Perez v. Hunter

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 CAROLINA PEREZ, Case No. 23-cv-06713-JST 8 Plaintiff, ORDER DENYING IN PART AND 9 v. GRANTING IN PART DEFENDANT’S MOTION TO DISMISS [10] TODD B. HUNTER,1 et al., Re: ECF No. 42 Defendants. [12] 13 Before the Court is Defendant Acting Secretary of the Department of Veterans Affairs 14 Todd B. Hunter’s motion to dismiss. ECF No. 42. The Court will grant the motion in part and 15 deny it in part. 16 I. BACKGROUND 17 A. Factual Allegations2 18 Plaintiff Carolina Perez alleges that Defendant violated Title VII of the Civil Rights Act of 19 1964 and the Age Discrimination in Employment Act (“ADEA”) for discriminating against her, 20 creating a hostile work environment, and retaliating against her for engaging in protected activity. 21 Because the facts are well-known to the parties and the Court has summarized the Perez’s 22 allegations in detail in its prior motion to dismiss order, ECF No. 39, the Court does not elaborate 23 them here. 24 To summarize, Perez—who was born in Nicaragua in 1968 and speaks with a “noticeable [26] 1 Todd B. Hunter, Acting Secretary of the Department of Veterans Affairs, is automatically substituted as a party as the successor to Denis McDonough. See Fed. R. Civ. P. 25(d). [27] 2 For the purposes of deciding this motion, the Court accepts as true the following factual 1 accent”—began working at the VA in 2003 as a staff nurse at the Palo Alto Health Care System 2 (“Palo Alto VA”). ECF No. 39 ¶¶ 14, 15. In March 2018, Perez was selected as the chief nurse of 3 the Palo Alto VA. Id. ¶ 15. As part of this role, she oversaw three facility locations (Palo Alto, 4 Livermore, and Menlo Park) and approximately 440 staff members. Id. “The VA issued Perez 5 fully successful or exceptional performance evaluations for eighteen consecutive years, from in or 6 about 2003 through 2021.” Id. ¶ 17. 7 In 2021, David Renfro, the Acting Deputy Nurse Executive, conducted an investigation 8 into Perez’s leadership following a COVID-19 outbreak at the Livermore facility. Id. ¶¶ 18, 23, 9 24. At the conclusion of that investigation, Renfro and Associate Director for Patient Care 10 Services/Nurse Executive Michelle Mountfort disciplined Perez for her alleged oversight failures. 11 Id. ¶ 25. “Joy Abbey, a Caucasian, U.S. born female in her 40s (approximately 10 years younger 12 than Perez), served as the assistant chief nurse and performed many of the duties of Perez, 13 including visiting the facility locations with Perez and serving in Perez’s role when she was out on 14 leave.” Id. ¶ 16. Abbey and Perez had similar responsibilities, and “were both tasked with 15 supervisory roles during the COVID-19 pandemic, overseeing compliance and operational 16 protocols at separate facilities.” Id. ¶¶ 19–20. However, notwithstanding the similarity in their 17 responsibilities, and even though “Abbey’s involvement in the Covid-19 outbreak, being the 18 highest-ranking supervisor at the Livermore location, demonstrate[d] a comparable offense to any 19 alleged offense made by Perez,” “Mountfort and Renfro did not discipline Abbey, and instead 20 disciplined Perez and some lower-level non-white employees.” Id. ¶ 25 (emphasis in original). 21 When Perez “contested being disciplined more harshly than Abbey,” “Renfro and the VA engaged 22 in a flurry of adverse actions beginning in March 2021.” Id. ¶¶ 62, 63. 23 Perez alleges that Renfro “repeatedly referenced Perez’s ‘harsh’ leadership style as 24 incompatible with his vision for the team.” ECF No. 39 ¶ 72. And in June 2021, Mountfort 25 notified Perez that she was being placed on a detail away from her role as chief nurse and to the 26 nursing supervisor’s office due to an alleged patient complaint. Id. ¶¶ 10, 33. In July 2021, 27 “Chief of Domiciliary Service Kate Severin conducted another fact-finding report stemming from 1 allegations against Perez were substantiated.” Id. ¶ 36. 2 But Perez was placed on another detail in December 2021 to the Quality, Safety, and Value 3 division (“QSV”) as a registered nurse. Id. ¶¶ 10, 41, 63. This detail was extended six different 4 times through October 2022, concurrently with Perez’s engagement in protected activities with the 5 EEO. Id. ¶¶ 62–63. Perez was ultimately permanently reassigned to the accreditation quality 6 manager position with QSV in November 2022. Through this period, Abbey replaced Perez as 7 acting chief nurse beginning in about late 2021 before Abbey was chosen to serve permanently as 8 the chief nurse in September 2023. Id. ¶¶ 35, 49, 53, 57. Perez alleges that despite staff 9 complaints about Abbey’s leadership, Renfro and the other VA decision-makers never subjected 10 Abbey to any investigations or adverse actions. Id. ¶ 60. 