Ugbaja v. Gibson
Filing
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ORDER by Judge Hamilton granting in part and denying in part 26 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 4/15/2015)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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CHIKA E. UGBAJA,
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Plaintiff,
No. C 14-3410 PJH
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v.
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ROBERT A. MCDONALD,
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS
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For the Northern District of California
United States District Court
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Defendant.
_______________________________/
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Defendant’s motion to dismiss came on for hearing before this court on April 8,
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2015. Plaintiff Chika Ugbaja (“plaintiff”) appeared in pro per. Defendant Robert A.
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McDonald (“defendant”) appeared through his counsel, Warren Metlitzky. Having read the
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papers filed in conjunction with the motion and carefully considered the arguments and
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relevant legal authority, and good cause appearing, the court hereby GRANTS in part and
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DENIES in part defendant’s motion to dismiss as follows.
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In the operative first amended complaint (“FAC”), plaintiff asserts five causes of
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action in connection with her employment at the San Francisco Veterans Medical Center:
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(1) discrimination (failure to promote) based on race/national origin, under Title VII; (2)
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hostile work environment based on race and gender, under Title VII; (3) discrimination
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(failure to promote) based on age, under the Age Discrimination in Employment Act
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(“ADEA”); (4) retaliation, under Title VII; and (5) hostile work environment based on race,
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under Title VII. Defendant moves to dismiss the entire FAC, arguing that claims (1), (2),
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(3), and (5) are barred based on plaintiff’s failure to timely exhaust her administrative
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remedies, and that claims (2), (4), and (5) fail to state a claim.
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Plaintiff’s claims generally fall into three categories. First, claims (1) and (3) both
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arise out of allegations that defendant discriminated against plaintiff by failing to promote
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her. Second, claims (2) and (5) both arise out of allegations of a hostile work environment.
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And finally, claim (4) is based on the allegation that plaintiff was unlawfully retaliated
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against.
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A.
Legal Standard
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1.
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Federal courts are courts of limited jurisdiction, possessing only that power
Rule 12(b)(1)
pursuant thereto. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986).
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Thus, federal courts have no power to consider claims for which they lack subject matter
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For the Northern District of California
authorized by Article III of the United States Constitution and statutes enacted by Congress
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United States District Court
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jurisdiction. See Chen-Cheng Wang ex rel. United States v. FMC Corp., 975 F.2d 1412,
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1415 (9th Cir. 1992).
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Subject matter jurisdiction is fundamental and cannot be waived. Billingsly v. C.I.R.,
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868 F.2d 1081, 1085 (9th Cir. 1989). The court is under a continuing duty to dismiss an
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action whenever it appears that the court lacks jurisdiction. Id.; see also Spencer Enters.,
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Inc. v. United States, 345 F.3d 683, 687 (9th Cir. 2003); Attorneys Trust v. Videotape
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Computers Prods., Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).
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Unlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance of a
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complaint’s jurisdictional allegations despite their formal sufficiency, and the court may look
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beyond the pleadings to decide the motion and may resolve factual disputes. See St. Clair
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v. City of Chico, 880 F.2d 199, 201 (9th Cir.1989).
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2.
Rule 12(b)(6)
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A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal
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sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191,
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1199-1200 (9th Cir. 2003). Review is limited to the contents of the complaint. Allarcom
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Pay Television, Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). To survive
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a motion to dismiss for failure to state a claim, a complaint generally must satisfy only the
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minimal notice pleading requirements of Federal Rule of Civil Procedure 8, which requires
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that a complaint include a “short and plain statement of the claim showing that the pleader
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is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the
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plaintiff fails to state a cognizable legal theory, or has not alleged sufficient facts to support
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a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
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1990). The court is to “accept all factual allegations in the complaint as true and construe
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the pleadings in the light most favorable to the nonmoving party.” Outdoor Media Group,
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Inc. v. City of Beaumont, 506 F.3d 895, 899-900 (9th Cir. 2007).
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B.
Legal Analysis
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For the Northern District of California
United States District Court
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As mentioned above, plaintiff asserts two claims based on defendant’s failure to
“Failure to promote” claims
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promote her – one alleging discrimination based on race (under Title VII) and one alleging
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discrimination based on age (under the ADEA). Both claims require exhaustion of
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administrative remedies before filing suit. See Sommatino v. United States, 255 F.3d 704,
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707-08 (9th Cir. 2001); Whitman v. Mineta, 541 F.3d 929, 932 (9th Cir. 2008). Under either
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statute, a federal employee must notify an Equal Employment Opportunity (“EEO”)
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counselor within 45 days of the alleged discriminatory conduct in order to satisfy the
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exhaustion requirement.1 See Kraus v. Presidio Trust Facilities Division/Residential
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Management Branch, 572 F.3d 1039, 1043 (9th Cir. 2009); Whitman, 541 F.3d at 932.
