Perez v. McDonough ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CAROLINA PEREZ, Case No. 23-cv-06713-JST 8 Plaintiff, ORDER GRANTING MOTION TO 9 v. DISMISS 10 DENIS MCDONOUGH, et al., Re: ECF No. 24 Defendants. 11 12 13 Before the Court is a motion to dismiss by Defendants Secretary of Veterans Affairs 14 Dennis McDonough and the Department of Veterans Affairs (“the VA”) (collectively, 15 “Defendants” or “the VA”). ECF No. 24. The Court will grant the motion. 16 I. BACKGROUND 17 A. Factual Background 18 Plaintiff Carolina Perez, who was born in Nicaragua in 1968, began working at the VA in 19 2003 as a staff nurse at the Palo Alto Health Care System (“Palo Alto VA”). ECF No. 22 ¶¶ 7, 8. 20 Perez speaks with a “noticeable accent.” Id. ¶ 7. In March 2018, Perez was selected as the Chief 21 Nurse of the Palo Alto VA. Id. ¶ 8. As part of this role, she oversaw three facility locations (Palo 22 Alto, Livermore, and Menlo Park), and oversaw approximately 440 staff members. Id. From 23 2003 to 2021, Perez alleges that she received only “fully successful or exceptional performance 24 evaluations.” Id. ¶ 9. 25 In March 2020, owing to the COVID-19 pandemic, “Acting Deputy Nurse Executive 26 David Renfro assigned Perez to physically report to the Menlo Park facility and not to physically 27 visit the Livermore or Palo Alto facilities.” Id. ¶ 10. Renfro assigned Joy Abbey, “a Caucasian, 1 Id. ¶¶ 8, 10. In July 2020, a COVID-19 outbreak occurred at the Livermore facility. Id. ¶ 12. A 2 subsequent VA investigation concluded that “an employee reported to work and failed to 3 truthfully respond to a health screening questionnaire.” Id. Renfro, along with VA employee and 4 decision-maker Michelle Mountfort, “proposed an admonishment as a disciplinary action to Perez, 5 as well as a non-white nursing assistant and assistant nurse manager; positions that were 6 approximately two levels lower than Perez’s level.” Id. ¶¶ 5, 14. Renfro and Mountfort did not 7 discipline Abbey, “even though she was the highest-ranking nurse physically overseeing the 8 Livermore facility.” Id. ¶ 14. “On or about March 6, 2021, Perez submitted a written response to 9 the admonishment, contesting the reasons for the admonishment and also reporting her concern 10 that she was being treated differently than Abbey.” Id. ¶ 15. 11 Separately, in January 2021, Renfro allegedly “initiated an informal fact-finding 12 investigation regarding Perez’s leadership.” Id. ¶ 13. He neither notified Perez of this informal 13 investigation nor interviewed her as part of it. Id. When Renfro’s informal investigation 14 concluded on March 11, 2021, he “did not issue Perez any written discipline,” but he did note that 15 “the most significant concern was the manner Perez communicated with Abbey.” Id. ¶ 16. He 16 allegedly critiqued her “for being too strict and harsh as a leader,” and he “praised Abbey for 17 being nice, caring, and a leader people liked.” Id. Perez alleges that “Renfro’s critiques of [her] 18 stem from his belief that she did not fit his gender-based stereotype.” Id. Thereafter, on March 19 30, 2021, Perez received her annual performance review from Renfro, where he rated her 20 performance as “fully successful” and noted, among other comments, that “Ms. Perez embodies 21 the spirit and compassion of an ECS Nurse Leader. She is passionate about the care she 22 supervises, she is knowledgeable and skilled in ECS Nursing.” Id. ¶ 17. 23 Two months later, in May 2021, Perez “filed an administrative grievance contesting the 24 [prior] admonishment and again reporting her concern that she was being treated differently than 25 Abbey.” Id. ¶ 18. “Mountfort and Renfro sustained the admonishment.” Id. Subsequently, on 26 June 1, 2021, Mountfort notified Perez that the VA was placing Perez on a detail away from 27 extended care to the nursing supervisor office, “due to an alleged patient complaint.” Id. ¶ 19. 