11 B. Procedural History 12 Perez filed her first amended complaint (“FAC”) on April 8, 2024. ECF No. 22. On 13 November 20, 2024, this Court granted Defendant’s motion to dismiss, ECF No. 24, with leave to 14 amend. ECF No. 38. Perez filed the second amended complaint (“SAC”) on December 18, 2024. 15 ECF No. 39. Defendant now moves to dismiss the SAC. ECF No. 42. 16 C. Jurisdictional Exhaustion 17 On October 29, 2021, Perez “contacted the VA EEO Diversity and Inclusion Program 18 Manager stating she was writing to file an EEO complaint of discrimination based on race, age, 19 national origin, and gender.” ECF No. 39 ¶ 6. “On November 10, 2021, Perez contacted the 20 ORM EEO office and submitted a complaint with the EEO counselor.” Id. Thereafter, on January 21 6, 2022, “Perez received the EEO counseling report, which listed her initial contact as November 22 10, 2021.” Id. ¶ 7. On January 19, 2022, Perez filed a formal complaint against the VA. Id. ¶ 8. 23 The VA issued Perez a report of investigation on or about October 10, 2022. Id. ¶ 9. Nine days 24 later, Perez requested an EEOC hearing, which took place approximately between September 25 25 and 27, 2023. Id. On or about October 10, 2023, the VA issued a final order, noting Perez of her 26 right to file an appeal within 90 days. Id. ¶ 3. 27 Perez now brings five claims against Defendant in her SAC, including: (1) race and 1 (3) age discrimination under the ADEA; (4) retaliation under Title VII; and (5) hostile work 2 environment based on race, gender, national origin, age, and prior EEO activity under Title VII. 3 II. JURISDICTION 4 The Court has jurisdiction under 28 U.S.C. § 1331 . 5 III. LEGAL STANDARD 6 “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable 7 legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela 8 Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a motion to dismiss, “a 9 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 10 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. 11 Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads 12 factual content that allows the court to draw the reasonable inference that the defendant is liable 13 for the misconduct alleged.” Id. In determining whether a plaintiff has met the plausibility 14 requirement, a court must “construe the pleadings in the light most favorable to the nonmoving 15 party.” Knievel, 393 F.3d at 1072. 16 IV. DISCUSSION 17 A. Exhaustion of Administrative Remedies 18 The Court begins by examining whether Perez has exhausted her administrative remedies. 19 Before seeking adjudication of a Title VII claim, “a federal employee must initiate contact with an 20 EEO counselor within forty-five days of the date of the alleged discriminatory matter.” Williams v. 21 Wolf, No. 19-CV-00652-JCS, 2019 WL 6311381 , at *8 (N.D. Cal. Nov. 25, 2019) (citing 29 22 C.F.R. § 1614.105 (a)(1); Green v. Brennan, 578 U.S. 547, 552 (2016)). “Each discrete 23 discriminatory act starts a new clock for filing charges alleging that act.” Nat’l R.R. Passenger 24 Corp. v. Morgan, 536 U.S. 101 , 113–15 (2002). 25 As discussed in the Court’s previous order, an employee may invoke the EEOC’s 26 administrative claims process, and then she may appeal any loss to the federal court. Whitman v. 27 Mineta, 541 F.3d 929, 932 (9th Cir. 2008) (citing 29 U.S.C. §§ 633a(b), (c)). If the employee goes 1 of the alleged discriminatory conduct. Id. (citing 29 C.F.R. § 1614.105 (a)(1)). 2 The parties do not dispute that because Perez first contacted an EEO manager on October 3 29, 2021, any Title VII claims she asserts that are premised on conduct that occurred before 4 September 14, 2021 (45 days prior) are untimely. See ECF No. 44 at 10, 15; ECF No. 42 at 13. 5 Any events predating the respective cutoff dates may only be used as background evidence to 6 support a timely claim. See Nat’l R.R. Passenger Corp., 536 U.S. at 112 . 