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Exhaustion of administrative remedies is necessary to establish subject matter jurisdiction.
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B.K.B. v. Maui Police Department, 276 F.3d 1091, 1099 (9th Cir. 2002).
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Defendant argues, and plaintiff does not dispute, that plaintiff’s first contact with an
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EEO counselor was on February 16, 2012. Defendant thus argues that any conduct more
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than 45 days before that date (i.e., before January 2, 2012) is time-barred. Defendant
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The ADEA actually provides two alternative avenues for seeking relief, only one of
which is subject to the 45-day requirement to notify an EEO counselor. Whitman, 541 F.3d
at 932. Because plaintiff invoked the administrative claims process, she is subject to that 45day requirement.
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further submits a declaration stating that all of the non-promotions alleged in the complaint
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occurred before January 2, 2012. See Dkt. 28, ¶¶ 4-8.
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In her opposition, plaintiff does not dispute that the 45-day limit may bar her claims,
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but offers two reasons why the 45-day period should be equitably tolled. See Sommatino,
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255 F.3d at 710 (holding that equitable tolling can apply to administrative exhaustion
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requirements). First, she argues that she was not aware of the requirement to contact an
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EEO counselor within 45 days; and second, she argues that she was not actually made
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aware of the non-promotions, as defendant “never notified [her] why she was not selected
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for the jobs she interviewed for, who were selected and why.”
Defendant responds to the first argument by pointing to plaintiff’s EEO training
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For the Northern District of California
United States District Court
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records, which indicate that plaintiff received training on the EEO complaint process twice
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in 20092. See Dkt. 43, Ex. 1. Defendant also contends that plaintiff received a handout on
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EEO complaint procedures when she was hired, and submits a copy of the handout. See
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Dkt. 43, Ex. 2.
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The court finds that, even if plaintiff did not have actual knowledge of the 45-day
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requirement, the records submitted by defendant show that she had constructive
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knowledge, which is sufficient under the law of this circuit. See, e.g., Johnson v.
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Henderson, 314 F.3d 409, 415 (9th Cir. 2002). A strict requirement of actual knowledge
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would allow any plaintiff to avoid the exhaustion requirement by simply claiming that he or
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she did not read the relevant training materials. Thus, plaintiff’s first argument for equitable
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tolling is rejected.
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As to plaintiff’s second tolling argument, defendant responds that “there is no
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evidence that plaintiff ever asked” if others had been hired for the positions that she applied
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for, nor is there evidence that plaintiff “engaged in even the most basic diligence required to
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establish equitable tolling.” While defendant may be correct that plaintiff was not diligent in
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Defendant’s reply brief also states that plaintiff received additional EEO-related training
in 2010, but neither the reply declaration of Lynn Hart nor the attached exhibits make reference
to any EEO training in 2010.
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seeking information regarding the non-promotions, the court finds that whether plaintiff’s
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constructive knowledge can be imputed or whether plaintiff was sufficiently diligent are
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factual matters that cannot be resolved on the limited evidentiary record currently before
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the court.
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Although plaintiff has not offered a signed declaration regarding her lack of
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knowledge of the non-promotions, she does affirm in her signed opposition brief that she
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“sworn that the contents of her complaint are true,” and in turn, the FAC alleges that
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plaintiff was “denied [] the knowledge of this promotion until much later as plaintiff was
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searching through her electronic employment records and found out that her promotion was
denied without her knowledge and an opportunity to appeal the denial.” FAC at 3. While
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For the Northern District of California
United States District Court
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the court does not consider this allegation to be dispositive on the issue of equitable tolling,
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it notes that defendant has provided nothing more than attorney argument regarding
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plaintiff’s lack of knowledge or lack of diligence regarding the non-promotions. Thus, for
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purposes of this motion to dismiss, the court finds plaintiff’s allegations to be sufficient
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regarding her lack of knowledge that others, outside of her race and/or age group, were
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hired for the positions for which she applied. While defendant may raise this issue again
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after relevant discovery has been taken, at this time, the court finds that equitable tolling
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may apply to the 45-day requirement to contact an EEO counselor regarding plaintiff’s
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“failure to promote” claims, and thus, defendant’s motion to dismiss is DENIED as to the
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first and third causes of action.
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2.
