The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 MARIO DE VERA, Case No. 25-cv-07814-JSC
8 Plaintiff,
ORDER GRANTING MOTION TO
9 v. DISMISS
10 UNITED AIRLINES, INC., Re: Dkt. No. 58
Defendant.
11
12
13 Plaintiff Mario De Vera, proceeding without attorney representation, brings claims against
14 his employer, Defendant United Airlines, for age discrimination, retaliation, constructive
15 discharge, and harassment. He alleges in 2008, United offered him an early retirement, but
16 concealed a policy concerning his travel benefits and seniority. (Dkt. No. 45 at 1.) 1 He also
17 alleges beginning in 2024, United harassed and retaliated against him in response to his reporting
18 hazardous work conditions. (Id.) Pending before the Court is Defendant’s motion to dismiss
19 Plaintiff’s First Amended Complaint. (Dkt. No. 49.) After carefully considering the parties’
20 submissions, and having had the benefit of oral argument on July 10, 2026, the Court grants
21 Defendant’s motion to dismiss all of Plaintiff’s claims, but grants leave to amend as to the
22 discrimination and harassment claims. Plaintiff’s age discrimination and constructive discharge
23 claims are time barred, along with the Court having already dismissed these claims with prejudice.
24 His retaliation and harassment claims are dismissed due to his failure to state a claim.
25
26
27
1 BACKGROUND
2 I. FIRST AMENDED COMPLAINT ALLEGATIONS
3 Plaintiff asserts four claims against Defendant United:
4 (1) age discrimination under the Age Discrimination Employment Act (“ADEA”), 29
5 U.S.C. § 621;
6 (2) retaliation under California Labor Code § 1102.5;
7 (3) “fraud / constructive discharge” under California Civil Code § 1710; and
8 (4) “hostile work environment / harassment” under California’s Fair Housing and
9 Employment Act (“FEHA”), Cal. Gov. Code § 12940
10 (Dkt. No. 45 at 2 (cleaned up).) Plaintiff does not identify which allegations support his age
11 discrimination claim. (See generally id.; Dkt. No. 54.)
12 The constructive discharge claim is based on an early retirement program United offered to
13 Plaintiff in 2008. (Dkt. No. 45 at 1.) Plaintiff alleges he was “induced” to accept early retirement,
14 United “conceal[ed]” a “seniority policy,” United “fraudulently applied” a policy to “‘amend,
15 modify, or delete pass travel’” benefits, then United refused to recognize his 1990 seniority upon
16 rehire. (Id.) As a result, Plaintiff’s earned vacation and floating holidays were “paid off and
17 eliminated from his accrual bank,” causing “immediate financial and personal harm.” (Id.) In an
18 email attached as an exhibit to his FAC, Plaintiff told a United HR employee he “would not have
19 given up [his] job had [h]e known” about the company’s right to amend travel benefits. (Dkt. No.
20 45-8 at 2.)
21 Plaintiff’s retaliation and harassment claims rest on several related allegations. First, upon
22 being rehired at a time unspecified, he was subject to an improper extension of his probationary
23 period to “facilitate a termination,” which “Defendant only withdrew after a formal Union
24 grievance was initiated.” (Dkt. No 45 at 2.) Second, in 2025, Plaintiff began reporting safety
25 hazards in “Hangar B29,” where he worked, to the California Department of Industrial Relations
26 after the hazard remained unresolved over the span of months. (Id.; Dkt. No. 45-5 at 2-3.) Plaintiff
27 attaches an exhibit to his FAC containing a letter from the California Department of Industrial
1 45-5 at 4.) He also attaches a letter dated August 13, 2025, regarding an investigation into
2 Plaintiff’s “misconduct.” (Dkt. No. 45-4 at 2.) In the letter, United issued a Written Warning to
3 Plaintiff for allegedly mocking a co-worker’s accent during a confrontation when the coworker
4 threatened violence against Plaintiff. (Id.) Plaintiff requested the dispute simply be documented,
5 as opposed to escalating up the corporate ladder, but United conducted a formal investigation
6 since there was a threat of physical violence made during the confrontation. (See Dkt. No. 45-5 at
7 4.) Plaintiff alleges the Written Warning was in response to his reporting safety hazards. (See Dkt.
