ERICA T. CLOUD, Plaintiff, v. MEGAN J. BRENNAN, Defendant.
Case No. 19-cv-04638-TSH
February 3, 2020
THOMAS S. HIXSON, United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS; Re: Dkt. No. 11
I. INTRODUCTION
Plaintiff Erica Cloud, a former employee of the United States Postal Service, claims she was subjected to sexual harassment by managers at the post office where she worked and retaliated against for engaging in certain protected activities. She asserts two causes of action under
II. BACKGROUND
Cloud was employed by the United States Postal Service (“USPS”) as a window clerk at the post office located at 201 13th Street, Oakland, CA 94612 (the “Urban Oakland Post Office”). Compl. ¶ 3, ECF No. 1. Yanique Spencer1 was her direct supervisor. The supervision/management team at the Urban Oakland Post Office was as follows: Maximo DePaula and Mr. Mayfield (Acting Managers); Yanique Spencer (Cloud‘s Direct Supervisor); and Pedro Flores (Customer service Operations). Id. ¶ 13.
Cloud alleges:
The culture in the Oakland Urban Post Office was one where the males in charge sexually harassed and requested sexual favors from the female employees, they “wanted” and the female employees that capitulated gained favor. Because the male supervisors knew they could engage in this sort of behavior without fear of termination—at worst they would simply be transferred to a different location— the sexual harassment was rampant.
Id. ¶ 17. She alleges Mayfield used to ogle her regularly, but he was transferred to a different USPS location after he was the subject of sexual harassment claims brought by other female employees. Id. ¶ 15. Cloud alleges DePaula also engaged in sexual harassment and had complaints lodged against him by female employees, but she refused to reciprocate his inappropriate embraces. Id. ¶ 16. Cloud “refused to accept the advances of her male supervisors, refused to reciprocate unwanted embraces, and [her] husband indicated to a male supervisor that the supervisor should stop staring at [her] breasts and crotch.” Id. ¶ 18. As a result, Cloud alleges she was treated differently than other employees and retaliated against. Id.
A. Yanique Spencer
Cloud alleges she “was bullied and harassed by her direct supervisor, Ms. Spenser—who did engage in sexual acts with the upper management—because Ms. Spenser was not properly supervised, even though management knew Ms. Spenser had violent propensities and a history of on-the-job violent altercations with co-workers.” Id. ¶ 19. After Cloud was appointed the Shop Steward of the American Postal Workers Union for the Urban Oakland Post Office, Spencer “used her unchecked power to harass and bully” her in retaliation for participation in the Union. Id. ¶ 20. On one occasion, she approached Cloud and her ten-year-old daughter while they were getting ready to leave and said Cloud needed to “leave the building” and that she was “walking her out.” Id. ¶ 21. Cloud and her daughter exited the post office and were waiting in the vestibule of the building for their ride, but Spencer screamed that she was to get completely out of the public building. Id. After they exited the building, Spencer “locked the door so Plaintiff and her daughter could not get shelter inside, gave a wicked smile and
Cloud also alleges Spencer disregarded medical restrictions that required modified duty while she was healing from an injury to her dominant hand. Id. ¶ 22. Cloud‘s restrictions, approved by the Postmaster General, placed her on “light duty,” meaning she “was not to: lift any object over 5 lbs.; grasp, lift or push objects using her right hand; write or; preform [sic] data entry.” Id. ¶ 23. However, Spencer told Cloud “it was her ‘duty’ to preform [sic] her full job functions using her injured hand. When [Cloud] would protest about being required to work outside her medical restrictions, Ms. Spenser would state that she must and yell, ‘that‘s a direct order!” Id. Cloud feared she would be fired unless she performed activities that harmed her right hand, and the “failure to allow the hand to heal properly aggravated a serious and substantial injury to her right hand, causing the the [sic] need for surgery and some level of life-long impairment to her dominant hand, severe emotional distress, severe pain and swelling and economic damages.” Id. ¶ 24. The supervisors above Spencer did not prevent this from happening and did nothing to ensure Cloud‘s medical restrictions were adhered to. Id.
