Phan v. Employment Development Department, No. 2:2016cv00256 - Document 48 (E.D. Cal. 2017)

Court Description: ORDER granting 43 Motion to Dismiss signed by District Judge Kimberly J. Mueller on 7/20/17. (Kaminski, H)
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Phan v. Employment Development Department Doc. 48 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LOAN PHAN, 12 Plaintiffs, 13 14 15 No. 2:16-cv-00256-KJM-CKD v. ORDER EMPLOYMENT DEVELOPMENT DEPARTMENT, Defendant. 16 Plaintiff Loan Phan brings this civil rights action against her former employer, 17 18 Employment Development Department (“EDD”), asserting claims of discrimination, harassment 19 and retaliation under Title VII. See Fourth Am. Compl. (“FAC”), ECF No. 42. EDD moves to 20 dismiss the fourth amended complaint. Mot., ECF No. 43. Phan opposes. Opp’n, ECF No. 44. 21 EDD filed a reply. Reply, ECF No. 45. The court submitted the matter without oral argument. 22 ECF No. 47. For the reasons discussed below, the court GRANTS the motion with prejudice. 23 I. BACKGROUND A. 24 Factual Allegations Phan worked for EDD as an Employment Program Representative from June 2009 25 26 until May 2012 and then as an Accountant Trainee until November 2013. FAC ¶ 5. Phan is 27 Vietnamese and speaks English as a second language and with a heavy accent. Id. ¶¶ 7, 9. For 28 ///// 1 1 each of these reasons, Phan alleges she experienced discrimination, harassment and retaliation at 2 EDD starting in 2009. See generally id. 3 Little else from the fourth amended complaint is clear. Phan alleges her 4 colleagues and supervisors mistreated her, id. ¶ 9, but she does not say who, when or in what 5 office this conduct occurred. Similarly, she alleges she “complained” about this mistreatment to 6 her supervisors and the mistreatment worsened, id. ¶ 6, but provides few details about the 7 complaints or the mistreatment. The operative complaint does provide the following specific, 8 albeit stray, allegations: although Phan worked within a unit of foreign language speaking 9 employees, she was the only employee not certified in a foreign language, id. ¶ 12; during Phan’s 10 training starting in 2012, one of her trainers did not adhere to Phan’s training schedule, id. ¶ 16; 11 in spring 2013, she submitted but then withdrew two applications for a promotion, id. ¶¶ 22, 25; 12 and Phan was subjected to “name-calling” and was told she had a “hormone problem” and that 13 she was “crazy,” id. ¶ 27. 14 B. Procedural Background 15 On January 21, 2014, Phan filed a complaint with the Equal Employment 16 Opportunity Commission (“EEOC”) and another with the California Department of Fair 17 Employment and Housing (“DFEH”). Id. ¶ 29. She received a right-to-sue letter from the EEOC 18 in November 2015. Id. Ex. B. 19 Phan filed the original complaint and a first amended complaint, proceeding pro 20 se, in early 2016. Compl., ECF No. 1; First Am. Compl., ECF No. 5. After acquiring counsel, 21 ECF No. 14, the parties stipulated to permit a second and third amended complaint. Second Am. 22 Compl., ECF No. 28; Third Am. Compl., ECF No. 34. At hearing held on March 24, 2017, the 23 court granted EDD’s motion to dismiss the third amended complaint, stating its reasons for 24 dismissal on the record. See Hr’g Mins., ECF No. 41. 25 Three weeks later, Phan filed the operative fourth amended complaint. See FAC. 26 Phan makes the following claims against EDD, all brought under Title VII of the Civil Rights Act 27 of 1964, 42 U.S.C. §§ 2000e–e-17: (1) Discrimination on the basis of Race, National Origin, 28 ///// 2 1 and/or Ethnicity; (2) Harassment on the basis of Race, National Origin, and/or Ethnicity; and 2 (3) Retaliation on the basis of Race, National Origin, and/or Ethnicity. See FAC ¶¶ 36–60. 3 4 5 As noted, EDD moves to dismiss all claims. See generally Mot. II. STANDARDS ON MOTION TO DISMISS Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to 6 dismiss a complaint for “failure to state a claim upon which relief can be granted.” A court may 7 dismiss “based on the lack of cognizable legal theory or the absence of sufficient facts alleged 8 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 9 1990). In making this determination, a court considers “only allegations contained in the 10 pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” 11 Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per curiam). 