Amber Moreno v. Benas ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AMBER MORENO, ) Case No.: 1:21-cv-00865-JLT-BAM ) 12 Plaintiff, ) ORDER GRANTING IN PART DEFENDANT ) BENAS’ MOTION TO DISMISS 13 v. ) ) (Doc. 31) 14 CITY OF PORTERVILLE, MICHAEL BENAS, GARY MILLER, and MARK ) 15 AZEVEDO, ) ORDER GRANTING IN PART DEFENDANTS Defendants. ) CITY OF PORTERVILLE, MILLER, AND 16 ) AZEVEDO’S MOTION TO DISMISS ) 17 ) (Doc. 32) ) 18 19 Plaintiff alleges that she was the subject of sexual harassment, discrimination, and retaliation 20 while employed by the Porterville Police Department. (Doc. 30.) She asserts violations of the 21 California Fair Employment and Housing Act and Title VII of the Civil Rights Act of 1964 against the 22 City of Porterville, Corporal Michael Benas, Sergeant Gary Miller, and Lieutenant Mark Azevedo 23 (“Defendants”). (Id.) 24 Porterville, Miller, and Azevedo (“City Defendants”) move to dismiss Miller as a defendant 25 and dismiss Plaintiff’s Second Amended Complaint “in whole or part” pursuant to Rule 12(b)(6) of 26 27 28 1 the Federal Rules of Civil Procedure. (Doc. 32-1 at 1-2.) Benas moves to dismiss untimely allegations1 2 contained in the SAC pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (See 3 generally Doc. 31-1.) Plaintiff opposes dismissal, asserting that certain allegations can be used as 4 background evidence, the continuing violation doctrine applies, and the remaining allegations are not 5 time-barred. (See Docs. 35, 36.) The Court finds the matters suitable for decision without oral 6 argument pursuant to Local Rule 230(g) and General Order 618. For the reasons set forth below, 7 Defendants’ motions to dismiss (Docs. 31, 32) are GRANTED IN PART. 8 I. Background and Allegations 9 Plaintiff alleges that upon joining the Porterville Police Department as a full-time officer in 10 March 2011 and throughout her career there, she was “subjected to sexual harassment, as well as 11 discrimination based upon her gender and her sexual orientation, which created a hostile work 12 environment that ultimately forced her to quit.” (Doc. 30 at ¶ 14.)2 She also claims she was retaliated 13 against for reporting the discrimination on behalf of herself and other female officers. (Id. at ¶ 18.) 14 A. Sergeant Miller 15 Miller became Plaintiff’s direct supervisor in 2015, and during that time, Miller (1) “often 16 asked Plaintiff] about her sexual orientation and questioned why she was gay”; (2) “would tell 17 Plaintiff that being gay is a choice and women were made to have babies and be at home ‘cooking in 18 the kitchen’”; (3) “often made comments about how Plaintiff would prefer men if she tried them and 19 20 21 1 The scope of Benas’ request is not entirely clear. For example, Benas initially states that he moves to dismiss Plaintiff’s third cause of action, (Doc. 31 at 1), but then asserts that he seeks dismissal of all “untimely 22 allegations”—“i.e. paragraphs 19 through 24” of the Second Amended Complaint. (Id. at 2, 4.) In his conclusion, Benas requests dismissal of “Plaintiff’s SAC, or individual parts of it as detailed above.” (Id. at 5; 23 see also Doc. 38 at 6.) Finally, in his reply, Benas explains that the remedy sought by the instant motion is “i.e., dismissal of paragraphs 19 through 24 of the Second Amended Complaint as against Defendant Benas . . .” 24 (Doc. 38 at 2, n.1.) Benas raises no challenge to the remaining causes of action that may warrant dismissal of the entire SAC. Upon consideration, the Court declines to determine what other, if any, allegations Benas 25 contends are “untimely.” As such, the Court limits its examination to the factual allegations pertaining to 26 Benas—paragraphs 19 through 28 of the complaint—but will not dismiss untimely allegations by reference to paragraph numbers. 27 2 Plaintiff filed a First Amended Complaint on October 18, 2021. (Doc. 17.) The parties then stipulated to the 28 Court granting Plaintiff leave to file a Second Amended Complaint, which it did. (Docs. 28, 29.) Accordingly, Plaintiff’s Second Amended Complaint, (Doc. 30), is the operative complaint. 1 she should give an old man like him a shot”; and (4) “would also tell Plaintiff she was ‘easy-on-the- 2 eyes’ and [] ask her if an old man like him could ever be her type.” (Doc. 30 at ¶ 29.) Plaintiff alleges 3 that upon returning to the Department after a brief resignation, she was told she would no longer report 4 to Miller, yet he became her direct supervisor again in 2019. (Id. at ¶ 30.) Plaintiff asserts that during 5 that time, Miller (1) made comments about the job not being for women and that women belong in the 6 kitchen; (2) often bent over, showing Plaintiff his buttocks, and asked her if she liked what she saw; 7 and (3) would tell Plaintiff she was “‘easy-on-the-eyes’ and it was too bad she was gay.” (Id.) Plaintiff 8 further alleges that Miller would make comments to Plaintiff about other female officers and tell her 9 how “incompetent females are.” (Id.) Plaintiff asserts that Miller’s “inappropriate comments created a 10 sexually hostile work environment.” (Id.) Finally, Plaintiff alleges that in February 2019, she resigned 11 as a Field Training Officer and Miller told her that (1) it was “not a good look for her if she ever 12 wanted to apply to another police department”; (2) “she was being an ungrateful ‘little bitch;’” and (3) 13 she “needed to be more of a ‘company man.’” (Id. at ¶ 31.) 14 B. Lieutenant Azevedo 15 Plaintiff alleges that Azevedo began making “unwanted sexual advances” toward her, 16 including inviting her to his home when his wife was not there. (Doc. 30 at ¶ 41.) Plaintiff asserts she 17 politely declined because Azevedo’s wife was her friend, but Azevedo “did not take no for an 18 answer.” (Id.) Azevedo continued to invite her over. (Id.) Plaintiff left for her Army Reserve duty in 19 August 2017 and returned in December 2017, at which point Azevedo resumed making advances 20 toward her. (Id. at ¶ 42.) In February 2019, Azevedo again asked Plaintiff to come “hang out” and 21 “have beers” when his wife was not home. (Id. at ¶ 43.) Plaintiff alleges that Azevedo told her he was 22 getting a divorce so “it was okay to hang out with him” and that he “could not get in trouble anymore 23 with his ‘soon to be ex-wife.’” (Id.) Plaintiff asserts that in response, she told Azevedo that his “hitting 24 on other women was probably the reason for his divorce.” (Id.) From that point forward, Azevedo 25 began retaliating against Plaintiff. (Id.) 26 Azevedo’s retaliatory acts included: (1) writing her up despite the lack of policy violation; (2) 27 atypically reviewing Plaintiff’s reports; and (3) “pull[ing]” Plaintiff into his office to criticize her work 28 on at least three occasions. (Doc. 30 at ¶¶ 44-45.) At that point, Plaintiff asked Azevedo “what he 1 wanted from her and why she was being treated this way.” (Id. at ¶ 45.) Azevedo said “she had put a 2 target on her back that would go away eventually.” (Id.) Plaintiff alleges she asked Azevedo if he was 3 trying to get her to quit and Azevedo replied that he was “testing her,” and if she applied to another 4 department, she would be “blackballed.” (Id.) Azevedo continued to engage in retaliatory conduct, 5 such as: (1) “unjustifiably criticizing” Plaintiff’s work; (2) embarrassing and humiliating her in front 6 of other officers; (3) denying her overtime because she “did not deserve it”; (4) denying her personal 7 time off; (5) assigning her to different work assignments as “punishment” for being injured and in 8 retaliation for reporting the sexual harassment of other female officers; (6) ordering her to begin her 9 shift earlier than scheduled; (7) ordering her to the shooting range without notice and specifically 10 requesting to be informed if she failed to attend; and (8) making comments encouraging Plaintiff to 11 resign from the SWAT team “since she’s ‘always’ getting hurt.” (See id. at ¶¶ 46-54.) 