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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

9 JILL GHIANNI, ) Case No.: 24-cv-2332-BEN-KSC 10 ) Plaintiff, 11 ) ORDER GRANTING MOTION TO v. ) DISMISS WITH LEAVE TO AMEND 12 UNITED STATES POSTAL SERVICE, ) BRYAN IVORY, and DAVID STEINER, 13 ) Defendant. ) 14 ) 15 16 I. INTRODUCTION 17 Before the Court is Defendants’ Motion to Dismiss. Having reviewed the motion, 18 Plaintiff's opposition, Defendants’ reply, and the relevant legal authorities, the Court 19 hereby GRANTS the motion with leave to amend for the reasons set forth below. 20 II. BACKGROUND 21 Plaintiff Jill Ghianni, an employee of the United States Postal Service (“USPS”), 22 brings this action alleging systematic discrimination and retaliation in violation of Title 23 VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 24 A. Factual allegations 25 According to the Complaint, beginning in 2013, Plaintiff alleges that despite 26 passing a USPS supervisor examination, she was repeatedly denied promotions. She 27 alleges younger and less experienced male employees received promotions instead. 28 (Compl. ¶¶ 14-15). 1 From 2013 through 2020, Plaintiff also alleges that a coworker, Michael Oliver, 2 made false accusations against her and engaged in workplace sabotage. She alleges that 3 USPS supervisors knew of his conduct but did not take corrective action. (Id. ¶¶ 16-19). 4 In 2020, Plaintiff alleges she was transferred to a facility where named Defendant 5 Bryan Ivory served as Station Manager. She alleges in her Complaint that Ivory engaged 6 in conduct she perceived as sexually inappropriate and assigned her physically 7 demanding tasks after she rejected his romantic advances. She further claims that Ivory 8 subsequently altered her pay and work schedule. (Id. ¶¶ 30-37). 9 Plaintiff asserts that she filed EEO complaints and that afterwards Ivory’s conduct 10 intensified and ultimately led to her termination in July 2022 (for alleged attendance 11 violations). USPS later reversed the termination, but she contends the remedy was 12 insufficient. (Id. ¶¶ 39-45). 13 B. Procedural History 14 Plaintiff first contacted an EEO counselor on September 3, 2021, and filed a formal 15 EEO complaint in July 2022. The agency issued a partial acceptance and dismissal letter 16 on August 23, 2022, and the EEOC Office issued its Final Agency Decision on 17 September 9, 2024. Plaintiff subsequently filed this federal court action. 18 III. LEGAL STANDARD 19 A. Improper Defendants 20 In federal employment discrimination claims, the only proper defendant is the head 21 of the employing federal agency in their official capacity. Title 42 U.S.C. § 2000e-16(c) 22 mandates this; individual supervisors and the employing agency itself are improper 23 defendants. Congress’s strict waiver of sovereign immunity confines these claims to 24 actions against agency heads, simplifying litigation by avoiding multiple defendants and 25 conflicting legal theories. Thus, neither Bryan Ivory nor the USPS itself are proper 26 defendants. See Romain v. Shear, 799 F.2d 1416, 1418 (9th Cir. 1986); Anderson v. 27 United States Postal Serv., No. LA 23-CV-09399-MWC (JPRX), 2025 WL 575353, at *3 28 (C.D. Cal. Feb. 18, 2025) (dismissing all defendants but Postmaster General citing 1 Romain). Therefore, the United States Postal Service and Bryan Ivory are dismissed. 2 The sole remaining defendant is Postmaster General David Steiner (appointed July 15, 3 2025). 4 B. Rule 12(b)(6) Standard 5 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint.1 6 The Court accepts plausible factual allegations as true and construe them in the light most 7 favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[F]or a 8 complaint to survive a motion to dismiss, the non-conclusory factual content, and 9 reasonable inferences from that content, must be plausibly suggestive of a claim entitling 10 the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) 11 (internal quotation marks omitted). 12 C. Exhaustion of Administrative Remedies 13 Federal employees must exhaust administrative remedies before filing a Title VII 14 suit. Boswell v. McDonough, No. 25-cv-1769-RSH-AHG, 2025 WL 2200740, at *2 15 (S.D. Cal. Aug. 1, 2025) (“Before a federal employee may bring a claim in court under 16 Title VII for discrimination or retaliation, the employee must first seek administrative 17 relief within the agency responsible for the alleged discrimination.”). Exhaustion 18 requires contacting an EEO counselor within 45 days of an alleged discriminatory act. 29 19 C.F.R. § 1614.105(a)(1). The continuing violation doctrine, however, permits 20 consideration of otherwise time-barred acts that are part of an ongoing pattern of 21 22