1 decisionmakers Mountfort, Renfro, and Lisa Howard, then issued Perez a letter confirming her 2 placement on the detail and noting that the detail would remain in effect until the conclusion of the 3 fact finding.1 Id. Abbey was assigned as the acting Chief Nurse of Palo Alto, replacing Perez’s 4 position. Id. ¶ 21. In or about July 2021, the Chief of Domiciliary Service, Kate Severin, issued a 5 fact-finding report “stemming from the patient complaint and related to Perez’s leadership.” Id. ¶ 6 22. The report “concluded that none of the allegations against Perez were substantiated.”2 7 In September 2021, Renfro “informed Perez to start looking for a new position within the 8 VA.” Id. ¶ 24. On December 1, 2021, “the VA, through decisionmakers Renfro and Howard, 9 issued Perez a detail to the quality, safety, and value (“QSV”) division as a registered nurse for 30 10 days and continued to extend the detail, multiple times, through November 2022.” Id. ¶ 25. On 11 December 8, 2021, Perez filed an informal complaint with the VA’s Equal Employment 12 Opportunity (“EEO”) office alleging discrimination, retaliation, and a hostile work environment. 13 Id. ¶ 26. Renfro became aware of this complaint shortly after Perez filed it. Id. In January 2022, 14 the VA, through decisionmakers Renfro and Howard, offered Perez a non-supervisory position as 15 an accreditation quality manager. Id. ¶ 27. 16 In April 2022, “Perez became aware that Renfro drafted her FY 2022 performance 17 review,” but it allegedly “contained several inaccurate statements and eliminated critical context 18 from her self-evaluation.” Id. ¶ 28. Approximately six months later, “Perez filed a second 19 informal EEO complaint to include the numerous detail extensions she received within the QSV.” 20 Id. ¶ 29. On November 23, 2022, “the VA permanently reassigned Perez to the accreditation 21 quality manager position with the QSV. In this role, Perez does not supervise any employees and 22 has diminished promotion potential.” Id. ¶ 30. Finally, in September 2023, “the VA, through 23 decisionmakers Renfro and Howard, selected Abbey to serve as the chief nurse of the Palo Alto, 24 VA.” Id. ¶ 32. 25 26 1 “VA policy states that details are temporary and that an employee should return to their original 27 position at the end of any detail.” ECF No. 22 ¶ 20. 1 B. Jurisdictional Exhaustion 2 Perez’s allegations concerning jurisdictional exhaustion are as follows: “On or about 3 November 30, 2021, Perez requested EEO counseling.” Id. ¶ 6. Thereafter, on January 6, 2022, 4 Perez received the EEO counseling report. Id. On January 19, 2022, Perez filed a formal 5 complaint against the VA. Id. The VA issued Perez a report of investigation on or about October 6 10, 2022. Id. Nine days later, Perez requested an EEOC hearing, which took place approximately 7 between September 25 and 27, 2023. Id. On or about October 10, 2023, the VA issued a final 8 order, noting Perez of her right to file an appeal within 90 days. Id. 9 Plaintiff filed her complaint on December 29, 2023. ECF No. 1. She filed a first amended 10 complaint (“FAC”) on April 4, 2024. ECF No. 22. She brings five claims against Defendants in 11 her FAC, including: (1) race and national origin discrimination under Title VII; (2) sex and gender 12 discrimination under Title VII; (3) age discrimination under the ADEA; (4) retaliation under Title 13 VII; and (5) hostile work environment based on race, gender, national origin, age, and prior EEO 14 activity under Title VII. 15 II. JURISDICTION 16 The Court has jurisdiction under 28 U.S.C. § 1331. 17 III. LEGAL STANDARD 18 A. Rule 12(b)(6) 19 “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable 20 legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela 21 Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a motion to dismiss, “a 22 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 23 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. 24 Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads 25 factual content that allows the court to draw the reasonable inference that the defendant is liable 26 for the misconduct alleged.” Id. In determining whether a plaintiff has met the plausibility 27 requirement, a court must “accept all factual allegations in the complaint as true and construe the 1 1072 (9th Cir. 2005). 