Lenee Sweeney v. Jenny R. Chang et al

Filing 32

MINUTES (IN CHAMBERS) by Judge Christina A. Snyder RE: Defendant's Motion to Dismiss 26 . The Court GRANTS defendant's motion to dismiss claims 4, 5, 6, 7, and 8. Plaintiff's claims for fraud, misrepresentation, interference with pros pective business advantage, intentional infliction of emotional distress, and defamation are hereby DISMISSED. The Court DISMISSES plaintiff's request for punitive damages. Furthermore, the Court DISMISSES the EEOC as a defendant in this action. The Court DENIES defendant's motion to dismiss plaintiff's claims against Lipnic for age discrimination (claim 1), race discrimination (claim 2), and retaliation (claim 3). Because amendment to plaintiff's complaint would be futile, the Court ORDERS defendant to file an answer within 14 days of the date of this order. Court Reporter: Not Present. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
Title

‘O’

2:16-cv-07240-CAS(RAO)
Date June 12, 2017
LENEE SWEENEY v. JENNY R. CHANG ET AL.

Present: The Honorable

CHRISTINA A. SNYDER

Catherine Jeang

Not Present

N/A

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(IN CHAMBERS) - DEFENDANT’S MOTION TO DISMISS (Dkt.
26, filed May 12, 2017)

The Court finds this motion appropriate for decision without oral argument. See
Fed. R. Civ. P. 78; C.D. Cal. L.R. 7–15. Accordingly, the hearing date of June 19, 2017
is vacated, and the matter is hereby taken under submission.
I.

INTRODUCTION

On September 27, 2016, plaintiff Lenee Sweeney filed this action against
defendants The U.S. Equal Employment Opportunity Commission (“EEOC”); Jenny R.
Yang, then Chair of the EEOC; and Does 1–10, inclusive. Dkt. 1. On November 10,
2016, plaintiff filed her first amended complaint. Dkt. 12 (“FAC”). Plaintiff alleges
eight claims: (1) age discrimination in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §§ 626 et seq.; (2) race discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.;
(3) retaliation in violation of Title VII; (4) fraud; (5) misrepresentation; (6) interference
with prospective business advantage; (7) intentional infliction of emotional distress; and
(8) defamation. Id.
On May 12, 2017, defendant Victoria A. Lipnic1, Acting Chair of the EEOC, filed
a notice of motion and motion to dismiss plaintiff’s complaint. Dkt. 26 (“MTD”).

1

Victoria A. Lipnic was named as the Acting Chair of the EEOC on January 25,
2017. Pursuant to the Federal Rules of Civil Procedure Rule 25(d), when a public officer
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
Title

‘O’

2:16-cv-07240-CAS(RAO)
Date June 12, 2017
LENEE SWEENEY v. JENNY R. CHANG ET AL.

Plaintiff filed her opposition on May 26, 2017, dkt. 28 (“Opp’n”), and defendant filed a
reply on June 5, 2017, dkt. 31.
Having carefully considered the parties’ arguments, the Court finds and concludes
as follows.
II.

BACKGROUND

Plaintiff alleges the following facts. Beginning in August 2008, plaintiff, an
African American woman born in 1958, was employed by the EEOC as an Information
Specialist/Records Disclosure Coordinator for the Los Angeles District Office.
FAC ¶¶ 14, 16. Plaintiff has worked in the federal government for approximately thirty
years. Id. ¶ 15.
At an unspecified time, plaintiff’s manager, Thomas Profit, allegedly discriminated
against her on the basis of her age, race, and sex. 2 Id. ¶ 17.
On or about November 18, 2015, Profit put plaintiff on a “Performance
Improvement Plan” (“PIP”). Id. ¶¶ 17, 71. Plaintiff alleges that a PIP, which indicates
“performances issues,” remains on an employee’s file where it can be used as a tool to
justify terminating an employee. Id. A PIP can negatively impact an employee’s job
opportunities by preventing transfer and affecting pay or potential bonuses. Id. ¶ 17.
Plaintiff contends that the PIP inaccurately and unfairly criticized her work. Id.
On the same day, plaintiff contacted the EEOC to file a complaint for harassment
and discrimination. Id. ¶ 20.
Plaintiff requested a transfer away from Profit, but her request was denied.
Id. ¶ 18. Other transfer requests were granted to younger, non-African American women.
Id. Profit also revoked plaintiff’s ability to telecommute two days per week, while
permitting other employees who were not African American to continue to do so.
ceases to hold office while an action is pending, “the officer’s successor is automatically
substituted as a party.” Lipnic therefore substitutes for Yang as defendant in this suit.
2

