1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EQUAL EMPLOYMENT OPPORTUNITY Case No. 23-cv-04984-JSC

COMMISSION,

8 Plaintiff, ORDER RE: MOTION TO DISMISS 9 AND MOTION TO STAY v. 10 Re: Dkt. Nos. 22, 27

TESLA, INC.,

11 Defendant.

12 13 The Equal Employment Opportunity Commission (the Commission) sues Tesla, Inc. 14 (Tesla) under Title VII of the Civil Rights Act of 1964 for claims arising from Tesla’s race-based 15 employment practices. (Dkt. No. 1.)1 Before the Court is Tesla’s motion to dismiss for failure to 16 state a claim and motion to stay pending “virtually identical” state court proceedings. (Dkt. Nos. 17 22, 27.) Having carefully considered the briefing, and with the benefit of oral argument on March 18 28, 2024, the Court DENIES Tesla’s motions to dismiss and stay. 19 BACKGROUND 20 The Commission alleges Tesla has subjected Black employees at its Fremont, California 21 manufacturing facilities (Fremont Factory) to severe or pervasive racial harassment and has 22 created and maintained a hostile, race-based work environment there since May 2015. (Id. ¶ 16.) 23 The N-word and other racial slurs, epithets, and stereotyping “permeated Tesla’s Fremont 24 Factory.” (Id. ¶ 17.) Non-Black managers, non-managerial employees, and temporary workers 25 directly addressed Black employees individually and collectively using the N-word. (Id. ¶ 21.) 26 Other race-based slurs and insults were frequently used too. (Id. ¶¶ 24-25.) At work, Black 27 1 employees encountered racist graffiti—including swastikas, death threats, and nooses—on 2 bathroom walls, desks, elevators, and equipment. (Id. ¶¶ 26, 28-29.) Black employees describe 3 the use of slurs and racist imagery as “casual and normal,” “frequent,” “constant,” “a regular 4 thing,” and occurring “too many times to count.” (Id. ¶¶ 23, 27.) 5 Non-Black employees used slurs and epithets openly in high-traffic work areas and hubs. 6 (Id. ¶ 33.) Supervisors and managers witnessed racially offensive conduct but failed or refused to 7 intercede. (Id. ¶ 34.) Black employees reported the slurs, insults, graffiti, and misconduct to 8 Tesla’s human resources, employee relations, and managerial personnel. (Id. ¶ 35.) Tesla failed 9 to investigate complaints of racial misconduct, adopt policies or practices to ensure its temporary 10 workforce did not perpetuate racial harassment at the Fremont Factory, or otherwise take remedial 11 action to end the ongoing racial harassment. (Id. ¶¶ 37-39.) Tesla’s supervisors and human 12 resources officials retaliated against Black employees by changing their schedules, assigning them 13 less desirable duties, writing them up without justification, and firing them within weeks of 14 reporting the ongoing racial harassment and discrimination. (Id. ¶¶ 40-43.) 15 In this enforcement action, the Commission brings hostile work environment and 16 retaliation claims against Tesla under § 706 of Title VII. (Dkt. No. 1 ¶¶ 4, 9, 44-51, 52-57.) 17 DISCUSSION 18 I. Motion to Stay 19 Tesla requests a stay under the Colorado River doctrine and on the grounds the 20 Commission failed to engage in pre-suit conciliation. 21 A. Colorado River Doctrine 22 Generally, as between state and federal courts, the pendency of a state court action is no 23 bar to federal proceedings concerning the same matter. Ernest Bock, LLC v. Steelman, 76 F.4th 24 827, 835 (9th Cir. 2023), cert. denied, 144 S. Ct. 554 (2024). However, in Colorado River, the 25 Supreme Court recognized “in exceptional circumstances, considerations of wise judicial 26 administration, giving regard to conservation of judicial resources and comprehensive disposition 27 of litigation can support a stay of federal litigation in favor of parallel state proceedings.” Id. at 1 818 (1976) (“[T]he circumstances permitting the dismissal of a federal suit due to the presence of 2 a concurrent state proceeding for reasons of wise judicial administration are considerably more 3 limited than the circumstances appropriate for abstention. The former circumstances, though 4 exceptional, do nevertheless exist.”). “[A] stay of federal litigation in favor of state court 5 proceedings is the exception, not the rule. Only the clearest of justifications will warrant a stay, 6 and the circumstances justifying a stay are exceedingly rare.” Ernest Bock, LLC, 76 F.4th at 836 7 (cleaned up). 