Lin v. Potter

Filing 46

ORDER by Judge Beeler granting in part and denying in part 35 Motion to Dismiss for Lack of Jurisdiction (lblc2S, COURT STAFF) (Filed on 4/21/2011)

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UNITED STATES DISTRICT COURT

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Northern District of California

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Oakland Division
XING XING LIN,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 10-03757 LB
Plaintiff,

ORDER DISMISSING PLAINTIFF’S
FIRST AMENDED COMPLAINT

v.
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JOHN E. POTTER, POSTMASTER
GENERAL, UNITED STATES POSTAL
SERVICE,

[ECF No. 35]

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Defendant.
_____________________________________/

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I. INTRODUCTION

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On February 8, 2011, Plaintiff Xing Xing Lin filed a first amended complaint alleging that her

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employer, Defendant United States Postal Service, discriminated against her based on race, national

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origin, and sex by delaying updating her qualifications in a register used to evaluate eligibility for

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promotions and thus denying her promotions, in violation of Title VII of the Civil Rights Act of

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1964. See First Amended Complaint, ECF No. 30 at 12-13, ¶¶ 48-59.1 Ms. Lin also claims that the

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Postal Service retaliated against her for prior EEO activity by the delay and denial of promotions.

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See id. at 14, ¶¶ 60-62.

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The Postal Service moved to dismiss the first amended complaint for failure to state a claim and

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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page
number at the top of the document, not the pages at the bottom.
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ORDER DISMISSING PLAINTIFF’S FAC

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for lack of subject-matter jurisdiction based on Ms. Lin’s failure to include facts in her EEO

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complaint establishing elements of her discrimination claims. Motion to Dismiss, ECF No. 35.

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Because Ms. Lin’s claims are reasonably related to her EEO complaint, this court has subject-

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matter jurisdiction over the claims contained in her first amended complaint. In addition, because

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Ms. Lin timely initiated the EEO process, her claims are not time-barred.

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As to claims one, two, and three alleging discrimination based on race, national origin, and sex

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in violation of Title VII, the court dismisses the claims for failure to state a claim under Rule

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12(b)(6). Ms. Lin pleaded insufficient facts regarding whether a similarly-situated individual outside

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her protected class was treated more favorably.

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As to claim four alleging retaliation for her 2008 EEO activity, the court dismisses the claim for
failure to state a claim under Rule 12(b)(6). Ms. Lin did not plead sufficient facts regarding the

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For the Northern District of California

UNITED STATES DISTRICT COURT

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causal link between the adverse employment action and the protected activity.

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Because Ms. Lin may be able to amend her complaint to plead sufficient facts regarding all four
claims, the court grants her leave to amend.

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II. BACKGROUND
A. The Postal Service’s Promotion System

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Ms. Lin is a Chinese female employee of the United States Postal Service. FAC, ECF No. 30 at ,

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¶ 8.2 Her employment is subject to a Collective Bargaining Agreement between the American Postal

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Workers Union and the Postal Service. Id. at ¶ 9; ECF No. 30-3 at 1, Exh. C. The Agreement

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mandates that when maintenance craft employees such as Ms. Lin request an update of their

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qualifications in a database maintained by the Postal Service called the Promotion Eligibility

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Register, management has 37 calendar days from the date of the update request to “complete the

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process and have results back in the office and notify the employee.” Id. When an employee wants

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a promotion, management must first update her knowledge, skills, and abilities before the Postal

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The facts relevant to the analysis of whether Ms. Lin fails to state a claim under Federal
Rule of Civil Procedure 12(b)(6) are all from the complaint. Additional facts submitted by the
parties are identified by their source and are relevant only to the Postal Service’s factual challenge
under Rule 12(b)(1) to the court’s subject-matter jurisdiction. See Savage v. Glendale High School,
Dist. No. 205, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003).
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ORDER DISMISSING PLAINTIFF’S FAC

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Service can place her on the Promotion Eligibility Register for the next level promotion. Id. at ¶ 10.

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The Postal Service, according to the terms of the Collective Bargaining Agreement, grants all

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promotions in accordance with this register system, which is primarily a seniority-based system. Id.

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at 11.

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When the Postal Service has a vacant or newly-established duty assignment, the collective

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bargaining agreement requires that it post the vacancy for seven days along with a notice of intent

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that it will fill the vacancy using the preferred assignment register or the promotion eligibility

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register. Id. at 4-5, ¶ 12; ECF No. 30-2 at 3, Exh. B. The preferred assignment selection register lets

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employees specify in numerical order which assignments they would prefer over their current
assignments. Id. ECF No. 30-2 at 4, Exh. B. The Postal Service must offer the vacancy to

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employees in the following order.

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First, the Postal Service must offer newly established or vacant duty assignments to the most

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senior employees from the appropriate preferred assignment register. Id. at 4, § 5. Second, the

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Postal Service must offer the position to a part-time employee who has submitted a preferred

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assignment form for a full-time position within his or her current salary level and occupational

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group. Id. at 5. Third, if the Postal Service cannot fill the vacancy from within the salary level or

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occupational group, it must consider giving the position to a higher-level qualified employee who

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previously submitted a written request for assignment to a lower level. Id. Finally, the collective

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bargaining agreement states, “Where a vacant or newly established duty assignment cannot be filled

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from an established preferred assignment register, and the assignment is to be filled by means of a

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promotion, selection shall be made from the appropriate eligibility register.” Id. at 4. In short, if the

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Postal Service is unable to fill a vacancy using the first three methods, only then can it promote

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someone from the Promotion Eligibility Register. Id.

