United States District Court, N.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITH
PARTIAL LEAVE TO AMEND RE: DKT. NO. 15
ILLSTON United States District Judge.
before the Court is defendant Robert A. McDonald, Secretary
of Veterans Affairs' motion to dismiss plaintiff Amal
Pujol's first, second, fourth, fifth, and sixth causes of
action. Docket No. 15. Pursuant to Civil Local Rule 7-1(b),
the Court determines that this matter is appropriate for
resolution without oral argument and hereby VACATES the
hearing set for March 24, 2017. For the reasons set forth
below, the Court GRANTS defendant's motion, with partial
leave to amend. If plaintiff wishes to amend her complaint in
accordance with this order, plaintiff must file an amended
complaint no later than April 7, 2017.
February 20, 2015, plaintiff Amal Pujol resigned from the
United States Department of Veterans Affairs
(“defendant” or “the VA”) because of
an allegedly intolerable working environment. On May 31,
2016, having completing the Equal Employment Opportunity
Commission (“EEOC”) administrative process, Pujol
received a right to sue. Compl. (Dkt. 1) ¶¶ 47-52.
On August 26, 2016, Pujol filed a complaint against the VA,
alleging sex discrimination, sexual harassment, disability
harassment, retaliation, and constructive discharge. The VA
moves to dismiss five of Pujol's six claims, contending
each is either time barred or insufficiently pled.
Pujol began working at the VA's Martinez facility in June
2014 and by August 2014 she began noticing that her immediate
supervisor Dickey Alfred regularly used the word
“bitch.” Compl. ¶¶ 9-16. Alfred
referred to female employees as “bitches, ”
remarking how “bitches” were “always
complaining.” Id. ¶ 15. Pujol asked
Alfred to stop using inappropriate language, telling him it
made her uncomfortable. Decl. Press, Ex. B (Dkt. 16-2),
Employment Discrimination Complaint, at 9. Explaining that
he was just “joking, ” Alfred dismissed
Pujol's concerns and the conduct continued. Id.
November 2014, at a Veterans Day event, Alfred commented
about a woman's rear end and about her underwear. Compl.
¶¶ 17. Pujol told Alfred his comment was offensive
and walked away. Id. Pujol also approached Alfred
about her co-worker Robert Kelly, asking Alfred to tell Kelly
to stop coming by her office. Id. ¶ 19. During
the workday, Pujol alleges that Kelly would approach her,
call her pretty, and tell her that he liked the smell of her
perfume. Id. ¶ 18. Kelly told Pujol that if he
were not married, she would be his girlfriend. Id.
In mid-November 2014, the comments crossed the line into
contact. Id. ¶ 24. As Pujol tied her shoe,
Kelly bumped into her from behind, telling her he liked her
rear end. Id. Alfred learned about the incident, but
declined to investigate. Id. ¶ 16. He also
declined to tell Kelly to stop approaching Pujol, despite
witnessing Kelly's unwanted advances firsthand.
Id. ¶ 19.
Pujol complained about Alfred's conduct, she alleges that
Alfred treated her worse than male employees. Id.
¶ 20. Pujol's co-workers Jonathan Maltez and Carlton
Emmons were allowed schedule changes, whereas Alfred refused
to grant Pujol a schedule change. Id. Alfred also
reduced Pujol's authority and assigned her menial tasks,
preventing her from overseeing employees and requiring that
she clean the restrooms. Id. ¶ 21.
Plaintiff's male co-workers were not treated in this
manner. See Id. During September 2014 employee
evaluations, Alfred gave all male employees who had worked
the same time period as Pujol “outstanding
reviews.” Id. ¶ 23. Pujol received a
review of “fully satisfactory.” Id.
