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Melinda Keenan and Catherine v. Eric K. Shinseki


December 18, 2012



This matter comes before the court upon defendant's motion to dismiss plaintiffs' second amended complaint. (ECF 23.) This motion was decided without a hearing. For the following reasons, defendant's motion is GRANTED. The court also addresses plaintiffs' counsel's motion to withdraw (ECF 28), which is GRANTED as explained below.


Plaintiffs filed their original complaint on December 28, 2010 (ECF 1) and their amended complaint on May 13, 2011 (ECF 8). Plaintiffs filed their second amended complaint on March 5, 2012, alleging three causes of action: 1) unlawful discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq.; 2) retaliation in violation of Title VII, 42 U.S.C. § 2000e, et seq.; and 3) on behalf of plaintiff Lieb only, violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. (ECF 20.)

Defendant filed the present motion to dismiss on March 26, 2012. (ECF 23.) Plaintiffs filed their opposition on May 11, 2012. (ECF 25.) Defendant filed his reply on June 1, 2012. (ECF 26.)


Melinda Keenan was employed with the United States Department of Veterans Affairs ("VA") at the VA's Mather facility as a staff psychologist and post-traumatic stress disorder ("PTSD") program coordinator from February 2001 to 2010. (Sec. Am. Compl. ¶ 1.) She is currently employed as a psychologist at the VA's Citrus Heights facility. (Id.) Catherine Lieb was employed as a licensed clinical social worker at the VA's Mather facility from January 2008 to July 2011. (Id. ¶ 2.) From October 2009 to July 2011, Lieb was a social worker on Mather's PTSD team. (Id. ¶ 44.)

Maga Jackson-Triche, M.D., was "[f]or much of [Keenan's] tenure at the Mather VA," the associate chief of staff for mental health services and Keenan's direct supervisor. (Sec. Am. Compl. ¶ 11.) Steven Shotz was hired by Dr. Jackson-Triche in February 2007 and made the mental health clinic's manager in April 2007. (Id. ¶¶ 12, 14.) In April 2008, Dr. Shotz stepped down as clinic manager and stayed on as a staff psychologist. (Id. ¶ 27.)

The Mather facility's mental health clinic held a staff meeting on December 3, 2008. (Sec. Am. Compl. ¶ 30.) During the meeting, a staff member "made an oblique reference to how the clinic suffered when Shotz was clinic manager," to which "Keenan responded with a remark about avoiding the factions that had developed in the clinic in the past and trying to find a way to heal old wounds." (Id. ¶ 30.) In July 2009, Dr. Shotz filed an Equal Employment Opportunity Commission ("EEOC") complaint against plaintiffs "for statements they allegedly made at the Dec. 8, 2008, [sic] staff meeting." (Id. ¶ 31.) Neither party has indicated what, if any, specific findings or conclusions were reached in response to Dr. Shotz's complaint, although plaintiffs characterize the outcome as "favorable to Shotz." (Opp'n at 9.)

On February 12, 2010, Keenan received a written letter of admonishment. (Sec. Am. Compl. ¶ 35.) Lieb received a one-week suspension from her job without pay. (Id.)


A. Standard

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," FED. R. CIV. P. 8(a)(2), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action.'" Id. at 1949 (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

In making this context-specific evaluation, this court must accept as true the factual allegations of the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). This rule does not apply to "'a legal conclusion couched as a factual allegation,'" Papasan v. Allain, 478 U.S. 265, 286 (1986) (quoted in Twombly, 550 U.S. at 555), nor to "allegations that contradict matters properly subject to judicial notice" or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir. 2001). A court's consideration of documents attached to a complaint or incorporated by reference or matter of judicial notice will not convert a motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003); Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); see also Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002) (noting that even though court may look beyond pleadings on motion to dismiss, generally court is limited to face of the complaint on 12(b)(6) motion).