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B. Ms. Lin’s 2007 and 2008 EEO Activity And Settlement

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The Postal Service initially hired Ms. Lin as a Labor Custodian on January 21, 2006. Id. at 5, ¶

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15. On about January 24, 2007, the Postal Service added Ms. Lin’s name to the Maintenance

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Mechanic Promotion Eligibility Register. Id. Starting on February 26, 2007, Ms. Lin began

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performing the tasks of a Maintenance Mechanic (a higher-ranked position designated as “MM7”
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ORDER DISMISSING PLAINTIFF’S FAC

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level and previously known as “MM6” level) at the Postal Service’s San Francisco P&DC Finance

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Station without receiving a formal promotion to the position. Id. The Postal Service’s management

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later revoked this assignment and sent Ms. Lin back to being a Labor Custodian. Id.

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In order to qualify for a position as a Maintenance Mechanic, Ms. Lin had required training,

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passed a test at the end of the training, and satisfied all qualifications to be promoted to the MM7

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position. Id. at 5, ¶ 16. After completing the training program, Ms. Lin became eligible not only for

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the MM7 position, but also for the next-level promotion to the Maintenance Mechanic MPE 9

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position (previously known as “MPE 8”). Id. at 5-6, ¶ 16. Thereafter, on October 19, 2007, she

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submitted a request to update her professional qualifications (called “Knowledge, Skills and

her eligible to receive the next promotion to MPE 9. Id. Ed Cuadra, the MSS coordinator for the

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For the Northern District of California

Abilities” or “KSAs”) in the Promotion Eligibility Register. Id. at 6, ¶ 16. This update would make

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UNITED STATES DISTRICT COURT

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San Francisco District in charge of Maintenance Craft promotions and who approves all promotion

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updates, did not respond to Ms. Lin’s request to update her qualifications. Id.

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After Ms. Lin filed a grievance on November 9, 2007, the Postal Service offered her an MM7
position with the San Francisco Air Mail Center on January 5, 2008. Id. at 6, ¶¶ 17-18.

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On March 5, 2008, Ms. Lin contacted the agency’s internal Equal Employment Opportunity

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Counselor to initiate a complaint alleging a discriminatory denial of promotion and refusal to update

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her professional qualifications in the Promotion Eligibility Register. Id. at 6, ¶ 19. In that

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complaint, Ms. Lin alleged that Ed Cuadra had refused to process her qualification updates because

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of her national origin (Chinese) and sex (female). Id., ECF No. 41 at 1, Exh. D.

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After completing mediation, the parties entered into a settlement agreement on May 6, 2008 with

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the following terms: (1) the Postal Service was ordered to schedule a review panel to evaluate Ms.

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Lin’s request to have her KSA professional qualifications updated within 30 days; and (2) Ms. Lin

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was retroactively promoted to an MM7 position as of October 19, 2007. Id. at 6, ¶ 20. Despite the

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settlement, the Postal Service did not adjust Ms. Lin’s wage rates, bonuses, and benefits to “that

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level to which she is entitled in accordance with the retroactive promotion.” Id. at 6, ¶ 21.

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C. Events in 2009 and Ms. Lin’s August 2009 EEO Activity

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On January 27, 2009, Ms. Lin asked Ed Cuadra to have her qualifications updated to the MPE 9
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ORDER DISMISSING PLAINTIFF’S FAC

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level. Id. at 7, ¶ 22. Based on the terms of the Collective Bargaining Agreement, the Postal Service

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had 37 days from the date of her request – or until March 5, 2009 – to process her updated

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qualifications and render a decision. Id. at ¶ 23. Ed Cuadra refused to update Ms. Lin’s eligibility

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qualifications. Id. at 7, ¶ 24. On August 31, 2009, the Postal Service notified Ms. Lin by mail about

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the response to her update request, and on October 6, 2009, it updated her qualifications and placed

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her on the MPE 9 Promotion Eligibility Register. Id. at 7, ¶¶ 25, 26.

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On April 2, 2009, the Postal Service posted an MPE 9 vacant duty assignment intending to fill

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the vacancy from the preferred assignment register. Id. at 8, ¶ 28; ECF No. 30-7 at 1, Exh. G. No

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employee on the preferred assignment register bid for the vacancy. Id.

preferred assignment register. Id. at ¶ 29; ECF No. 30-8 at 1, Exh. H. No employee on the preferred

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For the Northern District of California

On April 17, 2009, the Postal Service posted another MPE 9 vacancy intending to fill it from the

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assignment register bid for the vacancy. Id. On about August 1, 2009, the Postal Service awarded

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the April 17, 2009 vacancy to Santiago Villamar. Id. at ¶ 31; ECF No. 30-9 at 1, Exh. I. Ms. Lin

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does not claim that the Postal Service wrongfully awarded this vacancy to Mr. Villamar. Id. at 11, ¶

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43. (As she clarified at oral argument, part of the relevance is an illustration of how the promotion

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process is supposed to work, as opposed to what she alleges happened to her.)

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On about August 13, 2009, Ms. Lin contacted an EEO counselor to request pre-complaint

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processing for discrimination and retaliation for the Postal Service’s failure to update her promotion

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eligibility and corresponding denial of promotion opportunities. Id., ECF No. 41 at 4, Exh. J. The

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pre-complaint alleged that J. Abeyta, R. Wills, and Ed Cuadra, among others, discriminated against

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her because of her race (Asian), national origin (Chinese), and sex (female). Id. She also sought

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pre-complaint processing for the Postal Service’s denial of [presumably retroactive] promotion

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wages and benefits for the 2008 retroactive promotion and refusal to comply with the 2008

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settlement agreement. Id. She alleged that the discriminatory conduct began on August 3, 2009 on a

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continuing basis at the “MGR San Francisco AMC, BLDG 660 W Field Rd.” Id.

