UNITED STATES DEPARTMENT OF JUSTICE

18 OCAHO no. 1510l

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER

April 24, 2025

ARTIT WANGPERAWONG,

Complainant,

v.

META PLATFORMS, INC.,

Respondent.

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8 U.S.C. § 1324b Proceeding

OCAHO Case No. 2024B00007

Appearances: Artit Wangperawong, pro se Complainant

Eliza A. Kaiser, Esq., Matthew S. Dunn, Esq., and Amelia B. Munger, Esq., for

Respondent

ORDER GRANTING COMPLAINANT’S MOTION TO AMEND & DENYING

RESPONDENT’S MOTION TO DISMISS AMENDED COMPLAINT

I.

PROCEDURAL HISTORY

This case arises under the antidiscrimination provisions of the Immigration and Nationality Act,

as amended, 8 U.S.C. § 1324b.

On October 3, 2023, Complainant, Artit Wangperawong, filed a complaint with the Office of the

Chief Administrative Hearing Officer (OCAHO) against Respondent, Meta Platforms, Inc.,

alleging Respondent discriminated against him (citizenship status) and retaliated against him, in

violation of 8 U.S.C. §§ 1324b(a)(1)(B) and (a)(5). The initial claim proceeded to discovery, and

was in the discovery phase when Complainant filed a new complaint against Respondent.

On August 19, 2024, Complainant filed a second complaint against Respondent, alleging new

claims of citizenship status discrimination and retaliation.

On October 30, 2024, the Court consolidated the two cases.

On November 18, 2024, Respondent filed its Motion to Dismiss the Complaint, Motion to Strike,

and Motion for a Protective Order to Stay Discovery Pending Disposition of this Motion (Motion

to Dismiss, Strike, and Stay), pertaining to the newer allegations.

18 OCAHO no. 1510l

On January 30, 2025, the Court issued an Order Granting in Part & Denying in Part Respondent’s

Motion to Stay, Motion to Strike, Motion to Dismiss. Wangperawong v. Meta Platforms, Inc.,

18 OCAHO no. 1510k (2025). 1 The Court found Complainant sufficiently pled his citizenship

status discrimination claim, struck a portion of the complaint containing information from

settlement discussions (related to his retaliation allegation), and allowed him a chance to amend

the complaint to sufficiently plead his remaining retaliation allegation. At issuance of the January

30, 2025 Order, the Complainant’s consolidated allegations then pending before the Court were:

1. A claim of citizenship-status discrimination arising from Respondent’s

termination of Complainant from his position as Applied Research

Scientist

on

January

13,

2023,

see

Wangperawong,

18 OCAHO no. 1510k, at 4; and

2. A claim of citizenship-status discrimination arising from Respondent’s

failure to hire Complainant for the position of Solutions Engineer on

January 22, 2024. See id. at 5.

On February 21, 2025, Complainant filed his Motion to Amend Complaint & Proposed

Amendment, which contained seven exhibits. Specifically, Complainant seeks to cure the

deficiencies outlined by the Court in its January 30, 2025 Order. In that Order, the Court noted

Complainant’s insufficient allegation alleged:

[He] ‘applied to over 20 positions [with Respondent] but ha[s] not

been considered seriously for any of them;’ [that] another

individual, who was ‘laid off at the same time [he] was, who did not

complain about discrimination, has been rehired;’[and that]

Respondent has not selected him for these positions in retaliation for

his

first

OCAHO

Complaint.

Wangperawong,

18 OCAHO no. 1510k, at 5 (quoting Second Compl. 9).

In assessing that allegation, the Court found that “[w]hile all these components certainly create the

initial underpinnings of a viable [retaliation] claim, Complainant has not provided enough

specificity to place Respondent on notice . . . . To be sufficiently pled, Complainant must plead

more facts about the 20 positions to which he applied (specific positions, dates applied etc.) and

1

Citations to OCAHO precedents in bound volumes one through eight include the volume and

case number of the particular decision followed by the specific page in the bound volume where

the decision begins; the pinpoint citations which follow are to the pages, seriatim, of the specific

entire volume. Pinpoint citations to OCAHO precedents after volume eight, where the decision

has not yet been reprinted in a bound volume, are to pages within the original issuances; the

beginning page number of an unbound case will always be 1 and is accordingly omitted from the

citation. Published decisions may be accessed through the Westlaw database “FIM OCAHO,” the

LexisNexis database “OCAHO,” and on the United States Department of Justice’s website:

https://www.justice.gov/eoir/office-of-the-chief-administrative-hearing-officer-decisions.