B. General Delivery Window
Cloud was assigned to attend to the general delivery window. Id. ¶ 11. She alleges the “instance of customer outbursts, obvious signs of mental illness and various forms of intoxication among general service postal customers is significantly higher than those customers using other services.” Id. Cloud states “there was an ongoing systematic failure to timely attend to the general delivery mail at the Urban Oakland Post Office due to management‘s failure to ensure this task was attended to properly.” Id. ¶ 25. “The general delivery customers were frequently agitated, and many of them were yelling and becoming very angry on a regular basis, especially when they were waiting to receive a check, but told it was not available. This was common knowledge among employees working at the Urban Oakland Post Office.” Id. The window did not have protective glass, and Cloud “requested on many processions that she be protected in the same way as all of her other permanent assignment co-workers were protected by simply allowing her to sit at a window that had protective glass installed.” Id. ¶ 26.
Cloud complained to the Occupational Safety and Health Administration that she was unsafe, but management “never capitulated to any of her requests and continued their retaliation campaign against [her] for complaining about her lack of personal safety.” Id. ¶ 27. Management also refused to assist her with customers that were angry when their mail was not ready to be picked up, although they assisted other employees with customer complaints. Id. ¶ 28. “Management knew that the general delivery customers would often become further enraged when they were informed they could not speak with someone above [Cloud] in the hierarchal structure about the fact their mail was being delayed, was late and would often be delivered in large accumulated piles after days of receiving no mail at all.” Id. ¶ 30. Cloud specifically told management that:
(1) Plaintiff received many threats of violence from customers; (2) a customer dropped a dead bird on the counter in front of Plaintiff to intimidate and threaten her; (3) Plaintiff had objects thrown at her; (4) Plaintiff had visibly mentally disturbed people attempt to climb through her window and; (5) angry customers would scream in Plaintiff‘s face when a manager or supervisor
would not come to the window to resolve their complaints.
Id. ¶ 31.
On April 12, 2018, Cloud was assaulted with a deadly weapon by a general delivery customer. Id. ¶ 32. She was badly beaten and pulled out through the general delivery window. Id. As a result, Cloud suffered massive contusions and bruising, a mild concussion, headaches, back pain and neck pain. Id.
C. EEO Activities and Retaliation
On May 30, 2018, Cloud participated in the EEO process by filing paperwork that complained of management‘s lack of an adequate response toward keeping her physically safe, Spencer‘s harassment of her and tampering with her time sheets; and being forced to work outside of her medical restrictions. Id. ¶ 34. She also wrote letters to DePaula and Flores regarding her serious concerns for her bodily safety while working at the general delivery window without protective glass. Id. Cloud alleges that DePaula, Flores and Spencer all knew about her participation in the EEO process and that Spencer retaliated by constantly harass her. Id. ¶¶ 35-36.
On one occasion while Cloud worked the general delivery window, Spencer “was looming over her, watching her every move and yelling aggressively, ‘it‘s your job to give people their mail.” Id. ¶ 37. When Cloud retreated from the window, Spencer chased her and started pointing her finger at her face. Id. When Cloud pointed back and stated that she was frightened, Spencer shoved her head backwards with her hand and with one move caused her head to fly back and her entire body to hit the floor. Id. ¶¶ 37-38. Once on the ground, Spencer “bit her all over, scratched her face and targeted [her] injured hand. Ms. Spenser pulled of [sic] Plaintiff‘s wig and kicked her.” Id. ¶ 38. Cloud states “Spenser is significantly bigger in stature than Plaintiff, who is petite, thin and was recovering from a serious injury to her dominant hand.” Id. ¶ 39. As a result of the attack, Cloud suffered open bite wounds that became infected and required oral antibiotics and injections. Id. ¶ 40. “She has also suffered severe emotional distress and had to take anxiety pills and sleeping pills to address her altered mental state and the marked change in her personality towards fear, sadness and anxiety.” Id.
