Bond v. Wells Fargo Bank NA ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jennifer Bond, No. CV-21-00830-PHX-JJT 10 Plaintiff, ORDER 11 v. 12 Wells Fargo Bank NA, 13 Defendant. 14 15 16 At issue is Defendant Wells Fargo Bank, N.A.’s Motion to Dismiss Plaintiff’s 17 Complaint (Doc. 14, MTD) to which Plaintiff Jennifer Bond filed a Response (Doc. 16, 18 Resp.) and Defendant filed a Reply (Doc. 17, Reply). The Court has reviewed the parties’ 19 briefs and finds this matter appropriate for decision without oral argument. See LRCiv 20 7.2(f). For the reasons set forth below, the Court grants in part Defendant’s Motion to 21 Dismiss. Also, the Court grants Plaintiff leave to amend the Complaint. 22 I. BACKGROUND Plaintiff filed a Complaint alleging sex discrimination and retaliation in violation of 23 24 Title VII, 42 U.S.C. § 2000e-2(a)(2) and age discrimination and retaliation in violation of 25 the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(d). (Doc. 1, Compl. ¶¶ 1-4.) The Complaint alleges Plaintiff has been employed by Defendant since 26 27 September 2017, first as a contractor and then, “due to good performance,” as a full-time 28 Operational Risk Consultant 5. (Compl. ¶ 14.) 1 Plaintiff’s claims arise out of several alleged acts of discrimination occurring over 2 the course of her employment at Wells Fargo. (Compl. ¶¶ 14-44.) Plaintiff contends that, 3 “[b]eginning in April 2018,” her immediate manager made “condescending, disparaging 4 comments because of her sex,” “[r]egularly criticized her communications with others,” 5 and “[r]egularly publicly humiliated her.” (Compl. ¶ 19.) Plaintiff alleges that this occurred 6 on “[a]t least 20” occasions, and that similarly situated male coworkers were not subjected 7 to the same treatment. (Compl. ¶ 19.) Plaintiff further alleges that her male coworkers were 8 “assigned ample work” to Plaintiff’s exclusion. (Compl. ¶ 21.) According to Plaintiff, her 9 manager made “ageist comments,” toward Plaintiff “[a]t least eight times,” including 10 repeated statements that Plaintiff was being held “to a higher standard than the younger 11 members of the team.” (Compl. ¶ 22.) Sometime during 2018, Plaintiff received a negative 12 “Improvement Needed” evaluation that Plaintiff alleges “contained false facts.” (Compl. 13 ¶ 22.) Plaintiff complained about her manager’s alleged treatment of her in a companywide 14 survey in the summer of 2018. (Compl. ¶¶ 23-25.) 15 Plaintiff alleges retaliation against her for complaining about the sex and age 16 discrimination she experienced. (Compl. ¶ 7.) As a result, in February 2019, Plaintiff 17 contends she received another “baseless” “Needs Improvement” evaluation. (Compl. ¶ 31.) 18 Additionally, on March 9, 2019, Plaintiff states she received a bonus that was “$33,000 19 lower because of age, sex, and retaliation.” (Compl. ¶ 32.) This time, Plaintiff alleges she 20 went directly to her manager’s supervisor to discuss her manager’s treatment of her. 21 (Compl. ¶¶ 23-25.) In May 2019, Plaintiff allegedly further escalated her complaints about 22 her manager’s treatment of her by speaking to a Human Resources (“HR”) specialist. 23 (Compl. ¶¶ 23-25.) 24 In July 2019, shortly after complaining to her supervisor’s manager and HR, 25 Plaintiff claims she was demoted in a “reorganization.” (Compl. ¶ 33.) A week later, 26 Plaintiff was transferred to another position that she alleges “became an unhealthy 27 environment.” (Compl. ¶ 34.) Plaintiff alleges that Defendant 28 1 removed all of [Plaintiff]’s tasks from her calendar and did not add any new ones, did not permit her to attend required team 2 events and meetings, removed her from projects, did not 3 provide her presentations and training that were provided to her team members, and assigned her work to coworkers. 4 5 (Compl. ¶ 34.) Plaintiff’s then-manager expected Plaintiff to “obtain impossible-to-meet 6 100% perfect scores on performance objections but did not require anyone else to do so.” 7 (Compl. ¶ 34.) Plaintiff further alleges that, due to the removal of work from her calendar 8 and assignment of her work to others, Plaintiff’s relationships with team members were 9 “irreparably damaged,” hindering her career advancement. (Compl. ¶ 34.) 10 Additionally, Plaintiff contends her then-manager began “disciplining [Plaintiff] 11 without justification and acting unprofessionally toward her.” (Compl. ¶ 37.) This allegedly 12 included being falsely written-up for violating a Wells Fargo policy, stating Plaintiff’s 13 “tone of voice was too friendly in an email,” excluding Plaintiff from meetings, and 14 “chastis[ing]” Plaintiff for attending meetings she was required to attend. (Compl. ¶ 37.) 