12 Although a complaint need contain only “a short and plain statement of the claim 13 showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), in order to survive a motion 14 to dismiss this short and plain statement “must contain sufficient factual matter . . . to ‘state a 15 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 16 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something 17 more than “an unadorned, the-defendant-unlawfully-harmed-me accusation” or “‘labels and 18 conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Id. (quoting 19 Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss 20 for failure to state a claim is a “context-specific task that requires the reviewing court to draw on 21 its judicial experience and common sense.” Id. at 679. Ultimately, the inquiry focuses on the 22 interplay between the factual allegations of the complaint and the dispositive issues of law in the 23 action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). 24 In making this context-specific evaluation, this court must construe the complaint 25 in the light most favorable to the plaintiff and accept as true the factual allegations of the 26 complaint. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007). This rule does not apply to “a legal 27 conclusion couched as a factual allegation,” Papasan v. Allain, 478 U.S. 265, 286 (1986), nor to 28 “allegations that contradict matters properly subject to judicial notice” or to material attached to 3 1 or incorporated by reference into the complaint, Sprewell v. Golden State Warriors, 266 F.3d 979, 2 988–89 (9th Cir. 2001). A court’s consideration of documents attached to a complaint or 3 incorporated by reference or matter of judicial notice will not convert a motion to dismiss into a 4 motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003); 5 Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); compare Van Buskirk v. 6 Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002) (noting that even though court may 7 look beyond pleadings on motion to dismiss, generally court is limited to face of the complaint on 8 12(b)(6) motion). 9 III. DISCUSSION 10 As explained below, EDD argues correctly that Phan’s claims are time-barred. 11 Mot. at 3. 12 A. Applicable Legal Standards: Time Bar 13 Any adverse employment action “which is not made the basis for a timely charge 14 is the legal equivalent of a discriminatory act which occurred before the statute was passed” and, 15 as such, “it is merely an unfortunate event in history which has no present legal consequences.” 16 United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977). “Discrimination claims under Title 17 VII ordinarily must be filed with the EEOC within 180 days of the date on which the alleged 18 discriminatory practice occurred.” Laquaglia v. Rio Hotel & Casino, Inc., 186 F.3d 1172, 1174 19 (9th Cir. 1999) (citing 42 U.S.C. § 2000e–5(e)(1)). “However, if the claimant first ‘institutes 20 proceedings’ with a state agency that enforces its own discrimination laws—a so-called ‘deferral’ 21 state—then the period for filing claims with the EEOC is extended to 300 days.” Id. 22 California is a deferral state, Bouman, 940 F.2d at 1219–20, and Phan filed a 23 complaint with DFEH, California’s relevant state agency, FAC ¶ 29. Thus, the 300-day 24 limitation applies. Harris v. City of Fresno, 625 F. Supp. 2d 983, 998 (E.D. Cal. 2009); see also 25 Bouman, 940 F.2d at 1219–20. “[E]ach discrete act starts a new clock for filing charges alleging 26 that act,” and “discrete discriminatory acts are not actionable if time barred, even when they are 27 related to acts alleged in timely filed charges.” Natl. R.R. Passenger Corp. v. Morgan, 536 U.S. 28 101, 113 (2002); see also RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1061 (9th Cir. 4 1 2002) (recognizing Morgan overruled Ninth Circuit authority that had held “if a discriminatory 2 act took place within the limitations period and that act was ‘related and similar to’ acts that took 3 place outside the limitations period, all the related acts—including the earlier acts—were 4 actionable as part of a continuing violation”). 