8 The Ninth Circuit weighs eight factors to determine whether a Colorado River stay is 9 justified: (1) which court first assumed jurisdiction over any property at stake; 10 (2) the inconvenience of the federal forum; (3) the desire to avoid piecemeal litigation; (4) the order in which the forums obtained 11 jurisdiction; (5) whether federal law or state law provides the rule of decision on the merits; (6) whether the state court proceedings can 12 adequately protect the rights of the federal litigants; (7) the desire to avoid forum shopping; and (8) whether the state court proceedings 13 will resolve all issues before the federal court. 14 Id. Courts apply the factors “in a pragmatic, flexible manner with a view to the realities of the 15 case at hand. The weight to be given to any one factor may vary greatly from case to case.” Id. at 16 836-37 (cleaned up). “The underlying principle guiding this review is a strong presumption 17 against federal abstention. Any doubt as to whether a factor exists should be resolved against a 18 stay, not in favor of one.” Id. at 837. 19 i. Parallelism 20 “Parallelism is a threshold requirement for a Colorado River stay.” Ernest Bock, LLC, 76 21 F.4th at 838.

22 When a district court decides to dismiss or stay under Colorado River, it presumably concludes that the parallel state-court litigation will be 23 an adequate vehicle for the complete and prompt resolution of the issues between the parties. If there is any substantial doubt as to this, 24 it would be a serious abuse of discretion to grant the stay or dismissal at all. 25 26 Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 28 (1983). “[T]he decision to 27 invoke Colorado River necessarily contemplates that the federal court will have nothing further to 1 Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 278 (1988) (“[T]he granting of a 2 Colorado River motion necessarily implies an expectation that the state court will resolve the 3 dispute.”). Exact parallelism is not required; it is enough if the state and federal proceedings are 4 substantially similar. Ernest Bock, LLC, 76 F.4th at 838. “Proceedings are substantially similar 5 when substantially the same parties are contemporaneously litigating substantially the same issues 6 in another forum.” Goodin v. Vendley, 356 F. Supp. 3d 935, 944 (N.D. Cal. 2018) (cleaned up); 7 see id. (“state and federal proceedings are substantially similar if they arise out the same alleged 8 conduct and seek to vindicate the same rights.”). 9 Tesla insists this action is substantially similar to two state court actions now before 10 Alameda County Superior Court Judge Grillo: Department of Fair Employment and Housing v. 11 Tesla, Inc., Alameda County Superior Court No. 22CV006830 (“Civil Rights Department Case”), 12 and Vaughn, et al. v. Tesla, Inc., et al., Alameda County Superior Court No. RG 17882082 13 (“Vaughn Case”). In the Vaughn Case, filed July 2021, the plaintiffs sue Tesla for race-based 14 harassment and discrimination and failure to prevent race-based harassment and discrimination in 15 violation of California’s Fair Employment and Housing Act (“FEHA”). (Dkt. No. 22-9 ¶¶ 63- 16 92.)2 In the Civil Rights Department Case, filed in March 2022, California’s Department of Fair 17 Employment and Housing initiated an enforcement action for group relief against Tesla on behalf 18 of California and aggrieved Black Fremont Factory workers, alleging racial harassment, 19 employment discrimination based on race, retaliation, failure to prevent racial harassment and 20 discrimination, and recordkeeping violations. (Dkt. No. 22-10 ¶¶ 28, 35-192.) Tesla asserts the 21 state court actions are substantially similar to this action because 1) “the putative class in the 22 Vaughn Case and the alleged aggrieved group in the [Civil Rights Department] Case include all 23 African American workers at the Factory within the statutory periods,” and 2) the Commission’s 24 2 Tesla requests the Court take judicial notice of the operative complaints in both state court cases. 25 (Dkt. No. 22-5 at 4). A court can take judicial notice of facts “not subject to reasonable dispute” because they are “generally known within the court’s territorial jurisdiction” or can be “accurately 26 determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). This includes “undisputed matters of public record, including documents on file in federal and 27 state courts.” Harris v. Cty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012). So, the Court takes 1 complaint is based on the same factual allegations and seeks to vindicate the same legal rights as 2 some claims in the state court actions. (Dkt. No. 22 at 19-20.) 