Walker v. CA Employment Development Dept.

Filing 10

ORDER dismissing 9 Amended Complaint pursuant to 28 U.S.C. § 1915 with leave to amend. Plaintiff may file a second amended complaint no later than May 3, 2017. The case management conference previously set for April 7, 2017 is continued to June 30, 2017 at 2:00 PM. Signed by Chief Magistrate Judge Joseph C. Spero on April 5, 2017. (jcslc2S, COURT STAFF) (Filed on 4/5/2017) (Additional attachment(s) added on 4/5/2017: # 1 Certificate/Proof of Service) (klhS, COURT STAFF).

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
COLLEEN DENISE WALKER,

7

Case No. 17-cv-00071-JCS

Plaintiff,
8
v.
9
CA EMPLOYMENT DEVELOPMENT
DEPT.,

11
United States District Court
Northern District of California

10

ORDER DISMISSING AMENDED
COMPLAINT PURSUANT TO 28 U.S.C.
§ 1915 WITH LEAVE TO AMEND

Defendant.

12

I.

13

Re: Dkt. No. 9

INTRODUCTION
Plaintiff Colleen Denise Walker, pro se, brings this employment discrimination action

14

against her former employer, the California Employment Development Department (―EDD‖). The

15

Court previously granted Walker‘s application to proceed in forma pauperis (dkts. 2, 4) and now

16

reviews the sufficiency of her amended complaint1 pursuant to 28 U.S.C. § 1915(e)(2). For the

17

reasons discussed below, the amended complaint is DISMISSED with leave to amend. Walker

18

may file a second amended complaint addressing the deficiencies discussed herein no later than

19

May 3, 2017.2 The case management conference previously set for April 7, 2017 is hereby

20

CONTINUED to June 30, 2017 at 2:00 PM in Courtroom G, located on the fifteenth floor of the

21

San Francisco courthouse at 450 Golden Gate Avenue.

22

II.

Walker brings this action under Title VII of the Civil Rights Act of 1964, alleging

23
24

THE AMENDED COMPLAINT

employment discrimination in the course of her employment with EDD at a call center. Am.

25
1

26
27
28

Walker filed an amended complaint (dkt. 9) before the Court determined whether her initial
complaint should be served on EDD.
2
Walker has consented to the jurisdiction of the undersigned magistrate judge for all purposes
pursuant to 28 U.S.C. § 636(c). Because no other party has yet been served or appeared, Walker is
currently the only party to the case and her consent is sufficient for the undersigned to evaluate her
amended complaint.

1

Compl. (dkt. 9). She describes the ―acts complained of‖ as follows:

2

Management caused a stressful work environment in lieu of my
medical condition and denied me a work environment free of
discrimination. Harassment by management regarding the
nationality of my fiancé (Iranian) and defamation of my character as
a U.S. Veteran. Denied access to my Department of Veteran Affairs
physician after causing Acute Stress in workplace and directed me
to return to harassing and stressful environment. Forced to quit on
January 6, 2016 due to working conditions that were affecting my
physical and mental health.

3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17

Id. ¶ 4 (sic throughout).
Walker alleges that EDD discriminated against her based on her race or color, her status as
a veteran, and her fiancé‘s Iranian descent. Id. ¶ 5. She describes the facts of her claim as
follows:
Questioned and denied access to VA urgent care via email in 2012
by manager Raymond Tapia, resulting in emergency hospitalization,
voiced concern to Senator Eric Swalwell (Exhibit A) Management
posted my fiancés Nader Zand picture in front entrance and lunch
room (Exhibit B) Retaliation by management regarding my rights to
a discrimination free work environment (Exhibit‘s C & D), Called
CHP on me at workplace (Exhibit E), Processed over 3000
electronic Spanish claims during overtime backlog, but denied
hardship transfer because I do not speak Spanish (Exhibit F),
Addressed concerns to U.S. Senators (Exhibit G), Great concerned
ignored (Exhibit H), Denied access to VA healthcare because
emergency card was missing (Exhibit I).