7 B. Disparate Treatment Claims 8 To establish a prima facie case of discrimination, a plaintiff must demonstrate (1) that she 9 belongs to a protected class; (2) she was qualified for the position; (3) she was subject to an 10 adverse employment action; and (4) similarly situated individuals outside her protected class were 11 treated more favorably, or other circumstances surrounding the adverse employment action give 12 rise to an inference of discrimination. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 13 792, 802 (1973); accord Whitman, 541 F.3d at 932 (applying the same test to ADEA claim). 14 “While Plaintiffs need not include facts sufficient to establish a prima facie case in their 15 complaint, they do need to allege ‘enough facts to state a claim to relief that is plausible on its 16 face.’” Mendenhall v. City & Cnty. of San Francisco, No. C-11-4029 EMC, 2011 WL 6779300 , at 17 *4 (N.D. Cal. Dec. 27, 2011) (quoting Twombly, 550 U.S. at 570 ). 18 Perez does not allege direct evidence of discrimination but rather alleges circumstantial 19 evidence that similarly situated individuals outside of her protected class were treated more 20 favorably. See ECF No. 39. Defendant argues that Perez’s disparate treatment claims fail because 21 (1) Perez fails “to allege that anyone at the VA made derogatory comments about [her] age, sex, 22 gender, race, or national origin;” (2) she “does not identify anyone at the VA, much less a 23 similarly situated individual outside of [her] protected classes, who was treated more favorably 24 than [her] with respect to any of the employment actions at issue;” and (3) she “does not allege 25 any circumstantial evidence that would allow the Court to plausibly infer that the employment 26 actions at issue were the result of animus regarding [Perez’s] age, sex, gender, race, or national 27 origin.” ECF No. 42 at 5–6. In response, Perez argues that she alleges enough facts to show that 1 treatment following the COVID outbreaks. ECF No. 44 at 11–14. 2 1. Removal from Chief Nurse Position 3 Perez does not argue that her removal from her chief nurse Position on June 1, 2021, is a 4 timely adverse action giving rise to a disparate treatment claim. ECF No. 44 at 10, 15. However, 5 the June 1, 2021, removal is admissible as relevant background evidence to her actionable 6 discrimination claims. Nelson v. City & Cnty. of San Francisco, 123 F. App’x 817 , 820–21 (9th 7 Cir. 2005) (“Past discriminatory acts, even if a claim based on them would be untimely, are 8 admissible as background evidence to show present discrimination.”) (citing Nat’l R.R. Passenger 9 Corp. v. Morgan, 536 U.S. 101 , 112–13 (2002)). 10 2. Detail Posting, Lack of Reinstatement, Offer of Non-Supervisory Position, and Permanent Reassignment [11] With respect to the December 1, 2021 detail, Perez’s lack of reinstatement, and her [12] permanent reassignment, the Court previously found that Perez’s FAC failed to identify a [13] similarly situated individual outside of Perez’s protected class who was treated more favorably [14] and otherwise failed to allege circumstances that gave rise to an inference of discrimination. ECF [15] No. 38 at 9. [16] Perez has now stated a disparate treatment claim based on the above adverse actions by [17] alleging that she was replaced by Abbey, a Caucasian woman younger than Perez and outside of [18] her protected classes. See Lui v. DeJoy, No. 23-35378, --- F.4th ---, 2025 WL 611041 , at *5 (9th [19] Cir. Feb. 26, 2025) (clarifying that “[a plaintiff] can satisfy the fourth element of the prima facie [20] case merely by showing that she was replaced by someone outside her protected class”). [21] Perez also alleges enough other facts about Abbey’s differential treatment to give rise to an [22] inference that Perez’s lack of reinstatement and permanent reassignment were discriminatory. [23] Perez alleges that she was detailed away from her chief nurse role from June 2021 to November [24] 2022—first for an alleged patient complaint and then for her leadership style—before she was [25] permanently reassigned to the accreditation quality manager position with the QSV. ECF No. [26] 39 ¶¶ 33, 54. Critically, Perez alleges that while Abbey was acting as chief nurse, the Palo Alto [27] facility faced its fourth or fifth COVID-19 outbreak, and Abbey received staff complaints about 1 her leadership but was not subjected to any investigations or detailing away from her position. Id. 2 ¶¶ 49, 60. These facts plausibly give rise to an inference of discrimination based on race, national 3 origin, and age. However, because Perez has not offered any evidence to suggest that she was 4 discriminated against based on sex and gender, the Court dismisses her disparate treatment claim 5 based on that protected class. 