15 Plaintiff further alleges that, when Defendant transferred Plaintiff to a new position, she 16 was expected to both perform her new job duties and continue performing the job duties 17 from her prior position. (Compl. ¶ 38.) 18 Plaintiff also alleges that Defendant “denied over 25 of [Plaintiff]’s applications for 19 transfers into new positions,” and by November 2019, HR informed Plaintiff it was unable 20 to substantiate any of her complaints. (Compl. ¶¶ 27, 40.) In December 2019, Plaintiff 21 claims she “self-demoted” to a new position “with a substantial cut in pay and bonus and 22 a less prestigious job title with lower earning and promotion potential, to escape [her 23 manager]’s unprofessional behavior.” (Compl. ¶ 41.) Around this time, Plaintiff also 24 contacted the Equal Employment Opportunity Commission (“EEOC”) to file a charge of 25 discrimination. (Compl. ¶ 11.) The EEOC filed Plaintiff’s charge on January 17, 2020. 26 (Compl. ¶ 11.) On February 16, 2021, the EEOC issued a right to sue letter, and on May 10, 27 2021, Plaintiff filed her Complaint. (Compl. ¶ 12.) Defendant now moves to dismiss some 28 of Plaintiff’s claims for untimeliness and failure to exhaust administrative remedies. 1 II. LEGAL STANDARD 2 When analyzing a complaint for failure to state a claim for relief under Federal Rule 3 of Civil Procedure 12(b)(6), the well-pled factual allegations are taken as true and 4 construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 5 1063, 1067 (9th Cir. 2009). Legal conclusions couched as factual allegations are not 6 entitled to the assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and 7 therefore are insufficient to defeat a motion to dismiss for failure to state a claim. In re 8 Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). 9 A dismissal under Rule 12(b)(6) for failure to state a claim can be based on either (1) 10 the lack of a cognizable legal theory or (2) insufficient facts to support a cognizable legal 11 claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). “While a 12 complaint attacked by a Rule 12(b)(6) motion does not need detailed factual allegations, a 13 plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 14 than labels and conclusions, and a formulaic recitation of the elements of a cause of action 15 will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). The 16 complaint must thus contain “sufficient factual matter, accepted as true, to ‘state a claim to 17 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 18 Twombly, 550 U.S. at 570). “[A] well-pleaded complaint may proceed even if it strikes a 19 savvy judge that actual proof of those facts is improbable, and that ‘recovery is very remote 20 and unlikely.’” Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 21 (1974)). 22 III. ANALYSIS 23 A. Title VII and ADEA Administrative Remedies 24 In the Complaint, Plaintiff alleges four counts of discriminatory conduct: 25 discrimination based on sex in violation of Title VII; discrimination based on age in 26 violation of the ADEA; retaliation for complaints of sex discrimination in violation of Title 27 VII; and retaliation for complaints of age discrimination in violation of the ADEA. (Compl. 28 ¶¶ 1-4.) Title VII, 42 U.S.C. § 2000e-2(a) states that it is unlawful for an employer to “fail 1 or refuse to hire or to discharge any individual, or otherwise to discriminate against any 2 individual with respect to his compensation, terms, conditions, or privileges of 3 employment, because of such individual’s race, color, religion, sex, or national origin.” 4 Under the ADEA, 29 U.S.C. § 623(a), it is unlawful for employers to “fail or refuse to hire 5 or to discharge any individual or otherwise discriminate against any individual with respect 6 to his compensation, terms, conditions, or privileges of employment, because of such 7 individual’s age.” 8 Before a plaintiff may file a Title VII or ADEA suit in federal court, she must first 9 file a charge with the EEOC. 29 U.S.C. § 626(d); 42 U.S.C. § 2000e-5. Additionally, 10 Plaintiff’s charge must be filed with the EEOC “within 300 days after the alleged unlawful 11 practice occurred.” 29 U.S.C. § 626(d)(1)(B); 42 U.S.C. § 2000e-5. Employees are required 12 to exhaust their administrative remedies before filing a Title VII suit. Brown v. Puget Sound 13 Elec. Apprenticeship & Training Trust, 732 F.2d 726, 729 (9th Cir. 1984).1 14 1. Timeliness of Plaintiff’s Allegations 15 Plaintiff’s allegations comprise both discrete acts of discrimination as well as claims 16 based on a hostile work environment. The court will turn to each below. 