Ortiz v. Federal Bureau of Prisons Atwater ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEPHANIE ORTIZ, ) Case No.: 1:22-cv-00122 JLT SKO ) 12 Plaintiff, ) ORDER GRANTING IN PART DEFENDANTS’ ) MOTION TO DISMISS 13 v. ) ) 14 FEDERAL BUREAU OF PRISONS, et al., (Doc. 11) ) 15 Defendants. ) ) 16 ) 17 Stephanie Ortiz alleges she was subjected to a hostile work environment and retaliation while 18 employed by the Federal Bureau of Prisons. (See generally Doc. 10.) She asserts two claims pursuant 19 to Title VII of the Civil Rights Act of 1964 against the BOP; Merrick Garland, Attorney General, in 20 his official capacity; and the U.S. Department of Justice. (Id. at ¶¶ 6-8.) Defendants move to dismiss 21 the First Amended Complaint, arguing that Plaintiff does not state a plausible hostile work 22 environment claim and that she failed to exhaust her administrative remedies with respect to her 23 retaliation claim. (Doc. 11.) Defendants seek dismissal pursuant to Rule 12(b)(6) of the Federal Rules 24 of Civil Procedure. The Court finds the matter suitable for decision without oral argument pursuant to 25 Local Rule 230(g) and General Order 618. For the reasons set forth below, Defendants’ motion to 26 dismiss is GRANTED IN PART and DENIED IN PART. 27 I. Background and Allegations 28 In September 2019, Plaintiff alleges that Dr. Paltenghi, a prison doctor at U.S. Penitentiary 1 Atwater, “stormed” out of an examination room, shook his wet hands “offensively” toward Plaintiff, 2 yelled at her regarding the condition of the examination room, and ordered her to clean it despite her 3 having no duty to do so. (Doc. 10 at ¶ 7.) This “belittled and embarrassed” Plaintiff. (Id. at ¶ 8.) 4 Before reporting the incident to her supervisor, Plaintiff alleges Dr. Paltenghi went to a senior officer’s 5 office and told him “[i]t was [his] job to fill [the trash can] and woman’s job to throw out the trash, 6 enough said.” (Id. at ¶ 9.) She reported the incident to her supervisors, at which point Plaintiff 7 “suffered additional harassment, threatening glares and intimidation” by Dr. Paltenghi. (Id. at ¶¶ 10- 8 11.) He would “stand very close” behind Plaintiff and “follow” her into units he “had no business” 9 entering. (Id. at ¶ 11.) 10 In October 2019, an Equal Employment Opportunity Counselor contacted Plaintiff to assist her 11 in filing a complaint against the BOP.1 (Doc. 10 at ¶ 13.) About a month later, Dr. Paltenghi entered 12 the unit where Plaintiff worked. (Id. at ¶ 14.) She was “startled” and began “experiencing anxiety” as 13 Dr. Paltenghi “glared” at her. (Id.) She removed herself from his view. (Id.) After “repeatedly 14 complain[ing],” Human Resources Manager told Plaintiff that seeing Dr. Paltenghi was “inevitable” as 15 he was the only doctor at the prison. (Id. at ¶ 16.) Plaintiff subsequently alleges that on eight specific 16 occasions, Dr. Paltenghi “entered” the unit, beginning on January 6, 2020 and ending on March 26, 17 2020. (Id. at ¶ 15.) According to Plaintiff, Dr. Paltenghi continues to “intentionally enter” the unit. 18 (Id.) On January 9, 2020, Plaintiff filed a formal complaint with the U.S. Equal Employment 19 Opportunity Commission. (Id. at ¶ 3.) An investigation ensued, and a final decision was ultimately 20 issued on September 28, 2021. (Id.) 21 In April 2022, after Plaintiff initiated this action, she received a “satisfactory” evaluation score 22 as opposed to her normal “excellent” score. (Doc. 10 at ¶ 18.) She was then “placed under an abrupt 23 and forced leave of absence, where [D]efendants requested, she receive a clearance letter from her 24 healthcare provider, as a result of stress related seizures.” (Id. at ¶ 19-20.) Her request for an extension 25 of time to obtain proper medical clearance was denied. (Id. at ¶ 19.) 26 27 1 Plaintiff does not clearly identify whether she filed her EEO charge in October 2019 or on January 9, 2020. 28 (See Doc. 10 at ¶¶ 3, 13.) Because the latter date is alleged unambiguously, the Court assumes the charge was filed on January 9, 2020. 1 II. Motion to Dismiss under 12(b)(6) 2 A Rule 12(b)(6) motion “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 3 729, 732 (9th Cir. 2001). Dismissal of a claim under Rule 12(b)(6) is appropriate when “the complaint 4 lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. 