12 C. Corporal Benas 13 Benas, who was initially Plaintiff’s Field Training Officer and eventually achieved the rank of 14 Corporal, sexually harassed her on an “ongoing” basis during her tenure with the Department. (See 15 Doc. 30 at ¶¶ 19-28.) Benas (1) made “many sexually inappropriate comments” to her; (2) repeatedly 16 asked to see Plaintiff outside of work hours; (3) called Plaintiff for assistance during traffic stops to 17 ask her whether women were “hot”; (4) made Plaintiff “shake out” women’s bras during traffic stops 18 on “10-15” occasions; and (5) showed Plaintiff nude photographs. (Id. at ¶¶ 19-21.) 19 Benas’ conduct “eventually became so intolerable” that she left the Department but returned 20 “shortly after she left” in 2015. (Doc. 30 at ¶ 22.) She returned after learning that Benas was no longer 21 going to be working for the Department. Nevertheless, Benas returned to the Department in December 22 2018 and continued his conduct of asking whether Plaintiff thought women were hot and making her 23 shake out their bras. (Id. at ¶ 23.) From February 2019 to April 2019, Benas began sexually harassing 24 other female officers, which created a “sexually hostile work environment.” (Id. at ¶ 24.) In March 25 2020, Benas licked the inside of a donut and asked Plaintiff if “that was how ‘it’ was done.” (Id. at ¶ 26 25.) At the time Benas was the Acting SWAT Sergeant at the time, and she did not feel like she could 27 complain without suffering retaliation. (Id.) Finally, in June 2020, Benas made inappropriate 28 comments to Plaintiff, which included (1) asking her to attend a party with him so the two of them 1 could “check out all the ‘hot moms’”; (2) making comments and noises to other officers during a work 2 training about her buttocks; and (3) telling Plaintiff she “looked ‘damn fine’”. (Id. at ¶¶ 26-27.) As a 3 result, Plaintiff alleges that Benas’ “ongoing sexual harassment ... after he returned to the 4 [Department] … created a hostile work environment that was a substantial factor underlying Plaintiff’s 5 constructive termination.” (Id. at ¶ 28.) 6 Following her resignation in July 2020, Plaintiff alleges she filed a complaint with the United 7 States Equal Employment Opportunity Commission on October 9, 2020, which cross-filed her 8 complaint with the California Department of Fair Employment and Housing. (Doc. 30 at ¶¶ 13, 56.) 9 The EEOC issued Plaintiff a right-to-sue notice on May 18, 2021. 10 II. Legal Standard 11 A Rule 12(b)(6) motion “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 12 732 (9th Cir. 2001). Dismissal of a claim under Rule 12(b)(6) is appropriate when “the complaint lacks 13 a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. 14 Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). Thus, under Rule 12(b)(6), “review is 15 limited to the complaint alone.” Cervantes v. Porterville of San Diego, 5 F.3d 1273, 1274 (9th Cir. 16 1993). 17 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as 18 true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 19 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court explained, 20 A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the 21 misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted 22 unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of 23 ‘entitlement to relief.’” 24 Iqbal, 556 U.S. at 678 (internal citations omitted). 25 “The issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled 26 to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a 27 recovery is very remote and unlikely but that is not the test.” Scheuer v. Rhodes, 416 U.S. 232, 236 28 (1974). The Court “will dismiss any claim that, even when construed in the light most favorable to 1 plaintiff, fails to plead sufficiently all required elements of a cause of action.” Student Loan Marketing 2 Assoc. v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). To the extent pleading deficiencies can be 3 cured by the plaintiff alleging additional facts, leave to amend should be granted. Cook, Perkiss & 4 Liehe, Inc. v. Northern Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted). 5 III. Discussion and Analysis 6 A. FEHA statute of limitations 7 Defendants first argue that Plaintiff’s SAC contains allegations of conduct that falls outside of 8 the limitations period under the FEHA. (See Doc. 31-1; Doc. 32-1 at 6-7.) City Defendants argue that 9 “for any unlawful conduct Plaintiff alleges occurred before January 1, 2020, she had one year to file a 10 complaint with the DFEH. She filed her EEOC complaint on October 9, 2020; therefore, any alleged 11 conduct that occurred before October 9, 2019 is statutorily barred as a result of Plaintiff’s failure to 12 timely exhaust her administrative remedies.” (Doc. 32-1 at 6-7.) Benas’ argument is essentially the 13 same. (Doc. 31-1 at 3.) Plaintiff asserts that the alleged incidents occurring on or after January 1, 2019 14 were not yet time-barred and were thus, subject to the enlarged statute of limitations. (Doc. 35 at 4; 15 Doc. 36 at 3.) The Court agrees. 16 The parties’ dispute concerns a recent amendment to the FEHA statute of limitations and the 17 extent to which it applies to conduct occurring prior to the new statute’s effective date. Under the 18 former statute, a plaintiff was required to file a charge with DFEH within one year of an alleged 19 violation. Cal. Gov’t Code § 12960(d) (2018). Effective January 1, 2020, the limitations period for 20 FEHA claims was extended from one to three years. See Cal. Gov. Code § 12960(e) (as amended 21 by A.B. No. 9 § 1, 2019–20 Sess. (Cal. 2019)). Furthermore, the California Supreme Court held that: 22 As long as the former limitations period has not expired, an enlarged limitations period ordinarily applies and is said to apply prospectively to govern cases that are 23 pending when, or instituted after, the enactment took effect. This is true even though the underlying conduct that is the subject of the litigation occurred prior to the new 24 enactment. 25 Quarry v. Doe I, 53 Cal. 4th 945, 956 (2012). In other words, “until the limitation period has run it 26 may be extended, but after it has run, a potential defendant may rely upon it in conducting his affairs.” 27 Singer Co. v. County of Kings, 46 Cal. App. 3d 852, 866 (1975). However, “[o]nce a claim has lapsed 28 (under the formerly applicable statute of limitations), revival of the claim is seen as a retroactive 1 application of the law under an enlarged statute of limitations. Lapsed claims will not be considered 2 revived without express language of revival.3” Id. at 957; see also Chenault v. U.S. Postal Serv., 37 3 F.3d 535, 539 (9th Cir. 1994) (“[A] newly enacted statute that lengthens the applicable statute of 4 limitations may not be applied retroactively to revive a plaintiff’s claim that was otherwise barred 5 under the old statutory scheme because to do so would alter the substantive rights of a party and 6 increase a party’s liability.”). 