- 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARY HOSTETLER, Case No. 22-cv-03605-JD 8 Plaintiff, SECOND ORDER RE DISMISSAL v. 9 10 CHRISTINE WORMUTH Defendant. 11 12 13 Plaintiff Mary Hostetler sued her employer, the Presidio of Monterey Police Department 14 (the Department), for discrimination and retaliation under Title VII of the Civil Rights Act, 42 15 U.S.C. § 2000e, et seq.; the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et 16 seq.; and the Rehabilitation Act, 29 U.S.C. § 791, et seq. Dkt. No. 1. Hostetler says that she was 17 demoted and ultimately forced out as the result of discriminatory and retaliatory animus. The 18 Court dismissed the complaint for lack of facts to “establish a plausible link between the adverse 19 employment actions she complains of, and discrimination based on her gender, age, or physical 20 disabilities.” Dkt. No. 19 at 6. 21 Hostetler filed an amended complaint (FAC), Dkt. No. 20, which the Department asks to 22 dismiss with prejudice under Federal Rule of Civil Procedure 12(b)(6), Dkt. No. 21. The parties’ 23 familiarity with the record is assumed. Dismissal is granted for the disability and age 24 discrimination claims, but the Title VII and retaliation claims will move forward. 25 LEGAL STANDARDS 26 The standards that govern a motion to dismiss under Rule 12(b)(6) are well-established, 27 and they are incorporated here. See, e.g., Duque v. Permanente Med. Grp., No. 18-cv-03356-JD, 1 short and plain statement ... showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), 2 including “enough facts to state a claim ... that is plausible on its face,” Bell Atl. Corp. v. 3 Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face if, accepting all the factual 4 allegations as true and construing them in the light most favorable to the plaintiff, the Court can 5 reasonably infer that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 6 U.S. 662, 678 (2009). The Court will not treat as fact or accept as true allegations that are bare 7 legal conclusions, recitations of elements, or unwarranted deductions. Id.; see also In re Gilead 8 Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). The plausibility analysis is “context- 9 specific” and not only invites but “requires the reviewing court to draw on its judicial experience 10 and common sense.” Iqbal, 556 U.S. at 679. 11 Hostetler suggests that a lower pleading standard applies in civil rights cases, Dkt. No. 22 12 at 2, but our circuit has rejected that argument. See Austin v. Univ. of Oregon, 925 F.3d 1133, 13 1137 (9th Cir. 2019). Rule 8(a) applies fully to claims brought under the federal Civil Rights Act, 14 see Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002), with no extra thumb on the scale for 15 plaintiffs, see Austin, 925 F.3d at 1137. Hostetler’s citation to Johnson v. State of California, 207 16 F.3d 650 (9th Cir. 2000), is misdirected. That decision simply repeated the well-recognized rule 17 that federal courts will liberally construe the allegations of pro se litigants, particularly in civil 18 rights cases. Id. at 653. Hostetler is represented by an attorney. 19 DISCUSSION 20 I. DISCRIMINATION CLAIMS 21 A. Sex and Gender 22 At the motion to dismiss stage, Hostetler need not establish a prima facie case of sex or 23 gender discrimination. See Swierkiewicz, 534 U.S. at 513; Maduka v. Sunrise Hosp., 375 F.3d 24 909, 912 (9th Cir. 2004). Even so, her complaint must contain “nonconclusory allegations 25 plausibly linking the [adverse] action to discrimination.” Austin, 925 F.3d at 1138. 26 The Title VII claim satisfies Rule 8. The FAC alleges that Hostetler was unfairly demoted 27 and deprived of overtime pay and benefits. Dkt. No. 20 ¶¶ 43, 48, 69. It also “plausibly link[s]” 1 other things, the FAC alleges that “[m]ale employees have been treated better and contrary to 2 policy regarding reclassifications” (Dkt. No. 20 ¶ 24); that “one of the male detectives under 3 [plaintiff’s] supervision was also a GS 9” but was not required to supervise other GS-9-level 4 employees, as she was (id. ¶ 25); and that “[m]ale employees who were the exact same GS level as 5 Ms. Hostetler were not similarly reclassified” (id. ¶ 65). These allegations suffice at the pleading 6 stage because they “give [the Department] fair notice of what [Hostetler’s] claims are and the 7 grounds upon which they rest.” Swierkiewicz, 534 U.S. at 514. 8 The Department criticizes the FAC for not alleging that “those [male] employees were 9 similarly situated” to Hostetler “in the relevant ways,” Dkt. No. 21 at 5, but our circuit has 10 determined that this is not required at the pleading stage. See Maduka, 375 F.3d at 912-13. To 11 require it would be “inconsistent with Swierkiewicz’s willingness to ‘allow[ ] lawsuits based on 12 conclusory allegations of discrimination to go forward.’” Maduka, 375 F.3d at 912 (quoting 13 Swierkiewicz, 534 U.S. at 514). 