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Robin Walker, James Braun v. John Bryson

October 16, 2012

ROBIN WALKER, JAMES BRAUN,
MONA PEREZ, AND MELISSA CARMICHAEL,
PLAINTIFFS,
v.
JOHN BRYSON, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE UNTIED STATES DEPARTMENT OF COMMERCE; AND
ROBERT GROVES, IN HIS OFFICIAL CAPACITY AS THE DIRECTOR OF THE UNITED STATES CENSUS BUREAU, AN AGENCY OF THE UNITED STATES DEPARTMENT OF COMMERCE, DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO SEVER (Doc. 48)

I. INTRODUCTION

This is an action under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq., and pursuant to the Age Discrimination and Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, brought by former employees of the United States Census Bureau ("Census Bureau"). Plaintiffs filed the complaint in this Court on July 18, 2011.

On October 20, 2011, Plaintiffs filed a First Amended Complaint. On April 24, 2012, the district court dismissed Plaintiffs' complaint with leave to amend, and a Second Amended Complaint ("SAC") consistent with the Court's April 24, 2012, order was filed on May 14, 2012, stating Title VII and ADEA claims against Defendants John Bryson in his official capacity as the Secretary of the United States Department of Commerce and Robert Groves in his official capacity as the Director of the United States Census Bureau (collectively, "Defendants"). (Doc. 34.)

On October 11, 2012, the Court reviewed the parties' briefs and found the matter suitable for a decision without a hearing pursuant to U.S. District Court for the Eastern District of California's Local Rule 230(g). (Doc. 51.) For the reasons that follow, Defendants' motion to sever is GRANTED IN PART and DENIED IN PART.

II. FACTUAL BACKGROUND*fn1

A. Plaintiff Robin Walker

Robin Walker is the lead Plaintiff; she is a Caucasian female over the age of 40 who was employed by the Census Bureau from December 2008 to January 15, 2010, as an Administrative Assistant at the Fresno Local Census Office (the "Fresno Office"). (Doc. 34, ¶ 8.) Walker alleges that during her employment she was subjected to discrimination, harassment, and retaliation on the basis of her race, sex, national origin, and because of her involvement in protected activities related to a complaint she filed on December 7, 2009.*fn2 (Doc. 34, ¶ 28.)

Plaintiff Walker asserts that her "work relationship with Census Bureau supervisor Munoz was difficult because he was chauvinistic in his attitude, believed all women were subservient[;] and expressly relied heavily on the Bible in support of his arguments and/or decisions." (Doc. 34, ¶ 31(f).) For example, "Supervisor Munoz seldom, if at all, approved a female employee from leaving the office on the same business as males." (Doc. 34, ¶ 31(g).) Walker also asserts that "Supervisor Munoz had a pattern of discriminatory behavior towards older Caucasian female subordinates." (Doc. 34, ¶ 31(h).)

Walker alleges that "Census Bureau officials commonly used the Spanish language with supervisors Ramirez and Barcelo and other bilingual employees, especially in management meetings and RCC conference management meetings,*fn1 and during the course of the work day, while non-Spanish speaking employees were present." (Doc. 34, ¶ 31(q).) In addition, "Supervisor Barcelo was overheard telling another employee (in Spanish) that the assistant managers should all be terminated. Supervisors Ramirez and Barcelo spoke in Spanish about another employee who they were going to fire." (Doc. 34, ¶ 31(r).) In approximately November 2009, "supervisors announced a bilingual requirement for all recruiting assistants." (Doc. 34, ¶ 31(o).) "Walker and others complained about it[,] because it was not a requirement of their employment." (Doc. 34, ¶ 31(o).) The testing procedures "were manipulated to exclude non-bilinguals with higher qualifications," and "bilingual changes to testing procedures were made by Regional Census Center management." (Doc. 34, ¶ 31(p).) On December 7, 2009, Walker filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). (Doc. 34, ¶ 31(i).) Supervisors Munoz and Ramirez became aware of Walker's EEOC complaint shortly after she submitted it. (Doc. 34, ¶ 31(j).) Thereafter, on December 8 or 9, 2009, supervisors Ramirez and Barcelo began accusing Walker of tardiness and other misconduct. (Doc. 34, ¶ 31(k).)