2

18 OCAHO no. 1510l

more information about the proposed comparator individual/employee.”

18 OCAHO no. 1510k, at 9.

Wangperawong,

On March 14, 2025, Respondent filed its Opposition to Complainant’s Motion to Amended

Complaint and Motion to Dismiss Amended Complaint.

II.

POSITIONS OF THE PARTIES

a. Complainant’s Motion to Amend

Through his motion, Complainant “moves the Court to amend the complaint as attached.” The

attachments, according to Complainant, demonstrate more specificity about the proposed adverse

action:

Complainant applied to at least 24 positions since being terminated

(Ex. 1). Meanwhile, Respondent has rehired or considered to rehire

employees who did not complain (Exs. 2-4). Respondent has

retroactively claimed years later that Complainant is not eligible for

rehire (Ex. 5) even though they initially confirmed Complainant’s

eligibility for rehire (Ex. 6) and applying to new roles (Ex. 7).

Mot. Amend 2.

In addition to the attachments, Complainant also resubmitted a copy of his original Complaint

form and underlying IER charge form.

Taken together, Complainant, who is pro se, appears to allege that he engaged in a protected

activity - his October 3, 2023 OCAHO complaint. Further, he alleges that, because of his protected

activity, Respondent did not hire him for 24 separate positions to which he applied (application

dates range from December 2022 to June 2024). To support causation between his protected

activity and non-selection, Complainant notes Respondent originally considered him as eligible

for re-hire following a reduction in force, but later his re-hire status changed “retroactively.”

b. Respondent’s Opposition and Motion to Dismiss

Respondent contends the amendment is futile because “Complainant has not properly exhausted

the retaliation claims he makes,” Opp’n 11, and “the Proposed Amended Complaint fails to state

a claim for retaliation upon which relief may be granted, either in whole or in part.” Opp’n 14.

1. Exhaustion

Respondent notes that the IER charge underlying the August 2024 Complaint (later consolidated

with the older case) “specifically pertained to citizenship discrimination and did not mention

retaliation,” and that “Complainant has not presented any evidence to show that claims related to

retaliation were ever presented to IER or exhausted.” Opp’n 12.

3

18 OCAHO no. 1510l

Respondent argues that “[w]hile Complainant broadly references applications to over twenty

positions in the retaliation section of the Complaint, the IER Charge only alleges that Meta failed

to hire Complainant for the position of Solution Engineer and does not reference retaliation, which

is necessary for the allegation to grow out of the charge.” Opp’n 12. Consequently, Respondent

believes OCAHO caselaw interpreting 28 C.F.R. §§ 68.4(c) and 68.7(c)2 mandates the retaliation

allegations be dismissed for failure to exhaust administrative remedies. Opp’n 11–14.

2.

Pleading Standard

Respondent maintains that “[t]he Complaint fails to allege key components of a retaliation claim.”

Opp’n 15. Specifically, “the Proposed Amended Complaint still suggests [Complainant] was not

considered for 20 positions but provides no specific facts or details about those positions or his

alleged rejections and cannot make out a prima facie case.” Opp’n 16. As to the attachments, the

complaint “still does not contain sufficient information 3 to put Respondent on notice of the claims

Complainant asserts.” Opp’n 16.

Respondent also argues that some of the referenced jobs predate when the IER charge was filed in

February 22, 2024, and “therefore no claim of retaliatory failure to hire could stand.” Opp’n 17.

Respondent continues “nothing in the article included as Exhibit 2 specifically relates to the

Complainant nor does the article explicitly state that the re-hired individuals were terminated in

the November 2022 reduction in force.” Opp’n 17. Moreover, “Exhibits 3 and 4 do not provide

adequate ‘information about the proposed comparator individual/employee’ as requested by the

Court in the Jan. 30 Order at 9.” Opp’n 17. As to Exhibits 5 through 7, Complainant “provides

no additional context to understand how the incorporation of these exhibits might cure his

defective pleading with respect to his claims of Meta’s retaliation against him.” Opp’n 18.