8 No. 45 at 2.)
9 Additionally, Plaintiff’s exhibits appear to reference two separate internal investigations by
10 United, but the nature of these investigations is unclear. In response to Plaintiff’s allegations of
11 harassment and discrimination, it appears United conducted two separate internal investigations,
12 the first in 2024 and the second in 2025. (See Dkt. No. 45 at 2 (alleging “Montey Caston (Exhibit
13 X) and Manager Kayla Howell (Exhibit Z)2 closed investigations into discrimination and
14 retaliation …”); Dkt. No. 45-9 at 2-3 (email correspondence from Montey Caston referring to a
15 “completed” investigation); Id. at 4-6 (email correspondence from Kayla Howell referring to
16 another “investigation” which was “conducted”).) The 2024 investigation examined Plaintiff’s
17 demand for his reinstatement of seniority and benefits accrued during his previous tenure with the
18 company. (Dkt. No. 45-8 at 2-3.) United’s 2025 investigation concerned Plaintiff’s allegations of
19 retaliations and harassment by United in response to his reporting of safety hazards. (Dkt. No. 45-
20 9 at 4-5.) The results of these investigations were allegedly withheld from Plaintiff upon their
21 completion, which created a “hostile and oppressive work environment.” (Dkt. No. 45 at 2.)
22 II. PROCEDURAL HISTORY
23 On July 29, 2025, Plaintiff sued United in Alameda County Superior Court. (Dkt. No. 1-2;
24 Case No. 25CV133281.) United removed the action to federal court based on federal question and
25 diversity subject matter jurisdiction, and subsequently moved to dismiss pursuant to Federal Rules
26 of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. No. 12-1.) Plaintiff’s original complaint alleged
27
1 four claims: (1) wrongful termination via illegal early out; (2) age discrimination; (3) retaliation;
2 (4) and harassment. (Dkt. No. 1-2 at 6-7.) United moved to dismiss all claims for failure to state a
3 claim, and to dismiss Plaintiff’s harassment, discrimination, and retaliation claims on the grounds
4 they were time-barred because the claims relied on conduct which occurred more than three years
5 before Plaintiff filed an administrative charge with the California Civil Rights Department
6 (“CRD”). (Dkt. No. 12-1 at 6-12.)
7 The Court granted United’s motion. The Court held claims arising from United’s conduct
8 before July 29, 2021 were time barred, but that United failed to establish all of Plaintiff’s claims
9 were untimely. (Id. at 6-7.) Next, the Court held, drawing inferences in Plaintiff’s favor, Plaintiff
10 failed to state any claim due to his failure to allege facts which could plausibly support the
11 necessary inferences. (Id. at 7-10.)
12 In particular, on the retaliation claim, the Court noted: “[Plaintiff] states United ‘retaliated
13 against [him] for [his] complaint and trying to get a system board ordered by the federal court on
14 [a] previous complaint.’ (Dkt. No. 1-2 at 6 ¶ 3.).” (Dkt. No. 41 at 9.) The Court concluded this
15 statement did not allege facts which plausibly supported an inference Plaintiff engaged in
16 “protected activity” and therefore Plaintiff failed to plausibly state a retaliation claim. (Id.)
17 Regarding age discrimination, the Court held Plaintiff’s allegations “did not meet the required
18 elements,” which included a failure to “allege facts that plausibly support an inference he suffered
19 an ‘adverse employment action’ within three years of his CRD complaint.” (Id. at 9.) The Court
20 also held Plaintiff did not plead facts which “suggested United had a discriminatory motive with
21 respect to employees over 40.” (Id.) For Plaintiff’s wrongful termination claim, the Court
22 concluded he did not allege facts which “plausibly support an inference [Plaintiff’s] employment
23 was terminated or that he otherwise ended his employment with United within three years of filing
24 his CRD complaint,” so the claim was not timely. (Id. at 8.) Finally, as to the harassment claim,
25 Plaintiff relied on a single sentence alleging “[United] harassed me by trying to extend my
26 probationary period when it was officially over.” (Id. at 10.) The Court held these allegations
27 insufficient because Plaintiff did not “allege facts that plausibly support an inference United tried
1 “satisfy the requirements to state a harassment claim.” (Id.)
