Case 2:21-cv-08697-RSWL-RAO Document 29 Filed 06/15/22 Page 1 of 12 Page ID #:130 'O' 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 CV 21-08697-RSWL-RAOx 11 ARIANA K. WILLIAMS,

12 Plaintiff, ORDER re: Defendant’s 13 v. Motion to Dismiss [21] 14 ROBERT L. SANTOS, in his 15 official capacity as Director of the U.S. 16 Census Bureau, 17 Defendant. 18 19 Plaintiff Ariana K. Williams (“Plaintiff”) brings 20 this Action against Defendant Robert L. Santos 21 (“Defendant”), in his capacity as Director of the United 22 States Census Bureau (“USCB”), alleging discrimination, 23 harassment, and retaliation under the Rehabilitation 24 Act. Currently before the Court is Defendant’s Motion 25 to Dismiss [21] for failure to state a claim (“Motion”). 26 Having reviewed all papers submitted pertaining to this 27 Motion, the Court NOW FINDS AND RULES AS FOLLOWS: the 28 Court GRANTS the Motion with leave to amend. 1 Case 2:21-cv-08697-RSWL-RAO Document 29 Filed 06/15/22 Page 2 of 12 Page ID #:131

1 I. BACKGROUND

2 A. Factual Background

3 The Complaint alleges the following: 4 Plaintiff suffers from disabilities including post- 5 traumatic stress disorder, chronic inflammatory response 6 syndrome, and tenosynovitis. First Am. Compl. (“FAC”) 7 ¶ 17, ECF No. 20. Plaintiff was hired as an 8 administrative clerk by USCB on February 4, 2020. Id. 9 ¶ 14. On her first day of employment, Plaintiff 10 requested an accommodation for an earpiece from her 11 supervisor. Id. ¶ 20. Her request was denied, and 12 Plaintiff was informed that all coworkers had to share 13 earpieces. Id. Plaintiff also required sufficient air 14 circulation throughout the office, but USCB failed to 15 maintain sufficient ventilation. Id. ¶¶ 21-26. 16 Plaintiff was also harassed by one of her supervisors 17 throughout February and March 2020. Id. ¶¶ 32-38. 18 On March 17, 2020, Plaintiff received a doctor’s 19 note that ordered her off work through April 17, 2020, 20 due to her breathing condition. Id. ¶ 27. On May 4, 21 2020, Plaintiff’s doctor provided Plaintiff with a new 22 off-work order through September 16, 2020. Id. ¶ 29. 23 On June 22, 2020, Plaintiff emailed her supervisor 24 regarding her request for employment verification for 25 state disability insurance but received no response. 26 Id. ¶ 30. On June 23, 2020, Plaintiff learned she had 27 been terminated on May 26, 2020, while she was on 28 disability leave. Id. ¶¶ 31, 40. The reason for 2 Case 2:21-cv-08697-RSWL-RAO Document 29 Filed 06/15/22 Page 3 of 12 Page ID #:132

1 Plaintiff’s termination was her disabilities, her

2 requests for accommodation, and her complaints about the

3 harassment she experienced. Id. ¶ 41. 4 After learning of her termination and believing it 5 to be in error, Plaintiff called USCB and was routed to 6 the regional office. Id. ¶ 6. The regional office 7 informed her that it could not release any information 8 to her because she was not an active employee. Id. The 9 office therefore failed to explain why she was 10 terminated and also failed to inform her that she should 11 call the EEO office if she believed her termination was 12 wrongful. Id. 13 After realizing that USCB’s regional office would 14 not provide her with adequate information, but within 15 the 45-day requisite notice period, Plaintiff attempted 16 to contact the office for the Equal Employment 17 Opportunity Commission (“EEOC”). Id. ¶ 7. Apparently 18 the EEO office phone number was not being answered due 19 to the COVID-19 pandemic. Id. No one from the EEO 20 office ever followed up with Plaintiff despite her 21 numerous attempts to contact them. Id. Plaintiff filed 22 a formal complaint of employment discrimination against 23 the Department of Commerce on January 22, 2021, which 24 was dismissed on August 9, 2021. Id. ¶ 8. 25 B. Procedural Background 26 Plaintiff filed her Complaint [1] on November 3, 27 2021. Plaintiff then filed her First Amended Complaint 28 (“FAC”) [20] on April 4, 2022. Defendant filed the 3 Case 2:21-cv-08697-RSWL-RAO Document 29 Filed 06/15/22 Page 4 of 12 Page ID #:133