B. Application 1. Title VII discrimination

Defendant contends the second amended complaint has not cured the first amended complaint's deficiency in alleging Dr. Shotz was similarly situated to plaintiffs. (Mot. at 5.) Defendant further contends plaintiffs have not adequately pled they were discriminated against because of their gender. (Id. at 7.) In addition, defendant contends Keenan has failed to allege she suffered from any adverse employment action. (Id.) Plaintiffs contend they have sufficiently alleged they were similarly situated to Dr. Shotz, or at the very least the facts they have pled support an inference of discrimination. (Opp'n at 7-8.) Moreover, the letter of admonishment issued to Keenan is an adverse employment action. (Id. at 9.)

Title VII makes it unlawful for an employer to discriminate against any individual "because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). It is axiomatic that a claim for discrimination in violation of Title VII must allege "race, color, religion, sex, or national origin" as a "motivating factor" in the discrimination. 42 U.S.C. § 2000e-2(m). Plaintiffs' second amended complaint is explicit in stating that the alleged adverse employment actions -- Keenan's letter of admonishment and Lieb's one-week suspension -- taken against them were "[i]n direct response to their [employer's] having learned of Plaintiffs' statements given in the SHOTZ EEO proceeding."*fn1 (Sec. Am. Compl. ¶ 35 (emphasis in original).) Accordingly, plaintiffs effectively admit their sex was not a motivating factor in the taking of the adverse employment actions.

Indeed, plaintiffs' second amended complaint is markedly devoid of well-pled allegations of discrimination based on sex, and instead reflects a veritable kitchen sink approach. Plaintiffs contend an inference of discrimination can be drawn from their showing:

[H]ow Jackson immediately favored Shotz, to the exclusion of the female employees, including the Plaintiffs, from the moment he was hired. Shotz was given an undeserved assignment as Mental Health Clinic Manager during his probationary period, when Plaintiff Keenan was more qualified. Shotz was allowed to operate a separate 'sexual trauma' PTSD group, even though it was a 'ruse' for him to hand-pick attractive, vulnerable females for participation in his program. Shotz was also allowed to sexually harass another psychologist, and, when she complained about it, she was forced out on stress leave, while he was free to make threatening comments about her to Plaintiff Keenan. When Plaintiffs formally complained, Jackson intervened to protect Shotz, and violated confidentiality by disclosing Plaintiffs' complaints to the entire unit. Meanwhile, Plaintiffs were given formal discipline for their complaints, while Shotz was rewarded a favorable EEO finding.

(Opp'n at 8-9.) Taking all allegations in the complaint as true and drawing all reasonable inferences in plaintiffs' favor as it must, the court can reasonably infer only that plaintiffs are female, Dr. Shotz is a male, and Dr. Shotz was treated favorably in some aspects of his employment while plaintiffs were treated unfavorably.

Defendant's motion to dismiss plaintiffs' claim for Title VII discrimination is granted without prejudice; plaintiffs may attempt to amend this claim if they are able while complying with Federal Rule of Civil Procedure 11.

2. Title VII retaliation

Title VII makes it unlawful "for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this [title] . . . or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this [title]. . . ." 42 U.S.C. § 2000e-3(a). "A plaintiff may meet his burden of proof for a claim of retaliation under Title VII by showing, by a preponderance of evidence, (1) involvement in protected activity opposing an unlawful employment practice, (2) an adverse employment action, and (3) a causal link between the protected activity and the adverse action." Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006) (citing Burdine, 450 U.S. at 252-53). A plaintiff can use direct or circumstantial evidence to do so. Little v. Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2001). "[A]n employer's [adverse employment action against] an employee can violate the section in either of two ways:

(1) if the [adverse employment action] occurs because of the employee's opposition to conduct made an unlawful employment practice by the subchapter, or (2) if it is in retaliation for the employee's participation in the machinery set up by Title VII to enforce its provisions." Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir. 1978).