23 1 On a motion to dismiss, courts may, but are not required to, consider documents 24 incorporated by reference into the complaint and matters of public record. Coto 25 Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010) (citing Intri-Plex Tech., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007)). Courts do not take judicial 26 notice of disputed facts contained in public records. Lee v. City of Los Angeles, 250 F.3d 27 668, 689 (9th Cir. 2001), overruled on other grounds by 307 F.3d 1119, 1125–26 (9th Cir. 2002). 28 1 discrimination, provided at least one act falls within the limitations period. Nat’l R.R. 2 Passenger Corp. v. Morgan, 536 U.S. 101, 117-18 (2002).2 3 Under Morgan, courts distinguish between discrete acts—such as termination, 4 failure to promote, refusal to hire, or denial of transfer—and hostile work environment 5 claims. 536 U.S. at 114-15. Discrete acts are separate unlawful employment practices 6 that must be individually exhausted. Id. at 114. In contrast, where a hostile work 7 environment is alleged, if any act contributing to the work environment occurs within the 8 filing period, the court may consider the entire period of alleged harassment, not just the 9 period immediately preceding the filing. Id. at 117. The Ninth Circuit has limited the 10 continuing violation doctrine following the Morgan decision, holding that the doctrine 11 remains viable only in narrow contexts such as hostile work environments and systemic 12 policy claims—not for discrete acts. Bird v. State of Hawaii, 935 F.3d 738, 746 (9th Cir. 13 2019)3; Cherosky v. Henderson, 330 F.3d 1243, 1246-47 (9th Cir. 2003). 14 15 16 2 “It is precisely because the entire hostile work environment encompasses a single 17 unlawful employment practice that we do not hold, as have some of the Circuits, that the plaintiff may not base a suit on individual acts that occurred outside the statute of 18 limitations unless it would have been unreasonable to expect the plaintiff to sue before 19 the statute ran on such conduct. The statute does not separate individual acts that are part of the hostile environment claim from the whole for the purposes of timely filing and 20 liability. And the statute does not contain a requirement that the employee file a charge 21 prior to 180 or 300 days “after” the single unlawful practice “occurred.” Given, therefore, that the incidents constituting a hostile work environment are part of one 22 unlawful employment practice, the employer may be liable for all acts that are part of this 23 single claim. In order for the charge to be timely, the employee need only file a charge within 180 or 300 days of any act that is part of the hostile work environment.” Nat'l 24 R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117–18 (2002). 25 3 “[A]fter Morgan [ ], little remains of the continuing violations doctrine. Except for a limited exception for hostile work environment claims—not at issue here—the serial acts 26 branch is virtually non-existent. Moreover, while we have left room for the systematic 27 branch to apply to class-wide pattern-or-practice claims . . . we have consistently refused to apply the systematic branch to rescue individualized claims that are otherwise time- 28 1 Incidents not specifically listed in an administrative complaint may still be 2 considered if they are “like or reasonably related” to properly exhausted allegations. 3 Shelley v. Geren, 666 F.3d 599, 605-06 (9th Cir. 2012) (quoting Green v. Los Angeles 4 County Superintendent of Schools, 883 F.2d 1472, 1476 (9th Cir. 1989)). The key 5 inquiry is whether the original EEOC investigation would have encompassed the 6 additional claims. Id. 7 IV. ANALYSIS 8 Defendant seeks partial dismissal on a number of grounds. With good reason. 9 Plaintiff’s Complaint presents numerous allegations and EEO exhaustion. But the prolix 10 Complaint could better specify which of the alleged acts support which of the five 11 enumerated claims (or for that matter, if she intends to pursue other non-enumerated 12 claims for relief). For example, Plaintiff mentions several times that she was 13 discriminated against on the basis of her age in violation of the Age Discrimination in 14 Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. However, all five of the 15 enumerated claims for relief are only presented in terms of Title VII violations. 16 Moreover, while she makes passing references to age discrimination, she does not allege 17 all of the acts necessary to plausibly claim all of the essential elements of an ADEA 18 claim.4 If Plaintiff intended to assert a claim that her ADEA rights were violated, she 19 must set out the claim more clearly, in accordance with F.R.C.P. Rule 10(b).5 20

21 4 Plaintiff repeats the conclusion that she was discriminated against in favor of younger 22 employees. However, she does not allege names of younger employees, dates of 23 discrimination, positions that younger employees of similar skills and abilities were promoted to, or other specific benefits Plaintiff did not receive that younger employees 24 enjoyed. 25 5 F.R.C.P. Rule 10(b) states, “A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later 26 pleading may refer by number to a paragraph in an earlier pleading. If doing so would 27 promote clarity, each claim founded on a separate transaction or occurrence--and each defense other than a denial--must be stated in a separate count or defense.” 28 1 Defendant also seeks partial dismissal based on the assertion that some incidents 2 are either time barred or unexhausted. Once again, the Complaint offers a longitudinal 3 narrative of mistreatment, but it does not make plain the acts (or series of acts) of alleged 4 discrimination in relation to the EEOC charges actually pursued that satisfy the 5 exhaustion requirement. The lack of specificity with regard to exhaustion of remedies 6 has led Defendant to throwing up his hands and asking for dismissal of “any incident of 7 discrimination, or retaliation not administratively exhausted.” 8 In this vein, Defendant seeks to add the administrative record of proceedings below 9 and then ask the Court to parse the proceedings -- hunting for violations not included in 10 the record to dismiss from the case. Scouting through the record may be a necessary task 11 for summary judgment or trial, but at this early stage of litigation, the Court declines the 12 invitation. Plaintiff has alleged and identified two EEOC complaints upon which she 13 relies for exhaustion of her claims. For now, it is enough. See e.g., B.K.B. v. Maui Police 14 Department, 276 F.3d 1091, 1099 (9th Cir. 2002), abrogated, in part, by Fort Bend Cty., 15 Texas v. Davis, 587 U.S. 541 (2019)) (noting that on summary judgment EEOC charges 16 must be liberally construed and exhaustion turns on whether claims are reasonably related 17 to those filed); Porter v. California Department of Corrections, 419 F.3d 885, 893 (9th 18 Cir. 2005) (reviewing summary judgment on whether Title VII claims were time-barred).6 19 After all, “[t]he exhaustion analysis often turns on what is asserted in the EEOC charge, 20 which must be construed ‘with utmost liberality since [it is] made by those unschooled in 21 the technicalities of formal pleading.’” Yonemoto v. Shinseki, 3 F. Supp. 3d 827, 841 (D. 22

