Opinion
CV 17-1274 PSG (AJWx)
01-10-2018
Alisia Yvonne Bryant v. Covina-Valley Unified School District et al.
Present: The Honorable Philip S. Gutierrez, United States District Judge
CIVIL MINUTES - GENERAL
Proceedings (In Chambers): Order GRANTING IN PART and DENYING IN PART Defendant's motion to dismiss
Before the Court is a motion to dismiss filed by Defendant Covina-Valley Unified School District (“Defendant”). See Dkt. # 34 (“Mot.”). Plaintiff Alisia Yvonne Bryant (“Plaintiff”) opposes the motion, see Dkt. # 35 (“Opp.”), and Defendant timely replied, see Dkt. # 36 (“Reply”). The Court finds the matter appropriate for decision without oral argument. See Fed.R.Civ.P. 78(b); L.R. 7-15. Having considered the moving papers, the Court GRANTS IN PART and DENIES IN PART Defendant's motion to dismiss.
I. Background
The factual background of this action-which stems from Defendant's alleged discrimination against Plaintiff during her employment-was fully described in the Court's previous order granting Defendant's motion to dismiss Plaintiff's original complaint. See Dkt. # 32 (“MTD Order”), at 1-4. Plaintiff alleges that, from September 2002 until October 28, 2015, she experienced “a long-running pattern and practice of continuous misconduct” perpetrated by Defendant and its employees. See First Amended Complaint, Dkt. # 33 (“FAC”), ¶ 13. This includes “discrimination based on her status as an African-American woman as well as due to her decision to exercise her rights regarding workplace injuries she sustained during the course of her employment.” Id. ¶ 15. She further claims that she “was subjected to a hostile work environment, denied equal employment benefits, reduced employment benefits, and unjustified disciplinary actions,” actions that were allegedly sanctioned by Defendant through various supervisors, administrators, and decision-makers. Id.
On or about July 26, 2016, Plaintiff claims that she submitted a request for a charge of discrimination to the Equal Employment Opportunity Commission (“EEOC”), which “specifically asserted that Plaintiff was the victim of discrimination based on race, disability, and retaliation and provided detailed examples of the same.” Id. ¶ 11. On or about November 22, 2016, the EEOC issued a “Dismissal and Notice of Rights,” thus satisfying the administrative prerequisite for filing this suit. Id. ¶ 12.
On October 16, 2017, the Court granted Defendant's motion to dismiss Plaintiff's original complaint. See generally MTD Order. After noting that “Title VII claimants generally establish federal court jurisdiction by first exhausting their EEOC administrative remedies,” id. at 5 (quoting Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990)), and that Title VII requires that a plaintiff file a complaint with the EEOC within either 180 or 300 days after the alleged misconduct, see MTD Order at 6-7, the Court concluded that Plaintiff's action was barred because the only alleged misconduct that occurred even within 300 days of her EEOC filing was a negative performance review, which “alone does not constitute an adverse employment action.” Id. at 7. Because “the Court conclude[d] that Plaintiff ha[d] not alleged a cognizable claim within the statutory period,” all of her causes of actions were therefore barred. Id. at 7-8. The Court ultimately granted Plaintiff leave to amend because “the principal defect of Plaintiff's [] causes of action [was] that no allegedly adverse employment action occurred during the statutory period prior to her filing with the EEOC, which could be cured by amendment.” Id. at 9 (emphasis in original).
Plaintiff filed a first amended complaint (“FAC”) on November 9, 2017, in which she repeats the factual narrative described in the Court's previous order and asserts the following causes of action: racial discrimination in violation of Title VII of the Civil Rights Act of 1964, FAC ¶¶ 100-03; retaliation for engaging in protected activities, id. ¶¶ 104-09; violation of the Rehabilitation Act of 1973, id. ¶¶ 110-13; and hostile and abusive work environment, id. ¶¶ 114-20.
Defendant now moves to dismiss the FAC, arguing that it “fails to remedy the fatal flaws that existed in [Plaintiff's] original Complaint.” Mot. 1:7-8.
II. Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In assessing the adequacy of the complaint, the court must accept all pleaded facts as true and construe them in the light most favorable to the plaintiff. See Turner v. City & Cty. of S.F., 788 F.3d 1206, 1210 (9th Cir. 2015); Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). The court then determines whether the complaint “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Accordingly, “for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks omitted).