18

Id. ¶ 6 (sic throughout). The exhibits attached to Walker‘s amended complaint are summarized

19

below in chronological order, with the exception of Exhibit B, which is a photograph of a bulletin

20

board that includes one posting with a picture of a man‘s face. See Am. Compl. Ex. B. Walker

21

alleges that the discrimination at issue occurred on or about December 7, 2015, and that she

22

received a right-to-sue letter from the Equal Employment Opportunity Commission on December

23

7, 2016. Am. Compl. ¶¶ 7, 9.

24

Exhibit A is a letter to Walker from U.S. Representative Eric Swalwell, dated July 25,

25

2014. Am. Compl. Ex. A. This letter does not reference any correspondence from Walker to

26

Swalwell, but instead states Swalwell‘s opposition to the Supreme Court‘s holding in Burwell v.

27

Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), and his view that ―[h]ealth care decisions

28

should be made by a woman in consultation with her family, her faith, and her physician – not her
2

1

boss.‖ Am. Compl. Ex. A. The version of this letter attached to the amended complaint also

2

includes a photocopy of a Department of Veterans Affairs card bearing Walker‘s name and

3

photograph. Id.

4

Exhibit C is a memorandum from A‘Nette Knox-Talley to Walker dated July 24, 2015 and
captioned ―Memorandum of Discussion – Disturbances at Workplace.‖ Am. Compl. Ex. B

6

(capitalization altered). The memorandum describes an incident in which Walker‘s fiancé Nadder

7

Zand stood near the EDD office building staring into a window, and another incident in which he

8

stood outside the gate of building yelling: ―You, I want to talk to you, what the hell is going on

9

with management? Come here, I want to talk to you, Damn you, Tammy? What the hell is going

10

on?‖ Id. at 1 (purporting to quote Zand). According to Knox-Talley, Walker stated: (1) that Zand

11
United States District Court
Northern District of California

5

grabbed Walker‘s arm and yelled at her when she went outside to talk to him; (2) that Zand had

12

refused Walker‘s requests to stop coming to the office because he believed he needed to protect

13

her; (3) that over the previous few months Zand had begun yelling at Walker to come meet him

14

during her breaks from work; and (4) that Zand asked for the names of some of Walker‘s

15

coworkers and supervisors and wanted to speak to them directly. Id. at 1−2. Knox-Talley wrote

16

that she had advised Walker that Zand‘s behavior was ―impacting the office‖ and Walker‘s ability

17

to focus on work, that Walker should contact the Oakland Police Department if she thought that

18

was necessary, that it was Walker‘s responsibility to resolve the issue so that it did not disrupt the

19

workplace, and that Knox-Talley expected Walker to do so immediately. Id. at 2. The

20

memorandum also advised Walker that resources were available through EDD‘s employee

21

assistance program. Id. Knox-Talley signed the memorandum, but Walker refused to sign it. Id.

22

The same day that Knox-Talley issued her the memorandum, Walker sent an email to

23

Ernesto Magana, another EDD employee, stating that she wanted to dispute aspects of the

24

memorandum and raise concerns, and asking to whom she should direct such a response. Am.

25

Compl. Ex. C-1. Magana responded eleven minutes later to ask Walker how she wished to

26

proceed, and suggested the possibilities of submitting a rebuttal to the memorandum, a formal

27

complaint, or a union grievance. Id.

28

Walker sent a rebuttal to Knox-Talley on July 27, 2015. Am. Compl. Ex. C-2. She wrote
3

1

that the issues arose from incidents where she was docked pay or questioned when she stayed

2

home from work due to illness or back pain. Id. at 1. According to Walker, Zand was concerned

3

that Walker had been treated with indifference by management, but Walker asserted that aspects

4

of Knox-Talley‘s characterization of Zand‘s behavior were inaccurate, and that her ability to focus

5

on her job had not been affected. Id. According to Walker, the California Highway Patrol had

6

been called to the office, and had told her that Zand could walk with her during her breaks as long

7

as he was not on state property. Id. at 2.

