Killeen v. Spencer, No. 3:2018cv01590 - Document 11 (S.D. Cal. 2019)
Court Description: ORDER Granting 4 Defendant's Motion to Dismiss and Granting Plaintiff Leave to Amend. The Court also grants Plaintiff leave to amend. Her First Amended Complaint is due by August 31, 2019. Signed by Judge Anthony J. Battaglia on 8/7/2019. (jao)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Lilian Killeen, Case No.: 3:18-cv-1590-AJB-NLS Plaintiff, 12 13 v. 14 Richard V. Spencer, Secretary of the Department of the Navy, 15 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS AND GRANTING PLAINTIFF LEAVE TO AMEND (Doc. No. 4) Defendant. 16 17 Before the Court is Defendant’s motion to dismiss Plaintiff’s discrimination and 18 retaliation claims under Title VII. (Doc. No. 4.) For the reasons stated herein, the Court 19 GRANTS Defendant’s motion and DISMISSES Plaintiff’s complaint with leave to 20 amend. 21 I. BACKGROUND 22 Plaintiff, a Filipina whose native language is Tagalog, brings this race and national 23 origin discrimination lawsuit against the Navy for reprimanding Plaintiff for speaking her 24 native language while at work. (Doc. No. 1 ¶¶ 16, 17.) Plaintiff alleges Defendant issued 25 her a “Letter of Expectations” which “reprimand[ed] her for the use of ‘language, other 26 than English, with employees when discussing work related tasks and issues.’” (Id. ¶ 16.) 27 Plaintiff states Defendant then directed her and her employees to “‘always use the English 28 language when discussing work topics in the work environment,’” resulting in “a 1 3:18-cv-1590-AJB-NLS 1 discriminatory English-only rule.” (Id.) Plaintiff states she “occasionally used Tagalog 2 with Tagalog-speaking subordinates” to establish “effective communication between her 3 and her subordinates.” (Id. ¶ 17.) Plaintiff asserts Defendant later “issued a blanket 4 prohibition of the use of Tagalog in the workplace.” (Id. ¶ 18.) These acts led Plaintiff to 5 file a complaint with the Equal Employment Opportunity Commission (“EEOC”) alleging 6 “discrimination and reprisal.” (Id. ¶ 20.) Plaintiff states that because of her EEOC 7 complaint, “her supervisor, Maria Pena, . . . retaliated against her” by telling Plaintiff she 8 did not like her, reporting false statements to her supervisor, attempting to sabotage her 9 reputation, giving negative performance reviews, refusing to share information pertinent 10 to her job, failing to give her necessary guidance, and holding meetings with Plaintiff’s 11 subordinates with her. (Id. ¶¶ 21–22.) 12 II. LEGAL STANDARDS 13 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings 14 and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state 15 a claim upon which relief may be granted. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 16 2001). The court may dismiss a complaint as a matter of law for: “(1) lack of a cognizable 17 legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare Dental 18 Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). 19 However, a complaint survives a motion to dismiss if it contains “enough facts to state a 20 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 21 (2007). 22 Notwithstanding this deference, the reviewing court need not accept legal 23 conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for the 24 court to assume “the [plaintiff] can prove facts that [he or she] has not alleged . . . .” 25 Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 26 519, 526 (1983). On the other hand, “[w]hen there are well-pleaded factual allegations, a 27 court should assume their veracity and then determine whether they plausibly give rise to 28 an entitlement to relief.” Iqbal, 556 U.S. at 679. The court only reviews the contents of the 2 3:18-cv-1590-AJB-NLS 1 complaint, accepting all factual allegations as true, and drawing all reasonable inferences 2 in favor of the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). 3 III. DISCUSSION 4 Defendant argues both Plaintiff’s discrimination and retaliations causes of action 5 should be dismissed because (1) Plaintiff cannot meet either element of workplace 6 discrimination; and (2) Plaintiff failed to exhaust her retaliation claim. (Doc. No. 4-1 at 2.) 7 A. 8 Plaintiff’s workplace discrimination claim is based on the allegation that the Navy 9 instituted an English-only policy without any business-necessity justification. (Doc. No. 8 10 at 6–7.) Defendant asserts “a workplace policy that requires employees to use a common 11 language for business purposes is not discrimination. . . .” (Doc. No. 4-1 at 6.) Plaintiff 12 argues the EEOC has held that an employer may institute an English-only workplace rule, 13 but only when justified by a “business necessity.” (Doc. No. 8 at 6.) Plaintiff asserts none 14 was provided here. Workplace Discrimination Claim 15 The Ninth Circuit has refused to find that, as a matter of law, an English-only policy 16 will always amount to a hostile or abusive work environment. Garcia v. Spun Steak Co., 17 98 F.2d 1480, 1489 (9th Cir. 1993). In doing so, the Ninth Circuit “reach[ed] a conclusion 18 opposite to the EEOC’s long standing position.” Id. at 1489. The Court stated, “[t]he EEOC 19 Guidelines provide that an employee meets the prima facie case in a disparate impact cause 20 of action merely by proving the existence of the English-only policy. . . . Under the EEOC’s 21 scheme, an employer must always provide a business justification for such a rule.” Id. Yet, 22 the Court held that “the enactment of an English-only while working policy does not 23 inexorably lead to an abusive environment for those whose primary language is not 24 English.” Id. Rather, the Ninth Circuit held that “a plaintiff in a disparate impact case must 25 prove the alleged discriminatory effect before the burden shifts to the employer. The EEOC 26 Guideline at issue here contravenes that policy by presuming that an English-only policy 27 has a disparate impact in the absence of proof.” Id. at 1490. 