3 The parallelism factor requires Tesla to demonstrate the identified state court actions “will 4 be an adequate vehicle for the complete and prompt resolution of the issues between the parties.” 5 Ernest Bock, LLC, 76 F.4th at 841; United States v. State Water Res. Control Bd., 988 F.3d 1194, 6 1204 (9th Cir. 2021) (“We have repeatedly emphasized that a Colorado River stay is inappropriate 7 when the state court proceedings will not resolve the entire case before the federal court.”). If 8 there is any substantial doubt as to whether the state court actions will completely and promptly 9 resolve the issues between the parties, “it would be a serious abuse of discretion to grant the stay 10 or dismissal at all.” Moses H. Cone Mem’l Hosp., 460 U.S. at 28. 11 The state court actions, regardless of outcome, will not resolve this case. The Commission 12 is not a party to either state court case. Here, the Commission sues Tesla in its own name for 13 violations of Title VII. (Dkt. No. 1 ¶ 9); see Gen. Tel. Co. of the Nw., 446 U.S. at 324 (“Given the 14 clear purpose of Title VII, the EEOC’s jurisdiction over enforcement, and the remedies available, 15 the EEOC need look no further than § 706 for its authority to bring suit in its own name for the 16 purpose, among others, of securing relief for a group of aggrieved individuals.”). The 17 Commission’s claims are not “merely derivative” of an aggrieved employee’s claim, Waffle 18 House, Inc., 534 U.S. at 297, because the Commission “is not merely a proxy for the victims of 19 discrimination.” Gen. Tel. Co. of the Nw., 446 U.S. at 326. Neither state court case involves Title 20 VII claims; instead, both involve FEHA claims. So, the state court actions will not completely and 21 promptly resolve the issues between Tesla and the Commission. 22 Tesla insists “a federal court considering a Title VII discrimination claim is required to 23 give preclusive effect to a state court judgment on a similar state discrimination claim.” (Dkt. No. 24 22 at 20.) Tesla relies on Kremer v. Chem. Const. Corp., 456 U.S. 461 (1982) and Acuna v. 25 Regents of Univ. of California, 56 Cal. App. 4th 639 (1997) to argue the Commission would be 26 precluded from bringing its Title VII claims after resolution of the state court cases. Both cases 27 involved individual plaintiffs who were barred by res judicata from relitigating in a second forum 1 Acuna, 56 Cal. App. 4th at 648. A state court judgment dismissing an individual’s employment 2 discrimination claims precludes the individual’s federal Title VII employment discrimination 3 claims “when the state court’s decision would be res judicata in the State’s own courts.” Kremer, 4 456 U.S. at 463, 485. But “[i]n California, res judicata, or claim preclusion, prevents relitigation 5 of the same cause of action in a second suit between the same parties or parties in privity with 6 them.” Sosa v. DIRECTV, Inc., 437 F.3d 923, 927 (9th Cir. 2006) (cleaned up). The Commission 7 is not a party in either state court action, and Tesla has not shown the Commission is in privity 8 with any party in either state court action. So, res judicata would not preclude the Commission’s 9 Title VII claims against Tesla after resolution of the state court actions. 10 Tesla fails to demonstrate the parallelism factor because Tesla fails to show the state court 11 actions will completely and promptly resolve the issues between the parties. Ernest Bock, LLC, 76 12 F.4th at 841. A Colorado River stay is thus inappropriate in this case because “the state court 13 proceedings will not resolve the entire case before the federal court.” State Water Res. Control 14 Bd., 988 F.3d at 1204; Intel Corp. v. Advanced Micro Devices, Inc., 12 F.3d 908, 913 (9th Cir. 15 1993) (“Under the rules governing the Colorado River doctrine, the existence of a substantial 16 doubt as to whether the state proceedings will resolve the federal action precludes the granting of a 17 stay.”); Moses H. Cone Mem’l Hosp., 460 U.S. at 28 (“If there is any substantial doubt as to 18 [whether the state court actions will be an adequate vehicle for the complete and prompt resolution 19 of the issues between the parties], it would be a serious abuse of discretion to grant the stay or 20 dismissal at all.”). 21 B. Pre-Suit Conciliation 22 Tesla also requests a stay on the grounds the Commission “failed to engage Tesla in the 23 pre-suit conciliation required by Title VII and the Supreme Court’s decision in Mach Mining.” 24 (Dkt. No. 34 at 8.) Tesla insists “this Court should stay this proceeding until EEOC has fulfilled 25 its conciliation mandate.” (Id. at 21.)

