Roule v. Panetta

Filing 54

ORDER by Judge Claudia Wilken Denying Defendant's 21 Motion to Dismiss. (ndr, COURT STAFF) (Filed on 11/28/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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WALTER R. ROULE,

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Plaintiff,

United States District Court
For the Northern District of California

ORDER DENYING
DEFENDANT'S MOTION
TO DISMISS

v.
DAVID PETRAEUS, Director of the
Central Intelligence Agency,
Defendant.

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No. C 10-04632 CW

________________________________/

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INTRODUCTION
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Plaintiff, suing as Walter Roule, brings claims under Title
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VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e et
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seq., against Defendant David Petraeus, Director of the Central
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Intelligence Agency (CIA), for national origin discrimination and
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retaliation.

Plaintiff claims that Defendant violated Title VII

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by harassing him, discriminating against him, and failing to
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promote him, based on the national origin of his spouse.
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Defendant has moved to dismiss the case, Plaintiff has filed an
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opposition, and Defendant has filed a reply to the opposition.
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For the reasons stated below, the Court DENIES the motion to
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dismiss.
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BACKGROUND
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Plaintiff began his employment as a clandestine agent with
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the CIA in January 2004. He worked a "hybrid position" within the
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Northern District of California beginning September 2005.
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Plaintiff's wife is a Taiwanese national of Asian ethnicity.
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Plaintiff alleges that, from December 14 through December 20,

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2006, his supervisor used CIA communications systems to

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"knowingly" make "discriminatory, defamatory, and false statements

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about Plaintiff and his activities," based on the national origin

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of his spouse.

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supervisor continued to harass him by threatening to remove him

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from his assignment in the Northern District of California and

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stating the negative effect that the removal would have on

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Plaintiff's spouse.

He alleges that, on December 20, 2006, his

Plaintiff further alleges that his supervisor

United States District Court
For the Northern District of California

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intimidated him with threats of retaliation and prevented him from

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addressing the harassment and discrimination by threatening to

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take away his covert communication system.

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Plaintiff alleges that on January 8, 2007, his supervisor

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told him he was on "Double Secret Probation" and refused to

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authorize him for operational travel, denying him the opportunity

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to perform his job duties.

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wives were not denied these opportunities.

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his supervisor continued to prevent him from performing

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operational travel from February 2007 through June 2007.

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He claims that others with Caucasian
Plaintiff alleges that

Plaintiff alleges that he suffered disparate and

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discriminatory treatment on August 17, 2007, when he was assigned

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to a second domestic tour rather than being assigned to an

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overseas tour, to which Plaintiff's co-workers who had Caucasian

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wives were assigned.

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interfered with this second domestic tour, causing the assignment

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to be revoked and cancelled without explanation on September 26,

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2007.

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aforementioned co-workers' assignments were cancelled.

Plaintiff alleges that his supervisor

Plaintiff's complaint states that none of the

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Plaintiff pleads that he submitted a second complaint to CIA

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management on September 26, 2007.

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submitted a first complaint or that he saw an EEO counselor before

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submitting his complaints, as required by 29 C.F.R. section

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1614.105(a).

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Inspector General's Office the next day, September 27, 2007, to

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seek remedial and corrective action.

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supervisor responded to the complaint by revoking Plaintiff's

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security clearance over non-secure phone lines on October 5, 2007,

He never states when he

He states that he forwarded his complaint to the

Plaintiff alleges that his

United States District Court
For the Northern District of California

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and by telling all of Plaintiff's co-workers that their careers

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would be negatively impacted if they participated in the agency's

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investigation.

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management informed him that he was unsuitable for further

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assignment because an unnamed co-worker reported to management

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that Plaintiff planned to pursue a complaint and seek redress.

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Plaintiff does not allege when this co-worker's report was made.

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Plaintiff states that on October 11, 2007,

Plaintiff makes his claim for national origin discrimination

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based on Defendant's alleged: (1) failure to promote Plaintiff;

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(2) harassment of and discrimination against Plaintiff due to the

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national origin of his spouse; and (3) less favorable treatment of

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Plaintiff in the terms, privileges, and conditions of his

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employment compared to similarly situated co-workers with

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Caucasian spouses.

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The motion states three grounds for dismissal of the action:

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First, Defendant argues that Plaintiff's retaliation claim is

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barred because he failed to exhaust administrative remedies

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available to him.