III. Discussion
“Title VII claimants generally establish federal court jurisdiction by first exhausting their EEOC administrative remedies. Therefore [i]ncidents of discrimination not included in an EEOC charge may not be considered by a federal court unless the new claims are like or reasonably related to the allegations contained in the EEOC charge.” Sosa, 920 F.2d at 1456; see also EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994) (“To establish federal subject matter jurisdiction, [plaintiff] was required to exhaust her EEOC administrative remedies before seeking federal adjudication of her claims.”). This administrative requirement also attaches to claims brought under the Rehabilitation Act. See Vinieratos v. United States, 939 F.2d 762, 773 (9th Cir. 1991) (“[A] federal employee who alleges employment discrimination on the basis of a handicap [under the Rehabilitation Act] must exhaust the administrative remedies available under Title VII.”). Therefore, because each of Plaintiff's causes of actions is premised on some combination of Title VII and the Rehabilitation Act, this action requires that she had first exhausted her administrative remedies by timely filing with the EEOC. See 42 U.S.C. § 2000e-5(b); B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1099 (9th Cir. 2002).
Title VII requires that a “charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1) (emphasis added). That timeframe is extended to 300 days “in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice.” Id.; see also National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). Here, Plaintiff has alleged that she “filed several EEOC complaints throughout her employment, including but not limited to filing in 2008, 2009, [and] 2015.” FAC ¶ 93. Accordingly, the Court will apply the 300-day window because Plaintiff previously instituted proceedings with the EEOC.
Because Plaintiff filed the EEOC claim that served as a prerequisite for this action on July 26, 2016, at least one act of discrimination or retaliation must have occurred within 300 days of that date; in other words, on or after September 30, 2015. Plaintiff's FAC contains a catalogue of alleged adverse actions undertaken by Defendant and its employees, spanning a period of more than a decade. However, only two of these alleged acts occurred within the 300-day window: a negative performance review and, after Plaintiff's employment with Defendant ended, a denial of unemployment benefits.
Plaintiff cites the Supreme Court's Morgan decision for the proposition that even time-barred acts may still be used as evidence of a hostile work environment under the continuing violation doctrine. See Opp. 10:14-11:9. However, as the Court previously discussed, “Morgan nonetheless requires that a plaintiff file with the EEOC within 180 or 300 days” because “although the continuing violation doctrine might be applicable to determine the extent of Defendant's potential liability, it does not excuse the failure to timely file with the EEOC.” MTD Order at 7-8 n. 2 (citing Morgan, 536 U.S. at 117).
Plaintiff alleges that on or about September 30, 2015, she received a negative work performance review “without true justification,” which, she contends, “continue[d] the ongoing discriminatory and unfair treatment she [] continuously received from Defendant.” Id. ¶ 85. However, as the Court discussed in its previous order, various courts have recognized that a negative performance review, without more, does not constitute an adverse employment action. See, e.g., Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (“[F]ormal criticism or poor performance evaluations are [not] necessarily adverse actions and they should not be considered such if they did not affect[] the [employee's] grade or salary.”) (internal quotation marks omitted); Kortan v. California, 5 F.Supp.2d 843, 853 (C.D. Cal. 1998) (citing Smart v. Ball State Univ., 89 F.3d 437, 442 (7th Cir. 1996); Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th Cir. 1994)) (“A negative evaluation alone, without any concomitant adverse impact, such as a demotion or a change of responsibilities, is not cognizable.”). The negative review cannot therefore serve as a sufficient event within the 300-day window.
Plaintiff's only other allegation that falls within the 300-day timeframe is that Defendant “wrongfully denied [her] unemployment benefits after she was terminated,” an issue that apparently continues to today. FAC ¶¶ 87, 90. Defendant asserts that “this post-employment event cannot be considered an adverse employment action, as by their nature, they are post-employment events which have no effect on the nature of Plaintiff's prior employment with Defendant.” Reply 1:12-14; see also Mot. 15:5-7 (“Defendant has found no legal authority which supports such alleged post-employment conduct as constituting adverse employment action.”). Defendant's assertions to the contrary notwithstanding, the Supreme Court has held that while Title VII's antidiscrimination provisions are limited to “discriminatory actions that affect the terms and conditions of employment” and are thus not applicable to post-employment discrimination, its antiretaliation provision is not so limited. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006); see also Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (holding that the term “employees” as used in Title VII's antiretaliation provision “includes former employees”); Tabaddor v. Holder, 156 F.Supp.3d 1076, 1091 (C.D. Cal. 2015) (quoting Burlington N., 548 U.S. at 67) (“The scope of the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.”). Accordingly, courts have extended Title VII's antiretaliation provision to actions undertaken post-employment. See, e.g., Ward v. Wal-Mart Stores, Inc., 140 F.Supp.2d 1220, 1231 (D.N.M. 2001) (holding that a former employee could proceed with his claim that his former employer challenged his unemployment compensation in retaliation for his prior EEOC charge); Stezzi v. Citizens Bank of Pa., No. 10-4333, 2012 WL 4717900, at *4 (E.D. Pa. Oct. 4, 2012) (same).