6 3. Performance Evaluation 7 Defendant argues that Perez’s allegations regarding her FY 2022 performance evaluation 8 do not sufficiently state a disparate treatment claim. ECF No. 42 at 15. The Court agrees. 9 The Court previously found that Perez failed to allege how Renfro’s inaccurate drafting of 10 her FY 2022 performance evaluation in April 2022 was either an adverse action or discriminatory. 11 ECF No. 38 at 10. 12 Perez has now added in her SAC that Renfro omitted “critical achievements that Perez 13 accomplished, including her successful leadership of pandemic response initiatives and her 14 implementation of Lean processes that improved operational efficiency.” ECF No. 39 ¶ 51. But 15 Perez has still not alleged the overall rating of her performance evaluation. And she does not 16 explain how this performance evaluation led to any negative consequences or impacted the terms 17 of her employment other than including the conclusory statement that “the performance review 18 directly impacted [her] eligibility for further advance within the VA.” Id. Finally, Perez has not 19 adequately alleged facts to suggest that the omissions in her performance revaluation stemmed 20 from discrimination based on her protected classes. The Court thus finds that Perez has not 21 sufficiently stated a claim for disparate treatment based on her FY 2022 performance evaluation. 22 See Austin, 925 F.3d at 1138 (“A recitation of facts without plausible connection to [a protected 23 category] is not cured by labels and conclusory statements.”). 24 C. Retaliation Claim 25 To state a prima facie claim for retaliation under Title VII, a plaintiff must demonstrate 26 that: (1) she engaged in a protected activity; (2) she was subjected to an adverse employment 27 action, and (3) a causal link exists between the protected activity and the adverse action. See 1 employer’s knowledge of protected activity and an adverse employment action [may be] sufficient 2 evidence of causality to establish a prima facie case” of retaliation when the time between events 3 is very close. Cf. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). 4 The Court previously found Perez did not allege that Howard was aware of her EEO 5 activity and generally that any facts pointing to retaliation lacked a causal connection to any 6 protected activity. ECF No. 38 at 10–11. Defendant argues that Perez’s SAC continues to suffer 7 from the same deficiencies. ECF No. 42 at 6. The Court disagrees. 8 Perez has now bolstered her SAC with timeline reflecting a tight temporal connection 9 between a pattern of her protected activity (contacting the EEO counselor) and the VA’s adverse 10 actions against her (extending her detail to QSV). ECF No. 39 ¶¶ 10, 45–54. And she sufficiently 11 alleges that Renfro and Howard knew of Perez’s EEO activity because, as the Director, Howard 12 received “notification of EEO activity and stated she was aware of Perez’s EEO activity in 13 December 2021.”3 Id. ¶ 45. 14 Perez specifically alleges that, since she was first detailed to QSV into a non-managerial 15 position on December 1, 2021, her detail was extended four additional times through November 16 2022—each time closely following her engagement in EEO activity. Id. ¶¶ 22–23. For example, 17 Perez first filed an informal complaint with the VA’s EEO office on December 8, 2021, alleging 18 discrimination, retaliation, and hostile work environment. Id. ¶ 45. About a month later, on 19 January 3, 2022, Perez’s detail to QSV was extended for an additional 30 days. Id. ¶ 10. On 20 January 19, 2022, Perez filed a formal EEO complaint. Id. ¶ 48. Less than a week later, on 21 January 24, 2022, Perez’s detail to QSV was extended for an additional 60 days. Id. ¶ 10. Then 22 on February 18, 2022, Perez filed an EEO amendment, and about a month and a half later, her 23 detail to QSV was once again extended for an additional 60 days. Id. ¶¶ 10, 50. This pattern 24 continued until her permanent reassignment in November 2022. See id. ¶¶ 10, 52, 53 (alleging 25 that Perez engaged in EEO activity in May, June, and November 2022 and received detail 26 extensions in June and July, and permanent reassignment in November). Furthermore, Perez [27] 1 alleges that the VA’s policy “states that details are temporary and that an employee should return 2 to their original position at the end of any detail” and that in the two decades that she worked with 3 the VA, she had “not witnessed anyone be detailed as long as she had been.” Id. ¶¶ 34, 43. 