United States District Court, N.D. California
CHIKA E. UGBAJA, Plaintiff,
SLOAN D. GIBSON, Defendant
Chika E. Ugbaja, Plaintiff, Pro se, Daly City, CA.
For Sloan D. Gibson, Secretary of the Veteran Affairs, Robert A. McDonald, Defendants: Neill Tai Tseng, LEAD ATTORNEY, Neill Tai Tseng, United States Attorney's Office, San Francisco, CA.
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND
PHYLLIS J. HAMILTON, United States District Judge.
Defendant's motion to dismiss came on for hearing before this court on December 3, 2014. Plaintiff Chika Ugbaja (" plaintiff") appeared in pro per. Defendant Robert A. McDonald (" defendant") appeared through his counsel, Neill Tseng. Having read the papers filed in conjunction with the motion and carefully considered the arguments and relevant legal authority, and good cause appearing, the court hereby GRANTS defendant's motion to dismiss, with leave to amend, for the reasons stated at the hearing.
Plaintiff asserts five causes of action in connection with her employment at the San Francisco Veterans Medical Center: (1) discrimination based on race/national origin, under Title VII; (2) discrimination based on gender/sex, under Title VII; (3) discrimination based on age, under Title VII; (4) retaliation, under Title VII; and (5) harassment/hostile work environment, under Title VII. Defendant moves to dismiss the second, third, fourth, and fifth causes of action (but not the first cause of action) for failure to state a claim.
1. Discrimination based on gender/sex (second cause of action)
Title VII makes it " an unlawful employment practice for an employer" to " discriminate against any individual with respect to" the " terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). A disparate treatment claim must be supported by direct evidence of discrimination, or may instead be evaluated under the burden-of-proof-and production analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Hawn v. Executive Jet Management, Inc., 615 F.3d 1151, 1155 (9th Cir. 2010) (applying McDonnell Douglas framework to Title VII discrimination claim).
To establish a prima facie case of discrimination based on gender/sex, plaintiff must show that she is a member of a protected class; that she was qualified for her position or was performing satisfactorily; that she experienced an adverse employment action; and that similarly situated individuals outside her protected class were treated more favorably, or that some other circumstances surrounding the adverse employment action give rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802; Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 847 (9th Cir. 2004); see also Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
As discussed at the hearing, plaintiff's second cause of action appears to rely on a single comment made by a Mr. Ed Krimmer in 2004. This comment does not establish a prima facie case of gender/sex discrimination (because, among other things, plaintiff does not allege that she experienced an adverse employment action), and thus, plaintiff's second cause of action is DISMISSED, with leave to amend.
2. Discrimination based on age (third cause of action)
In its motion, defendant correctly points out that Title VII does not provide a cause of action for age discrimination. Plaintiff's opposition does not directly address this argument, and instead argues that she has a viable claim under the Age Discrimination in Employment Act (" ADEA").
Under the ADEA, it is unlawful for any employer to take an adverse action against an employee " because of such individual's age." 29 U.S.C. § 623(a). " [A] plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse employment action." Gross v. FBL Fin. Servs., 557 U.S. 167, 129 S.Ct. 2343, 2352, 174 L.Ed.2d 119 (2009).
Courts generally employ the McDonnell Douglas burden-shifting analysis in age discrimination cases. See McDonnell Douglas, 411 U.S. at 802-04. Accordingly, in the usual case, a prima facie case of age discrimination arises when the employee shows: (1) at the time of an alleged adverse employment action, the employee was 40 years of age or older; (2) an adverse action was taken against the employee; (3) at the time of the adverse action the employee was satisfactorily performing her job; and (4) some other circumstance suggesting a discriminatory motive was present. See Guz v. Bechtel Nat'l, Inc., 24 Cal.4th 317, 355, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (2000).
Because plaintiff's third cause of action is brought under Title VII, not the ADEA, it is DISMISSED with leave to amend, so that ...