5 Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). Thus, under Rule 12(b)(6), “review is 6 limited to the complaint alone.” Cervantes v. Porterville of San Diego, 5 F.3d 1273, 1274 (9th Cir. 7 1993). 8 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted 9 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 10 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court explained, 11 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 12 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 13 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 14 of ‘entitlement to relief.’” 15 Iqbal, 556 U.S. at 678 (internal citations omitted). 16 “The issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled 17 to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a 18 recovery is very remote and unlikely but that is not the test.” Scheuer v. Rhodes, 416 U.S. 232, 236 19 (1974). The Court “will dismiss any claim that, even when construed in the light most favorable to 20 plaintiff, fails to plead sufficiently all required elements of a cause of action.” Student Loan Marketing 21 Assoc. v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). To the extent pleading deficiencies can be 22 cured by the plaintiff alleging additional facts, leave to amend should be granted. Cook, Perkiss & 23 Liehe, Inc. v. Northern Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted). 24 III. Discussion and Analysis 25 A. Judicial Notice 26 Defendants request judicial notice of a Notice of Intent letter issued by the EEOC based upon 27 the assigned Administrative Law Judge’s examination of the record, as well as the Decision and Order 28 Entering Judgment. (See Doc. 11-2.) The Court may take judicial notice of a fact that “is not subject to 1 reasonable dispute because it (1) is generally known within the trial court’s territorial jurisdiction; or 2 (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be 3 questioned.” Fed. R. Evid. 201. Accuracy is only the part of the inquiry, however. 4 While it is well-established that the Court may take judicial notice of such administrative 5 agency documents, see, e.g., Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1001-02 (9th Cir. 6 2018); United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003), it need not take as true the factual 7 findings within a record—or in this case—the Administrative Law Judge’s summary of the facts and 8 legal reasoning of the claims asserted by Plaintiff. (See Docs. 11-1 at 9, 11-2 at 6-11.) “Just because 9 the document itself is susceptible to judicial notice does not mean that every assertion of fact within 10 that document is judicially noticeable for its truth.” Khoja, 899 F.3d at 999; see also Ritchie, 342 F.3d 11 at 909 (holding that while courts may take judicial notice of “records and reports of administrative 12 bodies” . . . [t]he underlying facts relevant to the adjudication of [the] case . . . do not remotely fit the 13 requirements of Rule 201”) (internal quotation marks omitted); Taylor v. Blank, 2014 WL 1577313, at 14 *4 (E.D. Cal. Apr. 17, 2014) (taking judicial notice of the fact that the EEOC decisions denied 15 plaintiff’s claims but holding that “the factual background and legal reasoning contained within the 16 two orders are not subject to judicial notice”). A court in this district clarified it well: 17 The existence and authenticity of a document which is a matter of public record is judicially noticeable such as the authenticity and existence of a particular order, 18 pleading, public proceeding, or census report, which are matters of public record, but the veracity and validity of their contents (the underlying arguments made by 19 the parties, disputed facts, and conclusions of fact) are not. 20 21 Cactus Corner, LLC v. U.S. Dep’t of Agric., 346 F. Supp. 2d 1075, 1099 (E.D. Cal. 2004), aff’d, 450 22 F.3d 428 (9th Cir. 2006). 23 Accordingly, the Court takes judicial notice of the fact that the EEOC issued a Notice of Intent 24 to Issue a Decision Without a Hearing on September 10, 2021. (Doc. 11-2 at 6-12.) Similarly, the 25 Court takes judicial notice of the fact that the EEOC issued a Decision and Order Entering Judgment 26 on September 28, 2021, and that in the order, the assigned Administrative Judge entered summary 27 judgment in favor of EEOC. (Id. at 4-5.) The dates and denial “can be accurately and readily 28 determined from” the documents. Khoja, 899 F.3d at 1001 (quoting Fed. R. Evid. 201(b)(2) (internal 1 quotation marks omitted). Likewise, the parties do not dispute the documents’ existence or 2 authenticity. Cactus Corner, 346 F. Supp. 2d at 1099. However, the Court declines to take judicial 3 notice of the factual summaries or legal reasoning contained within the Notice. Khoja, 899 F.3d at 4 999; Taylor, 2014 WL 1577313, at *4. 