Plaintiffs allege they were retaliated against because of "(1) their participation in the Shotz EEO investigation, in which they provided the same statements and complaints about Shotz's discriminatory and harassing conduct, and (2) their continuous internal complaints in the workplace about Shotz's sexual harassment, discriminatory conduct, and how it impacts patient safety." (Opp'n at 10.) Plaintiffs specifically pled they engaged in the following alleged protected activities: in November 2008, Keenan "wrote a candid review of [Shotz's] clinical work and her fear for patient safety [thereby] exercis[ing] her protected right and responsibility to 'whistle-blow'"; in December 2007, Keenan wrote a letter to then-Medical Director Dr. O'Neil "express[ing] her patient-related concerns"; and plaintiffs made statements while participating in Shotz's EEO proceeding that "reflected their concerns about SHOTZ and the quality of patient care being given to the Mather veterans."*fn2 (Sec. Am. Compl. ¶¶ 19, 20, 32.)

With regard to Keenan's review of Shotz's work and letter to Dr. O'Neil, plaintiffs have again failed to allege they opposed unlawful employment conduct, as a predicate to their retaliation claim.

"The antiretaliation provision seeks to prevent employer interference with 'unfettered access' to Title VII's remedial mechanisms. It does so by prohibiting employer actions that are likely to deter victims of discrimination from complaining to the EEOC, the courts, and their employers. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence." Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). As discussed in this court's February 6, 2012 order dismissing plaintiffs' first amended complaint, while "opposition" is interpreted "broadly," such as by "including the employee's threat to file a charge," Silver, 586 F.2d at 141 n.2 (citing EEOC Compliance Manual, 704(a) Discrimination, § 492.1(a) (1975)), Keenan does not allege that her review of Shotz's work or letter to O'Neil were in opposition to unlawful employment practices. See Little, 301 F.3d at 969 (Opposition to an employment practice "is protected when it is based on a reasonable belief that the employer has engaged in an unlawful employment practice." (emphasis, internal quotation marks and citation omitted)). Keenan does not indicate with any particularity what employment practices she was opposing and whether she believed these employment practices to be unlawful. More importantly, Keenan does not allege she was retaliated against as a result of these two incidents. Rather, with regard to her letter to Dr. O'Neil, plaintiffs only allege Dr. Jackson-Triche quoted from the letter at a January 2008 staff meeting. (Sec. Am. Compl. ¶ 24.) This activity by itself does not qualify as retaliation in violation of Title VII. See Burlington Northern, 548 U.S. at 67 ("The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.").

With regard to Shotz's EEO proceeding, plaintiffs allege when they were interviewed, they "engaged in protected speech not only because they were participating in an official EEO proceeding, but also because their statements reflected their concerns about SHOTZ and the quality of patient care being given to the Mather veterans." (Sec. Am. Compl. ¶ 32.) Moreover, they allege Drs. Jackson-Triche and Shotz "gained knowledge of Plaintiffs' protected statements regarding Dr. Jackson-Triche, SHOTZ, and the damage each had inflicted upon the operation of Mather's Mental Health Clinic." (Id. ¶ 34.) Plaintiffs allege that as a result of their statements to investigators, Keenan received a letter of admonishment and Lieb received a one-week suspension. (Id. ¶ 35.) The court notes that the proposed reprimand and suspension state that plaintiffs were to be disciplined based upon "disrespectful comments and/or innuendo with regard to" Dr. Shotz from December 2008 to July 2009. (Mot., Exs. A and B, ECF 23-2.) Nevertheless, even drawing all inferences in favor of the nonmoving parties as the court must on a motion to dismiss, plaintiffs have failed to allege retaliation in violation of Title


