Phan v. Employment Development Department

Filing 48

ORDER granting 43 Motion to Dismiss signed by District Judge Kimberly J. Mueller on 7/20/17. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LOAN PHAN,

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Plaintiffs,

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No. 2:16-cv-00256-KJM-CKD

v.

ORDER

EMPLOYMENT DEVELOPMENT
DEPARTMENT,
Defendant.

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Plaintiff Loan Phan brings this civil rights action against her former employer,

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Employment Development Department (“EDD”), asserting claims of discrimination, harassment

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and retaliation under Title VII. See Fourth Am. Compl. (“FAC”), ECF No. 42. EDD moves to

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dismiss the fourth amended complaint. Mot., ECF No. 43. Phan opposes. Opp’n, ECF No. 44.

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EDD filed a reply. Reply, ECF No. 45. The court submitted the matter without oral argument.

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ECF No. 47. For the reasons discussed below, the court GRANTS the motion with prejudice.

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I.

BACKGROUND
A.

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Factual Allegations
Phan worked for EDD as an Employment Program Representative from June 2009

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until May 2012 and then as an Accountant Trainee until November 2013. FAC ¶ 5. Phan is

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Vietnamese and speaks English as a second language and with a heavy accent. Id. ¶¶ 7, 9. For

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each of these reasons, Phan alleges she experienced discrimination, harassment and retaliation at

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EDD starting in 2009. See generally id.

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Little else from the fourth amended complaint is clear. Phan alleges her

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colleagues and supervisors mistreated her, id. ¶ 9, but she does not say who, when or in what

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office this conduct occurred. Similarly, she alleges she “complained” about this mistreatment to

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her supervisors and the mistreatment worsened, id. ¶ 6, but provides few details about the

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complaints or the mistreatment. The operative complaint does provide the following specific,

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albeit stray, allegations: although Phan worked within a unit of foreign language speaking

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employees, she was the only employee not certified in a foreign language, id. ¶ 12; during Phan’s

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training starting in 2012, one of her trainers did not adhere to Phan’s training schedule, id. ¶ 16;

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in spring 2013, she submitted but then withdrew two applications for a promotion, id. ¶¶ 22, 25;

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and Phan was subjected to “name-calling” and was told she had a “hormone problem” and that

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she was “crazy,” id. ¶ 27.

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B.

Procedural Background

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On January 21, 2014, Phan filed a complaint with the Equal Employment

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Opportunity Commission (“EEOC”) and another with the California Department of Fair

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Employment and Housing (“DFEH”). Id. ¶ 29. She received a right-to-sue letter from the EEOC

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in November 2015. Id. Ex. B.

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Phan filed the original complaint and a first amended complaint, proceeding pro

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se, in early 2016. Compl., ECF No. 1; First Am. Compl., ECF No. 5. After acquiring counsel,

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ECF No. 14, the parties stipulated to permit a second and third amended complaint. Second Am.

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Compl., ECF No. 28; Third Am. Compl., ECF No. 34. At hearing held on March 24, 2017, the

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court granted EDD’s motion to dismiss the third amended complaint, stating its reasons for

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dismissal on the record. See Hr’g Mins., ECF No. 41.

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Three weeks later, Phan filed the operative fourth amended complaint. See FAC.

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Phan makes the following claims against EDD, all brought under Title VII of the Civil Rights Act

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of 1964, 42 U.S.C. §§ 2000e–e-17: (1) Discrimination on the basis of Race, National Origin,

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and/or Ethnicity; (2) Harassment on the basis of Race, National Origin, and/or Ethnicity; and

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(3) Retaliation on the basis of Race, National Origin, and/or Ethnicity. See FAC ¶¶ 36–60.

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As noted, EDD moves to dismiss all claims. See generally Mot.
II.