2 B. Leave to Amend 3 Leave to amend a complaint “shall be freely given when justice so requires.” Fed. R. Civ. 4 P. 15(a)(2). The decision of whether to grant leave to amend is “within the discretion of the 5 district court, which may deny leave due to ‘undue delay, bad faith or dilatory motive on the part 6 of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue 7 prejudice to the opposing party by virtue of allowance of the amendment, and futility of 8 amendment.’” Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (quoting 9 Foman v. Davis, 371 U.S. 178, 182 (1962)). 10 IV. DISCUSSION 11 In moving to dismiss Perez’s FAC, Defendants allege that some of Perez’s disparate 12 treatment and retaliation claims are untimely and that her remaining causes of action fail to state a 13 claim upon which relief can be granted. 14 A. Exhaustion of Administrative Remedies 15 The Court begins by examining whether Perez has exhausted her administrative remedies. 16 Before seeking adjudication of a Title VII claim, “a federal employee must initiate contact with an 17 EEO counselor within forty-five days of the date of the alleged discriminatory matter.” Williams 18 v. Wolf, No. 19-CV-00652-JCS, 2019 WL 6311381, at *8 (N.D. Cal. Nov. 25, 2019) (citing 29 19 C.F.R. § 1614.105(a)(1); Green v. Brennan, 578 U.S. 547, 552 (2016)). “Each discrete 20 discriminatory act starts a new clock for filing charges alleging that act.” Nat’l R.R. Passenger 21 Corp. v. Morgan, 536 U.S. 101, 113–15 (2002). 22 The ADEA provides an employee with two alternative options for seeking judicial redress. 23 One option is that an employee may give the EEOC notice of the alleged discriminatory act within 24 180 days, and give notice of her intent to sue at least thirty days before commencing suit in a 25 federal court. Whitman v. Mineta, 541 F.3d 929, 932 (9th Cir. 2008) (citing 29 U.S.C. §§ 633a(c), 26 (d)). Alternatively, an employee may invoke the EEOC’s administrative claims process, and then 27 she may appeal any loss to the federal court. Id. (citing 29 U.S.C. §§ 633a(b), (c)). If the 1 within forty-five days of the alleged discriminatory conduct. Id. (citing 29 C.F.R. § 2 1614.105(a)(1)). 3 The Ninth Circuit recognizes equitable exceptions to the administrative exhaustion 4 requirement “where the remedies are inadequate, inefficacious, or futile, where pursuit of them 5 would irreparably injure the plaintiff, or where the administrative proceedings themselves are 6 void.” United Farm Workers of Am., AFL-CIO v. Ariz. Agric. Emp’t Rels. Bd., 669 F.2d 1249, 7 1253 (9th Cir. 1987). Thus, filing a timely complaint with the EEOC “is not a jurisdictional 8 prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to 9 waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 10 (1982). Similarly, the California Supreme Court has explained that although “[e]xhaustion of 11 administrative remedies is ‘a jurisdictional prerequisite to resort to the courts,’” Johnson v. City of 12 Loma Linda, 24 Cal. 4th 61, 70 (2000) (emphasis in original) (quoting Abelleira v. Dist. Court of 13 Appeal, 17 Cal. 2d 280, 293 (1941)), “‘jurisdictional prerequisite’ does not mean subject matter 14 jurisdiction in the context of exhaustion of administrative remedies.” Kim v. Konad USA Distrib., 15 Inc., 226 Cal. App. 4th 1336, 1347 (2014). 16 It is undisputed that Perez contacted an EEO counselor on November 30, 2021. ECF No. 17 22 ¶ 6. Perez does not argue that any exceptions to administrative exhaustion apply. Accordingly, 18 her Title VII claims that are premised on conduct that occurred before October 16, 2021 (45 days 19 prior to November 30, 2021) are untimely. Additionally, even though Perez does not allege that 20 she selected the bypass method, see id., her ADEA claims that are premised on conduct prior to 21 June 3, 2021 (180 days prior to November 30, 2021) are untimely. Relevant here, the allegations 22 surrounding the June 1, 2021 detail cannot serve as the basis for Perez’s claims, nor can her 23 contention that she was removed from her Chief Nurse position on that same day. See id. ¶¶ 19, 24 21. Any events predating the respective cutoff dates may only be used as background evidence to 25 support a timely claim. See Nat’l R.R. Passenger Corp., 536 U.S. at 112. 