7 If a claim has not lapsed under the former statute as of the enlarged statute’s enactment date, 8 application of the enlarged statute is appropriate to preserve claims that were timely under the former 9 statute. See Jordan v. Herrera, 2003 WL 22668840, at *4 (C.D. Cal. Nov. 7, 2003) (“A claim is 10 barred, or ‘stale,’ if the applicable statute of limitations period expires prior to the enactment of the 11 statutory enlargement.”); see also Streets v. Space Sys./Loral, LLC, 2021 WL 4146962, at *5 (N.D. 12 Cal. Sept. 13, 2021) (finding claim timely where section 12960(e) “became effective” before claim 13 lapsed under old rule). Such an application is not considered retroactive. See Mudd v. McColgan, 30 14 Cal. 2d 463, 468 (1947) (“It is settled law of [California] that an amendment which enlarges a period 15 of limitation applies to pending matters . . . not already barred, without retroactive effect.”) (emphasis 16 added). 17 The legal authorities upon which Benas relies do not support his position. (See Doc. 31-1 at 3, 18 citing Jones v. Glenmede Tr. Co., 2021 WL 2555436, at *5-6 (E.D. Pa. June 22, 2021); Campbell v. 19 City of Trussville, 2021 WL 1610617, at *2 (N.D. Ala. Apr. 26, 2021).) Neither of these cases 20 contemplate the issue of an enlarged statute of limitations. Jones dealt with the timeliness of certain 21 allegations under Title VII and the ADEA wherein the plaintiff agreed that untimely allegations could 22 not be included. 2021 WL 2555436, at *5-6. The court focused its attention on claims that would be 23 dismissed with prejudice and those that would not. See id. The court in Campbell only briefly noted 24 the ADEA’s limitations period under Alabama law before moving on to a continuing violation 25 discussion. See 2021 WL 1610617, at *2. Moreover, these out-of-circuit authorities have no binding 26 27 3 In amending section 12960(e), the California Legislature expressly rejected revival. See A.B. No. 9 § 3 (“This 28 act shall not be interpreted to revive lapsed claims.”). 1 effect on this Court and do not bear on the interpretation of California statutes. 2 City Defendants cite to Myers v. Philip Morris Companies, Inc., 28 Cal. 4th 828 (2002) to 3 support the contention that statutes generally operate prospectively rather than retroactively. (See Doc. 4 32-1 at 6, quoting Myers, 28 Cal. 4th at 840.) Myers addressed an amended statute, which terminated 5 statutory immunity that had been granted previously to tobacco companies. Myers, 28 Cal. 4th at 840. 6 The distinction lies in the court’s holding that application of the amended statute “would indeed” be a 7 retroactive application of that statute . . .” Id. As stated, it is settled in California that when a claim has 8 not yet lapsed under the former statute, application of an enlarged statute to preserve timely claims is 9 not retroactive. Mudd, 30 Cal. 2d at 468; Quarry, 53 Cal. 4th at 956. For this reason, the holding in 10 Myers does not apply to the enlarged limitations period for FEHA claims. 11 More importantly, Defendants offer neither authority nor explanation to support their positions 12 that any allegations of conduct occurring before October 9, 2019 are barred. In fact, they appear to 13 acknowledge that the applicability of an enlarged statute of limitations rests on whether a claim was 14 time-barred when the enlarged statute became effective. (See Doc. 31-1 at 3; Doc. 32-1 at 6, citing 15 Singer, 46 Cal. App. 3d at 866.) Despite this, Defendants erroneously assert that allegations of conduct 16 occurring before January 1, 2020 are subject to the former one-year limitations period. An enlarged 17 statute of limitations applies to preserve claims that had not yet lapsed at the time of enactment; it does 18 not completely bar otherwise timely claims. Jordan, 2003 WL 22668840, at *4; Streets, 2021 WL 19 4146962, at *5. 20 In Streets, the plaintiff brought a claim for age discrimination in violation of the FEHA. 2021 21 WL 4146962, at *5. Streets alleged that the defendant failed to rehire him in March 2019. Id. The 22 court determined that his claim was not barred based on the enlarged statute’s effective date: 23 This allegation is included in Streets’ second [DFEH] charge, which was filed on May 22, 2020. Under FEHA’s former one-year deadline imposed by section 12960, 24 the charge would have been untimely. However, the three-year extension applies in this instance to preserve Streets’ failure to rehire age discrimination claim because 25 the extension became effective before the claim would have otherwise lapsed under the prior version of section 12960. 26 27 Id. at *5 (emphasis added). In other words, under the former statute, Streets would be required to file a 28 complaint (or “charge”) by March 2020. Because he filed in May 2020, his claim would have been 1 untimely under the former statute. However, because the extension became effective before March 2 2020, the enlarged statute applied to preserve his claim. 3 Thus, the question is not whether any allegations are based on conduct occurring within one 4 year prior to the filing of Plaintiff’s complaint on October 9, 2020; that would simply be an application 5 of the former statute. Rather, under the new statute, if a claim was not yet time-barred under the 6 former statute at the time of enactment of the enlarged statute (i.e., January 1, 2020), the enlarged 7 period applies. Applying this rule to the instant matter, as of January 1, 2020, allegations of conduct 8 occurring on or after January 1, 2019 were not yet time-barred under the former one-year statute of 9 limitations. Thus, these allegations are timely and to this extent, the Court denies Defendants’ motions 10 to dismiss. (Docs. 31, 32.) Meanwhile, alleged conduct before January 1, 2019 occurred more than one 11 year prior to the effective date of section 12960(e), as amended. As Plaintiff appears to concede, these 12 allegations are time-barred under the FEHA unless they can be preserved by the continuing violation 13 doctrine. (See Doc. 35 at 4; Doc. 36 at 3.) 14 B. Continuing violation doctrine 15 The continuing violation doctrine “allows liability for unlawful employer conduct occurring 16 outside the statute of limitations if it is sufficiently connected to unlawful conduct within the 17 limitations period.” Richards v. CH2M Hill, Inc., 26 Cal. 4th 798, 802 (2001); see also Blue Fountain 18 Pools & Spas Inc. v. Superior Ct. of San Bernardino County, 53 Cal. App. 5th 239, 250 (2020) (“an 19 employer is liable for actions that take place outside the limitations period if these actions are 20 sufficiently linked to unlawful conduct that occurred within the [FEHA] limitations period.” (internal 21 quotation marks omitted)). For the doctrine to apply, an employee must demonstrate that an 22 “employer’s unlawful actions are (1) sufficiently similar in kind to those within the statutory period; 2) 23 have occurred with reasonable frequency (recurring rather than isolated); (3) and have not acquired a 24 degree of permanence in the sense that an employer’s statements and actions make clear to a 25 reasonable employee that any further efforts to end harassment will be futile.” Garcia v. Los Banos 26 Unified Sch. Dist., 418 F. Supp. 2d 1194, 1219 (E.D. Cal. 2006) (citing Richards, 26 Cal. 4th at 823- 27 24); see also Fahnestock v. Paychex, Inc., 2014 WL 12572917, at *6 (C.D. Cal. Aug. 19, 2014), aff’d 28 sub nom. 674 F. App’x 708 (9th Cir. 2017) (same); Oreizi v. County of Fresno, 2021 WL 3883659, at 1 *6 (E.D. Cal. Aug. 31, 2021) (same). 