On approximately December 21 or 22, 2009, Walker refused a directive from supervisor Ramirez that Walker falsify minutes of a December 11, 2009, meeting regarding the termination of two other employees. (Doc. 34, ¶ 31(l).) In that same period of time, supervisor Munoz "implied that Walker[']s EEO complaint caused a 'conflict of interest' with her continuing employment in the position of Administrative Assistant." (Doc. 34, ¶ 31(m).) Walker also alleges that she was falsely accused of unprofessional behavior; insubordination; fits of temper; foul language; tardiness; absence without notice or authority; diverting from daily, weekly, and monthly work requirements; a refusal to complete assignments; refusal to perform tasks and/or work assignments; and falsifying her payroll documents. (Doc. 34, ¶ 31(n).) Walker asserts she was also falsely accused of, and her employment was terminated for, leaving work without notice or authority on January 14, 2010. (Doc. 34, ¶ 31(n).) Prior to this, Walker contends she "never received any prior written or verbal discipline with regard to unprofessional conduct." (Doc. 34, ¶ 31(n).)

Walker alleges that normal procedures were not used to terminate her employment; for example, the rule allowing 3 days to improve performance prior to termination was not followed. (Doc. 34, ¶ 31(s).) Following Walker's termination, she was replaced by a "bilingual Hispanic female in her late 20's or early 30's." (Doc. 34, ¶ 31(t).) Walker also asserts a claim under the ADEA that she was discriminated against due to her age. (Doc. 34, ¶¶ 41-51.)

B. Plaintiff Braun

Plaintiff James Braun was employed by the Census Bureau in the Fresno Office as an "Administrative Clerk-Security" from approximately November 2008 until June 1, 2010. (Doc. 34, ¶ 53.) Braun's supervisors included "Barcelos,"*fn2 Sabroe, and Munoz, and he alleges that these supervisors discriminated, harassed, and retaliated against him by knowingly and falsely repeating to third parties that Braun was a thief, and accused Braun of belittling "FOS Galaraza."*fn3 (Doc. 34, ¶ 57(a)-(b).) Braun also claims that his employment was terminated in retaliation for his complaints about the oppressive atmosphere, his protected activity in making complaints regarding the termination of Robin Walker's employment, and because of his race, sex, and religion. (Doc. 34, ¶¶ 57(c), 58.) Braun also states a claim under the ADEA for discrimination, harassment, and retaliation based on his age. (Doc. 34, ¶¶ 67-77.)

C. Melissa Carmichael

Plaintiff Melissa Carmichael was employed by the Census Bureau as an Office Operation Supervisor at the Fresno Office from approximately March 2010 to May 30, 2010.*fn4 (Doc. 34, ¶ 79.) Carmichael alleges the following discrimination, harassment, and retaliation occurred by her supervisors, Barcelo, Hescox, Alonzo, and Enos:

a. Plaintiff was subjected to repeated discrimination on the basis of her sex.

b. A Census Bureau male employee, Delgadillo, repeatedly made comments to staff members claiming that Plaintiff was not qualified for her position and that he would not work with her or take orders from her because she was a woman.

c. Plaintiff timely complained to her supervisor, Thayer. d. Plaintiff then complained to supervisor Hescox, acting AMA and Regional Technician.

e. No remedial action was ever taken.

f. Plaintiff continued to complain [but] still no action was taken.

g. Delgadillo continued to discriminate against plaintiff by [] making derisive comments about Plaintiff and refused to communicate with her except in the form of letters and comments written by De[l]gadillo on Plaintiff's desk.

h. Plaintiff was again assured that the discrimination would be handled and would stop.

i. When Delgadillo continued his harassment, Plaintiff complained directly to supervisor Alonzo. Delgadillo*fn5 claimed the matter was already taken care of when it was not [and] told Plaintiff that he did not care about her feelings.

j. The next day, supervisor Hescox reprimanded Plaintiff for complaining to supervisor Alonzo.

k. On or about 5/20/10, Plaintiff was informed that either Plaintiff's two sons who worked for the Census [Bureau], or Plaintiff Carmichael, would have to resign immediately. ...


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