26 B. Disparate Treatment Claims (Counts I-III) 27 To establish a prima facie case of discrimination, a plaintiff must demonstrate (1) that she 1 adverse employment action; and (4) similarly situated individuals outside her protected class were 2 treated more favorably, or other circumstances surrounding the adverse employment action give 3 rise to an inference of discrimination. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 4 792, 802 (1973); accord Whitman, 541 F.3d at 932 (applying same test to ADEA claim). “While 5 Plaintiffs need not include facts sufficient to establish a prima facie case in their complaint, they 6 do need to allege ‘enough facts to state a claim to relief that is plausible on its face.’” Mendenhall 7 v. City & Cnty. of San Francisco, No. C-11-4029 EMC, 2011 WL 6779300, at *4 (N.D. Cal. Dec. 8 27, 2011) (quoting Twombly, 550 U.S. at 570). To state a cognizable disparate treatment claim, a 9 plaintiff must “allege either direct evidence of discrimination, such as derogatory comments about 10 [] gender or race, or circumstantial evidence, ‘which may include allegations that similarly 11 situated individuals outside [her] protected class were treated more favorably or that other 12 circumstances surrounding the at-issue employment action give rise to an inference of 13 discrimination.’” Austin v. City of Oakland, No. 17-cv-03284-YGR, 2018 WL 2427679, at *4 14 (N.D. Cal. May 30, 2018) (citing McCarthy v. Brennan, No. 15- cv-03308-JSC, 2016 WL 946099, 15 at *4 (N.D. Cal. Mar. 14, 2016)). 16 Defendants contend that Counts I–III should be dismissed because Perez’s allegations do 17 not give rise to a plausible inference of discrimination. For the reasons set forth below, the Court 18 agrees. 19 1. Claims At Issue 20 As a threshold matter, Defendants aver that Perez’s opposition raises different adverse 21 employment actions from those identified in the disparate treatment paragraphs of the FAC. ECF 22 No. 26 at 6–7. Specifically, Defendants contend that “the FAC [] does not identify either (1) the 23 January 13, 2022 QSV accreditation quality manager offer or (2) the September 2023 selection of 24 Joy Abbey (“Abbey”) for the Chief Nurse position as adverse employment actions at issue in 25 Counts I–III, and Plaintiff cannot amend her claims though an opposition brief.” Id. at 6–7. 26 Perez’s opposition claims that the following employment actions are at issue: 27 [T]he December 1, 2021 detail (an [sic] all subsequent details); the evaluation; the November 23, 2022 permanent reassignment; the 1 failure to reinstatement [sic] Perez; and in September 2023, the selection of Abbey for the chief nurse position instead of Perez. 2 ECF No. 25 at 9 (citing ECF No. 22 ¶¶ 25, 27, 28, 30–32). The FAC, on the other hand, alleges 3 that the following employment actions are at issue: 4 The VA unlawfully discriminated against Perez when it removed 5 Perez from chief nurse position, detailed her to positions with less promotion potential and no supervisory duties, failed to reinstate her 6 to her chief nurse position at the end of her detail, issued her an inaccurate performance evaluation, and permanently reassigned her 7 position. 8 ECF No. 22 ¶¶ 37, 44, 51. Although the phrasing of the FAC could have been more specific, the 9 Court finds that it sufficiently encompasses the January 13, 2022 QSV accreditation manager offer 10 and the September 2023 selection of Abbey as Chief Nurse. In regard to the former, the FAC 11 states that the VA “detailed [Perez] to positions with less promotion potential and no supervisory 12 duties.” See ECF No. 22 ¶ 37, 44, 51. And in regard to the latter, the FAC states that the VA 13 “permanently reassigned her position.” See id. Thus, the Court declines to conclude that Perez 14 amended her claims though her opposition brief. Nonetheless, as set forth below, the following 15 deficiencies still exist with Perez’s disparate treatment claims. 