8

On August 12, 2015, Tammy Johnson sent a memorandum to Walker denying her request

9

for a hardship transfer. Am. Compl. Ex. F. Johnson explained that the only positions available at
the offices to which Walker wished to transfer required Spanish language ability. Id. at 1. She

11
United States District Court
Northern District of California

10

encouraged Walker to watch for other available positions and apply if a suitable position became

12

available, and also noted that she might benefit from EDD‘s employee assistance program. Id.

13

Johnson also sent a letter to Yvonne R. Walker (no apparent relation to Plaintiff Colleen Walker),

14

the president of the relevant chapter of the Service Employees International Union, notifying the

15

union that the request for hardship transfer had been denied because the only open position

16

required an employee to speak Spanish. Id. at 3.
Exhibit E-1 to the complaint is a partially redacted copy of an ―Arrest - Investigation

17
18

Report‖ completed by Officer Jose Avina of the California Highway Patrol, listing Walker as the

19

subject and ―Incident‖ as the offense investigated. See Am. Compl. Ex. E-1. The report, which is

20

dated November 19, 2015, describes an incident that occurred on November 18, 2015. See id. In

21

the narrative supplement to the report, Avina explains that he was dispatched to investigate ―a

22

remote control drone and a possibility of an employee carrying a concealed fire arm‖ (sic) at

23

Walker‘s workplace. Am. Compl. Ex. E-2. As far as can be discerned from the unredacted

24

portions of the report, an employee told Avina that a coworker‘s ―husband‖3 was flying a drone

25

over the building, and also that another person had told that employee that another employee

26

(apparently Walker) said that ―she carried a [sic] ‗M-16‘ in her new purse.‖ Id. Avina spoke to

27
3

28

References to Walker‘s ―husband‖ in Avina‘s report appear to erroneously refer to her fiancé,
Zand. There is no indication outside of Avina‘s report that Walker was married.
4

1

the person to whom Walker had made the comment about the purse—apparently Elizabeth Reed—

2

and Reed said she had complimented Walker on the purse and believed Walker was trying to make

3

a joke, but nevertheless ―felt it should be addressed.‖ Id. When Avina spoke to Walker, Walker

4

told him that she was joking, she had never brought a gun to work, ―neither she nor her husband

5

[sic] own a firearm,‖ the bag was too small to hold the types of guns she had mentioned, and her

6

coworkers were paranoid. Id. Walker also told Avina that her ―husband‖ (sic) was not the person

7

flying the drone and that neither she nor him owned a drone. Id. Avina explained that comments

8

about weapons at work can alarm fellow employees and that issues with Walker‘s ―husband‖ (sic)

9

could result in him being banned from the workplace; Walker ―related that she understood.‖ Id.

10

Avina relayed Walker‘s responses to others at EDD and did not recommend further action. Id.

United States District Court
Northern District of California

11

On December 14, 2015, Walker sent an email to Knox-Talley, her supervisor, stating that

12

she had previously objected to the decision to transfer some of the people from Knox-Talley‘s unit

13

to a different unit headed by Ray Tapia. Am. Compl. Ex. H. Walker wrote: ―Due to prior events

14

when I was previously in his unit and events/actions that have been occurring towards me over the

15

past year; this is starting to cause me great stress and chest pains working here at the Oakland

16

Primary Call Center.‖ Id.

17

On December 17, 2014, EDD Northern Operations Division Chief Maria Rutherford issued

18

Walker a ―Corrective Action Memorandum‖ for ―Discourteous Behavior,‖ which generally

19

describes the same events as Officer Avina‘s report. Am. Compl. Ex. D-1 (capitalization altered).