November 25, 2014, Pujol met with Alfred to discuss
scheduling. Id. ¶ 27. Pujol wanted to take a
few days off once her sister went into labor. Decl. Elmore,
Ex. 1 (Dkt. 20-2) at 3. Alfred closed his office door and
began yelling at Pujol. Compl. ¶ 27. He told her that
she took too much time off and that she brought her personal
issues to work. Id. ¶ 28. Alfred told her that
she had already taken too much time off to care for her
daughter, that she needed to manage her schedule with her
husband, and that he would not grant her additional leave to
care for her daughter. Id. Pujol told Alfred that
she felt he was harassing her. Id. Alfred told Pujol
to quit if she felt that way. Id.
December 24, 2014, Pujol was working with Marcos Troche when
Alfred came down the hall. Id. ¶ 31. Unaware of
Pujol, Alfred asked Troche, “[w]here is your
[expletive] boss?” Id. Troche asked,
“Who are you talking about?” Id. Alfred
said, “Amal. She wants to go [expletive] cry about
being the boss. Where is she at?” Id. Troche
pointed out that Pujol was standing nearby. Id.
this incident, Pujol contacted her secondary supervisor
Roberto Welsh to express concerns that Alfred's conduct
was creating a hostile work environment. Id. ¶
32. Welsh told Pujol she was being “very
emotional” and should “calm down.”
Id. Subsequently, Welsh and Pujol met with Human
Resources to discuss Pujol's concerns. Id.
¶ 33. The meeting produced a solution: Pujol would
receive a new office and would begin reporting directly to
Welsh. Id. Pujol agreed to the plan and went on
“stress leave” while the changes were made.
Id. ¶ 34.
her leave, Pujol had to submit time sheets in the office.
Id. ¶ 35. When she submitted her January time
sheet, Pujol learned that her new office was three doors from
Alfred's. Id. ¶ 36. Pujol also discovered
that the only furniture in her new office was a barstool.
Id. ¶ 37. On February 9, 2015, Pujol's
co-worker Jonathan Maltez told Pujol that her office remained
unfurnished. Id. ¶ 38. He also told her that
Alfred had a key to her new office. Id. On February
16, 2015, Pujol contacted Welsh about her concern that she
would be returning to a hostile workplace. Id.
¶ 39. Welsh told Pujol her claims had been addressed.
Id. On February 20, 2015, Pujol learned that her
office still had no furniture and contacted Welsh.
Id. ¶ 40. Welsh repeated that Pujol's
concerns had been addressed. Id. Feeling that she
had run out of options, she resigned that day. Id.
February 20, 2015, Pujol resigned from the VA. Compl. ¶
41. On April 3, 2015, Pujol contacted the VA Office of
Resolution Management (“ORM”) for counseling.
Decl. Press, Ex. A (Dkt. 16-1) at 2. She met in person with a
VA counselor on April 6, 2015 to discuss her harassment
claims. Id. She received a right to file an
administrative complaint on May 6, 2015 and she filed a
complaint on May 21, 2015. Compl. ¶¶ 48-49. On May
31, 2016, Plaintiff received the VA Agency Decision.
Id. ¶ 52. The decision granted plaintiff
permission to file a civil lawsuit. On August 26, 2016,
plaintiff filed this suit against the VA.
asks that the Court take judicial notice of an EEOC Counselor
Report and a Complaint of Employment Discrimination that were
produced during plaintiff's proceedings with the ORM.
See Mot. (Dkt. 15) at 8 & n.2. A court may take
judicial notice of matters of public record, including
administrative records. Barron v. Reich, 13 F.3d
1370, 1377 (9th Cir. 1994). Furthermore, for purposes of a
motion to dismiss, a court may consider a document if
“the complaint necessarily relies upon [the] document
or the contents of the document are alleged in a complaint,
the document's authenticity is not in question and there
are no disputed issues as to the document's
relevance.” Coto Settlement v. Eisenberg, 593
F.3d 1031, 1038 (9th Cir. 2010).
plaintiff's complaint necessarily relies on the EEOC
Counselor report to assert that plaintiff timely exhausted
her administrative remedies. Plaintiff's complaint also
expressly references the administrative complaint she filed
with the Department of Veterans Affairs Regional EEO Office.
Compl. ¶ 49. Plaintiff does not oppose judicial notice