Vroom v. Johnson
Filing
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ORDER denying 23 Defendant's Motion to Dismiss. FURTHER ORDERED denying 33 Plaintiff's Motion for Leave of Court to File 2.5 Page Surreply. See attached Order. Signed by Senior Judge James A Teilborg on 6/3/2015.(TLB)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Patricia M. Vroom,
No. CV-14-02463-PHX-JAT
Plaintiff,
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v.
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ORDER
Jeh Johnson,
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Defendant.
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Pending before the Court is Defendant’s Motion to Dismiss (Doc. 23) and
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Plaintiff’s Motion for Leave of Court to File 2.5 Page Surreply (Doc. 33). The Court now
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rules on the motions.
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I.
Motion to Dismiss
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Defendant moves to dismiss Plaintiff’s Complaint pursuant to Federal Rule of
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Civil Procedure (“Rule”) 12(b)(6), arguing that Plaintiff failed to exhaust her
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administrative remedies before filing suit; Plaintiff did not suffer an adverse employment
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action; Plaintiff fails to plausibly allege that she was subject to harassment as a member
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of a protected class, causing an adverse employment action; and Plaintiff fails to allege
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that she suffered a material adverse action as a result of her protected activity. (Doc. 23 at
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5).
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A.
Background
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Plaintiff has filed a sixty-seven page Complaint, which the Court only briefly
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summarizes here. Plaintiff is a fifty-nine year-old woman who has been employed for the
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past twenty-six years as an attorney with U.S. Immigrations and Customs Enforcement
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(“ICE”) or its predecessor agency, the U.S. Immigration & Naturalization Service
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(“INS”). She currently serves as a Chief Counsel within ICE. Plaintiff received numerous
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awards and favorable performance reviews, including in 2011 receiving the highest
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performance rating (4.94 out of 5.0) of any of the twenty-six attorneys in comparable
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positions within ICE. Plaintiff alleges that ICE Principal Legal Advisor Peter Vincent
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(“Vincent”) orchestrated a scheme to target and replace senior counsel, such as Plaintiff,
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with handpicked successors who would be more malleable to Vincent’s demands.
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Plaintiff began to be the subject of bullying and harassment by Vincent’s associates.
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Plaintiff received continually shifting instructions on how to process certain immigration
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cases, and then was criticized for asking for clarification. Plaintiff also received relatively
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low performance ratings without adequate justification, was told she was difficult to work
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with and could not adapt to change, and was forced to dismiss certain types of
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immigration cases to meet her superiors’ agenda. Plaintiff also was criticized for certain
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actions for which other male attorneys received praise. Despite these workplace
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difficulties, ultimately Plaintiff’s performance ratings returned to a high level following
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Vincent’s resignation and Plaintiff’s notification of her impending litigation.
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Plaintiff alleges three claims in her Complaint. First, she alleges Defendant
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retaliated against her because of her complaints about Defendant’s discrimination on the
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basis of sex and age and because of her complaints about a hostile work environment, in
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violation of Title VII and the Age Discrimination in Employment Act (“ADEA”). (Doc. 1
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¶¶ 143-47). Second, she alleges Defendant discriminated against her on the basis of age
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both through specific acts and through the creation of a hostile work environment, in
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violation of the ADEA. (Id. ¶¶ 148-52). Third, she alleges Defendant discriminated
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against her on the basis of her sex both through specific acts and through the creation of a
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hostile work environment, in violation of Title VII. (Id. ¶¶ 153-57).
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B.
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A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim
Motion to Dismiss Standard
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upon which relief can be granted if it fails to state a cognizable legal theory or fails to
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allege sufficient facts under a cognizable legal theory. Balistreri v. Pac. Police Dep’t,
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901 F.2d 696, 699 (9th Cir. 1990). To survive a motion to dismiss, a complaint need
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contain only “a short and plain statement of the claim showing that the pleader is entitled
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to relief” such that the defendant is given “fair notice of what the . . . claim is and the
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grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
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(quoting Fed. R. Civ. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)).
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But although a complaint “does not need detailed factual allegations,” a plaintiff
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must “raise a right to relief above the speculative level.” Id. This requires more than
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merely “a formulaic recitation of the elements of a cause of action.” Id. A complaint must
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“state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
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(2009) (quoting Twombly, 550 U.S. at 570). Facial plausibility requires the plaintiff to
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plead “factual content that allows the court to draw the reasonable inference that the
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defendant is liable for the misconduct alleged.” Id. “Where a complaint pleads facts that
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are ‘merely consistent with’ a defendant’s liability, it stops short of the line between
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possibility and plausibility of entitlement to relief.” Id. (quoting Twombly, 550 U.S. at
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557) (internal quotation marks omitted).
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In reviewing a complaint for failure to state a claim, the Court must “accept as true
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all well-pleaded allegations of material fact, and construe them in the light most favorable
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to the non-moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir.