5 B. Sex Discrimination – Hostile Work Environment 6 Title VII makes it “an unlawful employment practice for an employer ... to discriminate against 7 any individual with respect to his compensation, terms, conditions, or privileges of employment, 8 because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e- 9 2(a)(1); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). This guarantees “the right to work in an 10 environment free from discriminatory intimidation, ridicule, and insult.” Meritor Sav. Bank, FSB v. 11 Vinson, 477 U.S. 57, 65 (1986). A plaintiff may show discrimination in violation of Title VII by 12 proving disparate treatment or impact, or by establishing the existence of a hostile work environment. 13 Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1109 (9th Cir. 1991) 14 (citing Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)). In the FAC, Plaintiff 15 identifies that her section 2000e-2(a) claim is based on a hostile work environment. (See Doc. 10 at ¶¶ 16 24-30.) More specifically, she alleges “[her] gender was the motivating factor for the work 17 environment to which she was subjected.” (Id. at ¶ 26.) 18 To state a hostile work environment claim under Title VII based upon sex, an employee must 19 allege that: “(1) she was subjected to verbal or physical conduct of a sexual nature; (2) the conduct 20 was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of her 21 employment and create an abusive work environment.” Porter v. California Dept. of Corrections, 419 22 F.3d 885, 892 (9th Cir. 2005); accord Simmons v. Safeway, Inc., 820 F. App’x 579, 580 (9th Cir. 23 2020). Defendants do not dispute that Plaintiff was subjected to unwelcome, harassing conduct, which 24 satisfies the first two elements. The primary dispute is whether the alleged conduct was “severe and 25 pervasive” enough to alter Plaintiff’s conditions of employment. (See generally Docs. 11, 16.) 26 A hostile work environment is one that “is permeated with ‘discriminatory intimidation, 27 ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s 28 employment and create an abusive working environment.’” Harris, 510 U.S. at 21 (quoting Meritor, 1 477 U.S. at 65) (internal citations omitted); see also Brooks v. City of San Mateo, 229 F.3d 917, 923 2 (9th Cir. 2000) (“A hostile work environment claim involves a workplace atmosphere so 3 discriminatory and abusive that it unreasonably interferes with the job performance of those 4 harassed.”). Whether a work environment is hostile is determined by looking at the totality of the 5 circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is 6 physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably 7 interferes with an employee’s work performance.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 8 270–71 (2001) (quoting Faragher v. Boca Raton, 524 U.S. 775, 787-88 (1998)). “The working 9 environment must both subjectively and objectively be perceived as abusive.” Fuller v. City of 10 Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995), as amended (Apr. 24, 1995). “[T]he objective severity 11 of harassment should be judged from the perspective of a reasonable person in the plaintiff’s 12 position[.]” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998); see also EEOC v. 13 Prospect Airport Servs., 621 F.3d 991, 998 (9th Cir. 2010) (explaining that courts consider both the 14 victim’s and a reasonable victim’s perspective). 15 Annoying or merely offensive comments in the workplace are not actionable. Lyle v. Warner 16 Bros. Television Prods., 132 P.3d 211, 223 (Cal. 2006). A plaintiff must show a “concerted pattern of 17 harassment of a repeated, routine or a generalized nature.” Lawler v. Montblanc N. Am., LLC, 704 18 F.3d 1235, 1244 (9th Cir. 2013). “[S]imple teasing, offhand comments, and isolated incidents (unless 19 extremely serious) will not amount to discriminatory changes in the terms and conditions of 20 employment.” Faragher, 524 U.S. at 788 (internal citation and quotation marks omitted). The Court 21 further illuminated: 22 These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a “general civility code.” Properly applied, they will filter out 23 complaints attacking “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” 24 25 Id. (citations omitted). 