26 Before suing an employer for employment discrimination under Title VII of the Civil Rights Act of 1964, the Equal Employment 27 Opportunity Commission (EEOC or Commission) must first the Commission determines that conciliation has failed, it may file 1 suit in federal court. 2 Mach Mining, LLC v. E.E.O.C., 575 U.S. 480, 480 (2015). This means the Commission 1) “must 3 inform the employer about the specific allegation” by describing “both what the employer has 4 done and which employees (or what class of employees) have suffered as a result,” and 2) “must 5 try to engage the employer in some form of discussion (whether written or oral), so as to give the 6 employer an opportunity to remedy the allegedly discriminatory practice.” Id. at 494. “A sworn 7 affidavit from the EEOC stating that it has performed the obligations noted above but that its 8 efforts have failed will usually suffice to show that it has met the conciliation requirement.” Id. at 9 494-95. But if Tesla presents credible evidence indicating the Commission failed to “provide the 10 requisite information about the charge or attempt to engage in a discussion about conciliating the 11 claim, a court must conduct the factfinding necessary to decide that limited dispute.” Id. at 495. 12 The Commission notified Tesla of its determination there is reasonable cause to believe 13 Tesla violated Title VII

14 by subjecting a class of Black employees to a hostile work environment and retaliating against a class of employees who 15 engaged in protected activity. The aggrieved persons include all Black employees who were employed at [Tesla’s] Fremont, CA 16 facilities at any time since May 29, 2015 to the present, who have been adversely affected by such unlawful employment practices. 17 18 (Dkt. No. 22-19 at 2.) So, the Commission informed Tesla of the specific allegations against it 19 and the class of employees who suffered as a result. Between July 2022 and June 2023, the 20 Commission engaged in conciliation efforts with Tesla, including a seven-hour, in-person 21 conciliation session on June 13, 2023. (Dkt. No. 32 ¶¶ 11-17.) So, the Commission tried to 22 engage Tesla in discussions to provide Tesla the opportunity to remedy the allegedly 23 discriminatory practice. Mach Mining, LLC, 575 U.S. at 494 (“[A] court looks only to whether the 24 EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or 25 positions taken) during those discussions.”) In sum, review of these two requirements 26 demonstrates the Commission engaged in pre-suit conciliation. 27 Tesla claims the Commission failed to comply with Title VII’s conciliation mandate 1 from its investigation.” (Dkt. No. 22 at 27.) Without citing any authority, Tesla argues the 2 “details” the Commission provided were insufficient because they failed to “include any facts 3 allowing Tesla to understand what problematic practices it purportedly implemented, and what 4 class of employees suffered as a result, beyond potentially every Black employee at the Fremont 5 facility since 2015.” (Dkt. No. 34 at 20.) Not so. The Commission was not required to provide 6 Tesla with facts “allowing Tesla to understand what problematic practices it purportedly 7 implemented” or define the class of employees any further. See U.S. Equal Emp. Opportunity 8 Comm’n v. MJC, Inc., 400 F. Supp. 3d 1023, 1043 (D. Haw. 2019) (“The EEOC was not required 9 to provide Defendants with a list of all its factual allegations during the conciliation process.”). 10 The Commission, “to meet the statutory condition, must tell the employer about the claim— 11 essentially, what practice has harmed which person or class—and must provide the employer with 12 an opportunity to discuss the matter in an effort to achieve voluntary compliance.” Mach 13 Mining, LLC, 575 U.S. at 488 (emphasis added). Indeed, the Commission “need only ‘endeavor’ 14 to conciliate a claim, without having to devote a set amount of time or resources to that project. 15 Further, the attempt need not involve any specific steps or measures.” Id. at 492 (cleaned up). It 16 is undisputed the Commission provided Tesla an opportunity to discuss the Commission’s claims. 17 (Dkt. No. 32 ¶¶ 11-17.) 