17 a. Claims Alleging Discrete Discriminatory Acts 18 A discrete discriminatory act “‘occur[s]’ on the day that it ‘happen[s]’.” Nat'l R.R. 19 Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002). To recover for a discrete 20 discriminatory act, a plaintiff must file a charge with the EEOC within 300 days of the date 21 on which it occurred.2 Id. Related or connected discrete acts are not converted into a “single 22 unlawful practice for the purposes of timely filing.” Id. at 111. The fact that some discrete 23 acts fall within the statutory period does make other discrete acts occurring outside the 24 statutory time period timely. Id. at 112. If a discrete act is time-barred, it is not actionable 25 1 Exhaustion of administrative remedies is a condition precedent to filing suit but is not a 26 jurisdictional issue. Stache v. Int’l Union of Bricklayers & Allied Craftsmen, AFL-CIO, 852 F.2d 1231, 1233 (9th Cir. 1988). 27 2 Even if a discrete act is time-barred, the statute does not prevent an employee from using 28 evidence of discrete acts as background evidence to support a timely claim. Morgan, 536 U.S. at 113. 1 even if it is “related to acts alleged in timely filed charges.” Id. at 113. Each discrete act is 2 subject to its own 300-day statute of limitations. Id. 3 In this case, Plaintiff filed her administrative charge with the EEOC on January 17, 4 2020. Accordingly, any claim taking place prior to March 23, 2019 is time-barred under 5 Title VII and the ADEA.3 The Complaint includes several alleged discrete acts of 6 discrimination or retaliation that occurred prior to the 300-day period for timely claims 7 filed with the EEOC; each is time-bared. Defendant points out that several of Plaintiff’s 8 allegations either do not include specific dates on which certain alleged discriminatory acts 9 took place or have been re-framed in Plaintiff’s Response as occurring within the 300-day 10 statutory period. For example, Plaintiff alleges that Defendant “denied over 25 of 11 [Plaintiff]’s applications for transfers into new positions.” (Compl. ¶ 40.) Denial of transfer 12 is a discrete discriminatory act. Morgan, 536 U.S. at 114. In order to state a claim with 13 respect to the denials of transfer, Plaintiff must allege that they took place within the 300- 14 day period (on or after March 23, 2019). Plaintiff states that reading the Complaint 15 chronologically would suggest that the transfer denials took place on or after March 23, 16 2019. (Resp. at 7.) The Court will grant Plaintiff leave to amend the Complaint to clarify 17 and properly state the dates of the alleged discriminatory acts, if she has evidence to support 18 such contentions in good faith. 19 b. Claims Alleging a Hostile Work Environment 20 Hostile work environment claims, unlike discrete discriminatory acts, are “based on 21 the cumulative effect of individual acts” that, while not necessarily actionable on their own, 22 collectively form a single “unlawful employment practice.”. Morgan, 536 U.S. at 114. To 23 determine whether an employee has alleged an actionable hostile work environment claim, 24 the court looks at “‘all the circumstances,’ including ‘the frequency of the discriminatory 25 conduct; its severity; whether it is physically threatening or humiliating, or a mere 26 offensive utterance; and whether it unreasonably interferes with an employee’s work 27 28 3 The Court addresses Plaintiff’s argument that the 300-day period should begin on December 19, 2018 instead of March 23, 2019 in section III.A.2. 1 performance.’” Id. at 116 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)). 2 Unlike claims arising out of discrete discriminatory acts, claims based on a hostile work 3 environment may include some acts that fall outside of the 300-day statutory period. Id. at 4 117. “Provided that an act contributing to the claim occurs within the filing period, the 5 entire time period of the hostile environment may be considered by a court for the purposes 6 of determining liability.” Id. Therefore, for a hostile work environment claim to be timely, 7 an employee must file a charge within 300 days of any act that is part of the alleged hostile 8 work environment. Id. at 118 (emphasis added). 