14 The FAC also alleges that the Deputy Chief of Police told Hostetler that “he thought the 15 reason she was not accepted in the Department was because she is a woman.” Dkt. No. 20 ¶ 27. 16 Our circuit recognizes that “comments suggesting that the employer may have considered 17 impermissible factors are clearly relevant to a disparate treatment claim,” even if one remark is 18 “insufficient to establish discrimination.” Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438-39 19 (9th Cir. 1990). 20 B. Disability 21 A different result is warranted for the disability and age discrimination claims. “To set 22 forth a prima facie disability discrimination claim, a plaintiff must establish that: (1) he is disabled 23 within the meaning of the ADA; (2) he is qualified (i.e., able to perform the essential functions of 24 the job with or without reasonable accommodation); and (3) the employer terminated” -- or 25 demoted -- “him because of his disability.” Nunies v. HIE Holdings, Inc., 908 F.3d 428, 433 (9th 26 Cir. 2018); see also West v. Scott Lab’ys, Inc., ___ F.4th ___, No. 23-15502, 2023 WL 6172009, 27 at *1 (9th Cir. Sept. 22, 2023) (citing Nunies elements at the motion to dismiss stage). 1 The FAC falls short on these elements. To start, Hostetler generally alleges that she 2 suffers from several physical disabilities, but the ADA requires more. A plaintiff must allege that 3 she has “(A) a physical or mental impairment that substantially limits one or more … major life 4 activities …; (B) a record of such an impairment; or (C) being regarded as having such an 5 impairment.” Nunies, 908 F.3d at 433 (quoting 42 U.S.C. § 12102(1)(A)-(C)). Hostetler appears 6 to rely on the “regarded as” prong. See Dkt. No. 22 at 11. “An individual meets the requirement 7 of ‘being regarded as having such an impairment’ if the individual establishes that he or she has 8 been subjected to an action prohibited under this chapter because of an actual or perceived 9 physical or mental impairment.” Socal Recovery, LLC v. City of Costa Mesa, 56 F.4th 802, 817 10 (9th Cir. 2023) (quoting 42 U.S.C. § 12102(3)(A)). The FAC does not plead this element with the 11 requisite specificity. The allegation that “[t]he Department was also well aware of Ms. Hostetler’s 12 disabilities,” Dkt. No. 20 ¶ 29, is certainly not a substitute for that. 13 Nor does the FAC plausibly allege a demotion “because of an actual or perceived” 14 disability. Socal Recovery, 56 F.4th at 817. For this, Hostetler relies mainly a weapons test that 15 she could not complete, for unspecified reasons. Dkt. No. 22 at 12-13. She says the Department 16 ginned up a test that it knew she would fail because she is disabled, and then used that failure to 17 justify her placement on the “no draw” list, which prevented her from performing certain aspects 18 of her job. Dkt. No. 20 ¶¶ 29-30. This is little more than ipse dixit. There are no facts in the FAC 19 to indicate that the weapons test was pretextual or a set-up. The FAC alleges that Hostetler never 20 had to use an M-16 rifle before, so proficiency with that weapon “was clearly not an essential 21 function of her job.” Dkt. No. 20 ¶ 29. But it also states that the Department told her that the 22 weapons test was a requirement for her new job, id., so it is irrelevant whether she needed to use 23 that weapon to perform her old job. Hostetler does not allege that others within her new job 24 classification were exempt from the weapons test. She also does not connect her placement on the 25 “no-draw” list to her alleged demotion. 26 Although it is true, as Hostetler suggests, that employers, including the federal 27 government, must provide “reasonable accommodations” for disabled employees, see 42 U.S.C. 1 permission to conduct outside investigations without passing the M-16 rifle test, nor does she 2 allege that her disability prevented her from doing so. See Brown v. Lucky Stores, Inc., 246 F.3d 3 1182, 1188 (9th Cir. 2001). The FAC says only that she provided a doctor’s note about her 4 inability to complete the weapons exam, Dkt. No. 20 ¶ 30, but does not allege that Hostetler 5 sought to commence the interactive process, as was her burden. Brown, 246 F.3d at 1188. 