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2010). However, the Court does not have to accept as true “allegations that are merely
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conclusory, unwarranted deductions of fact, or unreasonable inferences.” Id.
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C.
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Defendant first argues that Plaintiff failed to exhaust her available administrative
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remedies prior to filing this lawsuit with respect to her 2011-2012 performance appraisal.
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(Doc. 23 at 5). It is true, as Defendant asserts, that a plaintiff is required to exhaust
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administrative remedies before filing a lawsuit. See Cherosky v. Henderson, 330 F.3d
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1243, 1245 (9th Cir. 2003). But Plaintiff’s 2011-2012 performance appraisal is not the
Timely Exhaustion of Administrative Remedies
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basis of her discrimination claims. As Plaintiff points out, this appraisal was merely
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factual background to her discrimination claims based on later adverse employment
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actions. (Doc. 29 at 4). A plaintiff is permitted to use “prior acts as background evidence
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in support of a timely claim.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113
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(2002). Accordingly, Defendant’s argument fails.1
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D.
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Defendant next argues that Plaintiff’s performance appraisals were not adverse
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employment actions because Plaintiff received favorable evaluations and Plaintiff has not
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pleaded an adverse impact resulting from the appraisals. (Doc. 23 at 8).
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Adverse Employment Actions
1.
Legal Standard
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Under a claim for discrimination or retaliation, a plaintiff must show that she
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experienced an adverse employment action. See Fonseca v. Sysco Food Servs. of Ariz.,
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Inc., 374 F.3d 840, 847 (9th Cir. 2004) (discrimination); Steiner v. Showboat Operating
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Co., 25 F.3d 1459, 1464 (9th Cir. 1994) (retaliation). The Ninth Circuit Court of Appeals
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(“Court of Appeals”) has given a broad definition to the term “adverse employment
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action.” Fonseca, 374 F.3d at 847. This definition includes undeserved performance
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ratings. Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987).
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Whether an undeserved performance rating constituted an adverse employment
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action depends upon whether the rating constituted a material change in the
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compensation, terms, conditions, or privileges of the plaintiff’s employment. See Chuang
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v. Univ. of Ca. Davis, Bd. of Trustees, 225 F.3d 1115, 1125-26 (9th Cir. 2000). Courts
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have found actions adversely affecting future employment opportunities to be adverse
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employment actions. See, e.g., Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002).
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However, an undeserved performance rating that is not disseminated and does not
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lead to any changes in the terms of the employee’s employment is not an adverse
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employment action. Kortan v. Ca. Youth Authority, 217 F.3d 1104, 1113 (9th Cir. 2000);
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Defendant also abandoned this argument in its reply by failing to address
Plaintiff’s response on this issue.
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see also Lyons v. England, 307 F.3d 1092, 1118 (9th Cir. 2002).
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2.
Analysis
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Defendant contends that Plaintiff’s 2012-2013 performance rating was not an
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adverse employment action because her numeric rating was within the “exceeds
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expectations” category. (Doc. 23 at 8). But Plaintiff alleges that her 2012-2013
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performance rating2 was the lowest rating of any of the 12 attorneys in her position who
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were rated that year by Field Legal Operations Deputy Director Sarah Hartnett, and
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among the lowest of all 26 attorneys in her position nationwide. (Doc. 1 ¶ 10). Plaintiff’s
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performance review accused her of inefficient practices, “failure to adapt,” pushing back
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on changes, wasting resources, struggling to grasp initiatives, and struggling to embrace
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new goals, among other things. (Id. ¶ 11).
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Plaintiff fails, however, to allege that her performance rating and review were
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accompanied by any meaningful change in work assignments or that this rating adversely
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affected her future employment opportunities. Although Plaintiff argues in her response
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that she intended to apply for an immigration judgeship but was dissuaded when she
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realized the application required a copy of her most recent performance appraisal, (Doc.
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29 at 8), Plaintiff did not allege these facts in her complaint. Undeserved performance
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ratings, standing alone, are not adverse employment actions. See Lyons, 307 F.3d at 1118.
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Plaintiff alleges that she considered the performance rating to be unfair, biased against
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her, and unwarranted. (Doc. 1 ¶¶ 93-95). She does not plausibly allege any adverse
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employment action that has resulted from that rating, and she remains employed as a
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Chief Counsel at ICE.
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Accordingly, Plaintiff has not alleged the occurrence of an adverse employment
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action. However, because Plaintiff also alleges a hostile work environment as a basis for
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her claims of age discrimination under the ADEA and for sex discrimination under Title
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VII, whether these claims survive the motion to dismiss depends upon whether Plaintiff
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The Court does not address Plaintiff’s 2011-2012 performance rating because it
has found this rating to be only background information.
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has plausibly alleged the existence of a hostile work environment.