2 The Court granted dismissal for failure to state a claim on all claims with leave to amend,
3 except for any claims based on conduct that occurred before July 29, 2021—the date three years
4 before Plaintiff filed his CRD administrative complaint. (Id. at 10.) Plaintiff filed his first
5 amended complaint on March 27, 2026. United moves to dismiss the age discrimination claim as
6 time barred pursuant to Rule 12(b)(1) and all claims for failure to state a claim pursuant to Rule
7 12(b)(6). (Dkt. No. 49.) In Plaintiff’s opposition, he requests leave to amend and attaches a
8 proposed Second Amended Complaint. The proposed Second Amended Complaint does not
9 include the discrimination and constructive discharge claims.
10 LEGAL STANDARD
11 A complaint must contain a “short and plain statement of the claim showing that the
12 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To meet this requirement, the complaint must
13 provide “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
14 Twombly, 550 U.S. 544, 570 (2007). On a 12(b)(6) motion to dismiss, courts “accept factual
15 allegations in the complaint as true and construe the pleadings in the light most favorable to the
16 nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.
17 2008). But “only pleaded facts, as opposed to legal conclusions, are entitled to assumption of the
18 truth.” United States v. Corinthian Colleges, 655 F.3d 984, 991 (9th Cir. 2011). Courts may also
19 review “documents referred to in the complaint” at the 12(b)(6) stage. Alpha Venture Cap.
20 Partners LP v. Pourhassan, 30 F.4th 920, 924 (9th Cir. 2022).
21 Pleadings filed by unrepresented parties must be liberally construed on a defendant’s
22 motion to dismiss for failure to state a claim. Ortez v. Washington Cnty. Oregon, 88 F.3d 804,
23 807 (9th Cir. 1996). Still, the court cannot supply essential elements of the claim the plaintiff did
24 not plead. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
25 Additionally, “[a] district court should not dismiss a pro se complaint without leave to amend
26 unless it is absolutely clear that the deficiencies of the complaint could not be cured by
27 amendment.” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (cleaned up).
1 DISCUSSION
2 I. AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA) (COUNT I)
3 United moves to dismiss the ADEA claim pursuant to Federal Rules of Civil Procedure
4 12(b)(1) for lack of jurisdiction, and in the alternative, under Rule 12(b)(6) for failure to state a
5 claim. (Dkt. No. 49-1 at 8.)
6 A. 12(b)(1)
7 United’s 12(b)(1) jurisdiction argument contends Plaintiff failed to file this lawsuit within
8 90 days of receiving his EEOC right-to-sue notice. (See Dkt. No. 49-1 at 8.) United argues,
9 without citing any case law, dismissal under 12(b)(1) is appropriate when a plaintiff fails to satisfy
10 statutory prerequisites which condition the right to invoke federal jurisdiction. (Id.) But a party’s
11 failure to meet the federal statutory requirements for a claim is not a jurisdictional prerequisite to
12 suit when the requirement “does not speak in jurisdictional terms or refer in any way to the
13 jurisdiction of the district courts.” Zipes v. TWA, 455 U.S. 385, 394 (1982). For a procedural rule
14 to confine a court’s subject matter jurisdiction, “traditional tools of statutory construction must
15 plainly show that Congress imbued [the rule] with jurisdictional consequences.” Harrow v. DOD,
16 601 U.S. 480, 484 (2024) (citing United States v. Kwai Fun Wong, 575 U. S. 410 (2015)). Most
17 time bars are not jurisdictional, even when framed in mandatory terms. See id.
18 The statute at issue, 29 U.S.C. § 626, states, “Such a charge (civil action) shall be filed
19 within 180 days after the alleged unlawful practice occurred; or within 300 days after the alleged
20 unlawful practice occurred, or within 30 days after receipt by the individual of notice of
21 termination of proceedings under state law, whichever is earlier.” 29 U.S.C. § 626(d) (cleaned up).