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In late August 2009, the Postal Service notified Ms. Lin about its response to her update request,

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and on October 6, 2009, it updated her qualifications and placed her on the MPE 9 Promotion

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Eligibility Register. Id. at 7, ¶¶ 25, 26. At that time, Ms. Lin was on the top of the MPE 9 register.
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ORDER DISMISSING PLAINTIFF’S FAC

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Id. at 10, ¶ 40; ECF No. 30-6 at 1, Exh. F.3 Ms. Lin claims that the Postal Service should have

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activated her MPE 9 promotion eligibility when it received her qualifying updated test score on

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about August 31, 2009. Id. On October 10, 2009, four days after it placed her on the Promotion

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Eligibility Register, the Postal Service awarded the April 2, 2009 vacancy to Willie Mata, an

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individual who was not on the promotion eligibility register and therefore, Ms. Lin claims, was not

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qualified to receive the promotion. Id. at 11, ¶¶ 42-43.

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Ms. Lin signed a formal EEO Complaint of Discrimination on October 28, 2009 alleging that Ed

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Cuadra, Carol Croteau, and Jack Abeyta discriminated against her because of her race (Asian),

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national origin (Chinese), and sex (female) by failing to update her promotion eligibility and

that the discrimination occurred at the San Francisco AMC (Air Mail Center) and began on August

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therefore, denying her “promotion opportunities.” Id., ECF No. 41 at 7, Exh. K. Ms. Lin alleged

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3, 2009 on a continuing basis. Id. Ms. Lin also claimed that the Postal Service retaliated against her

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for her EEO activity. Id. On November 23, 2009, the agency dismissed her complaint for failure to

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state a claim. Id. at 9, ¶ 36; ECF No. 30-12 at 1-5, Exh. L. The agency stated that “due to

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downsizing, the Postal Service has not had any vacant positions to fill” and thus, Ms. Lin had not

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actually suffered a harm. Id., ECF No. 30-12 at 2, Exh. L.

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Ms. Lin appealed this decision to the Equal Employment Opportunity Commission (EEOC). Id.

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at 10, ¶ 37; ECF No. 30-1 at 1-4, Exh. A. On appeal to the EEOC, Ms. Lin argued in part that as a

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result of the Postal Service’s failure to update her promotion eligibility, it denied her the April 2 and

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April 17, 2009 promotions. Id. at 2. In its June 3, 2010 decision affirming the Postal Service’s

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dismissal and issuing the notice of a right to sue, the EEOC stated that Ms. Lin had raised the two

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promotions for the first time on appeal and told Ms. Lin to “initiate the EEO complaint process

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regarding these matters if she chooses to pursue them further.” Id. Ms. Lin filed the complaint in

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this case on August 24, 2010. Complaint, ECF No. 1.

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The Postal Service argues that, due to an error, Ms. Lin was listed before Rodelio Perez on
the Promotion Eligibility Register. Motion to Dismiss, ECF No. 35 at 13-14 n.5. Those facts may
be true and may be relevant to a summary judgment motion, but the court does not consider them
when evaluating a motion to dismiss for failure to state a claim.
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ORDER DISMISSING PLAINTIFF’S FAC

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D. Procedural History
The Postal Service filed a motion to dismiss Ms. Lin’s initial complaint on November 30, 2010.

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ECF No. 9. The court heard oral argument on that motion on January 20, 2011 and granted in part

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and denied in part the Postal Service’s motion to dismiss on January 22, 2011. 1/22/11 Order, ECF

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No. 27. The court gave Ms. Lin leave to amend. Id.

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On February 8, 2011, Ms. Lin filed a first amended complaint. ECF No. 30. The Postal Service

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filed a motion to dismiss Ms. Lin’s first amended complaint on March 17, 2011. ECF No. 35. The

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court heard oral argument on the Postal Service’s motion on April 21, 2011.

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III. LEGAL STANDARDS
A. Rule 12(b)(1)
Dismissal of a claim is appropriate under Federal Rule of Civil Procedure Rule 12(b)(1) when

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the court lacks subject-matter jurisdiction over the claim. Federal subject-matter jurisdiction must

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exist at the time the action is commenced. Morongo Band of Mission Indians v. California Bd. of

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Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988).

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A Rule 12(b)(1) motion may either attack the sufficiency of the complaint to establish federal

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jurisdiction (a facial challenge) or allege a lack of jurisdiction that exists despite the formal

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sufficiency of the complaint (a factual challenge). See White v. Lee, 227 F.3d 1214, 1242 (9th Cir.

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2000); Thornhill Publishing Co., Inc. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th

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Cir. 1979); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). A facial attack asserts lack

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of federal jurisdiction based on the complaint alone, and the court must “accept all allegations of fact

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in the complaint as true and construe them in the light most favorable to the plaintiffs.” See Warren

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v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). By contrast, with a factual

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challenge, a court need not assume the truth of factual allegations but may hear additional evidence

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about jurisdiction and resolve factual disputes when necessary. See Roberts, 812 F.2d at 1177

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(quotation omitted). If a defendant challenges jurisdiction by presenting evidence, then the party

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opposing the motion must present sufficient evidence to support the court’s subject-matter

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jurisdiction. See Savage v. Glendale Union High School, Dist. No. 205, Maricopa County, 343 F.3d

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1036, 1040 n.2 (9th Cir. 2003).
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Dismissal of a complaint without leave to amend should only be granted where the jurisdictional

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defect cannot be cured by amendment. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052

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(9th Cir. 2003).

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B. Rule 12(b)(6)

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A court may dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) when it does

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not contain enough facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp.

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v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable for

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the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “The plausibility standard

defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557.) “While a complaint

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is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

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attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s

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obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual

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allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550

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U.S. at 555 (internal citations and parentheticals omitted).