20

Rutherford wrote that after Walker‘s coworker Elizabeth Reed complemented Walker‘s bag,

21

Walker responded that the bag ―was to carry my Tech 9 or M16 in,‖ and another coworker

22

overheard the conversation. Id. at 1. Walker later met with a manager, James Thomas, to discuss

23

the incident and said that she wished she could take back the comment because of how others

24

perceived her. Id. Walker was issued a reminder of EDD‘s zero tolerance policy regarding threats

25

and violence and completed an online training course. Id. Rutherford wrote that Walker‘s

26

―behavior created a disruption‖ and was ―completely unacceptable,‖ and directed Walker to ―treat

27

everyone with dignity and respect.‖ Id. at 2. Both Rutherford and Walker signed this

28

memorandum. Id.
5

Walker sent a rebuttal to Rutherford on December 20, 2015, stating that she intended the

2

comment about keeping a gun in her handbag as a joke, Reed understood it as such and laughed,

3

and both of them thought nothing of it at the time. Am. Compl. Ex. D-3. Walker implied that it

4

would be absurd to take the comment literally because ―this handbag is the size of a Starbucks

5

paper bag.‖ Id. She was embarrassed to be escorted outside to speak to law enforcement about

6

the incident, and wrote that attention from that incident and from her fiancé‘s picture being posted

7

in the office caused her to seek a transfer to a different office, which was denied because she did

8

not speak Spanish. Id. She also wrote that she did not expect her later conversation with James

9

Thomas—whom she confided in ―based on the understanding that he is also an African American

10

Veteran and would understand where I was coming from‖—to be cited as further documentation

11
United States District Court
Northern District of California

1

of her having made threats or disrupted the workplace. Id.

12

Exhibit I-1 to the complaint consists of an EDD ―Emergency Assistance Information‖ form

13

dated December 21, 2015 and listing Walker‘s contact information, emergency contact person,

14

and physician. Id. The same page includes a confirmation that Walker had checked in for

15

appointments at ―OAK URGENT CARE CLINIC‖ and ―OAK BEHAV HLTH PCMHI LOCUM‖

16

on December 24, 2015. Id.

17

Exhibit I-2 consists of an initial intake assessment from a mental health consultation at the

18

Oakland VA clinic on December 24, 2015. Am. Compl. Ex. I-2. The author of the assessment,

19

Victoria Russell, wrote that Walker‘s division chief referred her to a ―WC clinic‖ after noticing

20

acute stress in Walker‘s voice two days before. Id. A medical doctor at the clinic had diagnosed

21

―acute stress reaction‖ but sent Walker back to work. Id. Walker reported to Russell that she did

22

not think that response was appropriate for her symptoms and that she had been experiencing

23

harassment at work for two years, including an incident two years before where she was denied

24

sick leave but left work anyway, and ultimately needed surgery at an emergency room. Id.

25

Walker had been transferred away from the supervisor (presumably Tapia) who denied her sick

26

leave, but had recently been transferred back to him, and was experiencing anxiety, chest pain, and

27

difficulty sleeping. Id. According to Russell, Walker ―describe[d] unusual patterns of harassment,

28

which a reasonable person would find discomfiting.‖ Id.
6

On August 18, 2016, Walker received a letter from the office of Senator Dianne Feinstein

1
2

stating that Feinstein was ―sorry to hear about [Walker‘s] difficulties with discrimination at work,‖

3

but that the issue fell outside of Feinstein‘s ―jurisdiction as a United States Senator.‖ Am. Compl.

4

Ex. G-1. Feinstein encouraged Walker to contact the office of Jerry Brown, the Governor of

5

California. Id. On August 31, 2016, Walker received a letter from Eric José Vizcaíno, Director of

6

Constituent Services for Senator Barbara Boxer, stating that Walker‘s issue ―appears to fall under

7

the jurisdiction of the State of California‖ and that Vizcaíno had therefore forwarded Walker‘s

8

correspondence to the director of the California Department of Fair Employment and Housing.

9

Am. Compl. Ex. G-2.

10

III.

ANALYSIS

United States District Court
Northern District of California

11

A.