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As mentioned above, plaintiff asserts two causes of action under Title VII for hostile
Hostile work environment claims
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work environment: the second cause of action, which purports to be based on race and
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gender-related harassment, and the fifth cause of action, which purports to be based on
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race-related harassment.
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As an initial matter, to the extent that the second cause of action is based on race-
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related harassment, it appears to be duplicative of the fifth cause of action. However,
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because plaintiff alleges different conduct as part of each claim, the court will address each
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claim separately.
Plaintiff’s second cause of action is based on two sets of allegations. First, in April
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2004, her charge nurse (Ed Kramer) “repeatedly, on different occasions” called plaintiff
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“Mama Chika, Chika Lu-Lu, Nigerian woman, baby maker. It is either you take your job
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seriously or you stay at home with your children. You don’t have to work here.” Plaintiff
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further alleges that, on one occasion, Kramer “actually followed plaintiff and shooed her off
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the locked psychiatric unit with a clipboard.” Second, plaintiff alleges that, in May 2004, her
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supervisor (Ellen Peterson) sent a letter to the Human Resources manager advising her not
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to offer plaintiff a permanent position, and that Peterson ultimately offered a permanent
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For the Northern District of California
United States District Court
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position to one of her own personal friends.
Plaintiff’s fifth cause of action re-alleges the comment made by Ed Kramer, and
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makes a number of additional allegations. First, plaintiff alleges that, in December 2009,
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she was “on her two knees begging Peterson to assist her with nurse practitioner
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credentialing clinical hours,” and that “Peterson got mad and pointed her index finger at the
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plaintiff, [and] told her to stop going from one nurse manager to the other asking for nurse
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practitioner job.”
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Plaintiff then alleges that, in September 2011, she met with the chief of nursing to
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discuss her difficulties in obtaining a nurse practitioner position. Plaintiff alleges that
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Peterson requested meeting time with the chief to discuss “a more important issue,” and
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after that request was denied, Peterson “turned around and stared at plaintiff and said to
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her ‘You better keep your meeting brief, the chief does not have enough time for her
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managers.’”
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Finally, plaintiff alleges that her supervisor (Lincoln Warner, who succeeded
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Peterson) “called plaintiff at her home to harass her by telling plaintiff not to report for her
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scheduled duties” on three instances between March 2012 and September 2013, and “did
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not pay plaintiff for most of the cancelled shifts.” Plaintiff also alleges that Warner “called
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plaintiff at her home phone, woke her up from sleep after her night shift duties, and told her
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‘effective today you are detailed to another department for further notice, and your shift is
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changed from night to day until further notice, or you will be disciplined.’”
In a separate section of the FAC, plaintiff also alleges that “nude female photos were
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posted at [her] work station at the beginning of her midnight shift.” See FAC at 3. While
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plaintiff does not include this allegation as part of either hostile work environment claim, the
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court will consider it as part of the gender harassment claim. However, the court notes that
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plaintiff does not allege when this incident occurred, and the reference to the photos being
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posted “at the beginning of her midnight shift” suggest that this incident was not repeated.
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Defendant first seeks dismissal of plaintiff’s hostile work environment claims based
Defendant notes that all of the conduct alleged in connection with the hostile work
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For the Northern District of California
on her failure to contact an EEO counselor within 45 days of the alleged conduct.
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United States District Court
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environment claims occurred more than 45 days before plaintiff first contacted an EEO
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counselor on February 16, 2012.
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As with her “failure to promote” claims, plaintiff argues that equitable tolling should
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apply, because she was unaware of the 45-day requirement. However, for the same
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reasons set forth above, the court finds that plaintiff had constructive knowledge of the 45-
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day requirement, and thus, it cannot be tolled on that basis. Also, while the court found
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that the “failure to promote” claims might be subject to tolling based on plaintiff’s lack of
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knowledge regarding the non-promotions, that reasoning would not apply to the hostile
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work environment claims, because plaintiff was necessarily aware of all of the relevant
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conduct. Thus, the court finds no basis for equitable tolling in the context of her hostile
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work environment claims, and GRANTS defendant’s motion to dismiss as to the second
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and fifth causes of action. Because these claims cannot be saved by amendment, plaintiff
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will not be granted leave to amend these claims.
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As an alternative basis for dismissal, defendant argues that neither the second nor
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the fifth cause of action sufficiently state a claim. Under Title VII, to prove that a hostile
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environment based on race existed, the plaintiff must show (1) that she was subjected to
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verbal or physical conduct because of her race; (2) that the conduct was unwelcome; and
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(3) that the conduct was sufficiently severe or pervasive to alter the conditions of her
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employment and create an abusive work environment. Vasquez v. County of Los Angeles,
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349 F.3d 634, 642 (9th Cir. 2003). Hostile work environment claims based on racial
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harassment are reviewed under the same standard as those based on sexual harassment.