Plaintiff does not specify which alleged discriminatory acts occurred prior to her
November 18, 2015 EEOC complaint.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
Title

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2:16-cv-07240-CAS(RAO)
Date June 12, 2017
LENEE SWEENEY v. JENNY R. CHANG ET AL.

Id. ¶¶ 18, 54. Another manager, Rosa Viramontes, made fun of plaintiff and told her that
“assistants did not want to listen to her because she was black.”3 Id. ¶ 19.
“After plaintiff complained,” individuals at the EEOC falsely told her that she had
reached her thirtieth year of employment with the federal government, and that she was
entitled to pension payments and lifetime medical benefits.4 Id. ¶ 58.
Profit told plaintiff that he had calculated her time and that she would be eligible
for retirement starting in December 2015. Id. ¶ 21. Plaintiff relied on Profit’s
representations that she could retire with full benefits. Id. ¶ 22. Plaintiff would not have
requested retirement if she “had been told the truth.” Id. Plaintiff alleges that Profit lied
to her about her eligibility for retirement benefits because he wanted to “get rid of” her
due to her age, sex, and race. Id. ¶ 23.
Unnamed individuals at the EEOC allegedly confirmed with plaintiff that she was
eligible to receive lifetime retirement benefits. Id. ¶ 24. These individuals knew that this
was false and had no intention to pay plaintiff her pension or medical benefits. Id.
Plaintiff contends that individuals at the EEOC wanted her to suffer as retaliation for her
complaints. Id.
In December 2015, plaintiff followed the directions of Pamela Akers, an EEOC
Benefits Specialist, and unnamed others and submitted her request to retire upon January
2016. Id. ¶ 21.
Plaintiff does not state how she discovered that she was not, in fact, entitled to
retire with lifetime benefits. Nonetheless, on or about January 29, 2016, plaintiff filed an
amended complaint with the EEOC based on “constructive discharge” due to the alleged
misrepresentation of her eligibility for retirement benefits. Id. ¶ 27. On February 10,
2016, plaintiff received a Notice of Acceptance and Amendment.5 Id. ¶ 11.

3

Plaintiff does not identify when these alleged discriminatory acts occurred.

4

Plaintiff does not further specify when these alleged misrepresentations occurred.

5

Plaintiff does not elaborate, but this notice seems to be an acknowledgment from
the EEOC of the receipt of an amended complaint.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
Title

‘O’

2:16-cv-07240-CAS(RAO)
Date June 12, 2017
LENEE SWEENEY v. JENNY R. CHANG ET AL.