22 The statute also provides, “[a] civil action may be brought under this section by a person …
23 against the respondent named in the charge within 90 days after the date of the receipt of such
24 notice.” 29 U.S.C. § 626(e). This language does not invoke jurisdiction. In Harlow, for example,
25 the Supreme Court analyzed the language of U.S.C. § 7703(b)(1), which stated “[n]otwithstanding
26 any other provision of law, any petition for review shall be filed within 60 days after the Board
27 issues notice of the final order or decision of the Board.” 601 U.S. at 485-486 (internal citations
1 language did not deprive the federal court of jurisdiction since it did not speak to the court’s
2 jurisdictional limits. See id. Similarly, here, using traditional tools of statutory construction, the
3 various ADEA time to file requirements do not address jurisdictional limits.
4 So, the Court DENIES United’s motion to dismiss the ADEA claim for lack of subject
5 matter jurisdiction.
6 B. 12(b)(6) Standard of Review
7 Under the ADEA, a plaintiff must file an administrative charge with the Equal Employment
8 Opportunity Commission (EEOC) within 180 to 300 days of an alleged unlawful practice and,
9 once the EEOC completes its proceedings, the plaintiff must file a civil action within 90 days of
10 receiving a right-to-sue notice. See 29 U.S.C. § 626(d)-(e); see also Forester v. Chertoff, 500 F.3d
11 920, 924 (9th Cir. 2007) (stating “[a] private or state (collectively ‘private’) employee who
12 believes he has been discriminated against on the basis of age must file a complaint with the
13 EEOC within 180 days of the alleged discrimination, or 300 days in a deferral state.”). Plaintiff’s
14 complaint and exhibits establish he received his right-to-sue notice on or about July 30, 2024.
15 (Dkt. No. 45-3 at 3.) But he did not bring his ADEA claim until March 27, 2026—well beyond the
16 90-day deadline. (Dkt. No. 45 at 2.) Even if the filing of his original complaint on July 29, 2025
17 satisfies the deadline to file his ADEA claim, the claim is still untimely as it needed to be filed by
18 October 28, 2024. Plaintiff’s opposition does not dispute his ADEA claim was untimely filed
19 after receipt of the right-to-sue letter. Instead, the opposition seeks to file a Second Amended
20 Complaint which does not include an ADEA claim. So, as the FAC and its exhibits demonstrate
21 the ADEA claim is untimely, and Plaintiff does not oppose dismissal, the ADEA claim is
22 dismissed with prejudice.
23 II. Retaliation (Count II)
24 Plaintiff brings his retaliation claim under California Labor Code § 1102.5. (Dkt. No. 45 at
25 2.) To state a section 1102.5 claim, Plaintiff must allege facts supporting an inference he “(1) [ ]
26 engaged in a protected activity, (2) [ ] was subjected to an adverse employment action, and (3)
27 there is a causal link between the protected activity and the adverse employment action.” Steele v.
1 to allege an adverse employment action, since an exhibit to the FAC states the reason for the
2 Written Warning is for an independent infraction and Plaintiff has failed to allege facts
3 demonstrating causation between his alleged protected activity and the Written Warning. (Dkt.
4 No. 49-1 at 11.)
5 A. Adverse Employment Action
6 Adverse employment actions are “changes in the terms, conditions, or privileges of
7 employment; that is, changes involving some official action taken by the employer.” Roby v.
8 McKesson Corp., 47 Cal. 4th 686, 706, 101 (2009). The FAC alleges “Plaintiff reported safety
9 hazards in Hangar B29, leading to a Cal/OSHA Citation for Failure to Correct. Defendant
10 responded by issuing a retaliatory Written Warning on August 13, 2025 (Exhibit M) shortly after
11 these safety reports were finalized.” (Dkt. No. 45-4 at 2.) Exhibit M is the official Written
12 Warning from United and states Plaintiff was given the Written Warning for allegedly mocking a
13 co-worker’s accent during a dispute when the other co-worker threatened Plaintiff with “punching
14 motions.” (Dkt. No. 45-4 Ex. M at 2.)
