnote, the Ninth Circuit similarly found a seventeen-
23 paragraph complaint stated a plausible claim of age discrimination under ADEA.
24 Sheppard v. David Evans and Assoc., 694 F.3d 1045 (9th Cir. 2012). The Court noted,
2 “Here, Sheppard’s amended complaint alleges a ‘plausible’ prima facie case of age
26 discrimination. Her complaint alleges that: (1) she was at least forty years old; (2) her
27 performance was satisfactory or better...; (3) she was discharged; and (4) her five
28

1 || younger comparators kept their jobs.” Sheppard, 694 F.3d at 1050 (quotation marks
2 ||removed, cleaned up). The Ninth Circuit also approved of the reasoning in a Seventh
3 || Circuit case, which articulated the line between brevity and factual insufficiency:
4 “A plaintiff who believes that she has been passed over for a promotion because of
5 her sex will be able to plead that she was employed by Company X, that a □
promotion was offered, that she applied and was qualified for it, and that the job
6 went to someone else. That is an entirely plausible scenario, whether or not it
7 describes what ‘really’ went on in [the] plaintiff's case.”
8 Id. at 1050 (citing Swanson v. Citibank, N.A., 614 F.3d 400, 404-05 (7th Cir.
? 2010).
10 Turning to the relevant factual allegations in the case before us, Plaintiff alleges
I sixteen instances of allegedly discriminatory conduct occurring after her transfer to
12 position as a greeter, spanning from October 2019 to May 2020. ECF No. 17, {ff 36-54.
13 Just under half of these relate to reprimands and other hostile interactions with leadership,
14 including the “unjustifiably negative” performance reviews Plaintiff received in 2019 and
15 2020. Id., [9 38, 40, 47, 50-52, 54. Plaintiffs allegations also include several instances
16 of onerous and arbitrary requirements and restrictions placed on her as a greeter, as well
7 as exclusion from the hospital’s resources and all-staff communications. /d., {§ 33-37,
8 42, 44-45, 49. Additionally, Plaintiff's SAC does contain four allegations that “no
19 similarly situated employee” was also subjected to the same scrutiny or requirements.
20 Id., §§ 36, 39, 42, 45.
1 Ultimately, the Court is inclined to find Plaintiff's complaint sufficient. Plaintiff
22 lists sixteen instances of allegedly discriminatory behavior which clearly gives Defendant
23 notice of the basis for Plaintiff's claims. This fulfills the purpose of Federal Rule of Civil
24 Procedure 8, which only requires a “short and plain statement of the claim...”
2 Additionally, it seems that many of Defendant’s arguments relate to matters of a prima
26 facie case, which has more to do with whether Plaintiff will ultimately be successful
27 proving these claims. This is not the test for a motion to dismiss. The Supreme Court
28

1 || has rejected a heightened pleading standard for discrimination complaints, noting, “The
2 || issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled
3 ||to offer evidence to support the claims.” Swierkiewicz, at 511 (quoting Scheuer v.
4 || Rhodes, 416 U.S. 232, 236 (1974)).
5 CONCLUSION
6 For the foregoing reasons, the Court DENIES Defendant’s Motion to Dismiss
7 || Plaintiffs Second Amended Complaint. Parties are directed to contact Magistrate Judge
8 || Burkhardt’s chambers to schedule a case management conference within seven days of
9 || this Order.
10
11 IT IS SO ORDERED.
12 Dated: May 8, 2023 (

3 . OGER T. BENITEZ
United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10087679. Public record. Not legal advice.