16 2. Removal from Chief Nurse Position and Subsequent Selection of Abbey 17 Defendants contend that Perez’s claim concerning removal from the Chief Nurse position 18 on June 1, 2021 is untimely, fails to identify a similarly situated individual outside her protected 19 class who was treated more favorably, and otherwise fails to allege any circumstances that give 20 rise to an inference of discrimination. ECF No. 24 at 18. 21 Perez’s claim regarding her June 1, 2021 removal is untimely because it occurred more 22 than 180 days (and, by extension, more than 45 days) prior to November 30, 2021. Additionally, 23 Perez has not shown that Abbey was a similarly situated individual. “[I]ndividuals are similarly 24 situated when they have similar jobs and display similar conduct,” including “engag[ing] in 25 problematic conduct of comparable seriousness.” Vasquez v. Cty. of L.A., 349 F.3d 634, 641 (9th 26 Cir. 2003); see Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006) (holding that “the individuals 27 seeking relief must demonstrate, at the least, that they are similarly situated to those employees in 1 much less that Abbey’s conduct was of ‘comparable seriousness’ to Plaintiff’s conduct.” ECF No. 2 26 at 10. Indeed, Perez has not plead facts demonstrating that Abbey had a similar job position 3 and responsibilities. See Fernandez v. Bd. of Regents of Nev. Sys. of Higher Educ., 645 F. App’x 4 572, 572–73 (9th Cir. 2016) (“The individuals they identified as being similarly situated had 5 materially different qualifications or held materially different positions at the university, and so 6 were not, in fact, similarly situated to the plaintiffs.”). And finally, Perez has not otherwise timely 7 alleged circumstances that give rise to an inference of discrimination on the basis of race, sex, age, 8 or any other protected characteristic. 9 Accordingly, these allegations are not sufficient to state a disparate treatment claim. 10 3. Detail Posting, Lack of Reinstatement, Offer of Non-Supervisory 11 Position, and Permanent Reassignment 12 Perez’s allegations concerning her December 1, 2021 detail posting, lack of reinstatement, 13 offer of non-supervisory position, and November 23, 2022 permanent reassignment fare no better. 14 They, too, fail to identify a similarly situated individual outside Perez’s protected class who was 15 treated more favorably, and otherwise fail to allege circumstances that give rise to an inference of 16 discrimination. 17 In regard to her December 1, 2021 detail posting, Perez alleges that “Renfro had not 18 detailed any other similarly situated employee as long as Perez.” ECF No. 22 ¶ 25. Similarly, 19 Perez claims that “Renfro and Howard had not permanently reassigned any other similarly situated 20 employee to a new position following multiple details—only Perez, the older, Nicaraguan female, 21 who spoke with a noticeable accent and did not fit Renfro’s preferred stereotype of a female 22 leader.” Id. ¶ 30. Without information such as the names of the individuals, what positions they 23 held, what their protected characteristics were, and what problematic conduct they had engaged in, 24 the Court cannot determine that a similarly situated individual outside of Perez’s protected 25 characteristics was treated more favorably than Perez with respect to the December 1, 2021 detail, 26 her lack of reinstatement, and permanent reassignment. While Perez’s opposition contends that 27 Abbey was assigned to Perez’s position while she was on detail, and ultimately promoted to 1 any problematic conduct that was of “comparable seriousness” to Perez’s. Vasquez, 349 F.3d at 2 641. 