1 instant Motion [21] on April 18, 2022. Plaintiff filed

2 its Opposition [23] three days after the deadline to

3 oppose on May 6, 2022. Defendant replied [27] on May 4 10, 2022. 5 II. DISCUSSION 6 A. Legal Standard 7 Rule 12(b)(6) of the Federal Rules of Civil 8 Procedure allows a party to move for dismissal of one or 9 more claims if the pleading fails to state a claim upon 10 which relief can be granted. A complaint must “contain 11 sufficient factual matter, accepted as true, to state a 12 claim to relief that is plausible on its face.” 13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation 14 omitted). Dismissal is warranted for a “lack of a 15 cognizable legal theory or the absence of sufficient 16 facts alleged under a cognizable legal theory.” 17 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 18 (9th Cir. 1988) (citation omitted). 19 In ruling on a 12(b)(6) motion, a court may 20 generally consider only allegations contained in the 21 pleadings, exhibits attached to the complaint, and 22 matters properly subject to judicial notice. Swartz v. 23 KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). A court 24 must presume all factual allegations of the complaint to 25 be true and draw all reasonable inferences in favor of 26 the non-moving party. Klarfeld v. United States, 944 27 F.2d 583, 585 (9th Cir. 1991). However, the court need 28 not accept as true allegations that contradict matters 4 Case 2:21-cv-08697-RSWL-RAO Document 29 Filed 06/15/22 Page 5 of 12 Page ID #:134

1 properly subject to judicial notice. Sprewell v. Golden

2 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

3 While a complaint need not contain detailed factual 4 allegations, a plaintiff must provide more than “labels 5 and conclusions” or “a formulaic recitation of the 6 elements of a cause of action.” Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 555 (2007). 8 B. Analysis 9 1. Request for Judicial Notice 10 “A court may judicially notice a fact that is not 11 subject to reasonable dispute because it . . . can be 12 accurately and readily determined from sources whose 13 accuracy cannot reasonably be questioned.” Fed. R. 14 Evid. 201. Accordingly, a court may judicially notice 15 matters of public record. Lee v. City of Los Angeles, 16 250 F.3d 668, 688-90 (9th Cir. 2001). In ruling on a 17 motion to dismiss, a court may also consider documents 18 that a plaintiff’s complaint necessarily relies on if 19 the authenticity of the document is uncontested. Id. at 20 688. 21 Defendant requests that the Court take judicial 22 notice of the Final Agency Decision from Plaintiff’s EEO 23 proceeding. See Def.’s Req. for Judicial Notice in 24 Supp. of Mot. to Dismiss, ECF No. 21-1; Halliday Decl. 25 Ex. 1 (“Final Agency Decision”), ECF No. 21-2. 26 Plaintiff necessarily relies on this document in the FAC 27 to show that she exhausted her administrative remedies 28 through the EEO process. See FAC ¶ 8. Further, 5 Case 2:21-cv-08697-RSWL-RAO Document 29 Filed 06/15/22 Page 6 of 12 Page ID #:135

1 Plaintiff does not contest that the document Defendant

2 submitted is in fact the Final Agency Decision from

3 Plaintiff’s EEO case. The Court therefore GRANTS 4 Defendant’s request. See Hamm v. Nielson, No. CV 18- 5 5702 PSG (JPRx), 2019 WL 3000656, at *3 (C.D. Cal. Mar. 6 29, 2019) (taking judicial notice of administrative EEO 7 proceedings); Lacayo v. Donahoe, No. 14-cv-4077-JSC, 8 2015 WL 993448, at *10 (N.D. Cal. Mar. 4, 2015) (same). 9 2. The Motion 10 “In order to bring a claim under the Rehabilitation 11 Act, a federal employee must exhaust available 12 administrative remedies.” Cherosky v. Henderson, 330 13 F.3d 1243, 1245 (9th Cir. 2003). A federal employee 14 seeking to bring a claim for disability discrimination 15 must therefore participate in the EEOC’s counselling 16 process prior to filing a complaint. 29 C.F.R. 17 § 1614.105(a). The aggrieved person must initiate 18 contact with an EEO counselor “within 45 days of the 19 date of the matter alleged to be discriminatory or, in 20 the case of personnel action, within 45 days of the 21 effective date of the action.” Id. § 1614.105(a)(1). 22 The Ninth Circuit has held that “[f]ailure to comply 23 with this regulation is fatal to a federal employee’s 24 discrimination claim.” Cherosky, 330 F.3d at 1245 25 (internal quotation marks and citation omitted). 26 It is clear that Plaintiff did not initiate contact 27 with an EEO counselor within 45 days of her termination. 28 Plaintiff was terminated on May 26, 2020, see FAC ¶ 40, 6 Case 2:21-cv-08697-RSWL-RAO Document 29 Filed 06/15/22 Page 7 of 12 Page ID #:136