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seek Equal Employment Opportunity (EEO) counseling until October

Second, Defendant argues that Plaintiff did not

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24, 2007, failing to exhaust claims that may have existed prior to

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September 9, 2007 (outside of the forty-five day limit).

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Defendant contends that Plaintiff fails to state facts sufficient

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to state a claim upon which relief can be granted, and that he is

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not part of a protected class.

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origin discrimination must occur as a result of the national

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origin of the plaintiff, not his spouse.

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LEGAL STANDARD

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Third,

Defendant argues that national

A complaint must contain a "short and plain statement of the

United States District Court
For the Northern District of California

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claim showing that the pleader is entitled to relief."

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Civ. P. 8(a).

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state a claim, dismissal is appropriate only when the complaint

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does not give the defendant fair notice of a legally cognizable

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claim and the grounds on which it rests.

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Twombly, 550 U.S. 544, 555 (2007).

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complaint is sufficient to state a claim, the court will take all

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material allegations as true and construe them in the light most

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favorable to the plaintiff.

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896, 898 (9th Cir. 1986).

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to legal conclusions; "threadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements," are not

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taken as true.

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(citing Twombly, 550 U.S. at 555).

On a motion under Rule 12(b)(6) for failure to

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Bell Atl. Corp. v.

In considering whether the

NL Indus., Inc. v. Kaplan, 792 F.2d

However, this principle is inapplicable

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009)

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Fed. R.

DISCUSSION
I. Retaliation Claim and Administrative Exhaustion
Defendant argues that Plaintiff's retaliation claim must be

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dismissed because he failed to exhaust his administrative remedies

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as to that claim.

According to the declaration of Sheryl J.
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Brown-Norman, Plaintiff did not specifically plead the theory of

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retaliation in his claims with the EEO counselor.

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¶¶ 6-7.

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systematic diminution of his job duties by his supervisor from

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December 2006 to November 2007, which he claims prevented him from

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being eligible for promotions and assignments while co-workers

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with Caucasian wives were allowed to perform their duties; (2) the

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cancellation of his overseas assignment on September 26, 2007

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while co-workers with Caucasian wives were allowed to pursue

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United States District Court
For the Northern District of California

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overseas assignments; (3) management's failure to follow CIA

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regulations requiring investigation and prevention of the alleged

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harassment and discrimination.

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Brown Dec. at

The three issues he specifically set forth were (1) the

The failure to raise a particular issue in administrative

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proceedings results in a failure to exhaust administrative

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remedies with respect to that issue, unless it is "like or

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reasonably related to" the allegations raised administratively.

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Ong v. Cleland, 642 F.2d 316, 320 (9th Cir. 1981).

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retaliation requires a plaintiff to demonstrate that: (1) he or

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she engaged in protected activity; (2) he or she was subjected to

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adverse employment action; and (3) there is a causal link between

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the protected complaint and the adverse treatment.

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v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997).

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need not amount to a formal EEO complaint and can extend to the

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intention to participate in statutory proceedings.

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Luce, Forward, Hamilton & Scripps, 303 F.3d 994 (9th Cir. 2002);

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Gifford v. Atchison, Topeka and Santa Fe Ry. Co., 685 F.2d 1149,

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1155 (9th Cir. 1982).

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when he complained to agency management, including the submission

A claim of

See Hashimoto

Protected activity

See EEOC v.

Plaintiff engaged in protected activity

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of his second complaint on September 26, 2007.

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considered reasonably related to discrimination and harassment

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claims if adverse actions were taken in response to protected

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activity such as: (1) "the employee's opposition to conduct made

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an unlawful employment practice by [Title VII]," or (2) "the

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employee's participation in the machinery set up by Title VII to

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enforce its provisions."

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Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir. 1978)).

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he did not include retaliation as a part of his formal EEO

Retaliation may be

Hashimoto, 118 F.3d at 680 (citing
Although

United States District Court
For the Northern District of California

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complaint, it is "like or reasonably related to" the claims he did

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exhaust.

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adverse actions taken after his September 26, 2007, complaint.

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II. Incidents Prior to the Forty-Five Day Time Limit

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Plaintiff may pursue a retaliation claim based on

Defendant argues that Plaintiff failed to meet the

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administrative deadline for claims based on events that occurred

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before September 9, 2007.

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counselor within forty-five days of an incident to pursue a claim

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of discrimination.

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counselor until October 24, 2007, but he argues that claims based

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on alleged discriminatory conduct occurring prior to the forty-

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five day limitations period should not be dismissed because the

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conduct was ongoing and constituted a systematic pattern of

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discriminatory conduct.