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See Faragher v. Boca Raton, 524 U.S. 775, 786-87 & n.1 (1998).
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The court finds that the majority of the conduct alleged by plaintiff (specifically, the
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conduct involving Peterson and Warner) appears to be race-neutral and gender-neutral,
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and thus, does not constitute “verbal or physical conduct based on her race” (or her
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gender). And while the 2004 comment made by Kramer unquestionably constitutes
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unwelcome verbal conduct based on plaintiff’s race and gender, a single incident can only
support a hostile work environment claim when that incident is “extremely severe,” and
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For the Northern District of California
United States District Court
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usually must involve physical conduct. Brooks v. City of San Mateo, 229 F.3d 917, 926
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(9th Cir. 2000). While plaintiff alleges that Kramer made the comment “repeatedly, on
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different occasions,” that allegation is not supported by any further factual details, and the
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court notes that the original complaint alleged that Kramer made the comment once, in
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April 2004. See Dkt. 1 at 6. Thus, while the comment made by Kramer was
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unquestionably offensive, the court finds that it, standing alone, cannot support a hostile
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work environment claim.
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Even if the court were to assume that all of the alleged conduct was based on
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plaintiff’s race and/or gender, the sporadic nature of these incidents preclude a finding that
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they were severe or pervasive enough to alter the conditions of employment. See, e.g.,
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Manatt v. Bank of America, NA, 339 F.3d 792, 795-99 (9th Cir. 2003) (co-workers’ use of
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the term “China-man,” ridicule of the plaintiff's mispronunciation of English words,
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statement that "I've had the worst kind of trouble with your countrymen," using gestures
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mocking the appearance of Asians – held to be insufficient to create a hostile work
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environment).
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Accordingly, the court finds that the second and fifth causes of action fail to state a
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claim for hostile work environment based on race and/or gender, which provides an
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independent basis for granting defendant’s motion to dismiss as to those claims.
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3.
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Plaintiff’s fourth cause of action alleges that she engaged in protected activity when
Retaliation claim
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she filed a complaint with her union over a five-day suspension by Warner. The FAC
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alleges that, on November 21, 2011, a patient had a “flare up of his PTSD,” and
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complained to the nursing supervisor that “he was angry for a couple of things about the
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psychiatric unit.” Warner assumed that the complaint was about plaintiff, so he suspended
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her for five days. Plaintiff filed a complaint with the union on January 29, 2012, and on
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February 6, 2012, Warner rescinded the five-day suspension and made it a ten-day
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suspension. Plaintiff further alleges that Warner based the suspension on plaintiff having
“abandoned the nursing station to use the other work station on the unit,” even though
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For the Northern District of California
United States District Court
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Warner “did not [similarly] treat other white co-workers who used the conference room as
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an alternative work station.”
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Defendant argues that, in order to be actionable under Title VII, plaintiff must allege
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more than just that the retaliation was unfair, she must allege that it was based on activity
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specifically protected by Title VII. Defendant argues that the FAC shows that plaintiff
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believed that the suspension was based on Warner having “improperly attributed fault to
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plaintiff for a patient’s complaint,” which falls outside the scope of Title VII.
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However, plaintiff’s EEO complaint suggests otherwise. In it, she alleges that the
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ten-day suspension was based on “[un]founded charges for speaking up to the union and
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to management about her hostile work environment.” See Dkt. 27, Ex. A at 10. While the
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FAC may be inartfully pled, as it does not make clear whether plaintiff believes that the
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initial five-day suspension, or the later ten-day suspension – or both – was imposed in
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retaliation for her complaints about hostile work environment, but given this circuit’s rule of
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liberal construction of pleadings submitted by pro se litigants, the court finds that plaintiff
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has sufficiently stated a claim for retaliation under Title VII. Accordingly, defendant’s
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motion to dismiss is DENIED as to the fourth cause of action.
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C.
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Conclusion
For the foregoing reasons, defendant’s motion is GRANTED as to the second and
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fifth causes of action, and DENIED as to the first, third, and fourth causes of action. The
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dismissal of the second and fifth causes of action is without leave to amend. Defendant
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shall have 21 days from the date of this order to file an answer to the FAC.
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IT IS SO ORDERED.
Dated: April 15, 2015
______________________________
PHYLLIS J. HAMILTON
United States District Judge
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For the Northern District of California
United States District Court
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