9 Defendant alleges that Plaintiff’s undated allegations regarding “condescending, 10 disparaging comments because of [Plaintiff’s] sex,” “ageist comments toward [Plaintiff],” 11 and alleged criticism and public humiliation of Plaintiff should be dismissed as it is 12 “impossible to discern whether any of the alleged acts fall within the 300-day statute of 13 limitations.” (MTD at 8.) Because these alleged acts would cumulatively support a finding 14 that Plaintiff experienced a hostile work environment based on her sex and age, Plaintiff 15 must demonstrate that she experienced at least one instance of discrimination within the 16 300-day period to establish the timeliness of her hostile work environment claims. See 17 Morgan, 536 U.S. at 118. 18 While most of Plaintiff’s allegations supporting her hostile work environment claim 19 are undated in the Complaint, she alleges that between August and October 2019, she had 20 work tasks removed from her – without new work assigned in its place – in retaliation for 21 her complaints of sex and age-based discrimination. (Doc. 1, Compl. ¶ 34.) Insofar as the 22 harm underpinning Plaintiff’s hostile work environment claim is unreasonable interference 23 with an employee’s work performance or advancement, the repeated or continuing removal 24 of work from Plaintiff or refusal to assign work to her may be considered acts constituting 25 a hostile work environment, rather than discrete acts of discrimination. See Morgan, 536 26 U.S. at 116. Plaintiff alleges further discriminatory treatment during this period, such as 27 requiring that she “obtain impossible-to-meet 100% perfect scores on performance 28 objections” when her peers were not required to do so. (Compl. ¶ 34.) These allegations 1 fall within the 300-day period, thereby making Plaintiff’s earlier, otherwise-untimely 2 allegations of a hostile work environment timely. 3 2. Agency Error and Equitable Tolling Claims 4 Plaintiff suggests that equitable tolling should apply in this case, making the 5 starting-point for the 300-day period December 19, 2018, rather than March 23, 2019. 6 Plaintiff states: 7 On October 15, 2019, [Plaintiff] made contact with the EEOC to file a charge of discrimination. 300 days prior to October 15, 8 2019 is December 19, 2018. It took the EEOC nearly two months until December 12, 2019 to draft the charge and then it 9 did not file the charge for another month, until January 17, 10 2020. 11 (Resp. at 2-3.) Plaintiff argues that because she contacted the EEOC regarding filing a 12 charge alleging discrimination on October 15, 2019, the 300-day period should be tolled to 13 December 19, 2018. (Resp. at 2.) Plaintiff’s argument fails for two reasons. 14 First, the timely filing requirement under Title VII is subject to waiver and equitable 15 tolling “when equity so requires.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 16 (1982).4 Equitable tolling may apply to the Title VII statutory period where “a Plaintiff 17 filed a charge with a state administrative agency whose errors or delays caused the charge 18 to be untimely filed with the EEOC.” Davenport v. Bd. of Trs. of State Ctr. Cmty. Coll. 19 Dist., 2009 WL 891057 *15 (E.D. Cal. Mar. 31, 2009). Federal courts apply equitable 20 tolling sparingly. See Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 96 (1990). Equitable 21 tolling may be allowed 22 in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the 23 statutory period, or where the complainant has been induced or 24 tricked by his adversary’s misconduct into allowing the filing deadline to pass. 25 26 27 4 Tolling comports with “the remedial purpose of [Title VII] as a whole without negating the particular purpose of the filing requirement, to give prompt notice to the employer.” 28 Zipes, 455 U.S. at 398. 1 Id.5 The Supreme Court has “been much less forgiving . . . where the claimant failed to 2 exercise due diligence in preserving his legal rights.” Id. 3 Plaintiff has failed to plead any reason why equity would require tolling the statutory 4 period back to December 19, 2018 or any facts that would support finding that equitable 5 tolling would apply in her case. Given that courts apply tolling “sparingly,” Plaintiff must 6 make some showing as to either an actual agency error by the EEOC or that she was misled 7 by “[her] adversary’s misconduct” to justify tolling the starting date for the 300-day 8 statutory period. See Irwin, 498 U.S. at 96. Plaintiff has not alleged facts supporting either, 9 so she is not entitled to equitable tolling. 10 Second, Plaintiff’s argument that the date on which she contacted the EEOC, rather 11 than the filing date, should serve as the starting point for tolling the 300-day period is 12 without support in Ninth Circuit case law. Title VII, 42 U.S.C. § 2000e-5(e)(1), states that 13 a charge alleging unlawful employment practice “shall be filed by [] the person aggrieved 14 within three hundred days after the alleged unlawful employment practice occurred.” Both 15 the statutory language and the relevant Ninth Circuit case law require utilizing the date of 16 filing to determine the beginning of a plaintiff’s 300-day statutory period. 