Therefore, the Court concludes that Plaintiff's causes of action based on alleged discrimination-specifically, her first cause of action for racial discrimination, her third cause of action for violation of the Rehabilitation Act, and her fourth cause of action for hostile and abusive work environment-are barred because no alleged acts of discrimination occurred both during her employment with Defendant and within the 300-day window prior to her EEOC filing. However, because Plaintiff alleges that Defendant denied her disability and unemployment benefits in retaliation for her previously engaging in protected activities, and because these adverse actions occurred within the 300-day window, Plaintiff has asserted a plausible retaliation claim even though Defendant's allegedly retaliatory actions occurred post-employment.
Defendant argues that Plaintiff has “alleged no facts from which a reasonable trier of fact could conclude that Defendant's conduct toward Plaintiff occurred because she engaged in some protected conduct.” Mot. 15:20-25 (emphasis in original); see also University of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013) (“The text, structure, and history of Title VII demonstrate that a plaintiff making a retaliation claim under § 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.”). The Court disagrees. Plaintiff's FAC establishes that she engaged in protected activities. These activities include not only complaining of discrimination and seeking accommodation through Defendant's internal mechanisms, see FAC ¶ 106, but also the filing of EEOC complaints in 2008, 2009, and 2015, see id. ¶ 93, which is an indisputably protected activity. See 42 U.S.C. § 2000e-3(a); Ray v. Henderson, 217 F.3d 1234, 1240 n. 3 (9th Cir. 2000) (“As the statutory language quoted above indicates, filing a complaint with the EEOC is a protected activity”). Plaintiff further alleges that she experienced adverse action, and claims that she was “subjected to the adverse employment action based upon her participation in the protected activities” and that Defendant was “motivated by discriminatory animus.” FAC ¶¶ 108-09. Mindful that, on a motion to dismiss, the Court must accept Plaintiff's assertions as true and draw inferences in her favor, it concludes that Plaintiff has successfully pleaded a prima facie case of retaliation under Title VII. See Ray, 217 F.3d at 1240 (“To make out a prima facie case of retaliation, an employee must show that (1) he engaged in a protected activity; (2) his employer subjected him to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action.”).
In summation, the Court GRANTS Defendant's motion to dismiss Plaintiff's first cause of action for racial discrimination, third cause of action for violation of the Rehabilitation Act, and fourth cause of action for hostile and abusive work environment, and DENIES Defendant's motion as to Plaintiff's second cause of action for retaliation for engaging in protected activities.
IV. Leave to Amend
Whether to grant leave to amend rests in the sound discretion of the trial court. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). The Court considers whether leave to amend would cause undue delay or prejudice to the opposing party, and whether granting leave to amend would be futile. See Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). Generally, dismissal without leave to amend is improper “unless it is clear that the complaint could not be saved by any amendment.” Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003).
Despite the Court's admonitions in its prior dismissal order, Plaintiff's FAC does not contain allegations of discriminatory conduct that occurred within the 300 days prior to her July 26, 2016 EEOC filing. The Court concludes that permitting amendment for a second time would be futile, and DENIES Plaintiff leave to amend her first, third, and fourth causes of action.
V. Conclusion
For the foregoing reasons, the Court GRANTS WITH PREJUDICE Defendant's motion to dismiss Plaintiff's first cause of action for racial discrimination, third cause of action for violation of the Rehabilitation Act, and fourth cause of action for hostile and abusive work environment. It DENIES Defendant's motion to dismiss Plaintiff's second cause of action for retaliation for engaging in protected activities.
IT IS SO ORDERED.