3 Briefly, Perez’s FAC makes a one-off reference to the fact that “[o]n or about January 13, 4 2022, during a meeting, the VA, through decisionmakers Renfro and Howard, offered Perez a non- 5 supervisory position as an accreditation quality manager.” ECF No. 22 ¶ 27. Neither her FAC nor 6 her opposition explains how this offer was either discriminatory on its face or how it provides 7 circumstantial evidence of discrimination. 8 Thus, these allegations are not sufficient to state a disparate treatment claim. 9 4. Performance Evaluation 10 Defendants move to dismiss Perez’s allegations concerning her FY 2022 performance 11 evaluation on the ground that Perez “does not allege any direct or circumstantial evidence that 12 could allow the Court to plausibly infer that the employment actions at issue in Counts I–III were 13 the result of discrimination.” ECF No. 24 at 20. The Court agrees. Perez’s FAC contains one 14 sentence about her FY 2022 evaluation. She claims that “[o]n or about April 26, 2022, Perez 15 became aware that Renfro drafted her FY 2022 performance review, but it contained several 16 inaccurate statements and eliminated critical context from her self-evaluation.” ECF No. 22 ¶ 28. 17 The FAC does not detail the FY 2022 evaluation’s purported omissions, overall rating (i.e., was it 18 positive, negative, or subaverage?), or assert that the FY 2022 performance review impacted the 19 terms and conditions of Perez’s employment. Simply put, Perez fails to explain how this alleged 20 adverse employment action was the result of discrimination against her on the basis of protected 21 characteristics. See Austin, 925 F.3d at 1138 (“A recitation of facts without plausible connection 22 to [a protected category] is not cured by labels and conclusory statements”). 23 In sum, Perez’s disparate treatment claims (Counts I–III) are dismissed. Because the 24 deficiencies identified above could be cured by the allegation of additional facts, the Court will 25 grant leave to amend these claims. 26 C. Retaliation Claim 27 To establish a prima facie claim for retaliation under Title VII, the plaintiff must 1 employment action, and (3) a causal link exists between the protected activity and the adverse 2 action. See Manatt v. Bank of Am., NA, 339 F.3d 792, 800 (9th Cir. 2003). 3 The crux of Perez’s retaliation claim is that she “engaged in protected activity under Title 4 VII when she reported that the VA was treating her less favorably than Abbey and when she 5 initiated and engaged in the EEO process.” ECF No. 22 ¶ 55. She claims that “[t]he VA 6 unlawfully discriminated against [her] when it removed [her] from chief nurse position, detailed 7 her to positions with less promotion potential and no supervisory duties, failed to reinstate her to 8 her chief nurse position at the end of her detail, issued her an inaccurate performance evaluation, 9 and permanently reassigned her position.” Id. ¶ 56. Defendants move to dismiss Perez’s 10 retaliation claim on the ground that Perez does not allege facts to support an inference of 11 retaliatory causation. ECF No. 24 at 23–26.3 12 First, Perez does not allege that Howard was aware of her EEO activity. To establish the 13 causal link, it is “[e]ssential” that “the employer was aware that the plaintiff had engaged in the 14 protected activity.” Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982). Thus, to the 15 extent Perez’s retaliation claim is premised on any alleged acts by Howard, it is dismissed. 16 Second, Renfro allegedly became aware of Perez’s EEO activity “shortly after Perez filed 17 her complaint” on December 8, 2021. ECF No. 22 ¶ 26. However, as Defendants point out, any 18 retaliation claim premised on the December 1, 2021 detail “should be dismissed because Renfro 19 cannot have retaliated against Plaintiff for engaging in protected activity before Renfro became 20 aware that Plaintiff had engaged in protected activity.” ECF No. 24 at 25 (citing Cohen, 686 F.2d 21 at 796). 