III.

LAW & ANALYSIS

The Court first finds that Complainant’s filing is sufficient to constitute a motion to amend the

complaint. “[I]n evaluating [a pro se plaintiff’s] compliance with the technical rules of civil

procedure, we treat him with great leniency.” Draper v. Coombs, 792 F.2d 915, 924 (9th Cir.

1986). The motion “moves the Court to amend the complaint,” and provides more specificity as

to the positions for which Complainant was not hired, and why he believes Respondent’s

declination to hire him was retaliatory under the statute.

2

OCAHO’s Rules of Practice and Procedure, 28 C.F.R. pt. 68 (2024).

3

According to Respondent, “sufficient information” includes “context . . . for the job applications

[to wit:] evidence that they are in fact Complainant’s applications, or that they all reflect separate

applications . . . dates associated with the positions stating when the position was updated, [and]

the requisition numbers, dates of disposition, or communications about the positions.” Opp’n 16.

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18 OCAHO no. 1510l

a. Amending Complaints

Due to the procedural posture of this case, the Court has previously adjudicated a motion to amend.

It now provides, once more, the applicable legal standards:

OCAHO’s Rules of Practice and Procedure for Administrative

Hearings permit amendment of a complaint, providing that “[i]f a

determination of a controversy on the merits will be facilitated

thereby, the Administrative Law Judge may, upon such conditions

as are necessary to avoid prejudicing the public interest and the

rights of the parties, allow appropriate amendments to

complaints . . . ” 28 C.F.R. § 68.9(e).

“The Court is therefore charged with balancing those interests in

determining whether to allow the proposed amendment.” Shater v.

Shell Oil Co., 18 OCAHO no. 1504b, 2 (2023) (citing United States

v. Sal’s Lounge, 15 OCAHO no. 1394, 1–2 (2020)). “The principal

factors to be considered are whether the determination on the merits

will be facilitated by the proposed amendments, whether the

proposed amendments would be futile, and whether prejudice to the

public interest or parties will result . . . [the Court may also

consider] [b]ad faith, undue delay and dilatory motive . . .”

Santiglia v. Sun Microsystems, Inc., 9 OCAHO no. 1097, 5 (2003).

These factors largely align with those outlined by the Ninth Circuit,

which include: (1) undue delay, (2) bad faith, (3) futility of

amendment, and (4) prejudice to the opposing party. See

AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951

(9th Cir. 2006). . . .

“The usual test for futility of a proposed amendment is whether or

not the amendment would survive a motion to dismiss.” Santiglia,

9 OCAHO no. 1097, at 7 (citing Jones v. Cmty. Redevelopment

Agency of L.A., 733 F.2d 646, 650 (9th Cir. 1984)).

If

administrative remedies are not exhausted, then a matter can be

dismissed. See id. at 7.

To fully consider the viability of the amendment, the Court will engage in a sequential analysis.

The Court will first consider whether the Complainant has pled, with sufficient specificity, an

allegation of retaliation (i.e., could the allegation survive a notice pleading standard). The Court

starts here, at least in part, because this is the deficiency it highlighted in its January 30, 2025,

order wherein it permitted an amendment. Separately, common sense dictates that an allegation

that does not meet notice pleading standards is all but impossible to analyze under other futility

arguments because a claim that is not sufficiently pled cannot be exhausted in the first place (i.e.,

if the factual underpinnings of the allegation are unclear, how can the Court engage in a meaningful

analysis of whether those factual underpinnings are like, related to, or flow from an IER charge).

5

18 OCAHO no. 1510l

b. Pleading Standards Law & Analysis (Motion to Amend Futility Test)

“To state a claim for retaliation under [8 U.S.C.] § 1324b, a complainant ‘must show that the

respondent took an adverse action to discourage a complainant from activity related to the filing

of an IER charge or an OCAHO proceedings, or to interfere with her rights or privileges secured

specifically under § 1324b.’” Zajradhara v. Costa World Corp., 19 OCAHO no. 1546, at 3

(quoting Patel v. USCIS Boston, 14 OCAHO no. 1353, 2 (2020)).