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Federal employees must seek out an EEO

Plaintiff acknowledges he did not see an EEO

The Ninth Circuit has ruled that a "continuing violation may

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thus be established . . . by demonstrating a series of related

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acts against a single individual."

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Superintendent of Schools, 883 F.2d 1472, 1480 (9th Cir. 1989).

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If the alleged incidents are found to be sufficiently related,
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Green v. Los Angeles Cty.

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they may come within the limitations period.

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Rochester, Inc., 147 F.3d 1104, 1108 (9th Cir. 1998) (quoting

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Huckabay v. Moore, 142 F.3d 233, 240 (5th Cir. 1998), to explain

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that the continuing violation doctrine "will render a complaint

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timely as to a course of conduct only if the complaint is timely

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as to the most recent occurrence").

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discrimination alleged is the October 11, 2007, cancellation of

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Plaintiff's second domestic assignment.

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occurred when an unnamed coworker reported to management that

See Draper v. Coeur

The latest occurrence of

Plaintiff alleges this

United States District Court
For the Northern District of California

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Plaintiff intended to seek redress for discrimination.

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also alleges acts of discrimination that occurred prior to the

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time limit.

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him from his Northern California assignment, the January 2007

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placement on double secret probation, and prevention of

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operational travel from February 2007 to June 2007.

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argues that these acts are related to the most recent occurrence

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because they are part of an ongoing effort to discriminate against

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him and harm his career on the basis of his wife's race and

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national origin.

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that occurred before September 9, 2007, are not dismissed.

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III. Failure to State a Claim Upon Which Relief May Be Granted

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Plaintiff

These acts include the December 2006 threat to remove

Plaintiff

Plaintiff's claims based on the alleged conduct

Defendant argues that the Court must dismiss the portion of

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Plaintiff's interference claim that comes within the forty-five

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day time limit because it fails to allege sufficient factual

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content.

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specifically what sort of interference occurred or to provide a

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coherent theory on the result of the alleged interference.

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Plaintiff has plead facts that go beyond mere conclusory

Defendant argues that Plaintiff fails to state

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allegations.

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the treatment of his co-workers who were married to Caucasians and

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the negative impact that this purported treatment had on his

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career opportunities.

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IV. Plaintiff's Status as a Member of a Protected Class

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He alleges ways in which his treatment differed from

In construing Title VII, courts customarily give deference to

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the constructions accorded to the Act by the EEOC, which is

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charged by Congress with the duty of interpreting, administering,

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and enforcing it.

McDonald v. Santa Fe Trail Transp. Co., 427

United States District Court
For the Northern District of California

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U.S. 273, 286-87 (1976).

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that an employer who takes adverse action against an employee

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because of interracial association violates Title VII.

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Decision No. 79-03, 1983 EEOC Dec. (CCH) ¶ 6734 (Oct. 6, 1978)

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(while evidence did not support the allegation, it was recognized

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that an interracial relationship could be the basis for a Title

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VII claim); Decision No. 71-1902, 1973 EEOC Dec. (CCH) ¶ 6281

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(April 29, 1971) (charging party's interracial dating was a factor

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in discharging her and thus presented a Title VII claim); Decision

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No. 71-909, 3 F.E.P. 269 (1970) (Title VII applied to a white

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employee's claim that he was discharged because of associations

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with African-American employees).

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EEOC decisions consistently have held

See

Courts in the Central District of California and the Southern

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District of New York have recognized that interracial association

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can serve as the basis for a suit under Title VII.

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Ochs, 780 F. Supp. 680, 681 (C.D. Cal. 1991) (holding that Title

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VII prohibits discrimination based on interracial association);

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Whitney v. Greater New York Corp. of Seventh-Day Adventists, 401

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F. Supp. 1363, 1366-67 (S.D.N.Y. 1975) (reasoning that if a white
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See Chacon v.

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plaintiff was discharged because defendant disapproved of her

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relationship with a black man, plaintiff's race was "as much a

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factor in the decision to fire her as that of her friend.").

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Plaintiff's claim thus does not fail, at least as a matter of law,

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on the basis that he is not part of a protected class under Title

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VII.

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CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss is
DENIED.

United States District Court
For the Northern District of California

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IT IS SO ORDERED.

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Dated:

11/28/2011

CLAUDIA WILKEN
United States District Judge

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