22 Further, to the extent that Perez’s retaliation claim is premised on the November 23, 2022 23 3 While the FAC alludes to the fact that Perez reported that she was being treated differently than 24 Abbey in March and May 2021, see ECF No. 22 ¶¶ 15, 18, Perez acknowledges these claims are not timely. See ECF No. 25 at 9 (“while Perez acknowledges that actions prior to October 2021 25 are not timely . . . .”). To the extent these facts are relevant background evidence, the FAC does not plead that Perez was being treated differently for reasons related to protected characteristics. 26 See Adams v. Vivo Inc., No. 12-cv-01854-DMR, 2012 WL 5525315, at *7 (N.D. Cal. Nov. 14, 2012) (granting leave to amend retaliation claim where the pleadings alleged that the plaintiff 27 “complained” to his supervisor but “the substance of his complaints [was] unknown” and 1 permanent reassignment, it is likewise dismissed because the FAC is devoid of facts 2 demonstrating that the reassignment was causally connected to any protected activity. While 3 Perez alleges that “Renfro and Howard had not permanently reassigned any other similarly 4 situated employee to a new position following multiple details—only Perez, the older, Nicaraguan 5 female, who spoke with a noticeable accent and did not fit Renfro’s preferred stereotype of a 6 female leader,” this conclusory assertion does not plausibly establish that a causal link exists 7 between Perez’s protected activity and her permanent reassignment. 8 Finally, as delineated above, see supra at 10, Perez’s singular allegation concerning her FY 9 2022 performance review does not establish that it was the result of retaliation against her. See 10 Austin, 925 F.3d at 1138 (“A recitation of facts without plausible connection to [a protected 11 category] is not cured by labels and conclusory statements”). 12 In sum, Perez’s retaliation claim is dismissed. Because the deficiencies identified above 13 could be cured by the allegation of additional facts, the Court will grant leave to amend this claim. 14 D. Hostile Work Environment Claim 15 “An employer is liable under Title VII for conduct giving rise to a hostile environment 16 where the employee proves (1) that [she] was subjected to verbal or physical conduct of a 17 harassing nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently 18 severe or pervasive to alter the conditions of the victim’s employment and create an abusive 19 working environment.” Pavon v. Swift Trans. Co., Inc., 192 F.3d 902, 908 (9th Cir. 1999). “In 20 determining whether an actionable hostile work environment claim exists, [courts] look to ‘all the 21 circumstances,’ including ‘the frequency of the discriminatory conduct; its severity; whether it is 22 physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably 23 interferes with an employee’s work performance.’” Nat’l R.R. Passenger Corp., 536 U.S. at 116 24 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). 25 Perez claims that “[t]he VA subjected [her] to a hostile work environment based on her 26 race, gender, national origin, age, and prior EEO activity when it removed [her] from chief nurse 27 position, continually detailed her to positions with less promotion potential and no supervisory 1 inaccurate performance evaluation, and permanently reassigned her position.” ECF No. 22 ¶ 62. 2 Defendants move to dismiss Perez’s hostile work environment claim, arguing that Perez does not 3 allege (1) harassment in the form of verbal or physical conduct; (2) non-discrete acts of 4 harassment; and (3) facts suggesting that the conduct at issue was based on protected activity. 5 ECF No. 24 at 19–22. For the reasons set forth below, the Court agrees with Defendants. 