4 Together, the facts alleged by Perez plausibly show a casual chain between her protected activity 5 and the repeated detailing to a non-managerial position to state a claim for retaliation. See 6 Jefferson v. City of Fremont, No. C-12-0926 EMC, 2012 WL 1534913 , at *7 (N.D. Cal. Apr. 30, 7 2012) (suggesting that the plaintiff include specifics about the timing of his complaint and the 8 subsequent adverse action as that may well cure the causality problem). 9 D. Hostile Work Environment Claim 10 Finally, Defendant argues that Perez’s hostile work environment claim should be 11 dismissed because there have been “no derogatory remarks based on Plaintiff’s age, sex, gender, 12 race, national origin, or prior protected activity status, or any objectively hostile behavior or non13 discrete acts of harassment.” ECF No. 42 at 6. 14 “An employer is liable under Title VII for conduct giving rise to a hostile environment 15 where the employee proves (1) that [she] was subjected to verbal or physical conduct of a 16 harassing nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently 17 severe or pervasive to alter the conditions of the victim’s employment and create an abusive 18 working environment.” Pavon v. Swift Trans. Co., Inc., 192 F.3d 902, 908 (9th Cir. 1999). “In 19 determining whether an actionable hostile work environment claim exists, [courts] look to ‘all the 20 circumstances,’ including ‘the frequency of the discriminatory conduct; its severity; whether it is 21 physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably 22 interferes with an employee’s work performance.’” Nat’l R.R. Passenger Corp., 536 U.S. at 116 23 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). 24 The Court previously found that Perez failed to sufficiently allege that (1) she was subject 25 to verbal or physical conduct of a harassing nature, (2) there were any non-discrete acts of 26 harassment, and (3) the alleged harassing conduct was based on her protected characteristics. ECF 27 No. 38 at 13. 1 referenced Perez’s ‘harsh’ leadership style as incompatible with his vision for the team.” 2 || Id. 99/29, 72. But these allegations do not suggest that Renfro continually harassed Perez with 3 such a “pervasive frequency” as to create an “abusive working environment.” Fowler v. Potter, 4 || No. 06-cv-04716-SBA, 2008 WL 2383073 , at *10 (N.D. Cal. June 9, 2008); see also Ellis v. 5 SmithKline Beecham Corp., No. 07-cv-5302, 2008 WL 3166385 , at *12 (W.D. Wash. Aug. 5, 6 || 2008) (finding that discrete acts may not be “cobbled together” to a cognizable hostile work 7 || environment claim), aff'd, 363 F. App’x 481 (9th Cir. 2010). Moreover, these comments are at 8 least facially neutral and related to her professional performance. In the absence of other non9 discrete acts alleged, the Court finds that Perez has not plausibly stated a hostile work 10 || environment claim. 11 CONCLUSION 12 For the reasons above, the Court denies the motion to dismiss Perez’s Title VII disparate 13 treatment claim based on race and national origin and ADEA discrimination claim, to the extent 14 || those claims are based on her December 2021 detail posting and subsequent lack of reinstatement 3 15 and permanent reassignment. The Court also denies the motion as to Perez’s Title VII retaliation a 16 || claim. The Court grants the motion to dismiss Perez’s Title VII disparate treatment claim based 3 17 on sex and gender and hostile work environment claim without leave to amend. See Kendall v. 18 Visa U.S.A., Inc., 518 F.3d 1042, 1051-52 (9th Cir. 2008) (finding that amendment would be 19 || futile where plaintiff was granted leave to amend once and the amended complaint contained the 20 same defects as the prior complaint). 21 IT IS SO ORDERED. 22 Dated: March 20, 2025 C p 2 . 2 JON S. TIGA 24 United States District Judge