After the attack, Cloud was terminated based on USPS‘s “zero-tolerance” policy for violence. Id. ¶ 41. She alleges the reason was pretextual and the real reason she was terminated was because she engaged in EEO activities, refused the sexual advances of her male supervisors and actively participated in the union. Id.
D. Procedural History
Cloud filed the present complaint on August 9, 2019, asserting two causes of action under
Brennan further argues that Cloud‘s retaliation claim, to the extent it is based on participating in union activities, and the entirety of her sexual harassment claim should be dismissed because she did not raise these allegations during the administrative process and therefore failed to exhaust her administrative remedies with respect to them. Id.
Finally, to the extent Cloud seeks to bring a sex discrimination claim that is predicated on any conduct other than the alleged sexual harassment by Mayfield and DePaula, Brennan argues it should be dismissed because the complaint fails to allege the essential elements of a discrimination claim, including that similarly situated individuals outside of Cloud‘s protected class were treated more favorably than her or that she was subjected to an adverse employment action because of her sex or gender. Id.
III. LEGAL STANDARD
A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”
However, “the tenet that a court must accept a complaint‘s allegations as true is inapplicable to threadbare recitals of a cause of action‘s elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678.
If a
IV. DISCUSSION
A. Protected Activity
Brennan first argues most of Cloud‘s retaliation claim should be dismissed because any part that is premised on union activity participation, reporting safety concerns to management and OSHA, and refusing sexual harassment does not qualify as a “protected activity” under
1. Union Activity
The Court agrees that union activity is not within the scope of
Cloud appears to argue the Court should not decide whether union activity is protected under
2. Reporting Safety Concerns
Courts “have consistently held that an employee who has reported OSHA violations or complained about unsafe working conditions has not engaged in statutorily protected activity.” Langford v. Magnolia Advanced Materials, Inc., 2017 WL 5203048, at *15 (N.D. Ga. Jan. 3, 2017), report and recommendation adopted, 2017 WL 5202889 (N.D. Ga. Feb. 13, 2017), aff‘d, 709 F. App‘x 639 (11th Cir. 2017) (collecting cases); Washington v. M. Hanna Constr. Inc., 299 F. App‘x 399, 401 (5th Cir. 2008) (“Because
3. Sexual Harassment
Brennan argues that refusing sexual harassment is not a protected activity because courts “have declined to recognize rejecting sexual advances as ‘protected activity’ under
The Court agrees with Judge Davila‘s reasoning in Alhozbur and therefore finds that Cloud cannot state a retaliation claim based on refusing her supervisors’ sexual advances. However, it is unclear that her allegations are so limited as she alleges a culture of sexual harassment. Compl. ¶¶ 15-17. “It is unlawful to subject employees to adverse employment actions because they engaged in protected activity, such as complaining of sexual harassment.” Alhozbur, 2011 WL 13243131, at *6 (citing Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000)). Thus, if Cloud can allege that she put her employer on notice by complaining of sexual harassment (i.e., doing more than refusing sexual harassment), she can state a plausible claim for retaliation. Accordingly, to the extent Cloud seeks to bring a retaliation claim based on sexual harassment, the Court GRANTS Brennan‘s motion WITH LEAVE TO AMEND.
B. Causal Link
Brennan next argues that, even assuming Cloud‘s activities are protected, her retaliation claim must fail because she does not allege plausible facts establishing retaliation causally connected to her protected activity. Mot. at 9-10. Brennan further argues Cloud cannot plead causation for any retaliatory conduct that predates her contact with the EEO Office. Id. at 10-11.
