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Pujol v. McDonald

United States District Court, N.D. California

March 21, 2017

AMAL PUJOL, Plaintiff,
v.
ROBERT A. MCDONALD, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITH PARTIAL LEAVE TO AMEND RE: DKT. NO. 15

          SUSAN ILLSTON United States District Judge.

         Now 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.

         BACKGROUND

         On 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.

         I. Factual Background

         Amal 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.[1] Explaining that he was just “joking, ” Alfred dismissed Pujol's concerns and the conduct continued. Id.

         In 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.

         After 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.

         On 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.

         On 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.

         After 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.

         During 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. ¶ 41.

         II. Procedural Background

         On 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.

         III. Judicial Notice

         Defendant 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).

         Here, 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 of ...


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