15 Plaintiff does not allege any facts about the Written Warning which support an inference
16 the Warning changed “the terms, conditions, or privileges” of his employment. Without any
17 allegations as to what consequence the Written Warning had for Plaintiff’s employment, the FAC
18 does not plausibly allege an adverse employment action. See Khan v. SAP Labs, LLC, No. 18-cv-
19 07490-BLF, 2020 U.S. Dist. LEXIS 135546, at *9 (N.D. Cal. July 29, 2020) (holding the
20 plaintiff’s allegation she was placed on unpaid leave plausibly alleged an adverse employment
21 action.); see also Faurie v. Berkeley Unified Sch. Dist., No. C 08-0060 TEH, 2008 U.S. Dist.
22 LEXIS 108246, at *22-23 (N.D. Cal. Mar. 25, 2008) (holding the plaintiff’s allegations of being
23 forced to perform duties beyond his professional responsibility, denial of medical
24 accommodations, verbal abuse, and denial of overtime pay plausibly alleged an adverse
25 employment action.). An exhibit to the FAC refers to Plaintiff being “held out of service”, but
26 neither the exhibit nor the FAC include facts that support an inference the unexplained being “held
27 out of service” qualifies as an adverse employment action. (Dkt. No. 45-9 at 4.)
1 actions, such as the number of days he was held out of service and how he was denied access to
2 his personal locker, but these allegations do not save Plaintiff’s retaliation claim since they are not
3 incorporated in his First Amended Complaint. See Schneider v. Cal. Dep’t. of Corr., 151 F.3d
4 1194, 1197 n.1 (9th Cir. 1998) (“In determining the propriety of a Rule 12(b)(6) dismissal, a court
5 may not look beyond the complaint to a plaintiff’s moving papers, such as a memorandum in
6 opposition to a defendant’s motion to dismiss.”). Even if the Court were to consider these facts
7 alleged in the opposition, they still fail to plausibly support an inference Plaintiff was subjected to
8 an adverse employment action since they make no mention of how these actions affected his pay
9 or employment status. So, drawing all reasonable inferences from non-conclusory allegations in
10 Plaintiff’s favor, Plaintiff has not alleged facts supporting an inference the Written Warning or any
11 other conduct constitutes an adverse employment action.
12 B. Causation
13 If a plaintiff does not offer direct evidence of retaliatory intent, the “causal link may be
14 established by an inference derived from circumstantial evidence, such as the employer’s
15 knowledge that the [employee] engaged in protected activities and the proximity in time between
16 the protected action and allegedly retaliatory employment decision.” Morgan v. Regents of Univ.
17 of Cal., 88 Cal. App. 4th 52, 69 (2000) (internal quotation marks and citation omitted).
18 The FAC alleges “Defendant responded [to Plaintiff’s safety reports] by issuing a
19 retaliatory Written Warning,” but does not include any allegations to plausibly support the
20 inference the Written Warning was in retaliation for Plaintiff’s safety reports. For example, the
21 FAC does not allege any facts to show “the proximity in time” between Plaintiff’s report and the
22 investigation or “the employer’s knowledge” of protected activity. Roby v. McKesson Corp., 47
23 Cal. 4th 686, 706, 219 P.3d 749, 761 (2009), as modified (Feb. 10, 2010). Accordingly, drawing
24 inferences in Plaintiff’s favor, Plaintiff has not alleged facts supporting an inference of a causal
25 link between the Written Warning or any other adverse employment action and Plaintiff’s
26 protected activity.
27 Because Plaintiff does not allege facts that plausibly state a retaliation claim, the claim
III. FRAUD/CONSTRUCTIVE DISCHARGE CLAIM (COUNT III)
1
Plaintiff’s original complaint alleged a wrongful termination claim based on his acceptance
2
of United’s 2008 early retirement offer, which he claimed was induced by fraudulent
3
representations made by United concerning his access to travel benefits. (Dkt. No. 1-2 at 6.) The
4
Court dismissed Plaintiff’s claim due to his failure to plead facts supporting the inference he was
5
“terminated or that he otherwise ended his employment with United within three years of filing his
6
CRD complaint.” (Dkt. No. 41 at 8.) Plaintiff argues the Court may hear all claims which
7
occurred outside the three-year statute of limitations since they are timely under the “Continuing
8
Violation Doctrine” and “Equitable Tolling” doctrine. (Dkt. No. 45 at 1.) These theories do not
9
revive Plaintiff’s constructive discharge claim since it was dismissed with prejudice. (Dkt. No. 41
10
at 10.) Further, Plaintiff’s proposed SAC does not include a constructive discharge claim. So, the
11
claim is again dismissed with prejudice.