18 Tesla insists the conciliation was not “meaningful” or “good faith” on the grounds the 19 Commission did not provide Tesla with enough information to remedy the allegedly 20 discriminatory practices. (Dkt. Nos. 22 at 9-10, 34 at 18-19.) In Mach Mining, the Supreme Court 21 expressly rejected imposing a “good faith” requirement on Title VII pre-suit conciliation, ruling 22 “[s]uch judicial review extends too far.” Mach Mining, LLC, 575 U.S. at 492; U.S. Equal Emp. 23 Opportunity Comm’n v. MJC, Inc., 306 F. Supp. 3d 1204, 1213 (D. Haw. 2018) (“The EEOC is 24 not subject to a ‘good faith’ bargaining requirement.”) A “good faith” requirement does “not 25 properly apply to a law that treats the conciliation process not as an end in itself, but only as a tool 26 to redress workplace discrimination.” Mach Mining, LLC, 575 U.S. at 491. So, Tesla fails to 27 show the Commission failed to meet Title VII’s pre-suit conciliation requirements. 1 Accordingly, Tesla’s motion to stay is DENIED. 2 II. Motion to Dismiss 3 Dismissal under Rule 12(b)(6) “may be based on either a lack of a cognizable legal theory 4 or the absence of sufficient facts alleged under a cognizable legal theory.” Johnson v. Riverside 5 Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008) (cleaned up). For the Commission’s 6 challenged claims to survive, the complaint’s factual allegations must raise a plausible right to 7 relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-56 (2007). Though the Court must accept 8 the complaint’s factual allegations as true, conclusory assertions are insufficient to state a claim. 9 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible when the plaintiff pleads 10 enough factual content to justify the reasonable inference the defendant is liable for the 11 misconduct alleged. Id. 12 Federal Rule of Procedure 8(a) requires a plaintiff’s complaint to give the defendant fair 13 notice of the plaintiff’s claims and the grounds on which those claims rest. Earth Island Inst. v. 14 United States Forest Serv., 87 F.4th 1054, 1071 (9th Cir. 2023). “Rule 8’s pleading standard is 15 liberal, but still requires that the defendant receives notice as to what is at issue in the case.” Id. 16 (cleaned up). Rule 8 does not require the Commission to plead specific facts establishing a prima 17 facie case of discrimination to bring employment discrimination claims against Tesla under Title 18 VII. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514 (2002). “A complaint containing 19 allegations and factual statements that clearly put the defendant on notice that the instant action is 20 based on the defendant’s alleged discrimination on a particular protected basis against the 21 charging party and other similarly situated employees beginning at a specific point in time is 22 sufficient to survive a motion to dismiss.” U.S. E.E.O.C. v. Farmers Ins. Co., 24 F. Supp. 3d 956, 23 967 (E.D. Cal. 2014). 24 Under § 706, the Commission is authorized to bring suit in its own name “to prevent any 25 person from engaging in any unlawful employment practice” prohibited by Title VII. 42 U.S.C. § 26 2000e-5(a); see Gen. Tel. Co. of the Nw. v. Equal Emp. Opportunity Comm’n, 446 U.S. 318, 324 27 (1980) (“Given the clear purpose of Title VII, the EEOC’s jurisdiction over enforcement, and the 1 own name for the purpose, among others, of securing relief for a group of aggrieved 2 individuals.”). In such actions, the Commission can act as “a proxy for the victims of 3 discrimination” or “to vindicate the public interest in preventing employment discrimination,” or 4 both. Gen. Tel. Co. of the Nw., 446 U.S. at 326. 5 A. Hostile Work Environment 6 To bring a hostile work environment claim, the Commission must show 1) discrimination 7 by an employer on account of membership in a protected group, and 2) the offensive conduct was 8 sufficiently severe or pervasive to alter the conditions of employment. Sharp v. S&S Activewear, 9 L.L.C., 69 F.4th 974, 978 (9th Cir. 2023). Individual targeting is not required to establish a Title 10 VII violation; it is enough if such hostile conduct pollutes the victim’s workplace, making it more 11 difficult for the victim to do their job, take pride in their work, and desire to stay in their position. 