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24 6 “As the Supreme Court emphasized, ‘discrete discriminatory acts are not actionable if 25 time barred, even when they are related to acts alleged in timely filed charges.’ Consequently, we refuse to mix recent discrete acts like tinder with the planks of ancient 26 sexual advances and then, regardless of whatever it was that set the spark in the furnace, 27 call the fire that ignites therefrom a hostile environment. If the flames of an allegedly hostile environment are to rise to the level of an actionable claim, they must do so based 28 1 Haw. 2014) (analyzing EEOC exhaustion on summary judgment) (quoting B.K.B., 276 2 F.3d at 1101). 3 Tacking a different tack, Defendant contends that discrete allegedly discriminatory 4 acts (such as Plaintiff’s denial of promotion), which occurred before July 20, 2021, are 5 time-barred.7 Once again, parsing the Complaint and the administrative record to filter 6 and strain out particular acts as time-barred is a task better suited to summary judgment 7 or trial. “In determining whether a claim is timely, there is a distinction between discrete 8 acts of discrimination and/or retaliation, versus hostile work environment claims. A 9 discrete act consists of an unlawful practice that ‘occurred’ on the day it ‘happened,’ 10 which includes, for example, ‘termination, failure to promote, denial of transfer, or 11 refusal to hire.’” Yonemoto, at 842 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 12 U.S. 101, 111, 114 (2002)). 13 Plaintiff here makes both types of claims: discrete acts claims and hostile work 14 environment claims. Hostile work environment claims are different in kind from discrete 15 acts, because they are based on the cumulative effect of individual acts and occur over 16 time.8 Consequently, a hostile work environment claim may be exhausted and timely in 17 direct contrast to a single act of harassment that may not be actionable on its own. Id. 18

19 7 (45 days before Plaintiff's September 3, 2021, EEO contact) 20 8 The Ninth Circuit emphasizes the importance of both frequency and severity in 21 evaluating hostile work environment claims. See Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 871 (9th Cir. 2001). The conduct alleged here—including sexually explicit 22 behavior by a supervisor and retaliation following Plaintiff’s rejection of advances—falls 23 within the scope of actionable harassment under Title VII. In Freitag v. Ayers, the Ninth Circuit held that persistent sexual misconduct and management’s failure to respond could 24 support a Title VII claim. 468 F.3d 528, 539-40 (9th Cir. 2006). Similarly, Plaintiff 25 alleges sustained, unwelcome sexual conduct by her supervisor and that USPS management failed to act despite knowledge of the behavior. Plaintiff alleges tangible 26 actions, including altered schedules, increased scrutiny, and termination. Plaintiff also 27 claims Ivory retaliated after she rejected his advances by modifying her schedule, micromanaging her, and undermining her position. These allegations could present a 28 1 || While discrete acts might ordinarily fall outside a limitations period, they may be 2 || considered if part of a related series of actions continuing into the filing period. (For 3 |}example, Plaintiff's claims of ongoing harassment by supervisors Ivory and Collado— 4 || culminating in her 2022 termination— may support a plausible inference of a continuing 5 || violation.) Because the Complaint alleges timely administrative exhaustion and facts 6 || plausibly alleging continuing violations, dismissal of particular acts on the basis of being 7 time-barred, at this stage of the litigation is premature. Whether Plaintiff can prove her 8 ||claims later is best resolved after discovery. 9 Vv. CONCLUSION 10 1. The USPS and Bryan Ivory are DISMISSED as improper defendants. Only claims 11 against U.S. Postmaster General David Steiner, in his official capacity, remain. 12 2. Any nascent claims asserting age, race, or gender discrimination are dismissed for 13 failure to comply with the pleading requirements of FRCP Rule 10(b). 14 3. Plaintiff may file an amended complaint within 21 days. 15 4. The U.S. Postmaster General shall file an answer or otherwise plead within 60 days 16 of the filing of an amended complaint. 17 IT IS SO ORDERED. , 18 || DATED: August 8, 2025 lyin, 19 HON. ROGER BENITEZ □ 0 United States District Judge 21 22 23 24 25 26 27 28 _Q.