While a complainant need not plead a prima facie case of retaliation to survive a motion to dismiss,

“the elements are instructive: . . . 1) an individual engaged in conduct protected by § 1324b; 2) the

employer was aware of the individual’s protected conduct; 3) the individual suffered an adverse

employment action; and 4) there was a causal connection between the protected activity and the

adverse action.” Ackermann v. Mindlance, Inc., 17 OCAHO no. 1462b, 11 (2023).

When accepting all facts alleged in the amended complaint as true and construing them in the light

most favorable to Complainant, Osorno v. Geraldo, 1 OCAHO no. 275, 1782, 1786 (1990), the

amended complaint is sufficiently pled.

First, Complainant alleges he engaged in protected activity when he filed “a complaint of

discrimination [on October 3, 2023].” Am. Compl. 12.

Second, Respondent’s knowledge of this protected activity can be inferred, as it received a copy

of the complaint on October 23, 2023. Wangperawong, 18 OCAHO no. 1510, at 1.

Third, Complainant alleges an adverse action (or possibly two): when he was “not considered” for

thirteen specific positions with Respondent; and/or when he was designated as ineligible for

rehire.4 Am. Compl. 2, 12; Ex. 1; Ex. 5.

Fourth, as alleged, a causal connection exists between the adverse action(s) and Complainant’s

protected activity. The Court reads the amended complaint liberally as advancing several theories

of causation, some of which could survive the pleading standard issue.

1. Comparator Theory Is Insufficiently Pled

The Court in its order allowing for the amendment instructed Complainant to provide more

information about alleged comparator individuals to sufficiently plead causation under this theory.

Wangperawong, 18 OCAHO no. 1510k, at 9. In response, Complainant submitted Exhibits 2–4,

however the Court finds that the facts alleged in these documents are still insufficient to put

Respondent on notice.

4

While Complainant alleges he was not considered for twenty-four positions, the additional facts

pled regarding the applications reveal Respondent took action on only thirteen applications that

post-date his OCAHO complaint (coded as “Not moving forward”). Am. Compl. Ex. 1. The rest

of the applications, however, were coded as “Submitted,” which seems to indicate Respondent has

yet to act on these applications. Id. Because Complainant does not allege, for these submissions,

his applications were rejected, these applications do not constitute adverse actions.

6

18 OCAHO no. 1510l

A careful review of these exhibits incorporated into the Amended Complaint show they consist of:

general statements by a journalist about the prospect of rehiring individuals who were subject to a

reduction in force (“Many people laid off by Meta over the past several months are getting offers

to rejoin the company.”); and screenshots from internet message boards where two anonymous

users claim they were laid off then rehired by Respondent.

As Respondent correctly notes, these exhibits “do not provide adequate ‘information about the

proposed comparator individual/employee’ as requested by the Court,” as “[t]here is no identifying

information about the individual who posted other than a non-specific user name in Exhibit 3.”

Opp’n 17.

2.

Re-Hire Eligibility Theory is Sufficiently Pled

Complainant’s proposed amendment advances a retaliation theory wherein Respondent changed

his official designation for re-hire eligibility in response to his protected activity (Respondent

“initially confirmed Complainant’s eligibility for rehire . . . and applying to new roles,” but now

“has retroactively claimed years later that Complainant is not eligible for rehire.”). Mot. Amend 2.

Complainant provides specificity about his initial eligibility for rehire by way of an email from a

former supervisor/colleague, which he contrasts with 5 a document from an EEOC matter wherein

Respondent revealed Complainant was designated as “RIF/Redundancy > Redundancy –

Performance,” meaning “his departure was marked as ‘Non-Regrettable’ and, pursuant to Meta

policy, he is ineligible for re-hire for a period of three years from his date of separation (i.e.,

through January 13, 2026).” See Am. Compl. Exs. 5–6.

The Amended Complaint sufficiently pleads the causation element and states a claim of retaliation.

Additionally, the adverse action and protected activity occurred close in time, which supports an

inference of causation. 6 Complainant filed his first OCAHO complaint on October 3, 2023, and

as early as February 2, 2024, he was allegedly not selected for a position with Respondent. Mot.

5

A change in rehire eligibility would constitute an adverse action for retaliation. See Erwin v. OBI

Seafoods, LLC, 2024 WL 1138905, *7 (W.D. Wash. Mar. 15, 2024); EEOC v. Evergreen Alliance

Golf Ltd., LP, 2013 WL 4478870, *11 (D. Ariz. Aug. 21, 2013) (“[D]esignating [plaintiff]

ineligible for rehire was inherently an adverse employment action.”).

