Essien v. Chevron Corporation, No. 3:2017cv03503 - Document 30 (N.D. Cal. 2017)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS AND DENYING MOTION FOR A MORE DEFINITE STATEMENT by Judge William Alsup [granting in part and denying in part 17 Motion to Dismiss]. Motion due by 11/30/2017. (whasec, COURT STAFF) (Filed on 11/13/2017)

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Essien v. Chevron Corporation Doc. 30 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 BASSEY ARCHIBONG ESSIEN, No. C 17-03503 WHA 11 For the Northern District of California United States District Court 10 12 13 Plaintiff, v. CHEVRON CORPORATION, 14 Defendant. / 15 16 17 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND DENYING MOTION FOR A MORE DEFINITE STATEMENT INTRODUCTION In this pro se employment discrimination action, defendant Chevron Corporation moves 18 to dismiss or, in the alternative, for a more definite statement. For the reasons herein, the motion 19 to dismiss is GRANTED IN PART AND DENIED IN PART. The motion for a more definite statement 20 is DENIED. 21 STATEMENT 22 The following is taken from the allegations set forth in pro se plaintiff’s complaint. 23 Plaintiff Bassey Archibong Essien started with Chevron Corporation in 2002. Since roughly 24 2004, he worked as an Application Support Analyst. In 2012, Alfred Duluyaya started as 25 Essien’s supervisor. Essien got assigned to help Duluyaya transition onto the team, providing 26 training and generally bringing him up to speed. Allegedly, Duluyaya found fault with Essien 27 28 Dockets.Justia.com 1 once he found out he was Nigerian. Essien was the only Nigerian on his team of four full-time 2 employees and a few other contractors (Dkt. No. 1 at 6).* origin, age, and disability. Specifically, Essien alleges that Duluyaya pulled him off of work 5 projects without explanation and replaced him with other employees — including one instance 6 in which Essien had occupied a position for the previous three years. Essien also alleges that 7 Duluyaya prevented him from being hired for a position by informing another employee on 8 Essien’s team about the opportunity, inviting him to apply, and then actively campaigning on his 9 behalf. In March 2012, when Essien’s name was recommended as one of two analysts to 10 provide application support in Nigera, Duluyaya allegedly replaced him with another team 11 For the Northern District of California Essien alleges that Duluyaya took adverse actions against him because of his national 4 United States District Court 3 member, despite the fact that Essien had been providing this sort of support for different 12 customers since 2010. Essien further alleges that Duluyaya harshly criticized his work, 13 reprimanded him unwarrantedly, refused to allow Essien to take his lunch later than 10:30 a.m., 14 and forged Essien’s signature on his performance evaluation (Dkt. No. 1 at 6–8, 11–20). 15 For three years, Essien lodged complaints with Duluyaya’s supervisor, Lori Wong, in an 16 attempt to resolve his issue with Duluyaya, but to no avail. In December 2014, he made a 17 request to HR that he report to another supervisor and was told that he would hear back but never 18 did. He also sought help from Chevron Ombuds and its internal mediation team. These efforts, 19 however, likewise failed to resolve his problems with Duluyaya (Dkt. No. 1 at 20–21). 20 According to Essien, a few months after a dispute resolution meeting with Chevron, they 21 sent him a layoff letter and asked him to return everything in his possession by mail. In June 22 2015, Essien filed an EEOC charge of discrimination based on national origin and retaliation. 23 Chevron fired him in October 2015. Essien then filed another EEOC charge in April 2016, 24 alleging retaliation. This charge was accompanied by an EEOC intake questionnaire which 25 26 27 28 * Chevron claims in a footnote that Essien has in fact sued the wrong company, stating that Essien was actually an employee of Chevron U.S.A. Inc. (Dkt. No. 27 at 3). It does not, however, move to dismiss on these grounds. It has informed Essien that it believes he has named the wrong party in his complaint. Essien is at liberty to seek leave to amend his complaint to name a different defendant if he sees fit. If it turns out he sued the wrong entity, then he will lose. 2 1 Essien signed and submitted to the agency, in which he checked boxes indicating he was 2 discriminated against on the basis of race, age, disability, national origin, color, and that he was 3 retaliated against. In May 2017, the EEOC dismissed his June 2015 charge of discrimination 4 based on national origin and retaliation and notified Essien of his right to sue (Dkt. No. 17-1, 5 Exhs. A, B; Dkt. No. 1 at 21). 