On or about February 18, 2016, plaintiff received a letter from Ms. Williams
acknowledging that Akers had previously told plaintiff that her retirement package was
complete and submitted to the Office of Personnel Management (“OPM”).6 Id. ¶ 21. The
letter explained that the EEOC did not process plaintiff’s retirement package, despite
what Akers had told plaintiff, and that it had instead delayed processing by keeping it in
Akers’ office instead of forwarding the package to OPM. Id. ¶ 25.
Plaintiff applied to go back to work at multiple federal agencies to try to “make
up” the additional months she needed to reach the thirty-year anniversary for retirement
benefits. Id. ¶¶ 26, 28. Defendants defamed plaintiff by telling others that she was
“unstable” and should not be hired. Id. ¶ 26.
The EEOC advertised a job that plaintiff was qualified for, but refused to hire her
when she applied. Id. ¶ 31. Plaintiff continued to “beg” the EEOC to correct the
“mistake” as to her retirement benefits and provide her with medical insurance.
Id. ¶¶ 31–32.
Plaintiff suffered severe emotional distress due to lack of income, pension
payment, and insurance. Id. ¶ 30. Plaintiff became deeply depressed, but she could not
obtain medical treatment for depression because she did not have insurance. Id. ¶ 42.
Nine months after her retirement, plaintiff filed this lawsuit. Id. ¶ 33. Plaintiff
alleges that the EEOC failed to complete an investigation within 180 days of plaintiff’s
filing the amended charge. Id. ¶¶ 11–13. The EEOC allegedly knew its managing agents
had a policy to terminate employees who were over forty, and allowed this discriminatory
policy to continue. Id. ¶ 44. Plaintiff alleges that “defendants judged older workers,
including plaintiff, terminated her, and replaced her with a younger individual.” Id. ¶ 41.
Plaintiff seeks a declaration from the Court that she is entitled to immediate
institution of retirement benefits and reinstatement of medical insurance benefits.
Id. ¶ 34. Plaintiff requests back pay and back pension payments for the months of
December 2015 to present, as well as back payments for insurance benefits denied to her.
Id. ¶ 35. Plaintiff requests that, if there is any time left needed to obtain retirement
benefits for 30 years of service, she be credited with the past months and any additional
time needed. Id. ¶ 36.
6

Plaintiff does not further identify Ms. Williams or describe her employment role.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
Title
III.

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2:16-cv-07240-CAS(RAO)
Date June 12, 2017
LENEE SWEENEY v. JENNY R. CHANG ET AL.

LEGAL STANDARDS

Defendant seek dismissal of this action pursuant to Federal Rule of Civil Procedure
12(b)(1) and Rule 12(b)(6).
A.

Rule 12(b)(1)

A Rule 12(b)(1) motion tests whether the court has subject matter jurisdiction to
hear the claims alleged in the complaint. Fed. R. Civ. P. 12(b)(1). Such a motion may be
“facial” or “factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004). That is, a party mounting a Rule 12(b)(1) challenge to the court’s jurisdiction may
do so either on the face of the pleadings or by presenting extrinsic evidence for the court's
consideration. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000); Thornhill
Publishing co. v. General Tel. & Electronics, 594 F.2d 730, 733 (9th Cir. 1979).
Once a Rule 12(b)(1) motion has been raised, the burden is on the party asserting
jurisdiction. Sopcak v. N. Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir. 1995);
Ass’n of Am. Med. Coll. v. United States, 217 F.3d 770, 778–79 (9th Cir. 2000). If
jurisdiction is based on a federal question, the pleader must show that he has alleged a
claim under federal law and that the claim is not frivolous. See 5B Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure, § 1350, pp. 211, 231 (3d ed. 2004). If
jurisdiction is based on diversity of citizenship, the pleader must show real and complete
diversity, and also that his asserted claim exceeds the requisite jurisdictional amount of
$75,000. See id. When deciding a Rule 12(b)(1) motion, the court construes all factual
disputes in favor of the non-moving party. See Dreier v. United States, 106 F.3d 844,
847 (9th Cir. 1996).
B.

Rule 12(b)(6)

A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the claims asserted in a complaint. Under this Rule, a district court
properly dismisses a claim if “there is a ‘lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.’” Conservation Force v.
Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police Dep't,
901 F.2d 696, 699 (9th Cir. 1988)). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
Title

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2:16-cv-07240-CAS(RAO)
Date June 12, 2017
LENEE SWEENEY v. JENNY R. CHANG ET AL.