2 1. Benas 3 Benas contends that the continuing violation doctrine does not apply to preserve Plaintiff’s 4 time-barred allegations (Doc. 31-1.) Plaintiff argues that the continuing violation doctrine applies to 5 allegations of conduct occurring after Benas’ return to the Department in December 2018 because his 6 conduct was continuous from that point forward. (Doc. 35 at 4.) The dates and acts of alleged conduct 7 during this period are not clear. Plaintiff alleges Benas returned in December 2018 but makes no 8 allegations that Benas’ conduct resumed immediately upon his return. (See Doc. 30 at ¶ 23.) 9 Additionally, Plaintiff argues that “any claims that Plaintiff had based upon Defendant Benas’ 10 illegal conduct commencing on or after January 1, 2019, less than one month after Defendant Benas 11 returned, were not yet time-barred and are entitled to the extended three-year FEHA statute of 12 limitations.” (Doc. 35 at 4.) As discussed above, this is consistent with the Court’s finding that 13 allegations of conduct occurring on or after January 1, 2019 are not time-barred. Thus, any potential 14 applicability of the doctrine would, at most, concern allegations from Benas’ return in December 2018 15 to January 1, 2019. The Court finds it futile to engage in such analysis because the SAC, (1) does not 16 identify the conduct, if any, that occurred within that specific period; and (2) any potential conduct, as 17 alleged, would necessarily be included within the timely allegations of conduct occurring on or after 18 January 1, 2019. (Doc. 30 at ¶ 23.) Thus, to the extent Plaintiff seeks to base her claim against Benas 19 on conduct occurring between December 2018 and January 1, 2019, these allegations are dismissed as 20 time barred. 21 2. Miller 22 City Defendants contend that the continuing violation doctrine does not save Plaintiff’s “stale” 23 allegations. (Doc. 32-1 at 8.) More specifically, they argue that for conduct predating Plaintiff’s 24 resignation in May 2015, a degree of permanence had been reached. (See id. at 8-9.) As for post-May 25 2015 conduct, City Defendants assert that the alleged conduct was not sufficiently frequent. (See id. at 26 9.)4 Plaintiff avers that “the entire time period of the hostile environment created by the 27 28 4 City Defendants also argue that a “continuing violation claim” fails if Plaintiff “knew, or through the exercise of 1 discrimination, harassment and retaliation to which Plaintiff was subjected may be considered for the 2 purposes of determining liability.” (Doc. 36 at 4.) 3 Plaintiff asserts a claim for sexual harassment in violation of the FEHA against Miller. (Doc. 4 30 at ¶¶ 65-68.) City Defendants erroneously argue Miller “must be dismissed from this lawsuit” 5 because the most recent allegation pertained to conduct occurring in February 2019—outside the 6 limitations period. (Doc. 32 at 9.) As discussed above, any allegations of Miller’s conduct occurring 7 on or after January 1, 2019 are not time-barred. Thus, the remaining allegations are those concerning 8 conduct that took place in 2015, prior to Plaintiff’s initial resignation. (See Doc. 30 at ¶ 29.) 9 a. Permanence 10 For the continuing violation doctrine to apply, a plaintiff “must demonstrate that the situation 11 had yet to reach a state of permanence prior to the statute-of-limitations period.” Fahnestock, 2014 12 WL 12572917, at *8. Barring conduct constituting a constructive discharge, permanence is reached— 13 and the statute of limitations begins to run—“not necessarily when the employee first believes that his 14 or her rights may have been violated, but rather, either when the course of conduct is brought to an 15 end, as by the employer’s cessation of such conduct or by the employee’s resignation, or when the 16 employee is on notice that further efforts to end the unlawful conduct will be in vain.” Richards, 26 17 Cal. 4th at 823 (emphasis in original). Put differently, if a plaintiff is on notice that either the 18 wrongdoer’s conduct is not likely to end, or if her complaints fall upon deaf ears, or if—perish the 19 thought—her grievances are expressly denied, the conduct has likely reached a degree of permanence. 20 City Defendants generally assert that “Plaintiff admits she resigned in 2015 because [Benas’] 21 misconduct became ‘so intolerable.’” (Doc. 32 at 8.) As such, City Defendants argue that if Plaintiff’s 22 23 32-1 at 8, citing Davidson v. Am. Online, Inc., 337 F.3d 1179, 1184 (10th Cir. 2003).) This argument is misplaced. The 24 court in Davidson first noted that the 10th Circuit previously applied this rule. See Davidson, 337 F.3d at 1184 (quoting Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1311 (10th Cir. 1999); Martin v. Nannie & Newborns, Inc., 3 F.3d 25 1410, 1415 (10th Cir. 1993)). However, City Defendants fail to mention that Davidson subsequently clarified that Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (emphasis added), “implicitly overruled Bullington, Martin and 26 other Tenth Circuit cases to the extent these cases held that recovery on a Title VII hostile work environment claim is not available for acts taken outside the statutory time period where the plaintiff knew or should have known the conduct was 27 discriminatory when the acts occurred.” Id. at 1185 (citing Boyer v. Cordant Technologies, Inc., 316 F.3d 1137 (10th Cir. 2003)). Richards equally rejected this requirement. See Richards, 26 Cal. 4th at 821 (noting the incongruities that would be 28 created by holding that “the statute of limitations begins to run at the first notice that an employee’s rights have been 1 2015 resignation “does not establish a ‘degree of permanence,’ then the third criterion would be 2 meaningless.” (Id.) On this ground, City Defendants seek dismissal of all allegations predating 3 Plaintiff’s 2015 resignation. (Id. at 8-9.) 4 Plaintiff contends that though the Richards court “mentions in dicta that ‘an employee’s 5 resignation’ brings the course of conduct creating a hostile work environment to an end, it was 6 obviously referring to a permanent separation of the employment relationship.” (Doc. 36 at 5 7 (emphasis in original).) Plaintiff asserts that the “one-month break in [her] employment with the [] 8 Department in 2015 . . . no more invalidates her hostile work environment claim than the 301 day 9 break” considered in Morgan.5 (Id.) Relying on Richards’ definition of “permanence,” Plaintiff also 10 argues that when she was contacted by her Captain shortly after she left the Department, who 11 informed her that Benas was no longer employed with the Department, Miller would no longer 12 supervise her, and she would be given a raise, permanence had not yet occurred. (Id.) 13 The defendants offer no persuasive authority related to the permanence of the one-month break 14 in service, nor is it clear that Plaintiff’s initial resignation was a constructive discharge. (See Doc. 30 at 15 ¶¶ 28, 59, 63, 71, 75, limiting allegations of constructive discharge to Benas and Porterville.) 