6 Essien filed this complaint in June 2017, alleging claims of discrimination under 7 Title VII, the ADA, and the ADEA, including: (1) discrimination based on race and national 8 origin; (2) age discrimination; (3) disability discrimination/disparate treatment; (4) disability 9 discrimination/failure to provide reasonable accommodation; (5) hostile work environment created by supervisor; (6) hostile work environment created by co-workers; and (7) retaliation. 11 For the Northern District of California United States District Court 10 Defendant Chevron moves to dismiss all claims under FRCP 12(b)(1) and 12(b)(6), or, in the 12 alternative, moves for a more definite statement under FRCP 12(e) (Dkt. No. 17). ANALYSIS 13 14 1. LACK OF SUBJECT-MATTER JURISDICTION. 15 Defendant Chevron moves to dismiss Essien’s age discrimination and disability 16 discrimination claims for lack of subject-matter jurisdiction. “To establish federal subject matter 17 jurisdiction over an employment discrimination claim, a plaintiff must have raised that claim or a 18 ‘like and reasonably related’ claim in an administrative action.” Yamaguchi v. United States 19 Department of the Air Force, 109 F.3d 1475, 1480 (9th Cir. 1996). This “administrative 20 exhaustion” requirement applies to Title VII claims, as well as those brought under the ADEA 21 and ADA. See 29 U.S.C. 626(d); 42 U.S.C. 12117(a). 22 A claim is reasonably related to an administrative claim when it can “reasonably be 23 expected” to grow out of an investigation into the claim before the EEOC. Yamaguchi, 24 109 F.3d at 1480. In Yamaguchi, our court of appeals reversed the district court’s finding that 25 the plaintiff had failed to exhaust her alleged sex discrimination claim where the EEOC had only 26 investigated her sexual harassment claim. It found that the allegations in the paragraph 27 following her sexual harassment claim “presumably go to her sex discrimination claim. While 28 less than clear and complete, her charge satisfies the liberal requirement of a ‘like and reasonably 3 1 related’ administrative claim.” Ibid. The court concluded that an investigation into the sex 2 discrimination claim could have reasonably been expected to grow out of the EEOC’s sexual 3 harassment investigation, thus giving the district court jurisdiction to hear both claims. Ibid. 4 Here, Essien filed a charge of discrimination with the EEOC in June 2015, alleging 5 retaliation and discrimination based on national origin. Contained in his EEOC charge are 6 several statements about his national origin being the reason he was not promoted, but nothing 7 related to his age or any disability. Essien’s April 2016 EEOC charge alleging retaliation also 8 lacks any such references. He alleges only that, “I believe I have been retaliated against for my 9 participation in protected activity in violation of Title VII of the Civil Rights Act of 1964, as amended.” 11 For the Northern District of California United States District Court 10 Essien’s charges filed with the EEOC are not “like or reasonably related” to his claims of 12 age or disability/disparate treatment discrimination. Nor could it have been reasonably expected 13 that an investigation into these new charges would grow out of his charges of retaliation or 14 discrimination based on national origin (Dkt. No. 17-1 Exhs. A, B). 15 Essien did, however, submit an intake questionnaire to the EEOC on April 21, the same 16 date as his 2016 charge, in which he checked boxes indicating he was discriminated against 17 on the basis of race, age, disability, national origin, color, and that he was retaliated against. 18 He provided no further factual allegations in the questionnaire relating to any of these claims 19 with the exception of his failure to reasonably accommodate and retaliation claims. Specifically, 20 Essien checked boxes indicating he has a disability, that he takes medications for it, and that he 21 asked his employer for changes or assistance to do his job because of his disability. He also 22 typed in the spaces provided that he asked his employer for assistance in 2014, both verbally 23 and in writing. Whether Essien’s failure to reasonably accommodate claim could have 24 reasonably been expected to grow out of his retaliation claim is irrelevant, however, because he 25 brought this administrative action more than 300 days after the alleged employment practice. 26 See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109–10 (2002). Because Essien was 27 barred from seeking administrative relief for his alleged disability discrimination, he may not 28 seek relief from the court. 4 Essien is also precluded from now bringing administrative charges for age or 1 2 disability/disparate treatment discrimination. From the date of the alleged employment practice, 3 employees must file charges with the EEOC within 180 or 300 days, depending on the state. 