and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[F]actual allegations
must be enough to raise a right to relief above the speculative level.” Id.
In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all
material allegations in the complaint, as well as all reasonable inferences to be drawn
from them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be
read in the light most favorable to the nonmoving party. Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). However, “a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported by factual
allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); see Moss v. United States
Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (“[F]or a complaint to survive a motion
to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that
content, must be plausibly suggestive of a claim entitling the plaintiff to
relief.”). Ultimately, “[d]etermining whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Unless a court converts a Rule 12(b)(6) motion into a motion for summary
judgment, a court cannot consider material outside of the complaint (e.g., facts presented
in briefs, affidavits, or discovery materials). In re American Cont’l Corp./Lincoln Sav. &
Loan Secs. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on other grounds sub
nom Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A
court may, however, consider exhibits submitted with or alleged in the complaint and
matters that may be judicially noticed pursuant to Federal Rule of Evidence 201. In re
Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999); Lee v. City of Los
Angeles, 250 F.3d 668, 689 (9th Cir. 2001).
Federal Rule of Civil Procedure 8(a) provides that a pleading stating a claim for
relief must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). In order to meet this standard, a claim for
relief must be stated with “brevity, conciseness, and clarity.” See Charles A. Wright &
Arthur R. Miller, 5 Federal Practice and Procedure § 1215 (3d ed.). “The Plaintiff must
allege with at least some degree of particularity overt acts which Defendants engaged in
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
Title

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2:16-cv-07240-CAS(RAO)
Date June 12, 2017
LENEE SWEENEY v. JENNY R. CHANG ET AL.

that support the Plaintiff’s claim.” Jones v. Community Redevelopment Agency, 733
F.2d 646, 649 (9th Cir. 1984). The purpose of Rule 8(a) is to ensure that a complaint
“fully sets forth who is being sued, for what relief, and on what theory, with enough
detail to guide discovery.” McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996).
As a general rule, leave to amend a complaint that has been dismissed should be
freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when “the
court determines that the allegation of other facts consistent with the challenged pleading
could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture
Co., 806 F.2d 1393, 1401 (9th Cir. 1986); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th
Cir. 2000).
IV.

DISCUSSION
A.

Whether Defendant is Entitled to Sovereign Immunity

Defendant argues that plaintiff’s complaint fails to establish that sovereign
immunity has been waived for any possible claim against the federal defendant, and
accordingly, this action should be dismissed. MTD at 5–6.
“The United States, as sovereign, is immune from suit save as it consents to be
sued . . . and the terms of its consent to be sued in any court define that court’s
jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586 (1941).
A waiver of sovereign immunity must be “unequivocally expressed” by a “specific and
express statute” of Congress. United States v. King, 395 U.S. 1, 4 (1969). The scope of
any waiver of sovereign immunity must be “strictly construe[d] in favor of the
government.” Orff v. United States, 545 U.S. 596, 601–02 (2005). The scope of any
such waiver does not extend to claims not addressed or mentioned within the relevant
statutory text. See United States v. Nordic Vill. Inc., 503 U.S. 30, 34 (1992)
(government’s consent to be sued must not be “enlarged . . . beyond what the language
requires” (quotation marks omitted)). Conditions or limitations on the government’s
consent to suit must be strictly observed. Soriano v. United States, 352 U.S. 270, 276
(1957). Where the United States has not explicitly consented to suit, “dismissal of the
action is required.” Gilbert v. DaGrossa, 756 F.2d 1455, 1458. (9th Cir. 1985).
The party bringing a claim against the United States “has the burden of alleging an
act of Congress that authorizes the court to entertain that specific claim.” 16-105
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
Title

‘O’

2:16-cv-07240-CAS(RAO)
Date June 12, 2017
LENEE SWEENEY v. JENNY R. CHANG ET AL.