6

“The paradigmatic circumstantial evidence giving rise to an inference of retaliation is temporal

proximity between the protected conduct and the adverse action; where the adverse action follows

closely on the heels of the protected conduct, an inference of causation ordinarily arises.” Sodhi

v. Maricopa Cnty. Special Health Care District, 10 OCAHO no. 1127, 8 (2008) (citing Bell v.

Clackamas Cnty., 341 F.3d 858, 865 (9th Cir. 2003)). “There is no bright line rule that a particular

time is either per se too long or per se sufficiently short to establish the connection.” Id. (citing

Coszalter v. City of Salem, 320 F.3d 968, 977–78 (9th Cir. 20003)); see also Miller v. Fairchild

Indus., Inc., 885 F.2d 498, 505 (9th Cir. 1989) (holding that “discharges 42 and 59 days after EEOC

hearings were sufficient to establish prima facie case of causation).

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18 OCAHO no. 1510l

Amend Ex. 1. The Court finds this temporal proximity between Complainant’s protected activity

and his alleged non-selection is sufficient to create an inference of causation, and so the Amended

Complaint states a claim of retaliation under this theory as well.

Under any theory of causation, the Complainant must still plead events in a particular order, which

is to say that the protected activity which causes the adverse action must necessarily come first.

Complainant’s proposed protected activity (his OCAHO Complaint) occurred on October 3, 2023,

and Respondent became aware of it on October 23, 2023, when it was served with the Complaint.

Applications preceding these October 2023 dates are excluded from consideration as they cannot

state a claim upon which relief can be granted. Thus, the retaliation allegation is narrowed to only

those positions to which Complainant applied on or after October 2023.

Therefore, the Court finds that the Amended Complaint states a claim that Respondent retaliated

against Complainant when it designated him ineligible for rehire and failed to select him for

positions 1 and 13–24 of Exhibit 1 after it became aware of his protected activity.

c. Motion to Dismiss – Exhaustion Law & Analysis

Now that the Court has established the Amended Complaint states a claim of retaliation, it must

determine whether that claim was properly exhausted administratively.

“Even though administrative exhaustion is no longer a jurisdictional requirement post-Fort Bend,

because the Supreme Court stated it is a ‘mandatory’ ‘processing rule,’ a plaintiff must still allege

compliance with the requirement in order to state a claim on which relief can be granted.”

Lawrence v. Driscoll, 2025 WL 894956, *5 (E.D. Cal. Mar. 24, 2025) (citing Fort Bend Cnty. v.

Davis, 587 U.S. 541, 551 (2019).

As the Lawrence court noted, “when a [respondent] moves to dismiss on the basis of a

[complainant’s] failure to exhaust, the motion cannot be granted unless it is obvious or clear that

the claims were not exhausted.” Id. (internal citations and quotes omitted).

As was noted in a previous order:

A complainant has exhausted the administrative process when he

receives his “right to sue” letter from IER. 28 C.F.R. §§ 68.4(b)(2),

(c). This document permits a complainant to file a Complaint with

OCAHO; however, “[t]he scope of a discrimination case pursuant

to 8 U.S.C. § 1324b is ordinarily limited to matters within, or like

and related to, the administrative charge and the scope of the

administrative investigation upon which the action is based.”

Wangperawong, 18 OCAHO no. 1510c, at 5 (quoting Santiglia,

9 OCAHO no. 1097, at 7) (internal quotations omitted). This is

particularly true when the alleged discrimination is citizenship or

national origin based (vice retaliation).

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18 OCAHO no. 1510l

“[T]he scope of the [IER] charge itself must be considered in order

to determine whether the matters raised could reasonably be

expected to grow out of the investigation of that charge.” Santiglia,

9 OCAHO no. 1097, at 7.

Wangperawong v. Meta Platforms, Inc., 18 OCAHO no. 1510e, 3–5 (2024) (footnote omitted).

Because exhaustion requires a fact-intensive analysis comparing the IER charge and circumstances

surrounding the IER charge to the contents and theories within the Complaint, it is prudent to begin

this analysis with those facts pertaining to the IER charge and investigation.