16 Assuming it was not a constructive discharge, and applying Richards to the facts of this case, Miller’s 17 conduct ceased in 2015, which established a degree of permanence. Additionally, Plaintiff’s argument 18 19 5 Plaintiff refers to the following illustration: 20 (1) Acts on days 1–400 create a hostile work environment. The employee files the charge on day 401. Can the employee recover for that part of the hostile work environment that occurred in the first 21 100 days? (2) Acts contribute to a hostile environment on days 1–100 and on day 401, but there are no acts between days 101–400. Can the act occurring on day 401 pull the other acts in for the 22 purposes of liability? In truth, all other things being equal, there is little difference between the two scenarios as a hostile environment constitutes one “unlawful employment practice” and it does not matter whether nothing occurred within the intervening 301 days so long as each act is part of the 23 whole. Nor, if sufficient activity occurred by day 100 to make out a claim, does it matter that the employee knows on that day that an actionable claim happened; on day 401 all incidents are still part 24 of the same claim. On the other hand, if an act on day 401 had no relation to the acts between days 1–100, or for some other reason, such as certain intervening action by the employer, was no longer part of the same hostile environment claim, then the employee cannot recover for the previous acts, 25 at least not by reference to the day 401 act. 26 Morgan, 536 U.S. at 118 (emphasis added). However, Plaintiff fails to recognize the distinction: there was intervening action. Plaintiff’s Captain reassigned Miller so that he no longer supervised Plaintiff. Moreover, Morgan did not concern 27 FEHA claims, nor did it consider “permanence”—the importance of which Richards emphasized, and which California courts have since found important to address. See, e.g., Richards, 26 Cal. 4th at 824; Fahnestock, 2014 WL 12572917, at 28 *8; Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1057 (2005); Brager v. Costco Wholesale Corp., 2021 WL 4443010, 1 appears to be that Miller’s conduct had not become permanent because her Captain assured her after 2 she resigned that she would not be supervised by Miller, meaning it was not clear that future efforts 3 would be in vain. The Court is not persuaded. Plaintiff’s resignation occurred prior to her Captain’s 4 assurances. There is no indication that the assurances she received “shortly after” resigning were 5 communicated to Plaintiff prior to her resignation that would make clear further efforts would be 6 beneficial. Plaintiff resigned in 2015 after enduring conduct that had become “intolerable,” indicating 7 that she was on notice that further efforts to end the conduct would be futile or in vain. Richards, 26 8 Cal. 4th at 823; see also McKenney v. United Parcel Serv., 2013 WL 12057488, at *2 (S.D. Cal. June 9 17, 2013), aff’d sub nom. 600 F. App’x 538 (9th Cir. 2015) (finding a voluntary transfer for the 10 purposes of avoiding alleged harasser created a degree of permanence). It appears to the Court that the 11 unlawful conduct had become permanent as of Plaintiff’s initial resignation date in 2015. Nonetheless, 12 even assuming permanence was not reached, Miller’s conduct did not occur with reasonable frequency 13 thereafter. 14 b. Frequency 15 To be considered a continuing violation, unlawful conduct must also occur with reasonable 16 frequency. Richards, 26 Cal. 4th at 823.6 Plaintiff again relies on the Morgan illustration of a 301-day 17 gap to support her position, yet she cites to no case in which a court has applied the continuing 18 violation doctrine to FEHA claims of conduct with such a large gap in time.7 (See Doc. 36 at 4.) At the 19 least, the gap between Miller’s conduct in 2015 and his conduct in 2019 is 1,100 days.8 This gap is too 20 far attenuated to be considered reasonably frequent. Many courts have held the same when faced with 21 smaller gaps. See, e.g., Phillips-Kerley v. Porterville of Fresno, 2021 WL 1966387, at *6 (E.D. Cal. 22 23 6 City Defendants argue that the continuing violation doctrine requires an “ongoing, continuous pattern of 24 misconduct.” (Doc. 32-1 at 8.) However, they concede that the 3-part Richards test applies in making this determination, including that the unlawful actions must occur with “reasonable frequency.” (See id.; Doc. 39 at 25 5.) 26 7 Also, as discussed, this illustration is distinct from the circumstances here, where an intervention occurred. 27 8 Plaintiff does not allege the date of her initial resignation, the date of her return, or the date in 2019 when Miller resumed his conduct. She does, however, refer to the period when she was not employed as a “one- 28 month break.” (Doc. 36 at 5.) Thus, this calculation is based on the assumption that Miller’s 2015 conduct occurred on November 30, 2015 and resumed on the earliest date in 2019: January 1. 1 May 17, 2021) (finding no continuing violation where there was a three-year lapse in conduct); 2 McKenney, 2013 WL 12057488, at *2 (finding three-year gap not “reasonably frequent”); Rayburn v. 3 United Airlines Inc., 2021 WL 8893645, at *3 (C.D. Cal. July 2, 2021) (noting that for two-year gap, 4 “[c]ourts have held that this length of time between incidents defeats allegations of a series of 5 continuing violations”). 6 Based on a lack of reasonable frequency, the continuing violations doctrine does not apply to 7 preserve time-barred allegations of Miller’s conduct prior to January 1, 2019. To the extent these 8 allegations form the basis for Plaintiff’s claim against Miller, this claim is dismissed. 9 3. Azevedo 10 Plaintiff also asserts a claim for sexual harassment in violation of the FEHA against Azevedo. 11 (Doc. 30 at ¶¶ 65-68.) Like Miller, allegations of Azevedo’s conduct occurring on or after January 1, 12 2019 are not time-barred. Thus, the remaining allegations are those concerning conduct that took place 13 in 2017. (See id. at ¶¶ 41-42.) City Defendants argue that Azevedo’s alleged conduct was not 14 reasonably frequent and that it had acquired a degree of permanence. (Doc. 32 at 9.) 15 a. Permanence 16 Neither party offers argument to support their respective positions as to the permanence of 17 Azevedo’s conduct. (See Doc. 32-1 at 9; Doc. 36.) More importantly, Plaintiff’s prior resignation in 18 2015 pre-dates Azevedo’s alleged conduct and the Court finds no other indication that his conduct 19 reached a degree of permanence. As such, the Court finds that Azevedo’s conduct did not reach a 20 degree of permanence. 