Moore’s Federal Practice - Civil § 105.21 (2017); e.g., Holloman v. Watt, 708 F.2d 1399
(9th Cir. 1983) (the complaining party “bears the burden of pointing to such an
unequivocal waiver of immunity”). Additionally, the Federal Tort Claims Act (“FTCA”)
explicitly declines to waive sovereign immunity for claims arising out of
misrepresentation, libel, slander, deceit, and interference with contract rights. 28 U.S.C.
§ 2680(h).
Here, plaintiff alleges that her federal claims arise under the ADEA and Title VII
of the Civil Rights Act of 1964 and incorporates these allegations as the basis for each
claim in the complaint. FAC ¶ 9. The ADEA and Title VII both unequivocally indicate
Congress’s consent to suit by federal government employees. The ADEA permits that
“any person aggrieved may bring civil action in any Federal district court of competent
jurisdiction [.]” 29 U.S.C. § 633a(c). Title VII provides that a federal government
employee “if aggrieved by the final disposition of his complaint, or by the failure to take
final action on his complaint, may file a civil action . . . in which . . . the head of the
department, agency, or unit, as appropriate, shall be the defendant.” 42 U.S.C. § 2000e16(c). Accordingly, the Court finds that the government has waived sovereign immunity
with respect to plaintiff’s federal claims for age discrimination, race discrimination, and
retaliation in violation of the ADEA and Title VII. The Court therefore DENIES
defendant’s motion to dismiss claims 1–3.
Plaintiff’s remaining state-law claims for fraud, misrepresentation, interference
with prospective business advantage, intentional infliction of emotional distress, and
defamation are outside the express scope of the ADEA and Title VII. Because plaintiff
has not met her burden of pointing to a specific act of Congress that unequivocally
waives sovereign immunity for these state-law claims, the Court lacks subject matter
jurisdiction to entertain them. See, e.g., Wright v. Meyer, 46 F. App’x 529, 530 (9th Cir.
2002) (holding that the district court properly dismissed claims against the federal
government because plaintiff failed to show an explicit waiver of sovereign immunity).
Furthermore, the FTCA expressly precludes plaintiff’s claims for
misrepresentation and fraud. 28 U.S.C. § 2680(h); see, e.g., United States v. Neustadt,
366 U.S. 696 (1961) (holding that claims arising out of negligent or fraudulent
misrepresentation are not actionable against the federal government); Pauly v. United
States Dep’t of Agric., 348 F.3d 1143, 1151 (9th Cir. 2003) (holding that a claim based
on the communication of misinformation upon which a recipient relies falls squarely
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
Title

‘O’

2:16-cv-07240-CAS(RAO)
Date June 12, 2017
LENEE SWEENEY v. JENNY R. CHANG ET AL.

within the definition of misrepresentation and sovereign immunity applies, regardless of
how plaintiffs label their tort claims).
Accordingly, the Court GRANTS defendant’s motion to dismiss claims 4, 5, 6, 7,
and 8 in their entirety.
B.

Whether Plaintiff’s Claims Are Legally Sufficient Under Rule 12(b)(6)

Defendant also moves to dismiss the complaint for failure to state a plausible claim
for relief under Rule 12(b)(6). MTD at 4–5. Specifically, defendant argues that the
pleading must offer “more than mere labels and conclusions.” Id. at 5. Plaintiff’s three
remaining claims allege age discrimination, race discrimination, and retaliation
respectively.
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court
laid out a framework for establishing a prima facie case of employment discrimination:
(1) membership in a protected group; (2) qualification for the job in question; (3) an
adverse employment action; and (4) circumstances that support an inference of
discrimination. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002). A plaintiff
may proceed using the McDonnell Douglas framework as a “useful ‘tool’” to reach trial,
or alternatively, “may simply produce direct or circumstantial evidence demonstrating
that a discriminatory reason more likely than not motivated” the employer’s actions.
McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004).
To state a plausible claim for age discrimination in violation of the ADEA using
the McDonnell Douglas framework, the complaint must allege that plaintiff was at least
forty years old, performed her job satisfactorily, suffered an adverse employment action,
and was “either replaced by a younger employee with equal or inferior qualifications or
discharged under circumstances otherwise giving rise to an inference of age
discrimination.” Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1049 (9th Cir.
2012).
Here, plaintiff alleges that she is a member of a protected class because she was 57
years old at the time of the events in the complaint. FAC ¶ 14. Plaintiff further alleges
that she had thirty years of experience working in the federal government and had
performed her job competently. Id. ¶ 40. Plaintiff contends that that her managers took
an adverse employment action against her by: (a) placing her on a PIP, id. ¶ 17;
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
Title

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2:16-cv-07240-CAS(RAO)
Date June 12, 2017
LENEE SWEENEY v. JENNY R. CHANG ET AL.