1. Factual Timeline (IER Charge & Alleged Adverse Actions by Respondent)

On April 23, 2023, Complainant filed his first charge with IER. The charge alleged both

citizenship status discrimination and retaliation, although the factual detail provided only

described his being laid off as an Applied Research Scientist, a position for which only U.S.

citizens were allegedly terminated. First Compl. 12, 14.

On August 16, 2023, Complainant received a letter from IER which relayed that, while IER would

continue its investigation, Complainant could file a complaint with OCAHO. First Compl. 15–16.

On October 3, 2023, Complainant filed his first OCAHO Complaint. The Complaint was served

on Respondent on October 23, 2023.

On February 2, 2024, the status of Complainant’s application for a Solutions Engineer position

with Respondent was updated to “Not moving forward.” The same status change was made on

February 8, 2024, to Complainant’s application for a Technical Program Manager, AI position.

On February 22, 2024, Complainant filed his second IER charge. This charged alleged citizenship

status discrimination. Specifically, Complainant stated that “[o]n January 11, 2024, Complainant

applied for a Solutions Engineer position” 7 with Respondent and was “immediately rejected”

despite a recruiter having previously verified his qualifications. Mot. Amend 19.

Between March 5 and June 25, 2024, the status of Complainant’s application for the following

eleven positions was updated to “Not moving forward:”

1.

2.

3.

4.

5.

Software Engineer, Machine Learning (March 5, 2024)

Software Engineer, Machine Learning (March 7, 2024)

Software Engineer, Machine Learning (April 1, 2024)

Software Engineer, Machine Learning (April 26, 2024)

Product Technical Program Manager (May 15, 2024)

7

According to Complainant, the job disappeared from Respondent’s jobs site “about a week later,”

causing him to believe that if the position was indeed filled, it must have been a “non-U.S. citizen

internal candidate.” Mot. Amend 19.

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18 OCAHO no. 1510l

6. Software Engineer, Machine Learning (June 5, 2024)

7. Machine Learning Scientist (June 5, 2024)

8. Business Engineer (June 14, 2024)

9. Software Engineer, Machine Learning (June 14, 2024)

10. Partner Engineer, Gen AI (June 18, 2024)

11. Technical Program Manager (June 25, 2024)

On August 9, 2024, Complainant received a letter from IER which relayed that, while IER would

continue its investigation, Complainant could file a complaint with OCAHO. Mot. Amend 15–16.

On August 19, 2024, Complainant filed his second OCAHO complaint.

2. Law & Analysis – Reasonably Expected to Grow Out of Investigation

“In assessing the relatedness of claims, district courts construe… charges ‘with utmost

liberality.’”8 Lindsey v. United Airlines, Inc., 2017 WL 2404911, *5 (N.D. Cal. June 2, 2017)

(citing Yamaguchi v. U.S. Dep’t of the Air Force, 109 F.3d 1475, 1480 (9th Cir. 1997)). Even a

“sparing” charge can pass exhaustion muster when construed “with utmost liberality.” Id.

In determining whether a claim and charge are “reasonably related, “courts consider ‘such factors

as the alleged basis of the discrimination, dates of discriminatory acts specified within the charge,

perpetrators of discrimination named in the charge, and any locations at which discrimination is

alleged to have occurred.’” Id. (quoting Vasquez v. Cnty. of L.A., 349 F.3d 634, 644 (9th Cir.

2003)).

Temporal proximity (between charge and retaliatory action) also makes the retaliatory action

reasonably related. Id. (“It would have been reasonable for the EEOC to investigate retaliation by

[the employer] against [the plaintiff] occurring shortly after [approximately four months] the

charge was made.”).

“[The Ninth Circuit] has made clear that an employee does not need to file new charges concerning

‘reasonably related… acts occurring during the pendency of the charge before the EEOC’ in order

to exhaust claims related to those acts. Oubichon v. N. Am. Rockwell Corp., 482 F.2d 569, 571

(9th Cir. 1973).

8

Such a liberal view advances the position of higher courts as “[t]he Supreme Court and Ninth

Circuit have directed district courts to construe administrative charges liberally, . . . even with the

utmost liberality, . . . so as to protect the employee’s rights and statutory remedies.” Lawrence,

2025 WL 894956 at *5 (internal citations and quotes omitted); see also Lindsey v. United Airlines,

Inc., 2017 WL 2404911, *2 (N.D. Cal. June 2, 2017) (citing Yamaguchi v. U.S. Dep’t of the Air

Force, 109 F.3d 1475, 1480 (9th Cir. 1997)).