1 and Plaintiff does not dispute that she did not

2 successfully initiate contact with an EEO counselor

3 until December 17, 2020, see Final Agency Decision at 3; 4 Pl.’s Opp’n to Mot. to Dismiss (“Opp’n”) 5:3-4, ECF No. 5 23. Plaintiff alleges that she was not made aware of 6 her termination until June 23, 2020. FAC ¶ 31. Even if 7 the 45-day period did not begin to run until June 23, 8 2020, however, there was a nearly six-month delay 9 between Plaintiff’s discovery of her termination and her 10 initial EEO contact. Plaintiff therefore failed to 11 timely exhaust her administrative remedies under 12 § 1614.105(a). Nevertheless, Plaintiff argues that her 13 claims are not time-barred for two reasons. See 14 generally Opp’n.1 The Court will address each argument 15 in turn. 16 a. Whether Plaintiff’s Calls to USCB 17 Constitute “Initial Contact” with an EEO 18 Counsellor 19 First, Plaintiff argues that her calls to USCB’s 20 regional office to complain about her wrongful 21 termination constitute “initiating contact” with an EEO 22 counselor under § 1614.105(a). Opp’n 7:18-24. Contact 23 with an agency official who is not EEO personnel may be

24 1 Plaintiff’s Opposition was filed only 18 days before the 25 hearing date on the Motion and is therefore untimely. See C.D. Cal. L.R. 7-9 (requiring opposing papers to be filed not later 26 than 21 days before the date designated for the hearing on the motion). However, in the interests of justice and in the absence 27 of any evidence of undue prejudice to Defendant, the Court will consider the Opposition papers. See Uche-Uwakwe v. Shinseki, 972 28 F. Supp. 2d 1159, 1163 n.4 (C.D. Cal. 2013). 7 Case 2:21-cv-08697-RSWL-RAO Document 29 Filed 06/15/22 Page 8 of 12 Page ID #:137

1 sufficient to satisfy the regulation’s initial contact

2 requirement, so long as the official is “logically

3 connected to the EEO process” within the agency and the 4 complainant exhibits “an intent to begin the EEO 5 process.” See Kraus v. Presidio Tr. Facilities 6 Div./Residential Mgmt. Branch, 572 F.3d 1039, 1044-45 7 (9th Cir. 2009). 8 Here, however, the FAC fails to allege that 9 Plaintiff spoke with any USCB official that was 10 logically connected to the EEO process. It merely 11 states that her calls were routed to USCB’s regional 12 office and that she was informed that her termination 13 information could not be released to her because she was 14 no longer an active employee. See FAC ¶ 6. The FAC 15 also fails to state that Plaintiff placed these calls 16 with the intent of initiating the EEO process. 17 Plaintiff initially contacted USCB to verify her 18 employment for the purpose of obtaining state disability 19 insurance. Id. ¶¶ 5, 30. Plaintiff alleged that she 20 called USCB again, but it is unclear from the FAC 21 whether this call was for the purpose of initiating the 22 EEO process or merely to obtain more information about 23 the termination decision. Id. ¶ 6. 24 Even if Plaintiff’s second call to USCB were 25 sufficient to constitute initial contact with an EEO 26 counselor, the FAC fails to allege when Plaintiff made 27 this call. Thus, it is unclear whether Plaintiff 28 attempted to contact USCB within 45 days of her 8 Case 2:21-cv-08697-RSWL-RAO Document 29 Filed 06/15/22 Page 9 of 12 Page ID #:138

1 termination or her discovery of the termination

2 decision. In sum, Plaintiff’s allegations regarding her

3 attempts to contact USCB fail to satisfy the exhaustion 4 requirements of § 1614.105(a). 5 b. Whether Plaintiff’s Claims Should Be 6 Equitably Tolled 7 Second, the Court considers whether Plaintiff’s 8 claims should be equitably tolled. The exhaustion 9 requirement under § 1614.105 “is subject to waiver, 10 equitable estoppel, and equitable tolling.” Leong v. 11 Potter, 347 F.3d 1117, 1122 (9th Cir. 2003). “Equitable 12 tolling applies when the plaintiff is prevented from 13 asserting a claim by wrongful conduct on the part of the 14 defendant, or when extraordinary circumstances beyond 15 the plaintiff’s control made it impossible to file a 16 claim on time.” Stoll v. Runyon, 165 F.3d 1238, 1242 17 (9th Cir. 1999) (citation omitted). 18 Plaintiff argues that her claims should be 19 considered timely because “she did everything she could 20 to initiate the claims on time.” Opp’n 7:5-6. However, 21 the FAC’s allegations regarding Plaintiff’s exhaustion 22 efforts “are too vague to render it plausible that 23 [Plaintiff] satisfied the requirements of the EEOC.” 24 Hamm, 2019 WL 3000656, at *5. Plaintiff alleges that 25 she attempted to contact the EEO office by phone within 26 the requisite 45-day notice period, but that the number 27 apparently was not being answered because of the state- 28 wide lock down. FAC ¶ 7. However, Plaintiff fails to 9 Case 2:21-cv-08697-RSWL-RAO Document 29 Filed 06/15/22 Page 10 of 12 Page ID #:139