4 See id. at 109–10. Here, Essien bases his age discrimination claim on three separate employment 5 practices, the most recent of which is Chevron’s failure to promote him in February 2015. As to 6 Essien’s disability discrimination claim, his disparate treatment allegations all took place in 7 2013, and is likewise time-barred. Essien may no longer file these charges with the EEOC, and 8 allowing him to amend these claims would be futile. Because Essien has failed to exhaust his administrative remedies, defendant’s motion to 9 dismiss his second, third, and fourth claims for age and disability discrimination is GRANTED. 11 For the Northern District of California United States District Court 10 These claims are DISMISSED WITH PREJUDICE as the court lacks subject-matter jurisdiction over 12 these claims and amendment would be futile. 13 2. ESSIEN PLEADS ENOUGH FACTS TO STATE THREE DISTINCT CLAIMS. 14 To survive a motion to dismiss, plaintiff’s complaint must plead “enough facts to state a 15 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 16 (2007). A claim has facial plausibility when the party asserting it pleads factual content that 17 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 18 alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Conclusory allegations or “formulaic 19 recitation of the elements” of a claim, however, are not entitled to the presumption of truth. 20 Id. at 681. “[Courts] have an obligation where petitioner is pro se, particularly in civil rights cases, 21 22 to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.” 23 Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). “A district court should not dismiss a 24 pro se complaint without leave to amend unless it is absolutely clear that the deficiencies of the 25 complaint could not be cured by amendment.” Ibid. 26 Defendant moves to dismiss Essien’s remaining claims of discrimination based on 27 national origin, hostile work environment, and retaliation. This order addresses these arguments 28 in turn. 5 A. 1 2 Discrimination Based on National Origin. To survive this motion, Essien must plead only enough facts to plausibly show: “(1) that 3 he belongs to a protected class; (2) he was qualified for the position; (3) he was subject to an 4 adverse employment action; and (4) similarly situated individuals outside his protected class 5 were treated more favorably.” Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003) (citation 6 omitted). Defendant argues that Essien fails to state a claim for discrimination based on either 7 race or national origin because Essien does not “demonstrate that similarly situated individuals 8 outside of his protected class were treated more favorably than him” and because he has failed to 9 establish “that he was qualified for the various positions and projects that he believes [] Daluyaya assigned to other team members” (Dkt. No. 17 at 11). Defendant’s arguments are 11 For the Northern District of California United States District Court 10 unpersuasive. 12 Essien alleges that he was “the only Nigerian in the team of four full time employees and 13 few other contractors,” a fact that he specifically disclosed to his supervisor, Duluyaya 14 (Dkt. No. 1 at 6). This allegation shows that Essien was part of a protected class, which also lays 15 the foundation for the fourth element of his claim. Essien also claims that he was discriminated 16 against on the basis of race, but provides no factual allegations to support this claim. Essien has 17 satisfied the first element of his claim with respect to his national origin, whereas his race 18 discrimination claim fails. 19 As to whether he was qualified for his position, Essien alleges that he had been in his 20 position for eight years before Duluyaya was hired as his supervisor, after which he was pulled 21 from the “Law Function Important Meetings support” and the lead role he had in creating the 22 SAP Business Objects Analytics report — after having already created some of the reporting 23 models and templates — without explanation. Moreover, Essien alleges that in March 2015 he 24 was one of two analysts recommended to provide support for a core Law-IT application being 25 deployed in Nigeria, for which he had “[more] experience in supporting the application than 26 anyone in [his] team because [he has] specialized background and [had] been supporting this 27 application during its deployment since 2010” (Dkt. No. 1 at 7–8). However, “Duluyaya 28 deliberately replaced [Essien] with another team member who does not have the requisite 6 1 experience in the application nor the background to understand the culture in the target country 2 of Nigeria” (Dkt. No. 1 at 8). Duluyaya also, without explanation, allegedly replaced Essien as 3 the Training Coordinator on the Learning Management System, a role he had filled for the 4 previous three years. These allegations support the required elements that Essien both was 5 qualified for his position and similarly situated individuals were being treated more favorably. 6 Defendant argues that Essien fails to “allege in what ways he was qualified for the job” 7 (Dkt. No. 17 at 11). Essien, however, has sufficiently alleged his familiarity with and experience 8 in these roles, enough to show that he is qualified for the positions. 