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18 OCAHO no. 1510l

Cataloguing each related incident that occurred while an EEOC charge was pending would impose

an unnecessary burden on the complainant.” Lindsey, 2017 WL 2404911, at *3.9

Turning to the analysis here, when viewing this fact pattern and timeline through a lens of “utmost

liberality,” the Court concludes the retaliation allegation could have grown out of the IER charge

and investigation. Consequently, the retaliation allegation survives the motion to dismiss.

First, it is reasonable to infer IER was aware of Complainant’s prior IER charge and his OCAHO

Complaint (as it issued a “right to sue letter” and IER appears of the Certificates of Service for

filings and orders generally). Indeed, the “right to sue” letter indicates that IER would continue

investigating his first charge whether he filed an OCAHO complaint or not, meaning that first

charge and ensuing investigation might very well have overlapped with the first alleged adverse

action. Even if no overlap occurred, the close temporal proximity of the OCAHO complaint and

first non-selection is analogous to Lindsey. Like the complainant in Lindsey, this Complainant

was non-selected for (multiple) positions after filing an IER charge, and he also (like in Lindsey)

filed multiple IER charges.

While it is true that Complainant did not “check the box” for retaliation on his second IER charge,

the Ninth Circuit has held this such an action is not necessary for exhaustion, so long as “an

. . . investigator looking at the information provided could reasonably see that the factual

allegations underlying [the Complainant’s charged claim] were rooted in his [allegation made in

the complaint].” Head v. Wilkie, 784 Fed. Appx. 503, 505 (9th Cir. 2019).

The procedural facts here demonstrate exhaustion, and under the Fort Bend mandatory processing

rule construct, the Complaint cannot be dismissed for failure to state a claim upon which relief can

be granted. 587 U.S. 541, 551 (2019).

d.

Re-inclusion of Previously Stricken Material

Complainant’s Motion to Amend contains a resubmitted copy of the August 19, 2024 Complaint,

from which the Court struck information pertaining to settlement discussions. Wangperawong,

18 OCAHO no. 1510k, at 4. The act of striking language or documents from the record involves

its physical removal (or “electronic” deletion) from the Court’s case file. Resubmission of

previously stricken information requires the Court to once again remove it from the record. The

Court is mindful of Complainant’s pro se status, and will excuse this error; however, future

inclusion of previously stricken information may result in a sanction. See generally 28 C.F.R.

§ 68.23(c)(5).

Accordingly, the same language previously identified in the Court’s January 30, 2025 Order will

be stricken from pages 12 and 21 of the Amended Complaint.

9

In Lindsey, a complainant was non-selected for a desired position after he filed a charge with the

EEOC, “so that [non-selection] was necessarily not included in his [prior] charge.” 2017

WL 2404911 at *3. Additionally, that complainant filed multiple EEOC charges against the same

respondent. Id. at *4. On those facts, the district court judge concluded an EEOC investigation

could have encompassed retaliation. Id.

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18 OCAHO no. 1510l

IV.

CONCLUSION & ORDERS

Complainant’s Motion to Amend is GRANTED.

The proposed Amended Complaint is ACCEPTED.

Respondent’s Motion to Dismiss Amended Complaint is DENIED.

The allegations before the Court are as follows:

1. A claim of citizenship-status discrimination arising from Respondent’s termination of

Complainant from his position as Applied Research Scientist on January 13, 2023. See

Wangperawong, 18 OCAHO no. 1510k, at 4.

2. A claim of citizenship-status discrimination arising from Respondent’s failure to hire

Complainant for the position of Solutions Engineer on January 22, 2024. See id. at 5.

3. A claim of retaliation arising from Respondent’s non-selection for 13 positions because

of his protected activity (to wit: October 2023 OCAHO Complaint).

The parties can anticipate a prehearing conference to discuss a proposed case schedule.

SO ORDERED.

Dated and entered on April 24, 2025.

__________________________________

Honorable Andrea R. Carroll-Tipton

Administrative Law Judge

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