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In considering a motion to dismiss, a court must accept all of the plaintiff's allegations as true

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and construe them in the light most favorable to the plaintiff. See id. at 550; Erickson v. Pardus, 551

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U.S. 89, 93-94 (2007); Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir. 2007).

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In reviewing a motion to dismiss, courts may consider documents attached to the complaint.

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Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995) (citation omitted).

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If the court dismisses the complaint, it should grant leave to amend even if no request to amend

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is made “unless it determines that the pleading could not possibly be cured by the allegation of other

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facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Cook, Perkiss and Liehe, Inc. v.

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Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990)).
IV. DISCUSSION

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Plaintiff alleges race, national origin, and sex discrimination because the Postal Service delayed
updating her qualifications in its promotional eligibility, thereby denying her promotion
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opportunities, promotion eligibility, and promotion wages and benefits. The Postal Service asserts

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two grounds for dismissing the claims: lack of subject matter jurisdiction under Federal Rule of

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Civil Procedure 12(b)(1), and failure to state a claim under Rule 12(b)(6).

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A. Lack of Subject Matter Jurisdiction

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The Postal Service argues that the court lacks subject-matter jurisdiction to hear Ms. Lin’s

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claims because (1) she failed to allege the specific promotions that she was denied in her EEO

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complaint, and (2) she did not exhaust her administrative remedies when she failed to timely initiate

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the EEO administrative process. Motion to Dismiss, ECF No. 35 at 17-19.

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More specifically, the government asserts that Ms. Lin’s EEO complaint did not refer to specific

specific material employment benefit) and therefore, she failed to exhaust her administrative

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job postings (and allegedly lost promotions) on April 2 and April 17, 2009 (or the loss of any other

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remedies. Id. at 19. Also, she knew of the April 2, 2009 job posting on that date and therefore had

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until May 17, 2009 to initiate the EEO pre-complaint process, but waited until August 2009 (a

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period outside the 45-day limit). Id. The Postal Service further argues that even if the relevant

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discriminatory act was October 10, 2010 (the date it awarded the position to Mr. Mata) instead of the

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job posting date of April 2, 2009, Ms. Lin’s August 13, 2009 initiation was premature because the

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Postal Service had not yet filled the position, and Ms. Lin had not yet suffered any harm. Id. In

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essence, the Postal Service claims that Ms. Lin either initiated the EEO process late (after the 45-day

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limitation period that follows the April 2, 2009 alleged discriminatory act) or initiated the EEO

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process prematurely (before the October 10, 2010 allegedly discriminatory act). In either instance,

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the Postal Service asserts that Ms. Lin has failed to exhaust her administrative remedies and

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therefore, the court does not have subject-matter jurisdiction over her claims. Id. at 20.

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Ms. Lin responded that even though her EEO complaint did not include specific references to the

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April 2 and April 17, 2009 vacancies, this information is reasonably related to the claims she

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asserted in the EEO complaint and therefore, she exhausted her administrative remedies.

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Opposition, ECF No. 37 at 12-16. As a result, according to Ms. Lin, the court has subject-matter

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jurisdiction. Id.

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Two issues are at play in this case, either of which could result in dismissal of Ms. Lin’s first
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amended complaint. First, the court must decide whether it has subject-matter jurisdiction to hear

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Ms. Lin’s claims even though she did not specifically allege them in her EEO complaint. To do this,

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the court must determine whether the factual allegations in her first amended complaint are

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reasonably related to the factual allegations in her EEO complaint.

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Second, if the court has subject-matter jurisdiction, it must determine whether Ms. Lin timely

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initiated the EEO administrative process and thus, whether her claims are time-barred. Whether Ms.

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Lin timely initiated the EEO process is not a jurisdictional prerequisite. See Irwin v. Dept. of

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Veterans Affairs, 498 U.S. 89, 93-96 (1990). Nonetheless, if Ms. Lin failed to timely initiate the

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administrative process, dismissal may be appropriate, though not for lack of subject-matter

claims of discriminatory conduct that occurred more than 45 days before they filed their complaint

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jurisdiction. Lyons v. England, 307 F.3d 1092, 1108 (9th Cir. 2002) (holding that the plaintiff’s

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were time-barred). The court will address each of these issues in turn.

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1. Ms. Lin’s Federal Claims are Within the Scope of the EEOC Investigation

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Though Ms. Lin did not specifically mention the April 2, 2009 vacancy in her EEO complaint,

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her federal claims are within the scope of the EEOC’s actual investigation or an investigation that

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could reasonably be expected to grow out of her charges of discrimination. See EEOC v. Farmer

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Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994). Moreover, Ms. Lin’s federal claims are consistent with

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her original theory of the case. See B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir.

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2002). Therefore, the court has subject-matter jurisdiction.

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Title VII actions by federal employees are governed by 42 U.S.C. § 2000e-16. An employee

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must exhaust administrative remedies with her agency within the time limits specified in EEOC

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regulations. The plaintiff must make a complaint to an EEO counselor within 45 days of the alleged

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discrimination, which is the pre-complaint process, and then file a written complaint with the agency

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within 15 days of the final interview with the EEO counselor. 29 C.F.R. §§ 1614.105(a), .106(b). If

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the plaintiff takes the case to the EEOC, the plaintiff must file the complaint with the EEOC within

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30 days of the agency’s final decision. Id. § 1614.402(a). When, as here, the EEOC issues a final

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decision, the plaintiff has 90 days from the EEOC’s decision to file an action in federal court. 42

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U.S.C. § 200e-16(c); 29 C.F.R. § 1614.408.
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Generally a federal court may not consider allegations outside the administrative complaint. See

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Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002). Substantial compliance

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with the requirement that discrimination complaints must be presented to the appropriate agency is a

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jurisdictional prerequisite. Sommantino v. United States, 255 F.3d 704, 708 (9th Cir. 2001). The

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time limits themselves are not jurisdictional but are subject to equitable tolling, just like claims

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against private employers. Irwin, 498 U.S. at 93-96.