9 Defendant further argues that Essien fails to allege any facts that his race or national origin were motivating factors for any of the alleged adverse employment actions against him. 11 For the Northern District of California United States District Court 10 On the first page of his claim, however, Essien specifies the adverse employment actions he was 12 subjected to, and underneath checked the boxes marked “race or color” and “national origin” as 13 the “sole reason or motivating factor for [these] action[s]” (Dkt. No. 1 at 5). Moreover, Essien 14 alleges that his “friction with Mr. Duluyaya began . . . because when he found out I was a 15 Nigerian during a conversation I had with him, although he made no comment, his reaction 16 towards me and his conduct towards me has left me in no doubt that he deplores the fact that I 17 am a Nigerian” (id. at 6). Essien has alleged enough facts to support his national origin 18 discrimination claim. With respect to the first claim for relief, defendant’s motion is DENIED. 19 20 B. Hostile Work Environment. In his fifth and sixth claims for relief, Essien alleges two distinct claims of hostile work 21 environment — one based upon the actions of his supervisor, the other based upon the actions of 22 his co-workers (Dkt. No. 1 at 16–23). In determining if a work environment is so hostile as to 23 violate Title VII, courts consider “whether, in light of all the circumstances, the harassment is 24 sufficiently severe or pervasive to alter the conditions of the victim’s employment and create 25 an abusive working environment.” McGinest v. GTE Service Corp., 360 F.3d 1103, 1112–13 26 (9th Cir. 2004). “Simply causing an employee offense based on an isolated comment is not 27 sufficient to create actionable harassment under Title VII,” but “[i]t is enough if such hostile 28 7 1 conduct pollutes the victim’s workplace, making it more difficult for her to do her job, to take 2 pride in her work, and to desire to stay on in her position.” Ibid. 3 Defendant argues that Essien insufficiently alleges his co-worker claim. Indeed, the only 4 allegations Essien makes with respect to his co-workers is that “some Law-IT employees 5 circulated rumors that [Essien] was out because he was impacted by the Chevron Alpha project” 6 (Dkt. No. 17 at 17). As defendant notes in its reply, Essien did not address the co-worker claim 7 in his opposition (Dkt. No. 27 at 4–5). 8 Essien’s allegations regarding his co-workers are insufficient to support a hostile work his co-workers was “sufficiently severe or pervasive” to alter the conditions of his employment. 11 For the Northern District of California environment claim. He fails to allege enough facts to show that the harassment he received from 10 United States District Court 9 McGinest, 360 F.3d at112–13. 12 Defendant also moves to dismiss Essien’s claim that his supervisor created a hostile work 13 environment. Specifically, defendant argues that Essien has not shown that Daluyaya’s conduct 14 was severe or pervasive enough to constitute a hostile work environment under Title VII. 15 Defendant argues that Essien has only claimed five allegedly hostile incidents involving 16 Duluyaya. These include: (1) Duluyaya’s criticism of Essien’s qualifications for another job; 17 (2) Duluyaya’s refusal to permit Essien to take a late lunch; (3) Duluyaya reprimanding Essien 18 for allocating too much time to a project; (4) Duluyaya making a false comment in Essien’s 19 performance evaluation about the delayed completion of a task; and (5) Duluyaya’s alleged 20 forgery of Essien’s signature on a negative performance evaluation. Defendant, however, 21 ignores other incidents referred to in the complaint. For instance, Essien also alleges that 22 Duluyaya pulled him off of work projects, without explanation, and replaced him with other 23 members of his team — including one instance in which Essien had occupied that position for 24 the previous three years. Essien also alleges that Duluyaya prevented him from being hired to 25 another position by informing another employee on Essien’s team about the opportunity, inviting 26 him to apply, and then actively campaigning on his behalf. When Essien’s name was 27 recommended as one of two analysts to provide application support in Nigera, Duluyaya 28 allegedly replaced him with another team member, despite the fact that Essien had been 8 1 providing this sort of support for different customers since 2010 (Dkt. No. 1 at 6–9, 11–12, 14, 2 17–21, 23). 3 Essien need not prove all the elements of his claim at this stage but must allege “enough 4 facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Essien 5 alleges enough facts to allow a court to draw the reasonable inference that Duluyaya’s hostile 6 conduct and harassment was severe and pervasive enough to have created a hostile work 7 environment. Defendant’s motion to dismiss this claim is DENIED. 