21 b. Frequency 22 Azevedo’s alleged conduct resumed upon Plaintiff’s return from her reservist duty in 23 December 2017. (Doc. 30 at ¶ 42.) The next allegation pertains to Azevedo’s conduct in February 24 2019. (Id. at ¶ 43.) It is not clear which conduct allegedly occurred in December 2017 and which, if 25 any, occurred in 2018. However, Plaintiff alleges that upon her return, Azevedo “again began asking 26 Plaintiff to hang out with him. He would also ask Plaintiff if she’d be interested in a guy like him.” 27 (Id. at ¶ 42, emphasis added.) In drawing all reasonable inferences in Plaintiff’s favor, the Court does 28 not read this conduct to be confined to December 2017. Nonetheless, even if Azevedo’s conduct 1 ceased in December 2017 and began again in February 2019, this amounts to a lapse of just over a 2 year. Unlike for Miller and other cases the Court cites, this gap is not substantial. See, e.g., Phillips- 3 Kerley, 2021 WL 1966387, at *6 (three years); McKenney, 2013 WL 12057488, at *2 (three years); 4 Rayburn, 2021 WL 8893645, at *3 (two years). Accordingly, the Court finds that Azevedo’s alleged 5 conduct occurred with reasonable frequency. 6 c. Similarity 7 Though neither party addresses the “sufficient similarity” prong, Richards makes clear that it is 8 not to be taken “literally.” Fahnestock, 2014 WL 12572917, at *7 (quoting Birschtein v. New United 9 Motor Mfg., Inc., 92 Cal. App. 4th 994, 1005 (2001)). The Richards court utilized the conduct at issue 10 in its case—acts of harassment and failures to reasonably accommodate disability—to exemplify that 11 “similar kinds of unlawful employer conduct . . . may take a number of different forms.” Richards, 26 12 Cal. 4th at 823. In Birschtein, plaintiff was subjected to sexual harassment by a coworker, including 13 sexual advances and inappropriate comments about sexual fantasies involving plaintiff. Birschtein, 92 14 Cal. App. 4th at 997-98. Plaintiff subsequently complained to management, at which point her 15 coworker never spoke to her again and instead began continuously staring at plaintiff. Id. at 998. The 16 court explained that these overt acts “were later transmuted by plaintiff’s reaction (her complaints to 17 management about the offensive conduct) into an allegedly daily series of retaliatory acts—the 18 prolonged campaign of staring at plaintiff—acts that were directly related to, indeed assertedly grew 19 out of, the antecedent unlawful harassment.” Id. at 1002 (emphasis in original). 20 The factual allegations are analogous here.9 Azevedo made sexual advances toward Plaintiff 21 with reasonable frequency between 2017 and February 2019. (Doc. 30 at ¶¶ 41-43.) Plaintiff reacted to 22 Azevedo’s last advance by denying him once more and commenting that his pending divorce was 23 likely due to his “hitting on other women.” (Id. at ¶ 43.) As Plaintiff alleges, “from that point 24 forward,” Azevedo began a campaign of retaliation against her. (See id. at ¶¶ 43-54.) Given the 25 immediate switch to retaliation, the Court also finds Azevedo’s retaliatory conduct to be “directly 26 27 9 The only notable distinction between the facts of this case and those of Birschtein is that the reaction marking the shift from harassment to retaliation in Birschtein was a complaint to management as opposed to a sharp 28 rejection. Despite this, the Court finds Birschtein instructive, particularly considering Azevedo’s position as not merely Plaintiff’s coworker, but as a Lieutenant. 1 related” to the harassment that preceded it.10 The only event connecting Azevedo’s sexual advances to 2 his adverse and retaliatory conduct was Plaintiff’s “reaction.” Accordingly, the Court finds that the 3 alleged conduct occurring before January 1, 2019 is sufficiently similar to the conduct thereafter. 4 Coupled with a finding of reasonable frequency and lack of permanence, the continuing violation 5 doctrine applies to preserve allegations of Azevedo’s conduct. Thus, these allegations are not time- 6 barred and as to Azevedo, City Defendants’ motion is denied. 7 3. Porterville 8 Plaintiff asserts claims against Porterville for discrimination and retaliation under Title VII and 9 claims for harassment, discrimination, retaliation, and failure to prevent under FEHA. (Doc. 30 at ¶¶ 10 57-80.) 11 a. Title VII claims 12 Under Title VII, an EEOC charge must be filed within 180 or 300 days of the alleged unlawful 13 practice. 42 U.S.C. § 2000e-5(e)(1). All other allegations are time-barred, with the limited exception 14 of the continuing violation doctrine as to certain claims.11 15 City Defendants argue that for Title VII claims, “[e]ach discrete discriminatory or retaliatory 16 act is a separate unlawful employment practice for purposes of the limitations period.” (Doc. 32-1 at 17 7.) Relying on Morgan, City Defendants conclude that all the alleged acts were “discrete.” They argue 18 that Plaintiff “attempts to tie together a decade of alleged misconduct involving dissimilar actors and 19 conduct.” (Id.) Plaintiff argues that Morgan distinguished discrete acts from those creating a “hostile 20 work environment” claim, such as the one she brings which she bases on the combined effect of 21 harassment, discrimination, and retaliation she suffered. (Doc. 36 at 3-4.) Both parties’ arguments 22 23 10 Though there are allegations that suggest the retaliation was due in part to Plaintiff’s injuries (see Doc. 30 at 24 ¶¶ 46, 51, 54), this does not change the Court’s finding that there was a direct relation between Azevedo’s alleged sexual harassment and his retaliation. 25 11 City Defendants argue that Plaintiff alleges conduct outside of the limitations period under Title VII, and as a 26 result, failed to exhaust her administrative remedies. (See Doc. 32-1 at 7.) However, both City Defendants’ arguments and Plaintiff’s response are limited to the continuing violation doctrine as an exception to the statute 27 of limitations, rather than whether—and which—alleged conduct occurred within the limitations period. (See id.; Doc. 36 at 3-4.) Nonetheless, based upon Plaintiff’s October 9, 2020 filing date and no indication that 28 Plaintiff initiated proceedings with a state or local agency, the Court calculates that the Title VII limitations period began in April 2020. 1 miss the mark because they fail to acknowledge the differing standards for Title VII claims and FEHA 2 claims. The California Supreme Court clarified the distinction: 3 [T]he [Morgan] court held that, with regard to the applicability of the continuing violation doctrine, a distinction should be drawn between discrimination and 4 retaliation claims on the one hand, and hostile work environment claims on the other hand. The court in Morgan reasoned that because Title VII’s definition of 5 “unlawful employment practices” includes many discrete acts but does not indicate that the term “practice” converts related discrete acts into a single unlawful practice 6 for timely filing purposes, discrete discriminatory acts are not actionable if time- barred, even when they are related to acts alleged in timely filed charges. The court 7 further stated that hostile work environment claims, by contrast, by their very nature involve repeated conduct and thus cannot be said to occur on any particular day. 8 Because a harassment claim is composed of a series of separate acts that collectively constitute one “unlawful employment practice,” the court 9 in Morgan concluded that it does not matter that some of the component parts fall outside the statutory time period. 10 11 Yanowitz, 36 Cal. 4th at 1057 (internal citations omitted) (emphasis added). Thus, under Title VII, the 12 continuing violation doctrine’s application is limited to hostile work environment claims. Morgan, 536 13 U.S. at 115. 