26 Put briefly, Plaintiff alleges that in September 2019, Dr. Paltenghi yelled at her, shook his 27 hands at her, and made her clean an examination room. (Doc. 10 at ¶ 7.) He then made a gender- 28 related comment about the incident to a third party. (Id. at ¶ 9.) Plaintiff does not allege she heard the 1 comment personally, nor does she allege at what point she gained the information to attribute the 2 comment to her hostile work environment. Two months later, in November 2019, Dr. Paltenghi 3 entered the unit in which Plaintiff worked and “glared” at her. (Id. at ¶ 14.) She began feeling anxious 4 and removed herself from view. (Id.) Dr. Paltenghi proceeded to “enter” the unit between January 5 2020 and March 2020. (Id. at ¶ 15.) 2 She filed a formal EEOC complaint on January 9, 2020. (Id. at ¶ 6 3.) 7 Taken as a whole, these allegations are not sufficient to plead a hostile work environment 8 claim. In order for an environment to be considered hostile, the conduct must have unreasonably 9 interfered with Plaintiff’s work performance. Clark County, 532 U.S. at 270-71. Plaintiff does not 10 allege that Dr. Paltenghi’s conduct resulted in the inability to perform her job. On one occasion, 11 Plaintiff became startled and anxious when Dr. Paltenghi “glared” at her, and she removed herself 12 from his view. She does not allege, however, that she was unable to complete her shift or perform her 13 tasks because of his conduct. 14 Moreover, isolated incidents do not amount to a hostile work environment unless “extremely 15 serious.” Faragher, 524 U.S. at 788; see also, e.g., Brooks, 229 F.3d at 924 (explaining that isolated 16 incidents are rarely sufficient because “the employer will have had no advance notice and therefore 17 cannot have sanctioned the harassment beforehand”); Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 18 644 (9th Cir. 2003), as amended (Jan. 2, 2004) (finding “two isolated offensive remarks” combined 19 with other “unfair treatment” was not severe or pervasive enough to create a hostile work 20 environment). Plaintiff does not allege that she had any further contact with Dr. Paltenghi after the 21 initial yelling incident and subsequent glaring, and Dr. Paltenghi’s conduct was not extremely serious. 22 Instead, Plaintiff alleges that Dr. Paltenghi merely entered the unit in which she worked on eight 23 specific dates and does not allege any additional contact or interaction with Dr. Paltenghi, the only 24 medical doctor at U.S.P. Atwater. His conduct, in the aggregate, would not be considered severe and 25 pervasive to a reasonable person in Plaintiff’s position. See Faragher, 524 U.S. at 788 (holding 26 27 2 According to Plaintiff, Dr. Paltenghi entered the Special Housing Unit during Plaintiff’s shift on January 28 6, 2020, January 13, 2020, January 21, 2020, January 27, 2020, February 5 and 6, 2020, and March 4 and 26, 2020. (Doc. 10 at ¶ 15.) 1 sporadic use of abusive language is an “ordinary tribulation[] of the workplace,” intended to be filtered 2 out by Title VII); see also Vasquez, 349 F.3d at 643-44 (finding that in addition to other misconduct, 3 two incidents of yelling was insufficient to create a hostile work environment); Campbell v. Hawaii 4 Dep’t of Educ., 892 F.3d 1005, 1020 (9th Cir. 2018) (hypothesizing that “even if . . . one-time 5 comments could somehow be construed as a veiled reference to [plaintiff’s] menstrual cycle, those 6 isolated comments would not alone support a claim for a hostile work environment”); Kortan v. 7 California Youth Auth., 217 F.3d 1104, 1111-12 (9th Cir. 2000) (finding no triable issue as to 8 “whether the conduct was frequent, severe or abusive enough to interfere unreasonably with 9 [plaintiff’s] employment” where she was, only in part, stared at in a “hostile fashion”). 10 Accordingly, because the alleged conduct was not severe or pervasive, Plaintiff has not alleged 11 facts sufficient to support a claim for discrimination based on a hostile work environment. Defendants’ 12 motion is GRANTED as to this claim. 13 C. Retaliation 14 Title VII also makes it unlawful “for an employer to discriminate against any of his employees 15 . . . because he has opposed any practice made an unlawful employment practice by [Title VII] . . . or 16 because he has made a charge, testified, assisted, or participated in any manner in an investigation, 17 proceeding, or hearing under [Title VII] . . ..” 