28 Here, Plaintiff has not alleged any discriminatory effects from the Navy’s English3 3:18-cv-1590-AJB-NLS 1 only policy. Nor has Plaintiff alleged the decision to speak Tagalog was one of necessity 2 versus convenience. See Andrews v. PRIDE Industries, No. 2:14-cv-02154-KJM-AC, 2017 3 WL 119803, at *12 (E.D. Cal. Jan 12, 2017) (“a reasonable juror could find Mr. Andrews’ 4 decision to speak with monolingual members of his service crews was made out of 5 ‘necessity’ rather than ‘individual preference’[ ] because evidence of record suggests other 6 employees, including PRIDE managers and supervisors, could not effectively 7 communicate the tasks of the job to these crew members.”). The PRIDE Industries Court 8 held that in the circumstances of that case the prohibition on speaking Spanish, “also 9 amounted to racial discrimination against Mr. Andrews’ monolingual Spanish speaking co- 10 workers, which itself in turn interfered with Mr. Andrews’ ‘personal right to work in an 11 environment unaffected by racial discrimination.’” Id. at *12 (quoting Spun Steak, at 1488). 12 Plaintiff states she used Tagalog with Tagalog-speaking subordinates, but does not claim 13 they only spoke Tagalog, or that communication English-only communication was 14 otherwise difficult. 15 Without any additional allegations, Plaintiff cannot sustain a discrimination case on 16 the sole fact that an English-only policy was instituted. Accordingly, the Court GRANTS 17 Defendant’s motion to dismiss this claim. 18 B. 19 Defendant alleges Plaintiff cannot establish jurisdiction in this Court because she did 20 not exhaust her administrative remedies. (Doc. No. 4-1 at 11.) Defendant also alleges 21 Plaintiff fails to plead essential facts. (Id. at 12.) Retaliation Claim 22 A plaintiff litigating a Title VII claim in a federal district court is required to exhaust 23 his or her administrative remedies. Greenlaw v. Garrett, 59 F.3d 994, 997 (9th Cir. 1995) 24 (citing Brown v. General Services Administration, 425 U.S. 820, 832 (1976)). This includes 25 regulatory and judicially imposed exhaustion requirements. Id. Generally, a Title VII 26 complainant must first file a complaint with the EEOC within 180 days of the alleged 27 violation. 29 C.F.R. § 1601.13(a)(1). “If the EEOC does not bring suit based on the charge, 28 the EEOC must ‘notify the person aggrieved’ that she can file suit.” Surrell v. Cal. Water 4 3:18-cv-1590-AJB-NLS 1 Serv. Co., 518 F.3d 1097, 1104 (9th Cir. 2008) (citing 42 U.S.C. § 2000e-5(f)(1)). This 2 notice is usually given in the form of a “right-to-sue letter”; “once a person receives an 3 EEOC right-to-sue letter, she has 90 days to file suit.” Id. 4 Plaintiff, in response, states she filed a second “Complaint of Discrimination and 5 Reprisal on November 17, 2017.” (Doc. No. 8 at 10–11.) Attached to her response are the 6 EEOC charges. (Doc. No. 8-1, Ex. B, at 21–37.) Defendant replies, arguing that Plaintiff’s 7 response “does not provide essential jurisdictional facts or notice as to retaliatory acts.” 8 (Doc. No. 9 at 5.) Moreover, Defendant notes that the retaliatory acts Plaintiff does allege 9 in her complaint omits basic details such as “when the alleged act occurred, its relation to 10 which EEOC complaint, whether the supervisor had knowledge of that EEOC complaint, 11 or even what guidance was withheld.” (Doc. No. 4-1 at 13.) The Court agrees. While 12 Exhibit B contains specific detailed information, such information should be pleaded in the 13 complaint—not attached as an Exhibit to an opposition to a motion to dismiss. 14 C. 15 Courts are instructed to freely grant leave to amend when justice requires. Fed. R. 16 Civ. P. 15(a). The Court believes Plaintiff could cure the jurisdictional and factual 17 deficiencies regarding her claims in an amended complaint. Accordingly, the Court 18 GRANTS LEAVE TO AMEND. Leave to Amend 19 IV. CONCLUSION 20 The Court GRANTS Defendant’s motion to dismiss finding Plaintiff failed to allege 21 that there were any discriminatory acts alleged beyond an English-only policy, and finding 22 Plaintiff fails to allege exhaustion of her retaliation claims with the EEOC. (Doc. No. 7.) 23 The Court also GRANTS Plaintiff leave to amend. Her First Amended Complaint is due 24 by August 31, 2019. 25 26 IT IS SO ORDERED. Dated: August 7, 2019 27 28 5 3:18-cv-1590-AJB-NLS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 3:18-cv-1590-AJB-NLS
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