14 On the other hand, the Yanowitz court declined to extend Morgan’s reasoning to state claims 15 under FEHA. The court held that in addition to hostile work environment claims, the doctrine may 16 apply to discrimination and retaliation claims where there is an alleged continuing course of conduct. 17 Yanowitz, 36 Cal. 4th at 1057-59 (cited with approval in Lelaind v. Porterville & County of San 18 Francisco, 576 F. Supp. 2d 1079, 1093 (N.D. Cal. 2008)). In applying the doctrine to plaintiff’s 19 retaliation claim, the court highlighted Richards’ express application of the doctrine to FEHA 20 discrimination and harassment claims. Id. In short, Plaintiff does not assert a Title VII hostile work 21 environment claim. Accordingly, as to Plaintiff’s claims against Porterville for discrimination and 22 retaliation under Title VII only, the continuing violation doctrine does not apply. All allegations of 23 conduct occurring before the applicable limitations period under 42 U.S.C. section 2000e-5(e)(1)— 24 April 2020—are time-barred and to the extent Plaintiff relies on these allegations in asserting her Title 25 VII claims, the claims are dismissed. Remaining for the Court’s examination are Plaintiff’s FEHA 26 claims against Porterville. 27 b. FEHA claims 28 Plaintiff asserts claims against Porterville for harassment, discrimination, retaliation, and 1 failure to prevent this conduct under FEHA. (Doc. 30 at ¶¶ 65-80.)12 2 i. Retaliation and failure to prevent 3 Plaintiff alleges that Porterville retaliated against her “because she opposed and reported the 4 discrimination and harassment to which she and her female co-workers were being subjected.” (Doc. 5 30 at ¶ 75.) Similarly, Plaintiff asserts that Porterville failed to take reasonable steps necessary to 6 prevent the sexual harassment that Plaintiff reported. (Id. at ¶¶ 78-79.) Plaintiff reported the sexual 7 harassment in 2019. (See id. at ¶ 24.) As such, there are no time-barred allegations supporting 8 Plaintiff’s retaliation or failure to prevent claims against Porterville. For these claims, City 9 Defendants’ motion is denied. 10 ii. Harassment 11 Plaintiff asserts that Benas, Miller, and Azevedo sexually harassed her, and that Porterville is 12 “strictly liable for their conduct because they were supervisors during periods they sexually harassed 13 Plaintiff and because [Porterville] was aware of their sexual harassment of Plaintiff and failed to take 14 appropriate steps to investigate and remedy their sexual harassment of Plaintiff.” (Doc. 30 at ¶ 67.) 15 Plaintiff alleges that Benas sexually harassed her from 2011 to 2015, and from 201913 to 2020 (see id. 16 at ¶¶ 19-28), Miller sexually harassed her in 2015 and 2019 (id. at ¶¶ 29-30), and Azevedo sexually 17 harassed her from 2017 to 2019. (Id. at ¶¶ 41-43.) 18 FEHA imposes strict liability on employers for all acts of harassment by a supervisor. State 19 Dep’t of Health Servs. v. Superior Ct., 31 Cal. 4th 1026, 1042 (2003); see also Bernhardt v. State of 20 California Dep’t of Corr. & Rehab., 2015 WL 2003096, at *12 (E.D. Cal. Apr. 29, 2015) (noting that 21 the “California Supreme Court [in State] interprets the FEHA to impose strict liability on employers 22 whose employee-supervisors sexually harass subordinates.”). Neither party disputes the supervisory 23 24 12 City Defendants argue that each “alleged wrongdoer” should be evaluated separately but fail themselves to do so. (See Doc. 32-1 at 9.) Instead, City Defendants make general arguments as to the entirety of Plaintiff’s 25 allegations in arguing that the continuing violations doctrine does not apply. (See id. at 8-9.) Perhaps equally erroneous, Plaintiff asserts that “the entire time period of the hostile work environment created by the 26 discrimination, harassment and retaliation” may be considered in determining liability. (Doc. 36 at 4.) Instead, for each type of claim, the Court will determine whether Plaintiff may rely on alleged conduct occurring before 27 January 1, 2019. 28 13 As discussed above, allegations of Benas’ conduct between his return in December 2018 and January 1, 2019 are time-barred. Thus, the Court will not address the conduct during this period. 1 role of Benas, Miller, or Azevedo. Thus, the Court turns to the allegations of sexual harassment. 2 Both Miller’s and Benas’ alleged conduct ceased in 2015 when Plaintiff resigned. (See Doc. 30 3 at ¶¶ 22, 29-30.) According to Plaintiff, she was next subjected to sexual harassment by Azevedo in 4 2017. (Id. at ¶ 41.) For the same reason as above, this two-year gap defeats a finding of reasonable 5 frequency. Rayburn, 2021 WL 8893645, at *3. However, because Azevedo’s misconduct began as 6 early as 2017 and it persisted sufficiently to constitute a continuing violation, as discussed above, any 7 allegations after 2017 fall within the statute of limitations. Thus, Plaintiff may rely on Azevedo’s 8 conduct beginning in 2017 to support her FEHA harassment claim against Porterville, through strict 9 liability. Accordingly, to the extent Plaintiff relies on allegations of Azevedo’s sexual harassment 10 before 2017 to support her FEHA harassment claim against Porterville, these allegations are 11 dismissed. The allegations of conduct occurring on or after Azevedo’s alleged conduct beginning in 12 2017 are not time-barred, and therefore, Plaintiff may maintain her claim against Porterville on these 13 allegations. 14 iii. Discrimination 15 Plaintiff alleges that Porterville discriminated against her “based on her sex and sexual 16 orientation.” (Doc. 30 at ¶ 71.) As previously stated, allegations of conduct occurring prior to 17 Azevedo’s conduct in 2017 are time-barred and Plaintiff’s claim is dismissed to the extent she relies 18 upon them to state her claim for FEHA discrimination against Porterville.14 All subsequent allegations 19 pertain to conduct occurring on or after January 1, 2019 and are not time-barred. 20 C. Background evidence 21 Plaintiff asserts that even untimely allegations concerning Defendants’ conduct may be used as 22 background evidence to establish Defendants’ “pattern and practice” of harassing Plaintiff and her 23 female co-workers, as well as the Department’s “failure to prevent and to take immediate and 24 appropriate corrective action concerning” the sexual harassment. (Doc. 35 at 2; Doc. 36 at 6.) Benas 25 26 27 14 This includes Plaintiff’s allegations of conduct by Lieutenant Standridge, whom Plaintiff asserts harassed and 28 discriminated against her in 2011. (Doc. 30 at ¶ 34.) 1 clarifies that Plaintiff does not assert a “pattern and practice” claim against him15 and allegations of 2 conduct outside the statutory period “cannot be used as evidence for liability purposes.” (Doc. 38 at 3.) 3 More apt is City Defendants’ contention that Plaintiff “misconstrues” the use of background evidence 4 because Plaintiff’s argument is an “admissibility of evidence argument, not an argument that supports 5 including time-barred allegations in the SAC.” (Doc. 39 at 6.) The Court agrees. 