6 First, Perez fails to sufficiently allege that she was subject to “verbal or physical conduct 7 of a harassing nature.” See Bleeker v. Johanns, No. 07-cv-0413-PCT, 2009 WL 4730931, at *5 8 (D. Ariz. Dec. 2, 2009), aff’d sub nom. Bleeker v. Vilsack, 468 F. App’x 731 (9th Cir. 2012). In 9 determining whether a hostile work environment exists, courts look towards whether a plaintiff 10 has been subject to “any ridicule, insulting comments, intimidation, physical contacts, or threats 11 engaged [] to such a severe extent or with such a pervasive frequency, to alter the conditions of her 12 employment so as to create an abusive working environment.” Fowler v. Potter, No. 06-cv- 13 04716-SBA, 2008 WL 2383073, at *10 (N.D. Cal. June 9, 2008). While Perez’s opposition avers 14 that “Renfro continually harassed Perez through unsubstantiated investigations, scrutinized her 15 leadership demeanor, made threatening comments about her position, detailed her to a position 16 where she went from supervising hundreds of nurses to supervising none, and prevented Perez 17 from returning to her position,” the allegations in the FAC paint a different picture. The 18 allegations in the FAC primarily concern management decisions, such as performance evaluations 19 and job reassignments, and do not suggest that Renfro continually harassed Perez with such a 20 “pervasive frequency” as to create an “abusive working environment.” See, e.g., ECF No. 22 ¶¶ 21 16, 24–25, 28, 30. And while Renfro allegedly “critiqued Perez for being too strict and harsh as a 22 leader,” id. ¶ 16, the Court cannot conclude that such a comment was a threat so “severe” that it 23 created an abusive working environment. Fowler, 2008 WL 2383073, at *10. Because Perez fails 24 to plead sufficient allegations to support her claim, the Court will dismiss it with leave to amend. 25 Second, notwithstanding that Perez’s hostile work environment claim falters at the first 26 prong, she also fails to allege any non-discrete acts of harassment. The Ninth Circuit has made 27 clear that “[i]f the flames of an allegedly hostile environment are to rise to the level of an 1 California Dep't of Corr., 419 F.3d 885, 893 (9th Cir. 2005). Here, by contrast, Perez’s 2 allegations of harassment take the form of discrete acts, such as job and detail assignments, as well 3 as a performance evaluation. As Defendants point out, the alleged conduct underlying her hostile 4 work environment claim is “identical” to her disparate treatment and retaliation claims, save for 5 adding the word “continually” to her allegations. ECF No. 24 at 29. Because discrete acts may 6 not be “cobbled together” to a cognizable hostile work environment claim, Perez’s claim must also 7 be dismissed on this ground. Ellis v. SmithKline Beecham Corp., No. 07-cv-5302, 2008 WL 8 3166385, at *12 (W.D. Wash. Aug. 5, 2008), aff’d, 363 F. App’x 481 (9th Cir. 2010). 9 Finally, Perez fails to provide any facts to suggest the alleged harassing conduct was based 10 on her protected characteristics. This is fatal to her hostile work environment claim. A plaintiff 11 must allege facts that plausibly suggest that she was subjected to hostile verbal or physical conduct 12 “because of” her claimed protected characteristics. Manatt, 339 F.3d at 798. Simply alleging 13 discrete employment actions without explaining how these were acts of harassment based on her 14 age, sex, gender, national origin, race, or prior protected activity status is not sufficient. 15 In sum, Perez’s hostile work environment claim is dismissed. Because the deficiencies 16 identified above could be cured by the allegation of additional facts, the Court will grant leave to 17 amend this claim. 18 CONCLUSION 19 For the foregoing reasons, Defendants’ motion is granted. Perez’s claims are dismissed 20 with leave to amend because Defendants have not shown that amendment would prejudice them, 21 is sought in bad faith, would produce an undue delay, or would be futile. See AmerisourceBergen 22 Corp v. Dialyst West, Inc., 465 F.3d 946, 951 (9th Cir. 2006). Perez may file an amended 23 complaint within twenty-eight days of this order solely to cure the deficiencies identified by this 24 order. 25 Failure to file a timely amended complaint will result in dismissal of the claims with 26 prejudice. 27 / / / 1 The case management conference scheduled for December 20, 2024 is continued to March 2 || 4, 2025 at 2:00 p.m. An updated joint case management statement is due February 25, 2025. 3 IT IS SO ORDERED. ® 4 Dated: November 20, 2024 5 JON S. TI 6 United States District Judge 7 8 9 10 11 a 12 13 14 © 15 16 = 17 6 18 19 20 21 22 23 24 25 26 27 28