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Courts nonetheless may consider claims not presented in the administrative complaint if the

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factual allegations in the federal complaint are reasonably related to the factual allegations in the

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EEO complaint. See Freeman, 291 F.3d at 637. To make this determination, the court must decide

the EEOC’s actual investigation or an EEOC investigation which can reasonably be expected to

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whether the allegations not included in the original charge would have fallen “within the scope of

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grow out of the charge of discrimination.” See Farmer Bros., 31 F.3d at 899 (internal quotation

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marks omitted) (emphasis in original). This requires courts to consider (1) the alleged basis of

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discrimination, (2) the dates of discriminatory acts specified within the charge, (3) perpetrators of

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discrimination named in the charge, and (4) locations at which discrimination is alleged to have

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occurred. See B.K.B., 276 F.3d at 1100. Additionally, “the court should consider plaintiff’s civil

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claims to be reasonably related to allegations in the charge to the extent that those claims are

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consistent with the plaintiff’s original theory of the case.” Id. Courts must construe the initial EEO

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charge “with the utmost liberality.” Farmer Bros., 31 F.3d at 899 (internal quotation marks and

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citation omitted).

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Ms. Lin’s August 13, 2009 Information for Pre-Complaint Counseling states that on a continuing

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basis since August 3, 2009, the Postal Service had discriminated against her by failing to update her

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promotion eligibility. ECF No. 41 at 4, Exh. J. In particular, her pre-complaint information alleged

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that the discrimination occurred at the “MGR San Francisco AMC, BLDG 660 W Field Rd.” facility

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and that Ed Cuadra, J. Abeyta, and R. Wills, among others, engaged in the discriminatory conduct.

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Id. at 4-5. Likewise, her October 28, 2009 formal EEO complaint alleges that as a result of the

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Postal Service’s failure to update her promotion eligibility status, it denied her “promotions”

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beginning on August 3, 2009 and continuing to the present. ECF No. 41 at 7, Exh. K. The formal
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complaint also states that the discrimination occurred at the “San Francisco AMC” and that Ed

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Cuadra, Jack Abeyta, and Carol Croteau engaged in the discriminatory conduct. Id. at 7. During the

3

Agency’s investigation, it found that “due to downsizing, the Postal Service has not had any vacant

4

positions to fill.” FAC, ECF No. 30-12 at 2, Exh. L. In response, Ms. Lin asserted in her appeal that

5

the Postal Service had, in fact, posted two available vacant positions on April 2 and April 17, 2009.

6

Id. ECF No. 30-1 at 2, Exh. A.

7

Ms. Lin’s federal claims allege that the Postal Service failed to update her promotion eligibility

8

and as a result, it denied her the April 2, 2009 promotion. FAC, ECF No. 30 at 11, ¶ 42. She claims

9

that Ed Cuadra, Jack Abeyta, and Carol Croteau engaged in the discriminatory conduct at the Postal

the Postal Service failed to update her promotion qualifications beginning on about January 27, 2009

12
For the Northern District of California

Service’s facilities in San Francisco. FAC, ECF No. 30 at 3, ¶ 6. In addition, Ms. Lin claims that

11
UNITED STATES DISTRICT COURT

10

and continuing until October 6, 2009 when it updated her eligibility but then awarded the April 2,

13

2009 position to Mr. Mata four days later. FAC, ECF No. 30 at 7, ¶¶ 22, 26.

14

Mindful that courts must construe EEOC complaints “with the utmost liberality,” Ms. Lin’s first

15

amended complaint fits squarely within the EEOC’s actual investigation or one that could

16

reasonably have grown out of her charges of discrimination. Farmer Bros., 31 F.3d at 899. First,

17

her Information for Pre-Complaint Counseling, her formal EEO complaint, and the claims in her

18

first amended complaint all assert the same basis of discrimination. ECF No. 41 at 4, 7, Exhs. J

19

(Information for Pre-Complaint Counseling) & K (formal EEO complaint); FAC, ECF No. 30 at 11,

20

¶ 42. Specifically, Ms. Lin alleges that the Postal Service denied her promotions when it failed to

21

timely update her promotion eligibility. Id. Second, her EEO complaint alleges discrimination for

22

the exact time period that Ms. Lin alleges the Postal Service discriminated against her in her first

23

amended complaint. Id. Specifically, her EEO complaint asserts discrimination on a continuing

24

basis from August 3, 2009 through the October 10, 2009 date that she claims the Postal Service

25

wrongfully denied her a promotion, which also is alleged in her first amended complaint. Id. Third,

26

Ms. Lin named the same individuals who engaged in the allegedly discriminatory conduct in both

27

her EEO complaint and her first amended complaint. Id. Specifically, she named Ed Cuadra, Jack

28

Abeyta, and Carol Croteau. Id. Lastly, Ms. Lin asserts in her EEO complaint and her first amended
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ORDER DISMISSING PLAINTIFF’S FAC

12

1

complaint that the Postal Service discriminated against her at the San Francisco division of its

2

offices. Id. Thus, the four factors outlined in B.K.B. indicate that the factual allegations in Ms.

3

Lin’s first amended complaint are reasonably related to the factual allegations in her EEO complaint.

4

B.K.B., 276 F.3d at 1100.

Lin promotions and found that it had not because no promotions were available. FAC, ECF No. 30-

7

12 at 1-5, Exh. L. That the Agency failed to discover the April 2, 2009 promotion does not change

8

the fact that the investigation explicitly encompassed promotions and the Postal Service’s alleged

9

denial of those opportunities. Moreover, because federal courts may hear Title VII claims that are

10

not specifically alleged in an EEO complaint, see Freeman, 291 F.3d at 637, it is irrelevant that the

11

EEOC instructed Ms. Lin to re-initiate the EEO process for the April 2 and April 17, 2009

12
For the Northern District of California

In addition to those four factors, the Agency investigated whether the Postal Service denied Ms.