5 In Morgan, the Court distinguished two types of actions that may be brought under 6 Title VII: “discrete discriminatory acts” and claims alleging a “hostile work environment.” 7 536 U.S. at 110; see Porter v. Cal. Dept. of Corrs., 419 F.3d 885, 893 (9th Cir. 2005). Morgan 8 sets forth a list of discrete acts, which includes “acts such as termination, failure to promote, 9 denial of transfer, or refusal to hire.” 536 U.S. at 114. In contrast to claims based on such 10 discrete incidents, hostile-work-environment claims “involve[ ] repeated conduct” and require the 11 plaintiff to demonstrate that “the workplace is permeated with discriminatory intimidation, 12 ridicule, and insult that is sufficiently severe and pervasive to alter the conditions of the victim’s 13 employment and create an abusive working environment.” Morgan, 536 U.S. at 115–16 (internal 14 quotation marks omitted). To determine whether the conduct constitutes the same unlawful 15 employment practice under the hostile-work-environment doctrine, a court considers whether the 16 events were “sufficiently severe or pervasive,” and whether the earlier and later events amounted 17 to “the same type of employment actions, occurred relatively frequently, [or] were perpetrated by 18 the same managers.” Porter, 419 F.3d at 893 (quoting Morgan, 536 U.S. at 120). “Because the 19 Supreme Court has explicitly differentiated between discrete employment acts and a hostile work 20 environment, many courts have concluded that a discrete act cannot be part of a hostile work 21 environment claim and instead constitutes a separate unlawful employment practice.” Crayton v. 22 Ala. Dept. of Agric. & Indus., 589 F. Supp. 2d 1266, 1279–80 (M.D. Ala. 2008) (citing Porter, 23 419 F.3d at 893); see also Rekow v. Sebelius, No. CIV 10–8156–PCT–PGR, 2011 WL 1791272, 24 at *3 (D. Ariz. May 11, 2011) (collecting cases). 25 26 B. Analysis Here, Phan filed her EEOC complaint on January 21, 2014. FAC ¶ 29. But for the 27 hostile environment exception, Phan is limited to claims based on incidents occurring on or after 28 March 27, 2013. See Harris, 625 F. Supp. 2d at 998. Phan alleges she experienced 5 1 discrimination throughout her work at EDD starting in 2009. FAC ¶¶ 3, 10, 20. Much, if not all, 2 of this conduct is ordinarily barred by Title VII’s statute of limitations. Laquaglia, 186 F.3d at 3 1174. 4 To overcome EDD’s timeliness challenge, Phan asserts a “continuing violation 5 theory” no longer viable after Morgan. Opp’n at 2; RK Ventures, 307 F.3d at 1061 (explaining 6 how Morgan overruled Ninth Circuit authority permitting a continuing violation theory). The 7 court construes Phan’s argument to mean she instead relies on a “hostile work environment” 8 theory, which may rely on conduct outside the limitations period, rather than a theory alleging 9 “discrete discriminatory acts,” which cannot. Morgan, 536 U.S. at 113; Porter, 419 F.3d at 893. 10 As noted above, discrete acts cannot be part of a hostile work environment claim. Porter, 11 419 F.3d at 893; Crayton, 589 F. Supp. 2d at 1279–80. The question is whether Phan alleges a 12 non-discrete act within the 300-day period prior to the filing of her federal complaint to support 13 her hostile work environment claims. She has not. 14 In deciding whether the complaint sufficiently alleges timely conduct, two initial 15 principles narrow the court’s inquiry. First, in reviewing the complaint, the court does not accept 16 as true conclusory allegations. Papasan, 478 U.S. at 286. So, for example, Phan’s allegation she 17 was “subjected to retaliation and unlawful treatment” is not credited, regardless of when it 18 occurred. FAC ¶ 18; see also id. ¶¶ 17, 22–23. Second, the court does not presume phrases such 19 as “throughout 2013” point to timely conduct occurring after March 27, 2013. Id. ¶¶ 15–16, 18, 20 27. These phrases are partially contradicted by the complaint itself, which alleges Phan stopped 21 working in