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E.
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Defendant contends that Plaintiff has not alleged the existence of a hostile work
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environment because the alleged conduct was neither severe nor pervasive and was
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unconnected to her age or gender. (Doc. 23 at 9).
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Hostile Work Environment
1.
Legal Standard
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A claim for a hostile work environment based on age or sex requires a plaintiff to
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show: (1) she was subjected to verbal or physical conduct of an age-related or sex-related
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nature, (2) the conduct was unwelcome, and (3) the conduct was “sufficiently severe or
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pervasive to alter the conditions of the plaintiff’s employment and create an abusive work
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environment.” See Vasquez v. City of L.A., 349 F.3d 634, 642 (9th Cir. 2003); Cozzi v.
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Cnty. of Marin, 787 F. Supp. 2d 1047, 1069 (N.D. Cal. 2011). A plaintiff must show that
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her workplace was “both objectively and subjectively offensive, one that a reasonable
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person would find hostile or abusive, and one that [she] in fact did perceive to be so.”
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Nichols v. Azteca Restaurant Enters., Inc., 256 F.3d 864, 871-72 (9th Cir. 2001) (quoting
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Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)).
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Whether a work environment is hostile depends upon “all the circumstances,”
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including “the frequency of the discriminatory conduct; its severity; whether it is
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physically threatening or humiliating, or a mere offensive utterance; and whether it
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unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys.,
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Inc., 510 U.S. 17, 23 (1993).
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2.
Analysis
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Defendant argues that the conduct about which Plaintiff complaints was unrelated
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to her sex or age. (Doc. 23 at 12). Most of Plaintiff’s allegations describe an unpleasant,
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perhaps even toxic, work environment, but do not explicitly reference her sex or age. For
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example, Plaintiff complains of being chastised for not following directions, criticized for
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needing extra time to complete an assignment, receiving harsh e-mails, being instructed
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to handle cases in a legally unjustifiable manner, accused of incompetently performing
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her duties, shouted at on the telephone, and accused of “push-back” when she sought
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clarification of vague guidance. (Doc. 1 ¶¶ 60, 67-69, 78, 83, 90, 95).
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However, Plaintiff also alleges that ICE leadership favored male Chief Counsels.
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Specifically, Plaintiff alleges that she was criticized for having engaged in inefficient
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practices such as having her lawyers create case summaries, while a male Assistant Chief
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Counsel received an award for creating case summaries. (Id. ¶ 98). Plaintiff has also
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alleged that Vincent and other ICE leadership have publicly humiliated female Chief
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Counsels on several occasions, (id. ¶ 99, 100), have disfavored women for hiring
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decisions, (id. ¶ 105), and have unduly reprimanded female Chief Counsels, (id. ¶ 107).
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Plaintiff also alleges that one female Chief Counsel had her legal adviser reassigned to a
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male Chief Counsel as punishment to her. (Id. ¶ 106).
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With respect to age discrimination, Plaintiff alleges that her performance reviews
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included phrases such as “failure to adapt,” “struggled with embracing new goals and
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initiatives,” “previous inefficient practices,” and “struggled to embrace.” (Id. ¶ 11). She
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also alleges that on several occasions, Chief Counsels were targeted with criticism until
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they quit, then replaced with younger substitutes. (Id. ¶¶ 24-26).
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Plaintiff thus clearly alleges that she suffered verbal conduct of an age-related and
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sex-related nature. Although Defendant argues that this conduct was merely indicative of
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the toxic work environment, (Doc. 23 at 13; Doc. 32 at 5), as the Court has outlined,
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Plaintiff alleges numerous instances of actions that, if true, would constitute age or sex
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discrimination. With respect to the second prong of the test for a hostile work
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environment, Defendant does not argue that Plaintiff welcomed this conduct, and it is
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also clear from the Complaint that Plaintiff did not welcome this conduct. Therefore, this
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prong is satisfied.
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Finally, Plaintiff also alleges that the conduct was sufficiently severe or pervasive
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such that a reasonable person would find it hostile or offensive and that she thought it to
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be hostile or offensive. From Plaintiff’s descriptions of this conduct, it is clear that
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Plaintiff found the conduct to be hostile and offensive. Moreover, her allegations imply
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that a reasonable person would find this conduct to be hostile or offensive. Defendant
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cites several cases in which the Court of Appeals held various conduct to be sufficiently
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severe or pervasive, or not sufficiently severe or pervasive, and argues that the conduct in
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the present case resembles those falling into the latter category. (Doc. 23 at 10-11). All
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but one of these cases involved a review of a grant of summary judgment, which requires
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a different evaluation of the facts than does a motion to dismiss, where the Court merely
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assumes the allegations in the Complaint to be true. The remaining case, Kapu v. Sears,
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Roebuck & Co., 2000 WL 2943339 (D. Haw. July 27, 2010), granted a motion to dismiss
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a hostile work environment claim where the plaintiff vaguely alleged “verbal abuse,” that
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his supervisor threatened to fire him, he was deprived of an opportunity to obtain a
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bonus, his supervisor interfered with his interactions with customers, and his supervisor
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would page him while he was on his lunch break. 2000 WL 2943339, at *9. Plaintiff’s
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allegations detail a continual series of harassment that belittled her, tarnished her
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professional reputation, and created a thoroughly adversarial work environment. The
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facts in Kapu do not resemble those in the present case.