17 3. Allegations Excluded from the EEOC Charge 18 The Court has subject matter jurisdiction over allegations of discrimination which 19 are “within the scope of the EEOC’s actual investigation or an EEOC investigation which 20 can reasonably be expected to grow out of the charge of discrimination.” E.E.O.C. v. 21 Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994) (quoting Sosa v. Hiraoka, 920 F.2d 22 1451, 1456 (9th Cir. 1990)) (internal quotations omitted). However, courts may still 23 evaluate claims relating to incidents which are not listed in a plaintiff’s EEOC charge. 24 When an employee seeks judicial relief for incidents not listed in his original EEOC charge, a federal court may assume 25 26 5 In Boyd v. U.S. Postal Service, the Ninth Circuit found that a complainant had not alleged 27 any facts that would support applying the principles of estoppel or equitable tolling. Boyd v. U.S. Postal Service, 752 F.2d 410, 414 (9th Cir. 1985). Complainant had failed to 28 demonstrate that he had been affirmatively misled by his employer or had been unaware of appropriate administrative procedures. Id. 1 jurisdiction over the new claims if they are “like or reasonably related to the allegations of the EEOC charge.” 2 3 Brown, 732 F.2d at 729. Title VII’s remedial purpose indicates that charges filed with the 4 EEOC should be construed liberally. Stache, 852 F.2d at 1231. 5 Defendant argues that Plaintiff’s claims with respect to the twenty-five alleged 6 transfer denials were not included in Plaintiff’s EEOC charge and should therefore be 7 dismissed for failure to exhaust administrative remedies. (MTD at 4-5.) In her EEOC 8 charge, Plaintiff references “attempts on [her] part to move to another group,” and states 9 later that she eventually “gave up applying for other roles.” (MTD at 15.) Given the Ninth 10 Circuit’s approach that “charges filed with the EEOC should be construed liberally,” these 11 statements are sufficient to support a finding that Plaintiff has exhausted her administrative 12 remedies with respect to these allegations. See Stache, 852 F.2d at 1231. Even assuming 13 that these claims are insufficiently specific as to the 25 transfer denials alleged in the 14 Complaint, the Court may still evaluate those claims because they are “like or reasonably 15 related to the allegations of the EEOC charge.” See Brown, 732 F.2d at 729. 16 B. Plaintiff is Granted Leave to Amend the Complaint 17 If a defective complaint can be cured, a plaintiff is entitled to amend the complaint 18 before a portion of it is dismissed. See Lopez v. Smith, 203 F.3d 1122, 1127-30 (9th Cir. 19 2000). Because it is possible Plaintiff could allege facts showing that discrete 20 discriminatory acts or acts underpinning her hostile work environment claims accrued 21 within the limitations period – that is on or after March 23, 2019 – the Court will permit 22 Plaintiff to amend the Complaint. Claims based on alleged discrete acts occurring before 23 March 23, 2019, are dismissed as time-barred. 24 IV. CONCLUSION 25 Plaintiff has failed to state a claim with respect to any allegations of discrete 26 discriminatory acts occurring prior to March 23, 2019. To the extent Plaintiff can show that 27 the undated allegations in her Complaint occurred on or after March 23, 2019, Plaintiff is 28 granted leave to amend the Complaint. Additionally, Plaintiff’s hostile work environment 1 || claims are timely because some allegations fall within the 300-day period, thereby making 2|| Plaintiff's earlier, otherwise-untimely allegations of a hostile work environment timely. || Lastly, the Court has subject matter jurisdiction over Plaintiffs allegations not explicitly 4|| presented to the EEOC because they are reasonably related to the allegations in the EEOC || charge. 6 IT IS THEREFORE ORDERED granting in part Defendant’s Motion to Dismiss 7\| Plaintiff's Complaint (Doc. 14). All claims stemming from discrete discriminatory acts 8 || taking place prior to March 23, 2019 are dismissed. 9 IT IS FURTHER ORDERED that Plaintiff may file an Amended Complaint by 10 || December 20, 2021, but only consistent with the limitations as specified in this Order. 11 Dated this 9th day of December, 2021. CN 12 “wok: 13 weffelee— Unifgd State#District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ll-