November 2013. Id. ¶ 5; see also Sprewell, 266 F.3d at 988–89 (explaining a court 22 need not accept as true contradicted allegations). And vague phrases of “throughout 2013” or 23 “during 2013” do not address the court’s reasons for prior dismissal of the complaint, which made 24 clear Phan’s obligation to allege conduct occurring specifically on or after March 27, 2013 25 Phan’s one remaining allegation also does not survive EDD’s motion. Phan 26 alleges she was the only employee in her unit that lacked a foreign language certification, which 27 meant she received less pay. FAC ¶ 12. But EDD’s alleged failure to certify is but one 28 discriminatory act that “constitutes a separate actionable ‘unlawful employment practice.’” 6 1 Morgan, 536 U.S. at 114; see also id. (enumerating a “failure to promote” as a discrete act). 2 EDD’s discrete act or acts must have occurred on or after March 27, 2013 to be timely, but Phan 3 does not clearly allege when EDD failed to certify here. FAC ¶ 12. Thus, Phan has not alleged 4 any actionable conduct. See Yonemoto v. Shinseki, 3 F. Supp. 3d 827, 845 (D. Haw. 2014) 5 (dismissing claims tied to untimely discrete acts); cf. RK Ventures, 307 F.3d 1061–62 (holding all 6 acts, except one discrete act that clearly fell within the limitations period, were time-barred). 7 Without explanation, Phan alleges only generally EDD’s failure to certify was somehow ongoing 8 and that “some of this conduct occurred from March 2013 through January 2014, and 9 continuing.” FAC ¶ 12. Setting aside Phan’s inconsistent allegation that she stopped working in 10 November 2013, id. ¶ 5, Phan cannot merely repackage a discrete act as ongoing to circumvent 11 the Supreme Court’s teaching in Morgan. See Rekow, 2011 WL 1791272, at *3 (dismissing 12 claims as untimely where, “[d]espite her current characterization of the Complaint as alleging a 13 hostile work environment, it is clear that Plaintiff has raised these allegations as discrete instances 14 of discrimination”). Phan has at best alleged an untimely discrete act that cannot support her 15 hostile work environment claim. 16 Phan has not alleged any actionable conduct to support any claim. Dismissal is 17 therefore appropriate on her claims of discrimination, harassment and retaliation. See, e.g., 18 Gulden v. Geren, No. CV 08–1805–PHX–NVW, 2009 WL 536558, at *1 (D. Ariz. Mar. 4, 2009) 19 (dismissing claim of retaliation in the form of hostile work environment where plaintiff had “not 20 alleged a non-discrete act contributing to the allegedly hostile environment that took place within 21 the statutory time period”). The court need not reach the substance of Phan’s allegations; it 22 GRANTS the motion to dismiss. 23 IV. 24 LEAVE TO AMEND Although the court “should freely give leave when justice so requires,” Fed. R. 25 Civ. P. 15, and even permit amendment with “extreme liberality,” Eminence Capital, LLC v. 26 Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quoting Owens v. Kaiser Found. Health Plan, 27 Inc., 244 F.3d 708, 712 (9th Cir. 2001)), the court need not grant leave to amend the complaint if 28 7 1 defects could not possibly be cured by the allegation of other facts, Sharkey v. O’Neal, 778 F.3d 2 767, 774 (9th Cir. 2015) (citing Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)). 3 Here, Phan asks for leave to file a fifth amended complaint. See Opp’n at 3–4. 4 Although Phan filed the original and first amended complaint proceeding pro se, she had the 5 benefit of counsel in filing the subsequent three amendments. See ECF Nos. 1, 4, 28, 34, 42. The 6 court’s order dismissing the third amended complaint, like this order dismissing the fourth, 7 expressly relied on the absence of timely conduct to support Phan’s claims. See Hr’g Mins. In 8 these circumstances, the court finds the complaint’s defects cannot be cured; otherwise Phan in 9 her three previous attempts would have done so already. The court DENIES Phan’s request for 10 leave to amend the complaint. 11 V. CONCLUSION 12 The court GRANTS EDD’s motion to dismiss with prejudice. 13 IT IS SO ORDERED. 14 DATED: July 20, 2017. 15 16 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 8