12
IV. Hostile Work Environment/Harassment (Count IV)
13
For a FEHA harassment claim, Plaintiff must show he is “(1) [ ] a member of a protected
14
class; (2) [ ] was subjected to unwelcome harassment; (3) the harassment was based on [their]
15
protected status; (4) the harassment unreasonably interfered with [their] work performance by
16
creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for
17
the harassment.” Galvan v. Dameron Hosp. Assn., 37 Cal. App. 5th 549, 563 (2019). Plaintiff
18
alleges United harassed Plaintiff through (1) improperly extending his probationary period, (2)
19
issuing the Written Warning, and (3) conducting internal “black box” investigations without
20
disclosing their results. (Dkt. No. 45 at 2.)
21
Drawing inferences in Plaintiff’s favor, his allegations do not support a reasonable
22
inference supporting all FEHA harassment claim elements. The FAC makes no mention of
23
Plaintiff’s protected class status, how the harassment was based on his protected status, or facts
24
that support an inference of a hostile work environment. (Dkt. No. 45 at 2.) Plaintiff’s opposition
25
asserts his Filipino nationality makes him a member of a protected class and how his nationality
26
played a role in the alleged harassment,3 but the Court cannot consider these allegations because
27
1 they are not in his First Amended Complaint. See Schneider, 151 F.3d at 1194, 1197. Further,
2 Plaintiff’s proposed second amended complaint does not include a hostile work
3 environment/harassment claim. (See Dkt. No. 54-2 at 2-7.) Because Plaintiff does not allege facts
4 which plausibly state a harassment claim, and as Plaintiff’s proposed second amended complaint
5 does not include a harassment claim, the claim is dismissed with prejudice.
6 V. LEAVE TO AMEND
7 Plaintiff seeks leave to file a second amended complaint. A court may deny leave to
8 amend based on “undue delay, bad faith or dilatory motive on the part of the movant, repeated
9 failure to cure deficiencies by amendments previously allowed undue prejudice to the opposing
10 party by virtue of allowance of the amendment, [and] futility of amendment.” Foman v. Davis,
11 371 U.S. 178, 182 (1962). The ADEA age discrimination claim and fraud/constructive discharge
12 claim are dismissed without leave to amend as the FAC establishes they are barred by the statute
13 of limitations as a matter of law. Further, Plaintiff’s proposed second amended complaint does not
14 include these claims. (Dkt. No. 54-2 ¶¶ 33-47.) The harassment claim is also dismissed without
15 leave to amend as the proposed second amended complaint does not include a harassment claim
16 and Plaintiff has not identified any conduct that would constitute harassment. But leave to amend
17 is granted as to the retaliation claim as the Court cannot determine at this time such a claim is
18 futile.
19 CONCLUSION
20 For the reasons explained above, the Court GRANTS United’s motion to dismiss all claims
21 in the FAC. The age discrimination, constructive discharge, and harassment claims are dismissed
22 without leave to amend. Plaintiff is granted leave to amend to file a new second amended
23 complaint that attempts to allege retaliation claims. Plaintiff may not add any new defendants or
24 any other claims to the second amended complaint, including a national origin claim as Plaintiff’s
25 proposed second amended complaint does not include facts that plausibly support such a claim.
26 The second amended complaint alleging retaliation must be filed on or before August 13, 2026.
27
1 The Court reminds Plaintiff he may seek assistance from the Legal Help Center, a free
2 service of the Volunteer Legal Services Program, by calling 415-782-8982 or emailing
3 || fedpro@sfbar.org.
4 This Order disposes of Docket No. 49.
5 IT IS SO ORDERED.
6 || Dated: July 21, 2026
7 ne
ACQUELINE SCOTT CORLE
8 United States District Judge
9
10
11
12
13
©
15
16
= 17
Z 18
19
20
21
22
23
24
25
26
27
28