6

UNITED STATES DISTRICT COURT

5

promotion denials. The court agrees with the EEOC that Ms. Lin did not explicitly allege these two

13

dates of discrimination in her EEO complaint, but the inquiry at this stage is whether her federal

14

claims are reasonably related to the claims in her EEO complaint, which the court now finds that

15

they are. Id.

16

Additionally, Ms. Lin’s original theory of the case has remained constant. From her Information

17

for Pre-Complaint Counseling to her formal EEO Complaint to her first amended complaint, Ms. Lin

18

has maintained that the Postal Service discriminated against her when it failed to update her

19

promotion eligibility and as a result, denied her promotions. ECF No. 41 at 4, 7, Exhs. J

20

(Information for Pre-Complaint Counseling) & K (formal EEO complaint); FAC, ECF No. 30 at 11,

21

¶ 42. Therefore, the claims in her first amended complaint are consistent with her original theory of

22

the case.

23

The claims in Ms. Lin’s first amended complaint regarding the denial of the April 2, 2009

24

promotion are within the scope of the EEOC’s actual investigation or one that can reasonably be

25

expected to grow out of her original charge of discrimination and are consistent with her original

26

theory of the case. Thus, the court has subject-matter jurisdiction over Ms. Lin’s claims.

27

2. Ms. Lin Timely Initiated the EEO Process

28

As the court notes above, the timely initiation of the EEO process is not a jurisdictional
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ORDER DISMISSING PLAINTIFF’S FAC

13

1

prerequisite but rather a requirement that is subject to waiver. Irwin, 498 U.S. at 93-96 (citing Zipes

2

v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982)). With this in mind, though the court may

3

have subject-matter jurisdiction over her claims, dismissal may be warranted if Ms. Lin failed to

4

timely initiate the EEO process and equitable tolling of the limitation period is inappropriate. See

5

Lyons, 307 F.3d at 1108. As a result, the court must determine whether Ms. Lin timely initiated the

6

EEO process.

7

To determine whether Ms. Lin timely initiated the EEO process, the court must resolve whether

Ms. Lin filed her Information for Pre-Complaint Counseling on August 13, 2009 (twelve days after

10

the Postal Service filled the April 17 vacancy), alleging that the Postal Service failed to update her

11

promotion eligibility. FAC, ECF No. 41 at 4, 9. Her formal EEO complaint filed on October 28,

12
For the Northern District of California

her EEO complaint alleged a discriminatory act that occurred within the 45-day limitation period.

9

UNITED STATES DISTRICT COURT

8

2009 also stated that the Postal Service had denied her “promotions.” Id. at 7, Exh. K. The agency,

13

though, ruled that due to downsizing, “the Postal Service has not had any vacant positions to fill.”

14

FAC, ECF No. 30-12 at 2, Exh. L (Agency decision). In response, Ms. Lin argued on appeal to the

15

EEOC that in fact the Postal Service had two vacant positions available that it wrongfully denied

16

her, one of which was the April 17, 2009 vacancy. ECF No. 30-1 at 2, Exh. A.

17

In short, Ms. Lin’s October 28, 2009 complaint and her arguments on appeal indicate that she

18

sought redress for what she alleged was the Postal Services’ discriminatory denial of promotion

19

opportunities, including the denial on August 1, 2009. Because she initiated the EEO complaint

20

process within 45 days of the August 1, 2009 denial, her EEO complaint was timely. That Ms. Lin

21

now does not claim that the August 1, 2009 denial was discriminatory is irrelevant to whether or not

22

she timely initiated the EEO administrative process in the first instance. Moreover, that the EEOC

23

upheld the Agency’s dismissal of her complaint for failure to state a claim does not change the fact

24

that she timely initiated the EEO review. Therefore, Ms. Lin’s claims are not time-barred.

25

B. Dismissal For Failure to State a Claim Under Rule 12(b)(6)

26

1. Claims One, Two, and Three: Discrimination in Violation of Title VII

27

In claims one, two, and three, Ms. Lin alleges that the Postal Service discriminated against her

28

because of her race (Asian), national origin (Chinese), and sex (female) by failing to timely update
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ORDER DISMISSING PLAINTIFF’S FAC

14

1

her qualifications in its Promotion Eligibility Register and thus failing to promote her. FAC, ECF

2

No. 30 at 9, ¶ 32. Ms. Lin claims that the April 2, 2009 MPE 9 vacancy remained open when she

3

filed her EEO complaint on August 13, 2009, and the Postal Service would have awarded her the bid

4

had it properly updated her qualifications following her numerous requests.4 Id. Even after the

5

Postal Service updated her qualifications and placed her on the Promotion Eligibility Register on

6

October 6, 2009, Ms. Lin asserts that it wrongfully denied her the April 2, 2009 MPE 9 vacancy

7

when it awarded that position on October 10, 2009 to a man who was not on the register. Id. at 11, ¶

8

42.

prove that (1) she belongs to a protected class, (2) she was qualified for the job (or promotion or

11

other benefit at issue), (3) she was subject to an adverse employment action, and (4) similarly-

12
For the Northern District of California

To establish a prima facie case of employment discrimination under Title VII, Ms. Lin must

10

UNITED STATES DISTRICT COURT

9

situated individuals outside her protected class were treated more favorably. See Leong, 347 F.3d at

13

1124 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Though heightened

14

pleading standards are not mandated in Title VII cases, Ms. Lin must plead sufficient facts to state

15

the elements of a prima facie case of discrimination. Johnson v. Riverside Healthcare System, LP,

16

534 F.3d 1116, 1122 (9th Cir. 2008) (citing Williams v. Boeing Co., 517 F.3d 1120, 1130 (9th Cir.

17

2008)).