8 C. Retaliation. motion he must sufficiently plead facts which show that: “(1) he engaged in a protected activity; 11 For the Northern District of California Defendant next moves to dismiss Essien’s claim of retaliation. For Essien to survive this 10 United States District Court 9 (2) he suffered an adverse employment decision; and (3) there was a causal link between the 12 protected activity and the adverse employment decision.” Villiarimo v. Aloha Island Air, Inc., 13 281 F.3d 1054, 1064 (9th Cir. 2002). Defendant concedes that Essien engaged in a protected 14 activity and suffered an adverse employment decision, but argues that he fails to plead enough 15 facts to show a causal link between his complaints and Daluyaya’s refusal to promote him or his 16 termination in October 2015 (Dkt. No. 17 at 20). As our court of appeals has recognized 17 however, “in some cases, causation can be inferred from timing alone where an adverse 18 employment action follows on the heels of protected activity.” Id. at 1065. There are limits as to 19 how much time can pass in order to infer causation, but here not so much time passed between 20 complaints and alleged retaliation as to prevent the causal inference. See Manatt v. Bank of 21 America, N.A., 339 F.3d 792, 802 (9th Cir. 2003). 22 Essien alleges that in December 2014 he lodged a complaint with Human Resources, 23 and was told he would hear back about his complaint in January 2015 after the holidays but 24 never did. In February 2015, Essien lost a promotion. In other words, only two months passed 25 between the protected activity and the alleged retaliation. 26 In late April, Essien attended a dispute resolution meeting with Arnie, the HR 27 representative, Lori Wong, Daluyaya’s immediate supervisor (with whom he had lodged 28 several unsuccessful complaints), and the IT Manager. When the meeting failed to resolve the 9 1 Duluyaya-Essien issue, he filed an EEOC charge in June, alleging discrimination based on 2 national origin and retaliation. Chevron fired him four months later in October (Dkt. No. 1 at 5, 3 20–21). 4 Contrary to Chevron, these events fell close enough to the allegedly retaliatory action to 5 infer causation. Essien’s allegations plausibly show a causal link between his December 2014 6 complaint and his February 2015 promotion denial. His allegations also plausibly suggest a 7 causal link between his June 2015 EEOC charge and his October 2015 termination. Essien will 8 be allowed to further develop his claim through discovery and investigation. We must construe 9 the pleadings liberally to afford him the benefit of any doubt. See Akhtar, 698 F.3d at 1212. 11 For the Northern District of California United States District Court 10 Essien has alleged sufficient facts to state a claim for retaliation. Defendant’s motion to dismiss this claim is DENIED. 12 3. CHEVRON HAS SUFFICIENT NOTICE OF CLAIMS AGAINST IT. 13 Defendant moves for a more definite statement in the alternative to dismissal. “If a 14 pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant 15 can move for a more definite statement under Rule 12(e) before responding.” Swierkiewicz v. 16 Sorema N.A., 534 U.S. 506, 514 (2002). Defendant claims it “simply cannot discern the specific 17 adverse employment actions that Plaintiff premises his claims [on] or which factual allegations 18 support which claims” (Dkt. No. 17 at 21). Defendant’s argument is unconvincing. Each of 19 Essien’s distinct claims appear on a pre-typed form, and his inserted factual allegations are 20 discernable. Despite its purported need for a more definite statement, defendant has managed to 21 respond to each of Essien’s claims, and although Essien’s allegations are somewhat disjointed, 22 they provide defendant with sufficient notice of the claims against it. Defendant’s motion for a 23 more definite statement is therefore DENIED. 24 25 CONCLUSION The second, third, fourth, and sixth claims are DISMISSED. Because Essien failed to 26 exhaust his administrative remedies, the second, third, and fourth claims may not be re-plead in 27 an amended complaint. Defendant’s motion to dismiss the first, fifth, and seventh claims is 28 DENIED. Defendant’s motion for a more definite statement is DENIED. Essien shall have until 10 1 NOVEMBER 30 to file a motion, noticed on the normal 35-day calendar, seeking leave to amend 2 solely as to the hostile work environment created by co-workers claim, as it is the only dismissed 3 claim over which the court has jurisdiction. A proposed amended complaint must be appended 4 to this motion. Essien must plead his best case. The motion should clearly explain how the 5 amended complaint cures the deficiencies identified herein and it should include as an exhibit a 6 redline or highlighted version of his complaint identifying all changes. 7 8 IT IS SO ORDERED. 9 Dated: November 13, 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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