12

Where a plaintiff is found to be indigent under 28 U.S.C. § 1915(a)(1) and is granted leave

Legal Standard

13

to proceed in forma pauperis, courts must engage in screening and dismiss any claims which:

14

(1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek

15

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see

16

Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). Rule 8(a)(2) of the Federal Rules of Civil

17

Procedure provides that a pleading must contain a ―short and plain statement of the claim showing

18

that the pleader is entitled to relief.‖ A complaint that lacks such statement fails to state a claim

19

and must be dismissed.

20

In determining whether a plaintiff fails to state a claim, the court assumes that all factual

21

allegations in the complaint are true. Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th

22

Cir. 1995). However, ―the tenet that a court must accept a complaint‘s allegations as true is

23

inapplicable to legal conclusions [and] mere conclusory statements.‖ Ashcroft v. Iqbal, 556 U.S.

24

662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The pertinent

25

question is whether the factual allegations, assumed to be true, ―state a claim to relief that is

26

plausible on its face.‖ Id. (citing Twombly, 550 U.S. at 570). Thus, to meet this requirement, the

27

complaint must be supported by factual allegations. Id.

28

Where the complaint has been filed by a pro se plaintiff, as is the case here, courts must
7

1

―construe the pleadings liberally . . . to afford the petitioner the benefit of any doubt.‖ Hebbe v.

2

Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). ―A district court should not dismiss a

3

pro se complaint without leave to amend unless ‗it is absolutely clear that the deficiencies of the

4

complaint could not be cured by amendment.‘‖ Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

5

2012) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203−04 (9th Cir. 1988) (per curiam)).

6

Further, when it dismisses the complaint of a pro se litigant with leave to amend, ―the district court

7

must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the

8

litigant uses the opportunity to amend effectively.‖ Id. (quoting Ferdik v. Bonzelet, 963 F.2d

9

1258, 1261 (9th Cir. 1992)). ―Without the benefit of a statement of deficiencies, the pro se litigant
will likely repeat previous errors.‖ Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 624 (9th

11
United States District Court
Northern District of California

10

Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)).
Walker’s Amended Complaint Fails to State a Claim

12

B.

13

The only legal claim asserted in Walker‘s amended complaint is for employment

14

discrimination under Title VII. That law prohibits employers from discriminating based on an

15

―individual‘s race, color, religion, sex, or national origin.‖ 42 U.S.C. § 2000e-2(a). Whether

16

based on a theory of harassment or a more specific adverse employment action, a Title VII

17

plaintiff must generally present ―actions taken by the employer from which one can infer, if such

18

actions remain unexplained, that it is more likely than not that such action was based upon race or

19

another impermissible criterion.‖ Bodett v. CoxCom, Inc., 366 F.3d 736, 743 (9th Cir. 2004)

20

(quoting Gay v. Waiters’ Union, 694 F.2d 531, 538 (9th Cir. 1982)). Discrimination need not be

21

the only reason for the mistreatment. ―It suffices instead to show that the motive to discriminate

22

was one of the employer‘s motives, even if the employer also had other, lawful motives that were

23

causative in the employer‘s decision.‖ Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517,

24

2523 (2013).

25

A plaintiff may rely either on direct evidence that her mistreatment was motivated by

26

discrimination, or on circumstantial evidence by showing that: (1) she is a member of a protected

27

class; (2) she was qualified for her position and performed adequately; (3) she experienced adverse

28

employment action; and (4) similarly situated individuals not in her protected class were treated
8

1

more favorably, or other circumstances give rise to an inference of discrimination. See Hawn v.

2

Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010). Although a plaintiff does not

3

necessarily need to plead each of these elements specifically in her complaint, they nevertheless

4

―help to determine whether [she] has set forth a plausible claim.‖ Khalik v. United Air Lines, 671

5

F.3d 1188, 1192 (10th Cir. 2012); see also Jianjun Xie v. Oakland Unified Sch. Dist., No.

6

C 12-2950 CRB, 2013 WL 812425, at *4 n.3 (N.D. Cal. Mar. 5, 2013) (examining relevant

7

authority).