18
19

i. Claims One, Two, and Three Are Dismissed Without Prejudice
Ms. Lin sufficiently pleaded facts for elements one, two, and three, but failed to plead enough

20

facts regarding the fourth element. She alleges that she is a member of a protected class: Asian

21

(race), Chinese (national origin), and female (sex). FAC, ECF No. 30 at 3, ¶ 7. She also sufficiently

22

alleges that she satisfied the eligibility criteria (meaning, the qualifications) for the promotions that

23
24
25
26
27
28

4

Ms. Lin does not allege or argue that the Postal Service wrongfully denied her the April 17,
2009 promotion. FAC, ECF No. 30 at 11, ¶ 43; Opposition, ECF No. 37. She also affirmed in her
opposition that she is not asserting a retaliation claim based on the Postal Service’s failure to abide
by the terms of the 2008 settlement agreement, any claims based on 42 U.S.C. § 1983, or a breach of
the collective bargaining agreement. Opposition, ECCF No. 37 at 17-19. Her counsel confirmed at
oral argument that facts about these areas were alleged in the complaint to show either context,
knowledge, or procedures.
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ORDER DISMISSING PLAINTIFF’S FAC

15

1

should have been reflected in the Promotional Eligibility Register because she alleges that the Postal

2

Service updated her qualifications in late August 2009 and actually placed her on the Promotion

3

Eligibility Register on October 6, 2009. Id. at 7, ¶ 25, 10, ¶ 40. Ms. Lin also sufficiently alleged

4

that she was subject to an adverse employment action because the Postal Service denied her the

5

April 2, 2009 promotion on October 10, 2009. Id. at 11, ¶ 42; Breiner v. Nevada Dept. of

6

Corrections, 610 F.3d 1202, 1208 (9th Cir. 2010) (denial of a promotion constitutes an adverse

7

employment action).

8
9

As to the fourth element, however, Ms. Lin did not sufficiently allege facts that the Postal
Service treated a similarly-situated individual outside of her protected class more favorably. Though

2009 promotion, is a man, she fails to allege any facts that suggest that he was not Asian and was not

12
For the Northern District of California

Ms. Lin sufficiently pleads facts to suggest that Mr. Mata, the individual who received the April 2,

11
UNITED STATES DISTRICT COURT

10

Chinese. She argues in her opposition that Mr. Mata is a “non-Chinese” postal worker, but she fails

13

to allege any facts in her first amended complaint regarding Mr. Mata’s race or national origin.

14

Opposition, ECF No. 37 at 16.

15

Ms. Lin also fails to adequately allege facts that show that Mr. Mata was similarly-situated or

16

not qualified to receive the April 2, 2009 vacancy. While she claims that Mr. Mata was not qualified

17

to receive the April 2, 2009 promotion because he was not on the Promotion Eligibility Register, she

18

does not plead any facts as to why his absence on the register means that he was similarly-situated or

19

not qualified to receive the job. FAC, ECF No. 30 at 11, ¶ 43. As set forth in the facts section, the

20

Collective Bargaining Agreement (incorporated in the complaint) sets forth different procedures for

21

filling vacancies. It requires the Postal Service to first offer the vacancy to the most senior

22

employees on the preferred assignment register, then to part-time employees who have submitted a

23

preferred assignment form for a full-time position, then to more qualified individuals who requested

24

assignment to a lower level position. Id. at 30-2 at 4-5, § 5, Exh. B. Only after the Postal Service is

25

unable to fill the vacancy using these three methods can it offer the job to an individual on the

26
27
28
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ORDER DISMISSING PLAINTIFF’S FAC

16

1

promotion eligibility register.5 Id. Ms. Lin fails to allege that Mr. Mata was not (1) on the preferred

2

assignment register, (2) a part-time employee who submitted a preferred assignment form for a full-

3

time position, or (3) a more qualified individual who requested assignment to a lower-level position

4

– all situations that would have given Mr. Mata preference for the April 2, 2009 vacancy over Ms.

5

Lin. Id. Put another way, simply because Mr. Mata was not on the Promotion Eligibility Register

6

does not mean that he was less qualified or similarly-situated to Ms. Lin. Accordingly, the court

7

dismisses Ms. Lin’s first, second, and third claims without prejudice. Because it may be possible for

8

Ms. Lin to cure this deficiency, the court grants her leave to amend.6

9
10

As noted above, the court also holds that Ms. Lin sufficiently pleaded facts that Mr. Mata is a
man, but she might want to allege that more specifically in any amended complaint.
2. Claim Four: Retaliation in Violation of Title VII

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

Ms. Lin alleges that the Postal Service retaliated against her in 2009 for her 2008 EEO activity

13
14
15
16
17
18
19
20
21
22
23

5

The Collective Bargaining Agreement states, “Where a vacant or newly established duty
assignment cannot be filled from an established preferred assignment register, and the assignment is
to be filled by means of a promotion, selection shall be made from the appropriate eligibility
register.” FAC, ECF No. 30-2 at 4, § 5, Exh. B (emphasis added).
6

This argument was raised in somewhat conclusory fashion by the government. See, e.g.,
Motion to Dismiss, ECF No. 35 at 22-23; Reply, ECF No. 44 at 10. At oral argument, the
government stated even more generally that the collective bargaining agreement and the employee
handbook attached to the complaint show that other procedures apply to filling vacancies, and
basically suggested that Ms. Lin would have to plead sufficient facts about all of these (unidentified)
procedures to establish for pleading purposes that the Postal Service treated a similarly-situated
person outside of her protected class more favorably. The court declines to undertake such a broad
analysis of the attached documents itself. Its ruling here – requiring pleading of additional facts to
show that Mr. Mata was not eligible under one of the three categories that precedes hiring from the
Promotion Eligibility Register – is required because those categories apply before hiring from the
Promotion Eligibility Register.