Defendant's contention that plaintiffs have failed to allege they engaged in protected activity is well-taken. (Mot. at 9; Reply at 6.) Plaintiffs' claim of retaliation is based on Title VII's "participation clause,"*fn3 which "is interpreted broadly," EEOC v. Cal. Psychiatric Transitions, Inc., 725 F. Supp. 2d 1100, 1107 (E.D. Cal. 2010), and prohibits retaliation against an employee who "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title." 42 U.S.C. § 2000e-3(a). Regardless of the broad interpretation afforded this clause, plaintiffs' claim of retaliation miscomprehends this section. "The anti-retaliation provision of 42 U.S.C. § 2000e-3(a) is meant to prevent harm to employees who report discriminatory employment practices or assist in the investigation of these practices. . . . The purpose of the anti-retaliation clause is to maintain unfettered access to statutory remedial mechanisms." Cal. Psychiatric Transitions, 725 F. Supp. 2d at 1107 (internal quotation marks and citations omitted); see also Burlington Northern, 548 U.S. at 63 ("The antiretaliation provision seeks to secure that primary objective [of a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status] by preventing an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees."). Plaintiffs allege, and their disciplinary documents support the inference that, a co-worker filed an EEOC complaint because of their conduct towards him. (Sec. Am. Compl. ¶¶ 31-33.) They were interviewed in connection with the resultant proceeding. While retaliation in violation of Title VII has been found where a third party was fired in retaliation for participating in the filing and completion of another employee's EEOC complaint, Cal. Psychiatric Transitions, 725 F. Supp. 2d at 1108, and where an employee's fiance was fired after she filed an EEOC complaint, Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863, 868 (2011), the present matter is distinguishable. While "Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses," Burlington Northern, 548 U.S. at 67, plaintiffs here did not file a complaint, assist another who had filed a complaint, or support another's complaint; rather, plaintiffs opposed Dr. Shotz's EEOC complaint, which was filed as a result of their conduct.

Plaintiffs' Title VII retaliation complaint is dismissed with prejudice insofar as it is based on their participation in the EEOC proceeding, but without prejudice insofar as plaintiffs believe they can, while complying with Federal Rule of Civil Procedure 11, allege retaliation resulting from other protected activities.


Title 29 U.S.C. § 623(a) makes it unlawful for an employer to discriminate against an employee or prospective employee on the basis of age.

Plaintiffs allege Lieb's suspension was made "on the basis of her age" in violation of the ADEA and her age was the "but for" cause of her suspension. (Sec. Am. Compl. ¶¶ 56, 58.) Defendant contends Lieb's allegation of age discrimination has not cured the deficiencies found in the first amended complaint. (Mot. at 10-11.) Defendant further contends the second amended complaint in fact alleges Lieb was suspended for reasons other than her age. (Id. at 11.) Lieb contends the "but for" test does not apply to federal employees bringing an ADEA case, citing to a case from the Court of Appeals for the District of Columbia Circuit, and that the complaint sufficiently alleges age was a factor leading to her suspension. (Opp'n at 11.)

The standard articulated by plaintiffs for finding a violation of the ADEA is not the law in this Circuit. The Ninth Circuit has explicitly held, in a case involving a federal employee bringing an ADEA claim against a federal agency, that a plaintiff must prove that age was the "but for" cause of the adverse employment action. Shelley v. Geren, 666 F.3d 599, 607-08 (9th Cir. 2012). Plaintiffs have not alleged that age was the "but for" cause for Lieb's suspension. (Opp'n at 11.) Rather, their second amended complaint definitively identifies their participation in the EEO proceeding as the reason for Lieb's suspension. (Sec. Am. Compl. ¶ 35.) Lieb's age and her employers' alleged reactions related to her age are presented in the second amended complaint only in a disjointed manner that does not support Lieb's claim. (See id. ¶¶ 2, 39-40, 42.)

Lieb's ADEA claim is dismissed with prejudice as amendment would be futile.


Plaintiffs' counsel filed a motion to withdraw as counsel of record on October 9, 2012. (ECF 28.) He contends "there has been an irreparable breakdown in the attorney-client relationship" and plaintiffs notified him he was fired several months ago. Plaintiffs' counsel served plaintiffs with his motion to withdraw as required. Local Rule 182(d). The court hereby conditionally grants counsel's motion to withdraw; plaintiffs shall have thirty (30) days from the filing of this order to either hire new counsel or indicate their intent to proceed pro se on the court's docket. Watts shall remain plaintiffs' counsel of record until the expiration of this thirty-day period.


For the foregoing reasons, defendant's motion to dismiss (ECF No. 23) is

GRANTED with prejudice as to plaintiffs' Title VII retaliation claim insofar as it is based on plaintiffs' participation in Dr. Shotz's EEOC proceeding and Lieb's ADEA claim and without prejudice as to the remainder of their claims. Plaintiffs' may file an amended complaint within thirty (30) days of their indication on the court's docket of the identity of new counsel or their intent to proceed pro se.


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