STANDARDS ON MOTION TO DISMISS
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to

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dismiss a complaint for “failure to state a claim upon which relief can be granted.” A court may

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dismiss “based on the lack of cognizable legal theory or the absence of sufficient facts alleged

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under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

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1990). In making this determination, a court considers “only allegations contained in the

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pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.”

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Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per curiam).

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Although a complaint need contain only “a short and plain statement of the claim

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showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), in order to survive a motion

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to dismiss this short and plain statement “must contain sufficient factual matter . . . to ‘state a

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claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something

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more than “an unadorned, the-defendant-unlawfully-harmed-me accusation” or “‘labels and

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conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Id. (quoting

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Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss

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for failure to state a claim is a “context-specific task that requires the reviewing court to draw on

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its judicial experience and common sense.” Id. at 679. Ultimately, the inquiry focuses on the

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interplay between the factual allegations of the complaint and the dispositive issues of law in the

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action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

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In making this context-specific evaluation, this court must construe the complaint

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in the light most favorable to the plaintiff and accept as true the factual allegations of the

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complaint. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007). This rule does not apply to “a legal

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conclusion couched as a factual allegation,” Papasan v. Allain, 478 U.S. 265, 286 (1986), nor to

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“allegations that contradict matters properly subject to judicial notice” or to material attached to
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or incorporated by reference into the complaint, Sprewell v. Golden State Warriors, 266 F.3d 979,

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988–89 (9th Cir. 2001). A court’s consideration of documents attached to a complaint or

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incorporated by reference or matter of judicial notice will not convert a motion to dismiss into a

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motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003);

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Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); compare Van Buskirk v.

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Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002) (noting that even though court may

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look beyond pleadings on motion to dismiss, generally court is limited to face of the complaint on

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12(b)(6) motion).

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III.

DISCUSSION

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As explained below, EDD argues correctly that Phan’s claims are time-barred.

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Mot. at 3.

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A.

Applicable Legal Standards: Time Bar

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Any adverse employment action “which is not made the basis for a timely charge

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is the legal equivalent of a discriminatory act which occurred before the statute was passed” and,

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as such, “it is merely an unfortunate event in history which has no present legal consequences.”

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United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977). “Discrimination claims under Title

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VII ordinarily must be filed with the EEOC within 180 days of the date on which the alleged

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discriminatory practice occurred.” Laquaglia v. Rio Hotel & Casino, Inc., 186 F.3d 1172, 1174

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(9th Cir. 1999) (citing 42 U.S.C. § 2000e–5(e)(1)). “However, if the claimant first ‘institutes

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proceedings’ with a state agency that enforces its own discrimination laws—a so-called ‘deferral’

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state—then the period for filing claims with the EEOC is extended to 300 days.” Id.

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California is a deferral state, Bouman, 940 F.2d at 1219–20, and Phan filed a

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complaint with DFEH, California’s relevant state agency, FAC ¶ 29. Thus, the 300-day

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limitation applies. Harris v. City of Fresno, 625 F. Supp. 2d 983, 998 (E.D. Cal. 2009); see also

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Bouman, 940 F.2d at 1219–20. “[E]ach discrete act starts a new clock for filing charges alleging

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that act,” and “discrete discriminatory acts are not actionable if time barred, even when they are

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related to acts alleged in timely filed charges.” Natl. R.R. Passenger Corp. v. Morgan, 536 U.S.

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101, 113 (2002); see also RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1061 (9th Cir.
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2002) (recognizing Morgan overruled Ninth Circuit authority that had held “if a discriminatory

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act took place within the limitations period and that act was ‘related and similar to’ acts that took

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place outside the limitations period, all the related acts—including the earlier acts—were

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actionable as part of a continuing violation”).

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In Morgan, the Court distinguished two types of actions that may be brought under

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Title VII: “discrete discriminatory acts” and claims alleging a “hostile work environment.”