24
25
26
27
28

The Postal Service also suggests that the court should dismiss Ms. Lin’s claims with
prejudice because “Plaintiff will not be able to establish that Willie Mata is less qualified than her or
similarly situated to her, when, as Plaintiff likely knows, Willie Mata was on a PAR, and a GS-9, far
more senior to her.” Motion to Dismiss, ECF No. 35 at 23 n.3. While those facts may be true, this
is not a summary judgment hearing but instead is a 12(b)(6) hearing where the court takes as true all
allegations in the complaint and cannot consider facts outside the complaint.

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ORDER DISMISSING PLAINTIFF’S FAC

17

1

by not updating her promotion eligibility and therefore denying her promotions. FAC, ECF No. 30

2

at 11, ¶ 44.

3

To establish a prima facie case of retaliation under Title VII, Ms. Lin must prove that (1) she

4

engaged in a protected activity, (2) she suffered an adverse employment decision, and (3) there was

5

a causal link between the protected activity and the adverse employment decision. See Villiarimo v.

6

Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002).

7

As to element one, an employee’s formal or informal complaints to a supervisor regarding

8

unlawful discrimination is “protected activity,” and it is immaterial whether the complaints are well-

9

founded. See Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 506-07 (9th

10

As to element two, for purposes of a retaliation claim, a “materially adverse employment

12
For the Northern District of California

UNITED STATES DISTRICT COURT

11

Cir. 2000).

decision” is one that would dissuade a reasonable worker from exercising protected rights, which is

13

a lower standard than that required for a Title VII discrimination claim. See Burlington Northern &

14

Santa Fe Ry. Co., 548 U.S. 53, 68 (2006); Michael v. Caterpillar Fin’l Servs. Corp., 496 F.3d at

15

595. Whether an employer’s action is materially adverse depends on the circumstances. For

16

example, a change in a work schedule may matter little to some employees and materially to a parent

17

with school-aged children. See Burlington Northern, 548 U.S. at 69. A supervisor’s failure to invite

18

a subordinate to lunch may be petty and trivial, or it might be an exclusion from a weekly training

19

lunch that contributes to the employee’s professional development. See id. What matters is whether

20

it might dissuade a reasonable employee from complaining about discrimination. See id.

21

As to element three, a plaintiff may establish a causal link between the protected activity and the

22

adverse action by circumstantial knowledge, including the employer’s knowledge of the protected

23

activity and a proximity in time between the protected action and the adverse employment act. See

24

Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir. 1988); Passantino, 212 F.3d at 507 (“when adverse

25

decisions are taken within a reasonable period of time after complaints of discrimination are made,

26

retaliatory intent may be inferred”).

27

Here, Ms. Lin pleaded sufficient facts that she engaged in a protected activity: she initiated a

28

claim with the EEO in 2008 that resulted in a settlement agreement. FAC, ECF No. 30 at 6, ¶¶ 19C 10-03757 LB
ORDER DISMISSING PLAINTIFF’S FAC

18

1

20. She also adequately pleaded that she suffered a materially adverse employment decision: the

2

Postal Service denied her a promotion. Id. at 11, ¶ 42; Boone v. Goldin, 178 F.3d 253, 256-57 (9th

3

Cir. 1999) (denying or materially delaying a promotion is a materially-adverse employment

4

decision).

5

Ms. Lin did not plead sufficient facts regarding the causal link between the adverse employment

the Postal Service allegedly denied her the April 2, 2009 promotion nearly a year and a half later on

8

October 10, 2009. FAC, ECF No. 30 at 6, ¶ 20, 11, ¶ 42. This year-and-a-half gap between the

9

protected activity and the alleged retaliatory action is too attenuated to infer a retaliatory intent by

10

itself, and Ms. Lin provides no other facts to support a causal link. See, e.g., Clark Cnty. Sch. Dist.

11

v. Breeden, 532 U.S. 268, 273 (2001) (a 20 month delay); Villiarimo, 281 F.3d at 1065 (a nearly 18-

12
For the Northern District of California

action and the protected activity. The parties settled the 2008 EEO complaint on May 6, 2008, and

7

UNITED STATES DISTRICT COURT

6

month delay); Manatt v. Bank of America, N.A., 339 F.3d 792, 802 (9th Cir. 2003) (9-month delay).

13

She claims in her opposition that Ed Cuadra, the individual who signed the 2008 settlement

14

agreement, “presumably” decided to deny Ms. Lin the April 2, 2009 promotion and that therefore,

15

the court should infer retaliatory intent. Opposition, ECF No. 37 at 17. She fails, however, to allege

16

these facts in her first amended complaint. As a result, Ms. Lin’s retaliation claim is denied without

17

prejudice. Because it may be possible for Ms. Lin to cure this deficiency, the court grants her leave

18

to amend.

19

VI. CONCLUSION

20

The Postal Service’s motion to dismiss for lack of subject-matter jurisdiction is DENIED.

21

Ms. Lin’s first amended complaint is DISMISSED WITHOUT PREJUDICE. The court

22

grants Ms. Lin leave to amend. She shall file a second amended complaint no later than May 23,

23

2011.

24

This disposes of ECF No. 35.

25

IT IS SO ORDERED.

26

Dated: April 21, 2011
_______________________________
LAUREL BEELER
United States Magistrate Judge

27
28
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ORDER DISMISSING PLAINTIFF’S FAC

19