8
9

Walker‘s brief assertion that her ―race or color,‖ ―Veteran Status[,] and fiancé of Iranian
[descent]‖ motivated her alleged mistreatment, as well as the assertion that she suffered
―[h]arassment by management regarding the nationality of [her] fiancé (Iranian) and defamation of

11
United States District Court
Northern District of California

10

[her] character as a U.S. Veteran,‖ see Am. Compl. ¶¶ 4−5, are ―legal conclusions [and] mere

12

conclusory statements‖ that, without more, are not sufficient to state a claim. See Iqbal, 556 U.S.

13

at 678. Instead the Court must determine whether Walker‘s factual allegations plausibly support

14

the conclusion that her race, her fiancé‘s national origin, or her status as a veteran motivated any

15

adverse action by EDD. The Court finds Walker‘s present allegations insufficient.

16

Although Walker‘s allegations do not address her race, some of the exhibits to the

17

amended complaint suggest that she is African American. See Am. Compl. Ex. D-3 (stating that

18

Walker expected Thomas to understand her because he was ―also an African American Veteran‖);

19

id. Ex. E-1 (listing Walker‘s race as ―Black‖). She does not allege, however, that any EDD

20

employee overtly or implicitly indicated that Walker‘s treatment was based on her race, that

21

similarly situated non-African American employees were treated differently, or any other facts

22

from which the Court could plausibly infer that race was a factor in EDD‘s or its employees‘

23

alleged conduct. The documents attached to the amended complaint suggest that the disciplinary

24

memoranda that Walker received were based on her fiancé‘s conduct and on her comment about

25

having a gun, and that the denial of her request for a transfer was based on her inability to speak

26

Spanish; there is no basis to conclude from the amended complaint that those or other actions were

27

based on race. Absent factual allegations plausibly supporting a conclusion that Walker‘s alleged

28

mistreatment was motivated by the fact that she is African American, the amended complaint does
9

1

not adequately state a claim under Title VII for employment discrimination based on race.

2

Assuming for the sake of argument that Title VII protects against discrimination based on

3

a plaintiff‘s fiancé‘s membership in a protected class,4 Walker does not plausibly allege here that

4

any harassment or other mistreatment was based on her fiancé‘s national origin or ancestry.

5

Walker does not allege that any EDD employee mentioned—or even knew of—Zand‘s Iranian

6

ancestry or national origin. Nor does she allege that other employees with similarly situated

7

significant others of non-Iranian background were treated differently. To the contrary, the

8

documents attached to the amended complaint appear to indicate that to the extent Zand was

9

relevant to Walker‘s treatment at EDD, it was because EDD employees believed Zand caused a
disturbance by staring in a window, yelling outside the gate, attempting to contact Walker‘s

11
United States District Court
Northern District of California

10

supervisors or coworkers, and flying a drone over the building. Even if that were not so, however,

12

Walker has offered no factual allegations supporting an inference that Zand‘s Iranian background

13

was a factor in Walker‘s treatment.
Veteran status is not a protected class under Title VII, see 42 U.S.C. § 2000e-2(a) (barring

14
15

discrimination based on ―race, color, religion, sex, or national origin‖), but the Uniform Services

16

Employment and Reemployment Rights Act of 1994 (―USERRA‖) prohibits employment

17

discrimination based on military service. See 38 U.S.C. § 4311(a). A plaintiff bringing a claim

18

under USERRA must plead sufficient factual allegations to support the conclusion that veteran

19

status was ―a motivating factor in the employer‘s action.‖ See id. § 4311(c)(1); Tukay v. United

20

Airlines, Inc., No. 14-cv-04343-JST, 2015 WL 3623814, at *4 (N.D. Cal. June 10, 2015). As with

21

Walker‘s race and fiancé-national-origin theories discussed above, there is no indication in the

22

factual allegations of the amended complaint or in its exhibits that any action by EDD was