42 U.S.C. § 2000e-3(a). 18 Plaintiff’s second cause of action is for retaliation in violation of Title VII. (Doc. 10 at ¶¶ 31- 19 38.) Defendants argue Plaintiff failed to exhaust her administrative remedies with respect to this claim, 20 as the last two alleged incidents in her FAC were not included or reasonably related to her EEOC 21 charge. (Doc. 11-1 at 10.) As such, Defendants seek dismissal of the claim in its entirety. (See id.) 22 Importantly, Plaintiff limits her challenge to her “most recent experience of retaliation,” a forced 23 medical leave of absence. (Doc. 14 at 7.) She asserts the experience “ties back to the initial purpose of 24 her EEOC complaint.” (Id.) The Court will therefore limit its discussion to Plaintiff’s retaliation claim 25 and the latest allegation of retaliation. 26 “Even when an employee seeks judicial relief for claims not listed in the original EEOC 27 charge, the complaint ‘nevertheless may encompass any discrimination like or reasonably related to 28 the allegations of the EEOC charge.’” Mayo v. Recycle to Conserve, Inc., 795 F. Supp. 2d 1031, 1046 1 (E.D. Cal. 2011) (quoting Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002)). 2 An allegation is “reasonably related” if it either “‘fell within the scope of the EEOC’s actual 3 investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of 4 discrimination.’” Id. (emphasis in original); accord Head v. Wilkie, 784 F. App’x 503, 505 (9th Cir. 5 2019) (quoting B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002)); see also Green v. 6 Los Angeles Cnty. Superintendent of Sch., 883 F.2d 1472, 1476 (9th Cir. 1989) (“[T]he court inquires 7 whether the original EEOC investigation would have encompassed the additional charges.”); Wyatt v. 8 City of Burlingame, 2017 WL 565303 at *11 (N.D. Cal. Feb. 13, 2017) (finding a failure to exhaust 9 because “the language of the charge [does not] suggest that an investigation of Plaintiff’s harassment 10 allegations against one supervisor would have reasonably uncovered allegations about her subsequent 11 termination for filing the 2013 EEOC Charge.”). 12 Plaintiff filed her formal EEOC charge on January 9, 2020 and filed this civil action in April 13 2022. (Doc. 10 at ¶¶ 3, 18.) At some point after April 2022, Plaintiff alleges she was placed under “an 14 abrupt and forced leave of absence.” (Id. at ¶ 19.) She requested an extension of time upon learning 15 that her medical clearance was to be provided by her neurologist as opposed to her primary care 16 doctor. (Id.) She was threatened with termination if she did not comply. (Id.) Her request was 17 subsequently denied, but she was not terminated. (See id. at ¶¶ 5, 19.) Plaintiff asserts that “the 18 retaliation to which she began to be subjected to [occurred] after filing this instant lawsuit.” (Id. at ¶ 19 22.) More specifically, Plaintiff contends that “not coincidentally,” the “forced” medical leave was 20 instituted after she filed this action. (See id. at ¶¶ 19-20.) 21 First, from a timing perspective alone, the forced leave and extension denial incidents in 2022 22 were not—and could not have been—included in Plaintiff’s 2020 EEOC charge. This creates an issue 23 of notice for Defendants. See Freeman, 291 F.3d at 636 (“And while it is true that we construe the 24 language of EEOC charges with utmost liberality since they are made by those unschooled in the 25 technicalities of formal pleading, there is a limit to such judicial tolerance when principles of notice 26 and fair play are involved.”) (internal citations and quotation marks omitted). Nevertheless, Plaintiff 27 alleges that the misconduct she suffered is actionable because the acts “occurred close in time to [her] 28 EEO complaint and filing her first complaint in this Court.” (Doc. 10 at ¶ 4.) However, the incidents 1 occurred sometime after April 2022, while her EEOC charge was filed on January 9, 2020. The Court 2 does not find this gap to be “close in time.” (Id.) 3 Second, even if the Court assumed that every factual allegation predating January 9, 2020 was 4 included in the EEOC charge, those allegations are limited to a hostile work environment and sexual 5 harassment by Dr. Paltenghi. (See Doc. 10 at ¶¶ 6-16.)3 Moreover, even considering the allegations of 6 incidents occurring after the charge