(b) denying plaintiff’s request to transfer away from Profit while granting similar requests
to other younger women, id. ¶ 18; and (c) constructively terminating plaintiff by
encouraging her to retire before her benefits had accrued, id. ¶¶ 23–24, 27. Plaintiff avers
that defendants replaced her with a younger individual. Id. ¶ 41. Plaintiff further
contends that plaintiff applied for an advertised job that she was qualified for, but
defendant refused to rehire her, id. ¶ 31, and that the EEOC’s managing agents had a
policy of terminating employees over forty in violation of the law, id. ¶ 44. Taking these
allegations as true, the Court finds that plaintiff sufficiently pleads facts that, if proven,
would establish plaintiff’s age was a factor in the EEOC’s decision to constructively
terminate plaintiff and not to rehire her. Accordingly, the Court concludes that plaintiff
has adequately stated a claim for age discrimination under the ADEA.
To establish a prima facie case for racial discrimination in violation of Title VII,
plaintiff must allege that: (1) she belongs to a protected class; (2) she is qualified for the
job in question; (3) she suffered an adverse employment action; and (4) similarly situated
employees were treated more favorably, or other circumstances giving rise to an
inference of discrimination. Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 691 (9th
Cir. 2017).
Here, plaintiff alleges that she is a member of a protected group because she is
African American. FAC ¶ 4. Plaintiff further alleges that she had thirty years of
experience working in the federal government and had performed her job competently.
Id. ¶ 53. Plaintiff contends that her supervisor took an adverse employment action
against her by: (a) placing her on a PIP, id. ¶ 17, (b) revoking her ability to telecommute
while allowing employees who were not African American to continue to do so, id. ¶ 54,
(c) denying her request to transfer away from Profit while granting similar requests to
other non-African American women, id. ¶ 18, and (d) constructively terminating plaintiff
by encouraging her to retire before her benefits had accrued, id. ¶¶ 23–24, 27. Plaintiff
avers that a manager told her that “assistants did not want to listen to her because she was
black.” Id. ¶ 19. Plaintiff further contends that she applied for an advertised job that she
was qualified for, but defendant refused to rehire her. Id. ¶ 31. Taking these allegations
as true, the Court finds that plaintiff sufficiently pleads facts that, if proven, would
establish plaintiff’s race was a factor in the EEOC’s decision to constructively terminate
plaintiff and not to rehire her. Accordingly, the Court concludes that plaintiff has
adequately stated a claim for race discrimination under Title VII.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
Title

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2:16-cv-07240-CAS(RAO)
Date June 12, 2017
LENEE SWEENEY v. JENNY R. CHANG ET AL.

Similarly, to state a plausible claim for retaliation under Title VII, plaintiff must
allege that: (1) she acted to protect her Title VII rights; (2) an adverse employment action
was thereafter taken against her; and (3) a causal link existed between the two events.
McGinest, 360 F.3d at 1124.
Here, plaintiff alleges that she engaged in protected behavior because she filed a
complaint with the EEOC about age, race, and sex discrimination. Id. ¶ 70. Plaintiff
further alleges that she had thirty years of experience working in the federal government
and had performed her job competently. Id. ¶ 53. Plaintiff contends that her supervisor
took an adverse employment action by: (a) placing her on a PIP, id. ¶ 71, and
(b) constructively terminating plaintiff by encouraging her to retire before her benefits
had accrued, id. ¶¶ 23–24, 27. Plaintiff avers that individuals at the EEOC falsely told
plaintiff that her retirement payments were approved because they wanted to “punish”
plaintiff for her complaints. Id. ¶¶ 74, 77. Plaintiff further contends that plaintiff applied
for an advertised job that she was qualified for, but defendant refused to rehire
her. Id. ¶ 31. Taking these allegations as true, the Court finds that plaintiff sufficiently
pleads facts that, if proven, would establish that retaliation for plaintiff’s protected
behavior was a factor in defendant’s decision to constructively terminate plaintiff and not
rehire her. Accordingly, the Court concludes that plaintiff has adequately stated a claim
for retaliation under Title VII.
C.