In response, Cloud argues she is not required to plead a prima facie case to survive a motion to dismiss, but even if she were, she argues her “allegations regarding her union activity, OSHA complaint, and refusal of sexual harassment are intimately tied to her allegations regarding her supervisors’ campaign of retaliation against Plaintiff for her refusal of their sexual advances and refusal to participate in the pervasive, hostile environment of sexual harassment and discrimination.” Opp‘n at 13-14. As to whether she has failed to plead causation for any of her supervisors’ conduct that occurred prior to her first contact with the EEO in May 2018, Cloud argues Brennan “mistakenly assumes that Plaintiff‘s only protected activity was when she engaged in the EEO process. Plaintiff alleges a course of conduct that occurred over time, constituting severe and pervasive sexual harassment.” Id. at 14.
When a plaintiff pleads a plausible prima facie case, the complaint sufficiently states a claim. Sheppard, 694 F.3d at 1050 n.2. However, a plaintiff is not required to plead a prima facie case of discrimination or retaliation in order to survive a motion to dismiss. Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1050 n.2 (9th Cir. 2012); Lacayo v. Donahoe, 2015 WL 3866070, at *12 (N.D. Cal. June 22, 2015). When a plaintiff does not plead a prima facie case, courts still look to the elements of the prima facie case “to decide, in light of judicial experience and common sense, whether the challenged complaint contains sufficient factual matter, accepted as true, to state a claim for
To establish a causal connection between her protected activity and the adverse actions, a plaintiff may allege direct or circumstantial evidence from which causation can be inferred, such as an employer‘s “pattern of antagonism following the protected conduct,” Porter v. Cal. Dep‘t Corr., 419 F.3d 885, 895 (9th Cir. 2005), or the temporal proximity of the protected activity and the occurrence of the adverse action. Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 850 (9th Cir. 2004); Bell v. Clackamas Cty., 341 F.3d 858, 865 (9th Cir. 2003).
Here, the Court finds Cloud has failed to establish a causal connection as to any activity prior to participating in the EEO process. She alleges she “engaged in protected activity by refusing sexual harassment; participating in union activities; reporting safety concerns to management and OSHA and; engaging in the EEO process.” Compl. ¶ 45. As discussed above, Cloud‘s allegations regarding refusing sexual harassment, participating in union activities, and reporting safety concerns to management and OSHA are not protected activities under
Accordingly, the Court GRANTS Brennan‘s motion as to Cloud‘s allegations for conduct that occurred prior to the EEO process and DENIES the motion as to conduct that occurred after Cloud initiated the EEO process. If Cloud chooses to file an amended complaint that includes a retaliation claim related to adverse actions prior to the EEO process, she must include allegations of protected activity prior to that process.
C. Exhaustion of Administrative Remedies
Brennan next argues Cloud‘s retaliation claim—to the extent it is based on participating in union activities—and the entirety of her sexual harassment claim should be dismissed because she failed to exhaust her administrative remedies with respect to those claims. Mot. at 11.
To bring a
As discussed above, Cloud cannot maintain a retaliation claim based on her participation in union activities. Accordingly, the Court GRANTS Brennan‘s motion as to that claim.
As to Cloud‘s sexual harassment claim, Brennan argues it is premised on allegations of harassment by Mayfield and DePaula, which were not at issue in the EEO investigation, and in the only paragraph of the complaint describing the issues referred to the EEO office, Cloud “conspicuously omits reference to sexual harassment.” Id. at 14 (citing Compl. ¶ 34).