6 C. Age 7 The Department’s objection to the “complete lack of age-related allegations in the FAC” is 8 well-taken. Dkt. No. 21 at 7. The allegations supporting the Second Claim for Relief are a bare- 9 bones recitation of the legal elements of a claim without any supporting facts. See Dkt. No. 20 10 ¶¶ 73-78. The rest of the FAC does not provide any specific facts that could make out a plausible 11 claim for age discrimination. The few factual allegations related to age are that she is over the age 12 of 40. Id. ¶¶ 19, 74. Plaintiff’s opposition does not meaningfully address age discrimination, and 13 simply repeats that she is over the age of 40. See Dkt. No. 22 at 12-13. 14 II. RETALIATION CLAIMS 15 To establish a prima facie case of retaliation, Hostetler must plausibly allege that (1) she 16 engaged in a protected activity, (2) she was subjected to an adverse employment action, and (3) 17 there was a causal link between the two. See Smith v. State of Cal. Dep’t of Highway Patrol, 75 F. 18 Supp. 3d 1173, 1179 (N.D. Cal. 2014) (citing Villiarimo v. Aloha Island Air, Inc., 781 F.3d 1054, 19 1064 (9th Cir. 2002)) (retaliation elements under Title VII); see also Poland v. Chertoff, 494 F.3d 20 1174, 1179-80 (9th Cir. 2007) (same for ADEA); Coons v. Sec’y of U.S. Dep’t of Treasury, 383 21 F.3d 879, 887 (9th Cir. 2004) (same for Rehabilitation Act). For purposes of a retaliation claim, 22 an adverse action is one that is “reasonably likely to deter employees from engaging in protected 23 activity.” Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000). 24 Hostetler satisfies the first element because she filed an EEO complaint on August 9, 2018, 25 and then a formal complaint with the EEOC on April 9, 2019, in which she specifically alleged 26 age, sex, and disability discrimination. See Dkt. No. 16-1 at ECF p. 56; Learned v. City of 27 Bellevue, 860 F.2d 928, 932 (9th Cir. 1988). 1 She satisfies the second element by alleging that the Department took actions against her 2 that were “reasonably likely” to chill engagement in protected activity. Ray, 217 F.3d at 1243. 3 Dkt. No. 22 at 4. Among other facts, the FAC alleges that employees were encouraged to file 4 complaints about her performance, which led to a pretextual personnel investigation resulting in 5 her forfeit of supervisory duties; (¶¶ 39-44); that she was demoted from Criminal Intelligence 6 Analyst to a non-police position with lower pay but a requirement to supervise others (¶ 65); and 7 that she ultimately was forced to retire (¶ 65). These are non-trivial sanctions, and the Department 8 did not present a good reason to say why they might be lacking. 9 Hostetler also satisfies the third element. “That an employer’s actions were caused by an 10 employee’s engagement in protected activities may be inferred from proximity in time between 11 the protected action and the allegedly retaliatory employment decision.” Ray, 217 F.3d at 1244 12 (internal citation and quotation marks omitted). Some of the adverse actions alleged in the FAC 13 took place in close temporal proximity to protected activity. See Dkt. No. 22 at 8-9. For example, 14 the personnel investigation launched around the time that the EEO issued its Report of 15 Investigation in her case. Dkt. No. 20 ¶¶ 37-38. Just over a month after she amended her EEOC 16 complaint, she was denied certain “pre-approved” compensation. Id. ¶¶ 45, 48. 17 Although “causation can be inferred from timing alone where an adverse employment 18 action follows on the heels of protected activity,” the FAC offers more. Villiarimo v. Aloha Island 19 Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002). For example, the proffered explanation for the 20 investigation (“morale issues,” id. ¶ 44) may well have been pretextual, because the Department 21 never provided information about the allegations against her. Id. ¶ 39. So too for the denial of 22 certain compensation, because the Department did not provide a copy of the “agreement” that 23 supposedly eliminated that benefit. Id. ¶ 48. 24 III. LEAVE TO AMEND 25 Plaintiff has already had one opportunity to amend her complaint to state plausible 26 disability and age discrimination claims. “The fact that plaintiff failed to correct the deficiencies 27 the Court previously pointed out ‘is a strong indication that the plaintiffs have no additional facts 1 (N.D. Cal. Apr. 12, 2017) (quoting Zucco Partners, LLC vy. Digimarc Corp., 552 F.3d 981, 1007 2 (9th Cir. 2009)). Consequently, those claims are dismissed without leave to amend. 3 CONCLUSION 4 The claims for sex and gender discrimination (First Claim for Relief) and for retaliation 5 (Third, Fourth, and Sixth Claims for Relief) will move forward. The Second and Fifth Claims for 6 || Relief are dismissed. 7 IT IS SO ORDERED. 8 Dated: October 12, 2023 9 10 Jameyponato Unitg@g States District Judge 12 13 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28
Document Info
Docket Number: 3:22-cv-03605
Filed Date: 10/12/2023
Precedential Status: Precedential
Modified Date: 6/20/2024