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536 U.S. at 110; see Porter v. Cal. Dept. of Corrs., 419 F.3d 885, 893 (9th Cir. 2005). Morgan

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sets forth a list of discrete acts, which includes “acts such as termination, failure to promote,

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denial of transfer, or refusal to hire.” 536 U.S. at 114. In contrast to claims based on such

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discrete incidents, hostile-work-environment claims “involve[ ] repeated conduct” and require the

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plaintiff to demonstrate that “the workplace is permeated with discriminatory intimidation,

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ridicule, and insult that is sufficiently severe and pervasive to alter the conditions of the victim’s

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employment and create an abusive working environment.” Morgan, 536 U.S. at 115–16 (internal

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quotation marks omitted). To determine whether the conduct constitutes the same unlawful

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employment practice under the hostile-work-environment doctrine, a court considers whether the

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events were “sufficiently severe or pervasive,” and whether the earlier and later events amounted

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to “the same type of employment actions, occurred relatively frequently, [or] were perpetrated by

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the same managers.” Porter, 419 F.3d at 893 (quoting Morgan, 536 U.S. at 120). “Because the

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Supreme Court has explicitly differentiated between discrete employment acts and a hostile work

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environment, many courts have concluded that a discrete act cannot be part of a hostile work

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environment claim and instead constitutes a separate unlawful employment practice.” Crayton v.

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Ala. Dept. of Agric. & Indus., 589 F. Supp. 2d 1266, 1279–80 (M.D. Ala. 2008) (citing Porter,

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419 F.3d at 893); see also Rekow v. Sebelius, No. CIV 10–8156–PCT–PGR, 2011 WL 1791272,

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at *3 (D. Ariz. May 11, 2011) (collecting cases).

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B.

Analysis
Here, Phan filed her EEOC complaint on January 21, 2014. FAC ¶ 29. But for the

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hostile environment exception, Phan is limited to claims based on incidents occurring on or after

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March 27, 2013. See Harris, 625 F. Supp. 2d at 998. Phan alleges she experienced
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discrimination throughout her work at EDD starting in 2009. FAC ¶¶ 3, 10, 20. Much, if not all,

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of this conduct is ordinarily barred by Title VII’s statute of limitations. Laquaglia, 186 F.3d at

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1174.

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To overcome EDD’s timeliness challenge, Phan asserts a “continuing violation

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theory” no longer viable after Morgan. Opp’n at 2; RK Ventures, 307 F.3d at 1061 (explaining

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how Morgan overruled Ninth Circuit authority permitting a continuing violation theory). The

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court construes Phan’s argument to mean she instead relies on a “hostile work environment”

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theory, which may rely on conduct outside the limitations period, rather than a theory alleging

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“discrete discriminatory acts,” which cannot. Morgan, 536 U.S. at 113; Porter, 419 F.3d at 893.

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As noted above, discrete acts cannot be part of a hostile work environment claim. Porter,

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419 F.3d at 893; Crayton, 589 F. Supp. 2d at 1279–80. The question is whether Phan alleges a

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non-discrete act within the 300-day period prior to the filing of her federal complaint to support

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her hostile work environment claims. She has not.

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In deciding whether the complaint sufficiently alleges timely conduct, two initial

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principles narrow the court’s inquiry. First, in reviewing the complaint, the court does not accept

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as true conclusory allegations. Papasan, 478 U.S. at 286. So, for example, Phan’s allegation she

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was “subjected to retaliation and unlawful treatment” is not credited, regardless of when it

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occurred. FAC ¶ 18; see also id. ¶¶ 17, 22–23. Second, the court does not presume phrases such

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as “throughout 2013” point to timely conduct occurring after March 27, 2013. Id. ¶¶ 15–16, 18,

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27. These phrases are partially contradicted by the complaint itself, which alleges Phan stopped

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working in November 2013. Id. ¶ 5; see also Sprewell, 266 F.3d at 988–89 (explaining a court

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need not accept as true contradicted allegations). And vague phrases of “throughout 2013” or

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“during 2013” do not address the court’s reasons for prior dismissal of the complaint, which made

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clear Phan’s obligation to allege conduct occurring specifically on or after March 27, 2013

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Phan’s one remaining allegation also does not survive EDD’s motion. Phan

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alleges she was the only employee in her unit that lacked a foreign language certification, which

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meant she received less pay. FAC ¶ 12. But EDD’s alleged failure to certify is but one

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discriminatory act that “constitutes a separate actionable ‘unlawful employment practice.’”
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Morgan, 536 U.S. at 114; see also id. (enumerating a “failure to promote” as a discrete act).