In order to meet the requirement of substantial compliance with administrative exhaustion, the allegations of a plaintiff‘s judicial complaint must be “like or reasonably related to the allegations” in an administrative complaint submitted to the EEO, such that they would fall within “the scope of an EEOC investigation which [could] reasonably be expected to grow out of the [administrative] charge of discrimination.” Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990) (citations, quotation marks, and emphasis omitted) (addressing the same standard as applied to a private employee‘s administrative complaint to the EEOC); see also Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2003) (holding that a court may consider “all claims of discrimination that fall within the scope of the EEOC‘s actual investigation or an EEOC investigation that could reasonably be expected to grow out of the charge.”). Courts evaluating the similarity between an administrative complaint and a
Here, it is not clear from Cloud‘s complaint whether the EEO process included claims of sexual harassment. She alleges the “complete disregard for the need to follow these medical restrictions persisted even after an EEO proceeding that found the Post Office was to cease forcing Plaintiff to further injure herself through improper use of her injured hand.” Compl. ¶ 22. She also alleges that she participated in the EEO process “by filing paperwork that complained of management‘s lack of an adequate response toward keeping her physically safe; Ms. Spenser‘s harassment of Plaintiff; Plaintiff being worked outside of her medical restrictions and; Ms. Spenser‘s tampering with Plaintiff‘s time sheets to remove pay owed.” Id. ¶ 34. Later, she alleges she was terminated “because she engaged in EEO activities, refused the sexual advances of her male supervisors
Normally, when adjudicating a motion to dismiss brought pursuant to
Brennan also argues Cloud must plead exhaustion of administrative remedies with specificity, including the dates on which she was sexually harassed. Mot. at 15. However, the only case Brennan cites in support of this argument is Perkins v. U.S. Navy, in which the court dismissed the plaintiff‘s complaint because he completely failed to plead any facts indicating that he had administratively exhausted his claims. 2012 WL 2945916, at *2 (S.D. Cal. July 19, 2012). That case is inapplicable here, where Cloud specifically alleges that “[w]ithin forty-five (45) days of the incidents described below, Plaintiff contacted an EEO Counselor.” Compl. ¶ 7.
D. Sex Discrimination
Finally, Brennan argues that to the extent Cloud alleges sex discrimination in addition to Mayfield and/or DePaula‘s alleged sexual harassment, the complaint does not allege all the necessary elements of a prima facie case of discrimination. Mot. at 16. Specifically, she argues Cloud fails to allege that similarly situated individuals outside her protected class were treated more favorably than her. Id. Brennan also argues that Spencer “is purportedly responsible for the majority of the conduct alleged in the Complaint, and the Complaint alleges no plausible facts suggesting that Ms. Spencer‘s conduct was animated by sex or gender.” Id. at 17.
To establish a prima facie case of discrimination, the plaintiff must show that: “(1) he belongs to a protected class; (2) he was qualified for the position; (3) he was subject to an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably.” Chuang v. Univ. of California Davis, 225 F.3d 1115, 1123 (9th Cir. 2000). The fourth element—that the plaintiff was subjected to an adverse employment action because of her membership in a protected class—can be alleged either through direct evidence of discrimination, such as a supervisor‘s derogatory comment about her race or gender, see, e.g., E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1050 (9th Cir. 2009), or through circumstantial evidence, which may include allegations that similarly situated individuals outside the plaintiff‘s protected class were treated more favorably or that other circumstances surrounding the at-issue employment action give rise to an inference of discrimination, see Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1105-06 (9th Cir. 2008); Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010). However, as noted above, a plaintiff is not required to plead a prima facie case of discrimination in order to survive a motion to dismiss. Sheppard, 694 F.3d at 1050 n.2; Lacayo, 2015 WL 3866070, at *12. Instead, courts look to the elements of the prima facie case “to decide, in light of judicial experience and common sense, whether the challenged complaint contains sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Achal, 114 F. Supp. 3d at 796-97.
Here, the Court finds Cloud‘s allegations are sufficient at this stage in the litigation. She pleads that because she refused to accept the advances of her male supervisors, she “was treated differently than other employees and retaliated against.” Compl. ¶ 18. She also pleads that her supervisors “engaged in targeted harassment against Plaintiff because of her sex.” Id. ¶ 44.5
Based on these allegations, the Court finds Cloud can state a claim for relief that is plausible on its face. Accordingly, the Court DENIES Brennan‘s motion to dismiss Cloud‘s second claim for sexual harassment and sex discrimination.
V. CONCLUSION
For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART Brennan‘s motion to dismiss. If Cloud chooses to file an amended complaint, she must do so by February 24, 2020.
IT IS SO ORDERED.
Dated: February 3, 2020
THOMAS S. HIXSON
United States Magistrate Judge