Whether Plaintiff May Request Punitive Damages

Defendant moves to strike plaintiff’s request for punitive damages from the
complaint. MTD at 8–9. The Civil Rights Act of 1991 allows recovery of punitive
damages for employment discrimination against a respondent “other than a government,
government agency or political subdivision.” 42 U.S.C. § 1981a(b)(91). Courts have
applied this language to prohibit awards or requests for punitive damages against
governmental entities in actions under Title VII. See, e.g., In re Sparkman, 703 F.2d
1097, 1100 (9th Cir. 1983) (affirming “long-established principle” that the United States,
its agencies, and instrumentalities cannot be held liable for punitive damages unless there
is express statutory authorization for such liability”).
Here, plaintiff filed this action against the EEOC, a government agency, with the
Chair of the Commission serving as defendant. The defendant clearly falls within the
category of government entities from which 42 U.S.C. § 1981 expressly precludes the
recovery of punitive damages. Although plaintiff’s state-law claims could give rise to
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
Title

‘O’

2:16-cv-07240-CAS(RAO)
Date June 12, 2017
LENEE SWEENEY v. JENNY R. CHANG ET AL.

punitive damages, the Court has already dismissed plaintiff’s state-law claims because
plaintiff cannot allege any facts to support such claims against this federal defendant.
Therefore, the Court DISMISSES plaintiff’s request for punitive damages.
D.

Whether Plaintiff Named the Proper Defendant

Defendant contends that plaintiff improperly names the EEOC as a party, and that
the only proper defendant in this action is the Commission’s Acting Chair, Victoria
Lipnic. MTD at 9.
Plaintiff’s remaining three claims are brought pursuant to the ADEA and Title VII.
Title VII expressly provides that if a federal employee is aggrieved by the final
disposition of a complaint or failure to take final action on a complaint, the employee
may file a civil action in which “the head of the department, agency, or unit, as
appropriate, shall be the defendant.” 42 U.S.C. § 2000e-16(c). Because the ADEA does
not specify who should be named as defendant in an age discrimination action, the Ninth
Circuit has relied on Title VII for guidance and held that § 2000e-16(c)’s identification of
the proper defendant for Title VII discrimination actions also applies to ADEA claims.
Romain v. Shear, 799 F.2d 1416, 1418 (9th Cir. 1986).
Here, plaintiff has named both the EEOC and the Chair as defendants. Because
Lipnic, Acting Chair of the EEOC, is the appropriate defendant under Title VII and the
ADEA, the Court DISMISSES plaintiff’s claims as against the EEOC.
V.

CONCLUSION

In accordance with the foregoing, the Court GRANTS defendant’s motion to
dismiss claims 4, 5, 6, 7, and 8. Plaintiff’s claims for fraud, misrepresentation,
interference with prospective business advantage, intentional infliction of emotional
distress, and defamation are hereby DISMISSED. The Court DISMISSES plaintiff’s
request for punitive damages. Furthermore, the Court DISMISSES the EEOC as a
defendant in this action.
The Court DENIES defendant’s motion to dismiss plaintiff’s claims against Lipnic
for age discrimination (claim 1), race discrimination (claim 2), and retaliation (claim 3).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
Title

‘O’

2:16-cv-07240-CAS(RAO)
Date June 12, 2017
LENEE SWEENEY v. JENNY R. CHANG ET AL.

Because amendment to plaintiff’s complaint would be futile, the Court ORDERS
defendant to file an answer within fourteen (14) days of the date of this order.
IT IS SO ORDERED.
00
Initials of Preparer

CV-7240 (06/17)

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00
CMJ

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