was filed, the last date Plaintiff expressly alleges she was in Dr. 7 Paltenghi’s presence was on March 26, 2020, still more than two years before initiating this civil 8 action. (See id. at ¶ 15.)4 9 Finally, although Plaintiff now argues that the forced leave and denied extension request were 10 related to the “initial purpose” of her EEOC charge, she expressly alleges in her FAC that the forced 11 leave was in retaliation for filing this action. (Doc. 10 at ¶¶ 20, 22.) She does not allege the retaliation 12 was based on any prior incidents of alleged sexual harassment. Therefore, the Court finds no 13 reasonable relation between Plaintiff’s allegedly “forced” medical leave of absence—which did not 14 involve Dr. Paltenghi—and her allegations of sexual harassment by Dr. Paltenghi two years prior. An 15 EEOC investigation could not have reasonably uncovered allegations of a forced leave based on her 16 prior charge of sexual harassment. Wyatt, 2017 WL 565303 at *11; see also Green, 883 F.2d at 1476 17 (finding that an investigation of incidents of sexual harassment and denied relocation requests would 18 not encompass subsequent claims of denied medical leave). Also notable is that Plaintiff does not 19 meaningfully argue otherwise. Thus, Defendants’ motion to dismiss is GRANTED as to Plaintiff’s 20 forced medical leave of absence and denied extension request only. To the extent Plaintiff relies upon 21 these incidents in stating her retaliation claim, her claim is DISMISSED. 22 IV. Leave to Amend 23 Pursuant to Rule 15 of the Federal Rules of Civil Procedure, leave to amend “shall be freely 24 given when justice so requires,” bearing in mind “the underlying purpose of Rule 15 to facilitate 25 26 3 Plaintiff makes conclusory allegation that she was subjected to retaliation, which the Court declines to entertain. (Doc. 10 at ¶ 12 [“Nonetheless, despite [Plaintiff’s] complaints, the gender hostile environment 27 continued, and retaliatory behavior began. Indeed, after [Plaintiff] began complaining the gender based hostile environment persisted continue despite her complaints, and she was then subject to retaliation as a result.”].) 28 4 Similarly, Plaintiff alleges that Dr. Paltenghi continues to enter the same building as her but provides no other factual allegations explaining the nature of her interactions with him, if any. (Id. at ¶ 15.) 1 || decisions on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122 2 |) 1127 (8th Cir. 2000) (en banc) (alterations and internal quotation marks omitted). When dismissing a 3 || complaint for failure to state a claim, “a district court should grant leave to amend even if no request 4 || amend the pleading was made, unless it determines that the pleading could not possibly be cured by 5 || the allegation of other facts.” /d. at 1130 (internal quotation marks omitted). Accordingly, leave to 6 || amend generally should be denied only if allowing amendment would unduly prejudice the opposing 7 || party, cause undue delay, or be futile, or if the moving party has acted in bad faith. Leadsinger, Inc. v 8 BMG Music Publishing, 512 F.3d 522, 532 (9th Cir. 2008). 9 Plaintiff requests leave to amend should the Court dismiss “any aspect” of her claims. (Doc. 1 10 || at 8.) It is possible that the deficiencies identified herein may be cured, specifically in terms of Title 11 || VII exhaustion. Furthermore, it does not appear amendment would cause undue delay at this juncture 12 || and there is no indication Plaintiff acted in bad faith. Thus, Plaintiffs request for leave to amend is 13 || GRANTED. 14 ||/IV.__ Conclusion and Order 15 For the reasons set forth above, the Court ORDERS: 16 1. Defendants’ motion to dismiss (Doc. 11) is DENIED with the following exceptions: 17 a. The motion is GRANTED as to Plaintiffs Title VII retaliation claim based up 18 her extension denial and leave of absence; and DENIED in all other respects. 19 b. The motion is GRANTED as to Plaintiff’s Title VII hostile work environment 20 claim. This claim is DISMISSED without prejudice. 21 2. Plaintiff SHALL file any Second Amended Complaint within 30 days of the date of 22 service of this order. If Plaintiff fails to file an amended complaint, the action may 23 be dismissed without prejudice for failure to prosecute and failure to obey the 24 Court’s order. 25 26 IT IS SO ORDERED. 27 Dated: _ January 31, 2023 ( Hug ul. | Ws hn \ 28 TED STATES DISTRICT JUDGE 11