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EDD’s discrete act or acts must have occurred on or after March 27, 2013 to be timely, but Phan

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does not clearly allege when EDD failed to certify here. FAC ¶ 12. Thus, Phan has not alleged

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any actionable conduct. See Yonemoto v. Shinseki, 3 F. Supp. 3d 827, 845 (D. Haw. 2014)

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(dismissing claims tied to untimely discrete acts); cf. RK Ventures, 307 F.3d 1061–62 (holding all

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acts, except one discrete act that clearly fell within the limitations period, were time-barred).

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Without explanation, Phan alleges only generally EDD’s failure to certify was somehow ongoing

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and that “some of this conduct occurred from March 2013 through January 2014, and

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continuing.” FAC ¶ 12. Setting aside Phan’s inconsistent allegation that she stopped working in

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November 2013, id. ¶ 5, Phan cannot merely repackage a discrete act as ongoing to circumvent

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the Supreme Court’s teaching in Morgan. See Rekow, 2011 WL 1791272, at *3 (dismissing

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claims as untimely where, “[d]espite her current characterization of the Complaint as alleging a

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hostile work environment, it is clear that Plaintiff has raised these allegations as discrete instances

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of discrimination”). Phan has at best alleged an untimely discrete act that cannot support her

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hostile work environment claim.

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Phan has not alleged any actionable conduct to support any claim. Dismissal is

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therefore appropriate on her claims of discrimination, harassment and retaliation. See, e.g.,

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Gulden v. Geren, No. CV 08–1805–PHX–NVW, 2009 WL 536558, at *1 (D. Ariz. Mar. 4, 2009)

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(dismissing claim of retaliation in the form of hostile work environment where plaintiff had “not

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alleged a non-discrete act contributing to the allegedly hostile environment that took place within

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the statutory time period”). The court need not reach the substance of Phan’s allegations; it

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GRANTS the motion to dismiss.

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IV.

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LEAVE TO AMEND
Although the court “should freely give leave when justice so requires,” Fed. R.

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Civ. P. 15, and even permit amendment with “extreme liberality,” Eminence Capital, LLC v.

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Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quoting Owens v. Kaiser Found. Health Plan,

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Inc., 244 F.3d 708, 712 (9th Cir. 2001)), the court need not grant leave to amend the complaint if

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defects could not possibly be cured by the allegation of other facts, Sharkey v. O’Neal, 778 F.3d

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767, 774 (9th Cir. 2015) (citing Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)).

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Here, Phan asks for leave to file a fifth amended complaint. See Opp’n at 3–4.

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Although Phan filed the original and first amended complaint proceeding pro se, she had the

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benefit of counsel in filing the subsequent three amendments. See ECF Nos. 1, 4, 28, 34, 42. The

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court’s order dismissing the third amended complaint, like this order dismissing the fourth,

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expressly relied on the absence of timely conduct to support Phan’s claims. See Hr’g Mins. In

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these circumstances, the court finds the complaint’s defects cannot be cured; otherwise Phan in

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her three previous attempts would have done so already. The court DENIES Phan’s request for

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leave to amend the complaint.

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V.

CONCLUSION

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The court GRANTS EDD’s motion to dismiss with prejudice.

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IT IS SO ORDERED.

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DATED: July 20, 2017.

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UNITED STATES DISTRICT JUDGE

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