12 Id. The Ninth Circuit has “consistently sustained Title VII claims challenging a workplace 13 polluted with insult and intimidation.” Id. at 979. “When the workplace is permeated with 14 discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the 15 conditions of the victim’s employment and create an abusive working environment, Title VII is 16 violated.” Id. (cleaned up). 17 Tesla moves to dismiss the Commission’s complaint, arguing it “fails to allege facts 18 sufficient to establish the severity and pervasiveness element necessary to state a hostile work 19 environment claim.” (Dkt. No. 27 at 12.) As a threshold matter, Tesla misstates the standard. 20 The question is whether the alleged offensive conduct was sufficiently severe or pervasive to alter 21 the conditions of employment. Sharp, 69 F.4th at 978. In any event, Tesla claims the 22 Commission fails to meet the severity element on the grounds the complaint fails to 1) identify 23 any member of the alleged group of victims, 2) identify an individual who perpetrated racial 24 harassment, or 3) provide a date for any of the alleged incidents. 25 “Perhaps no single act can more quickly alter the conditions of employment and create an 26 abusive working environment than the use of an unambiguously racial epithet such as [the N- 27 word] by a supervisor in the presence of his subordinates.” McGinest, 360 F.3d at 1116; see id. 1 history of racial violence, brutality, and subordination. This word is perhaps the most offensive 2 and inflammatory racial slur in English, a word expressive of racial hatred and bigotry.”). The 3 Commission alleges exactly this act. (Dkt. No. 1 ¶¶ 21-22, 27, 43.) Since May 2015, non-Black 4 managers, non-managerial employees, and temporary workers have regularly addressed Black 5 current and former Tesla employees stationed at Tesla’s Fremont Factory individually and 6 collectively by the N-word, (Dkt. No. 1 ¶ 21); frequently used other racial slurs, epithets, and 7 insults openly in high-traffic work areas, (id. ¶¶ 24-25, 33); and graffitied swastikas, nooses, the 8 N-word, death threats and other abusive language and imagery directed at Black people across 9 desks, elevators, bathrooms, and equipment. (Id. ¶¶ 26, 28-29); see Swinton v. Potomac Corp., 10 270 F.3d 794, 817 (9th Cir. 2001) (rejecting the benign characterization of the N-word, “perhaps 11 the most offensive and inflammatory racial slur in English, a word expressive of racial hatred and 12 bigotry.” (cleaned up)). Despite awareness of such racial misconduct, Tesla has failed to 13 investigate Black employees’ complaints, adopt policies or practices to ensure its temporary 14 workforce did not perpetuate racial harassment at the Fremont Factory, intercede when witnessing 15 racial misconduct, or otherwise take remedial action to end the ongoing racial harassment. (Id. ¶¶ 16 35, 37-39.) 17 Direct verbal attacks and “the prevalence of graffiti containing a racial slur evocative of 18 lynchings and racial hierarchy are significant exacerbating factors in evaluating the severity of the 19 racial hostility.” McGinest, 360 F.3d at 1116. The Commission alleges frequent direct verbal 20 racial attacks against Black Tesla employees at the Fremont Factory and the “constant” presence 21 of racist graffiti evocative of lynchings. (Dkt. No. 1 ¶¶ 19-29.) These allegations support an 22 inference the Tesla Fremont Factory has been, since May 2015, “permeated with discriminatory 23 intimidation, ridicule, and insult,” sufficient to alter the conditions of Black Tesla employees’ 24 employment. Sharp, 69 F.4th at 979 (“When the workplace is permeated with discriminatory 25 intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of 26 the victim’s employment and create an abusive working environment, Title VII is violated.”). So, 27 the Commission alleges facts sufficient to plausibly establish a hostile work environment claim 1 Tesla’s argument for dismissal based on the Commission’s failure to identify any member 2 of the alleged group of victims fails because the Commission brings this enforcement action in its 3 own name, (Dkt. No. 1 ¶ 9), so the Commission is not required to identify an aggrieved individual 4 to survive Tesla’s motion to dismiss. See, e.g., Equal Emp. Opportunity Comm’n v. Rosebud 5 Restaurants, Inc., 85 F. Supp. 3d 1002, 1005-06 (N.D. Ill. 2015) (finding