1 allege how she learned that the phone number was not

2 being answered due to the pandemic. She also fails to

3 allege any additional attempts she made to contact the 4 EEO office, such as by leaving a message with a call- 5 back number or by attempting other means of 6 communication. 7 While the COVID-19 pandemic may have presented 8 “extraordinary circumstances beyond Plaintiff’s 9 control,” without additional facts, Plaintiff fails to 10 allege that these circumstances “made it impossible” to 11 initiate EEO contact within the 45-day period. See 12 Stoll, 165 F.3d at 1242; see also Hamm, 2019 WL 3000656, 13 at *5 (finding that plaintiff failed to allege 14 compliance with exhaustion requirements by not 15 explaining “exactly what [p]laintiff did” to initiate 16 EEO contact and what led plaintiff to believe he had 17 fulfilled his exhaustion duties). In sum, Plaintiff’s 18 allegations about her attempts to contact the EEO office 19 do not rise to the level of warranting equitable 20 tolling. 21 Plaintiff also argues that her claims should be 22 equitably tolled because “Defendant cannot make itself 23 unavailable and then claim that Plaintiff failed to 24 reach it.” Opp’n 8:11-12. However, the FAC does not 25 allege any wrongful conduct on the part of Defendant to 26 prevent Plaintiff from initiating contact with an EEO 27 counselor in a timely fashion. At most, USCB failed to 28 direct Plaintiff to the EEO office. This is 10 Case 2:21-cv-08697-RSWL-RAO Document 29 Filed 06/15/22 Page 11 of 12 Page ID #:140

1 insufficient to entitle Plaintiff to equitable relief,

2 and in any event did not prevent Plaintiff from

3 discovering the 45-day requirement. See Guerro v. 4 Gates, 442 F.3d 697, 706 (9th Cir. 2006) (stating that 5 equitable relief from timing requirements requires 6 “active conduct by a defendant, above and beyond the 7 wrongdoing upon which the plaintiff’s claim is filed, to 8 prevent the plaintiff from suing in time”). The FAC 9 thus fails to allege that Plaintiff is entitled to 10 equitable relief from the 45-day requirement based on 11 Defendant’s conduct. 12 In short, Plaintiff has failed to allege that it 13 initiated contact with an EEO counselor within 45 days 14 of her termination. The FAC also fails to allege that 15 Plaintiff is entitled to equitable tolling of the timing 16 requirements set forth under § 1614.105. The Court 17 therefore GRANTS Plaintiff’s Motion. 18 3. Leave to Amend 19 “The court should give leave [to amend] freely when 20 justice so requires.” Fed. R. Civ. P. 15(a)(2). “Rule 21 15’s policy of favoring amendments to pleadings should 22 be applied with extreme liberality.” United States v. 23 Webb, 655 F.2d 977, 979 (9th Cir. 1981). “Leave to 24 amend should be granted ‘if it appears at all possible 25 that the plaintiff can correct the defect.’” Balistreri 26 v. Pacifica Police Dept., 901 F.2d 696, 701 (9th Cir. 27 1988) (quoting Breier v. Northern California Bowling 28 Proprietors’ Ass’n, 316 F.2d 787, 790 (9th Cir. 1963)). 11 Case 2:21-cv-08697-RSWL-RAO Document 29 Filed 06/15/22 Page 12 of 12 Page ID #:141

1 It is possible that Plaintiff can cure the defects

2 of the FAC by alleging facts regarding the date she

3 began attempting to contact the EEO office and the 4 details of her various efforts to contact the office 5 within the requisite 45-day period. Plaintiff states 6 that she “can readily cure any problems with the 7 complaint by pleading additional facts.” Opp’n 10:4-5. 8 The Court therefore grants Plaintiff leave to amend. 9 III. CONCLUSION 10 Based on the foregoing, the Court GRANTS 11 Defendant’s Motion with leave to amend. Plaintiff shall 12 file an amended complaint by no later than July 15, 13 2022, further explaining her efforts to initiate contact 14 with the EEO office. 15 IT IS SO ORDERED. 16 17 DATED: June 15, 2022 ____/_s_/ _R_o_n_a_ld_ S_._W_._ L_e_w________

HONORABLE RONALD S.W. LEW

18 Senior U.S. District Judge 19

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