23

motivated by Walker‘s status as a veteran. Where, as here, a plaintiff ―has not pled any facts

24

suggesting that [her] veteran status was a motivating factor‖ in her alleged mistreatment, a claim

25

under USERRA must be dismissed. Tukay, 2015 WL 3623814, at *4 (granting a motion to

26
4

27
28

See, e.g., Cortezano v. Salin Bank & Tr. Co., 680 F.3d 936, 939 (7th Cir. 2012) (assuming for the
sake of argument that ―discrimination based on the race or national origin of a person‘s spouse or
partner falls within the protections of Title VII,‖ and citing decisions so holding from the Second,
Sixth, and Eleventh Circuits).
10

1

dismiss, with leave to amend).

2

In sum, it is not enough for Walker to merely assert that her treatment at EDD was

3

improperly motivated by her race, by her fiancé‘s national origin, or by her status as a veteran—

4

she must explain what happened that supports that conclusion. Because Walker has not

5

adequately alleged that EDD‘s conduct was motivated by her membership in a protected class

6

under Title VII or USERRA, her discrimination claims must be dismissed. This order does not

7

reach the remaining issues required to state a claim under those statutes, including whether the

8

conduct at issue rises to the level of actionable adverse employment actions or harassment.5

9

IV.

CONCLUSION
For the reasons discussed above, Walker‘s amended complaint is DISMISSED with leave

10

United States District Court
Northern District of California

11

to amend. If Walker is aware of facts supporting the conclusion that her treatment at EDD was

12

motivated by her membership in a protected class, she may further amend her complaint to allege

13

such facts no later than May 3, 2017. Any second amended complaint must include the caption

14

and civil case number used in this order (17-cv-0071-JCS) and the words SECOND AMENDED

15

COMPLAINT on the first page. Because an amended complaint completely replaces the previous

16

complaint, any amended complaint must include all the claims and allegations Walker wishes to

17

present. See Ferdik, 963 F.2d at 1262. Walker is encouraged to set forth all facts that she believes

18

are relevant to her discrimination claims.

19
20
21

22
23
24
25
26
27
28

5

Although the Ninth Circuit defines adverse employment actions ―broadly,‖ see Little v.
Windermere Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2001), ―[n]ot every employment
decision amounts to an adverse employment action,‖ Brooks v. City of San Mateo, 229 F.3d 917,
929 (9th Cir. 2000) (citation omitted). In order to support a discrimination claim, an employer‘s
action must be ―one that ‗materially affect[s] the compensation, terms, conditions, or privileges of
. . . employment.‘‖ Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (citation
omitted).
In addition to specific adverse employment actions, ―harassment so ‗severe or pervasive‘ as to
‗alter the conditions of [the victim‘s] employment and create an abusive working environment‘
violates Title VII.‖ Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) (citation omitted).
―Workplace conduct is not measured in isolation; instead, whether an environment is sufficiently
hostile or abusive must be judged by looking at all the circumstances, including the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an employee‘s work
performance.‖ Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270−71 (2001) (per curiam)
(citations and internal quotation marks omitted).
11

1

Walker, who is not represented by counsel, is also encouraged to consult with the Federal

2

Pro Bono Project‘s Legal Help Center in either of the Oakland or San Francisco federal

3

courthouses for assistance if she continues to prosecute this action. The San Francisco Legal Help

4

Center office is located in Room 2796 on the fifteenth floor at 450 Golden Gate Avenue, San

5

Francisco, CA 94102. The Oakland office is located in Room 470-S on the fourth floor at 1301

6

Clay Street, Oakland, CA 94612. Appointments can be made by calling [phone] or

7

signing up in the appointment book located outside either office, and telephone appointments are

8

available. Lawyers at the Legal Help Center can provide basic assistance to parties representing

9

themselves but cannot provide legal representation.

10

United States District Court
Northern District of California

11
12
13

IT IS SO ORDERED.
Dated: April 5, 2017
______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge

14
15
16
17
18
19
20
21

22
23
24
25
26
27
28
12