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Accordingly, Plaintiff has stated claims for a hostile work environment based on
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both age and sex, and Plaintiff has therefore stated claims for age discrimination under
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ADEA and for sex discrimination under Title VI (her second and third claims for relief,
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respectively).
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F.
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Plaintiff’s remaining claim (her first claim for relief) is for retaliation under Title
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VII and the ADEA. Plaintiff alleges that Defendant retaliated against her after she
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complained about Defendant’s discrimination against her on the basis of her age and sex
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and about the hostile work environment. (Doc. 1 ¶ 145).
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Retaliation
1.
Legal Standard
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The Court of Appeals applies the same standard in both ADEA and Title VII
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retaliation cases. See Hashimoto v. Dalton, 118 F.3d 671, 675 n.1 (9th Cir. 1997). A
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claim for retaliation under Title VII requires the plaintiff to prove (1) that she undertook a
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protected activity, (2) her employer subjected her to an adverse employment action, and
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(3) the adverse employment action would not have occurred but for her protected activity.
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Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013); Vasquez, 349 F.3d
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at 646. In the context of a retaliation claim, an adverse employment action is any action
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that a reasonable employee would have found to be materially adverse, meaning “it might
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have dissuaded a reasonable worker from making or supporting a charge of
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discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). A
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hostile work environment can constitute an adverse employment action for purposes of a
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retaliation claim. Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000).
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Additionally, the Court of Appeals has held that the necessary causal link between
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a protected activity and alleged retaliatory action “can be inferred from timing alone
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when there is a close proximity between the two.” Thomas v. City of Beaverton, 379 F.3d
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802, 812 (9th Cir. 2004) (citation and internal quotation marks omitted).
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2.
Analysis
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Defendant argues that because Plaintiff only alleges the continuation of a hostile
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work environment, Plaintiff cannot show that any incidents constituted retaliation for
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Plaintiff’s protected activities. (Doc. 23 at 14). But Plaintiff alleges a number of
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occurrences constituting a hostile work environment occurred shortly after she filed an
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EEO complaint. For example, she alleges she received an abusive e-mail concerning the
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fact that one of her subordinates addressed her as “Ms. Vroom” rather than “Pat.” (Doc. 1
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¶ 118). She also alleges that she received an e-mail criticizing her telephone-handling
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skills. (Id. ¶ 122). These facts may ultimately prove insufficient to withstand summary
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judgment, but when taken to be true for the purpose of deciding Defendant’s motion to
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dismiss, they constitute a hostile work environment causally linked by proximity in time
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to Plaintiff’s filing of the EEO complaint. These allegations give rise to a reasonable
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inference that Plaintiff’s filing of an EEO complaint caused Defendant to levy additional
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attacks on Plaintiff.
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Defendant disputes the materiality of the alleged incidents, claiming that they were
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mere slights that did not rise to the level of materiality necessary to constitute retaliation.
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(Doc. 32 at 7). For purposes of deciding the present motion to dismiss, the Court must
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assume Plaintiff’s allegations to be true, and Plaintiff alleges facts that, if true, lead to an
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inference of causality between her filing of the EEO complaint and the actions taken
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against her. Accordingly, Plaintiff has stated a claim for retaliation under Title VII and
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the ADEA.3
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II.
Motion for Leave to File Surreply
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Defendant attached to its reply in support of its motion to dismiss a portion of
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Plaintiff’s 2012-2013 performance review. (Doc. 32 at 2). Plaintiff alleges this is
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misleading and moves to file a surreply containing the entire performance review. (Doc.
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33). Because the Court will deny Defendant’s motion to dismiss and the Court has not
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needed to consider Defendant’s attachment to its reply, the Court will deny Plaintiff’s
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motion.
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III.
Conclusion
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For the foregoing reasons,
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IT IS ORDERED denying Defendant’s Motion to Dismiss (Doc. 23).
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IT IS FURTHER ORDERED denying Plaintiff’s Motion for Leave of Court to
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File 2.5 Page Surreply (Doc. 33).
Dated this 3rd day of June, 2015.
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The Court does not address Defendant’s contentions regarding Plaintiff’s
expanded performance narrative, (Doc. 32 at 7), because Plaintiff states a claim for
retaliation even when her allegations concerning this narrative are not taken into
consideration.
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