6 It is not clear whether Plaintiff attempts to include untimely allegations in her SAC to establish 7 Defendants’ liability or to use it as evidence of Defendants’ conduct to support her timely claims. As 8 to the former, Plaintiff offers no meaningful argument that her claim may rely upon time-barred 9 allegations in a complaint to determine liability. (See Doc. 35 at 2; Doc. 36 at 6.) As to the latter, the 10 question of the admissibility of evidence in proving liability is neither an issue at this stage nor does it 11 provide a basis for the inclusion of untimely allegations in a complaint. 12 Past conduct or acts may be used in combination with evidence of current conduct, to prove 13 intent or as evidence of pretext. Lyons v. England, 307 F.3d 1092, 1110-11 (9th Cir. 2002) (emphasis 14 added); see also Bagley v. Bel-Aire Mech. Inc., 647 F. App’x 797, 800 (9th Cir. 2016) (“Evidence of 15 time-barred acts may be ‘offered for its probative value in assessing whether the employer’s 16 justifications for its present conduct lack credibility’ and may also serve ‘as indirect proof of the 17 employer’s intent to discriminate.”) (quoting Lyons). However, time-barred acts cannot be relied upon 18 to determine liability. See Lyons, 307 F.3d at 1111 n.12 (explaining that courts may admit evidence of 19 a discrete act outside the limitations period “not for the purpose of extending liability, but as relevant 20 21 15 Although Benas notes that Plaintiff does not bring a “pattern and practice” claim, he nevertheless relies on class actions involving “pattern and practice” theories in furthering his argument that “pattern and practice” 22 evidence cannot be used by an individual plaintiff against an individual defendant. (See Doc. 38 at 3, citing Herrera v. Serv. Emps. Int’l Union Loc. 87, 2013 WL 12324535, at *5 (N.D. Cal. Sept. 13, 2013); Mansourian 23 v. Bd. of Regents of Univ. of Cal. at Davis, 2007 WL 3046034, at *8 (E.D. Cal. Oct. 18, 2007), rev’d in part sub nom. Mansourian v. Regents of Univ. of California, 594 F.3d 1095 (9th Cir. 2010), opinion amended and 24 superseded on denial of reh’g, 602 F.3d 957 (9th Cir. 2010).) Plaintiff does not advance her claim based on a “pattern and practice” theory. See Herrera, 2013 WL 12324535, at *4 (“[A] pattern or practice theory of 25 discrimination is advanced by the government or in a private class action demonstrating [that] the existence of a discriminatory pattern or practice establishe[s] a presumption that the individual class members had been discriminated against on account of race.” (internal quotation marks omitted)). For this very reason, the Court 26 declines to address Benas’ argument in this regard. For what it is worth, however, it is questionable to the Court whether the background evidence rule applies to individual defendants. None of the examined cases have 27 applied this rule to non-employer defendants nor expressly precluded its application. See, e.g., Lyons v. England, 307 F.3d 1092 (9th Cir. 2002); Bagley v. Bel-Aire Mech. Inc., 647 F. App’x 797 (9th Cir. 2016). Thus, 28 the Court will, for argument’s sake, assume that the rule applies to individual defendants. That is because to do so does not save Plaintiff’s allegations. 1 evidence of the employer’s present discriminatory intent”); see also Soga v. Kleinhans, 2016 WL 2 4192411, at *9 (E.D. Cal. Aug. 9, 2016) (explaining that while time-barred prior acts were not 3 actionable under the FEHA, they could provide background evidence to support a timely claim); 4 Lelaind, 576 F. Supp. 2d at 1093 n.4 (“time-barred acts may not form the basis for liability”). The 5 California Supreme Court in Richards distinguished evidence and liability: 6 The first question is evidentiary: are the alleged acts outside the limitation period admissible as relevant background evidence? (See United Air Lines v. Evans (1977) 7 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571.) The second and more difficult question is remedial: is an employer liable for actions that take place outside the 8 limitations period if these actions are sufficiently linked to unlawful conduct within the limitations period? 9 10 Richards, 26 Cal. 4th at 812. Therefore, subject to the Federal Rules of Evidence, this conduct may be 11 admissible as evidence to support a potentially viable claim at a more appropriate stage of litigation, 12 but that time is not now. Lyons, 307 F.3d at 1110-11; see also Oreizi, 2021 WL 3883659, at *6 13 (addressing the background evidence admissibility issue in a pre-trial motion in limine order). 14 Accordingly, only to the extent Plaintiff’s claims are based on time-barred allegations, these claims are 15 dismissed. 16 IV. Leave to Amend 17 Pursuant to Rule 15 of the Federal Rules of Civil Procedure, leave to amend “shall be freely 18 given when justice so requires,” bearing in mind “the underlying purpose of Rule 15 to facilitate 19 decisions on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122, 20 1127 (9th Cir. 2000) (alterations, internal quotation marks omitted). In deciding whether leave to 21 amend should be granted, courts consider “(1) bad faith; (2) undue delay; (3) prejudice to the opposing 22 party; (4) futility of amendment; and (5) whether the plaintiff has previously amended his complaint.” 23 Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). Plaintiff requests leave to amend her complaint. 24 (Docs. 35, 36.) However, she does not address any of the factors to aid the Court in making its 25 decision and the Court has previously granted Plaintiff leave to amend. (Doc. 29.) Most importantly, 26 Plaintiff does not assert that she seeks leave to amend for purposes of curing factual deficiencies, but 27 rather, to assert additional claims. (See Doc. 35 at 4; Doc. 36 at 7.) Accordingly, leave to amend is 28 DENIED without prejudice. See Chinatown Neighborhood Ass’n v. Harris, 33 F. Supp. 3d 1085, 1093 1 || (N.D. Cal. 2014), aff'd, 794 F.3d 1136 (9th Cir. 2015) (“If a motion to dismiss is granted, a court 2 should normally grant leave to amend unless it determines that the pleading could not possibly be 3 || cured by allegations of other facts.”). Plaintiff is not precluded from raising this issue in a proper 4 || motion for leave to amend. 5 ||. Conclusion and Order 6 Based upon the foregoing, the Court ORDERS: 7 1. Defendant Benas’ motion to dismiss (Doc. 31) is GRANTED IN PART and DENIE] 8 || IN PART. The sexual harassment claim brought under FEHA will be allowed to proceed only as to 9 || events occurring on or after January 1, 2019. 10 2. Defendants Porterville, Miller, and Azevedo’s motion to dismiss (Doc. 32) is 11 || GRANTED IN PART and DENIED IN PART as follows: 12 a. The sexual harassment claim against Miller brought under FEHA will be 13 || allowed to proceed only as to events occurring on or after January 1, 2019. 14 b. The motion as to the sexual harassment claim against Azevedo brought under 15 || FEHA is DENIED. 16 Cc. The claims for discrimination and retaliation brought against Porterville under 17 || Title VII will be allowed to proceed only as to events occurring on or after April 2020. 18 d. The motion is DENIED as to Plaintiffs retaliation and failure to prevent sexu: 19 || harassment claims based on FEHA against Porterville. The sexual harassment and discrimination 20 || claims against Porterville based on FEHA will be allowed to proceed only as to conduct occurring 21 || after the commencement of Azevedo’s conduct in 2017. 22 23 IT IS SO ORDERED. Dated: _ October 24, 2022 ( LAW pA buy In 5 TED STATES DISTRICT JUDGE 26 27 28 22