the Commission is not 6 required to name an aggrieved individual to bring a § 706 action in its own name); E.E.O.C. v. 7 PBM Graphics Inc., 877 F. Supp. 2d 334, 347 (M.D.N.C. 2012) (“[T]he complaint is not deficient 8 for failing to identify the numerous alleged victims of discrimination or setting out the names of 9 specific employees at PBM who expressed a preference for Hispanic temporary workers.”). “The 10 EEOC’s civil suit was intended to supplement, not replace, the private action.” Gen. Tel. Co. of 11 the Nw., 446 U.S. at 326. Indeed, the Supreme Court has “recognized several situations in which 12 the EEOC does not stand in the employee’s shoes.” E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 13 297 (2002). In Waffle House, the Supreme Court ruled a mandatory arbitration agreement 14 between an employer and an employee did not bar the Commission from pursuing victim-specific 15 judicial relief in an enforcement action because an agreement to which the Commission was not a 16 party could not limit the remedies available to the Commission. Id. In Occidental Life Ins. Co. of 17 California v. E.E.O.C., the Supreme Court ruled the Commission did not have to comply with 18 state statutes of limitations because “the EEOC does not function simply as a vehicle for 19 conducting litigation on behalf of private parties.” 432 U.S. 355, 368 (1977). In Gen. Tel. Co. of 20 the Nw., the Supreme Court ruled the Commission’s “enforcement suits should not be considered 21 representative actions subject to Rule 23” because the Commission “is not merely a proxy for the 22 victims of discrimination.” 446 U.S. at 326; see PBM Graphics Inc., 877 F. Supp. 2d at 347 23 (“While a putative class action by an individual would require the naming of at least one plaintiff, 24 it bears noting that EEOC is not bound by the class action pleading rules in its claim under 25 sections 706 or 707.”). 26 Tesla’s reliance on Pioneer Hotel and Cazorla to argue the Commission’s complaint must 27 identify aggrieved employees is unavailing. In U.S. E.E.O.C. v. Pioneer Hotel, Inc., the court held 1 EEOC is not required to identify every aggrieved individual comprising the class.” No. 2:11-CV- 2 01588-LRH, 2013 WL 3716447, at *3 (D. Nev. July 15, 2013). But Pioneer Hotel’s only 3 authority for this holding is the ruling of a since-overturned case, Bass Pro Outdoor World. Id.; 4 see E.E.O.C. v. Bass Pro Outdoor World, LLC, 884 F. Supp. 2d 499, 520-21 (S.D. Tex. 2012), on 5 reconsideration, 35 F. Supp. 3d 836 (S.D. Tex. 2014), aff’d sub nom. Equal Emp. Opportunity 6 Comm’n v. Bass Pro Outdoor World, L.L.C., 826 F.3d 791 (5th Cir. 2016). Moreover, the court 7 order reversing Bass Pro Outdoor World acknowledged the text of § 706 “suggests that 8 Commissioner charges perhaps do not need to be filed ‘on behalf of’ identifiable victims” and 9 found the Commission could bring suit on behalf of unnamed individuals because “Congress 10 wanted the Commission to have all the same rights as private litigants when it brings suit pursuant 11 to § 706.” E.E.O.C. v. Bass Pro Outdoor World, LLC, 35 F. Supp. 3d 836, 861-62 (S.D. Tex. 12 2014), aff’d sub nom. Equal Emp. Opportunity Comm’n v. Bass Pro Outdoor World, L.L.C., 826 13 F.3d 791 (5th Cir. 2016). Pioneer Hotel also involved a private individual charging party, 14 whereas the Commission is the charge filer here. 2013 WL 3716447, at *1. 15 Tesla cites Cazorla v. Koch Foods of Miss., LLC to argue the Commission’s complaint is 16 required to identify members of the alleged class of victims and allege particularized facts as to 17 those persons and their claims. 2013 U.S. Dist. LEXIS 201174. Three years into the case and 18 after discovery, the Cazorla court dismissed with leave to amend the Commission’s second 19 amended complaint on the grounds the Commission failed to plead particularized facts as to the 20 111 named aggrieved individuals. 2013 U.S. Dist. LEXIS 201174, *23-24. However, Cazorla is 21 unpersuasive in light of numerous decisions holding the Commission “is not required to identify 22 or name every potential class member in its complaint” or “plead detailed factual allegations 23 supporting the individual claims of every potential member of a class.” Equal Emp. Opportunity 24 Comm’n v. Geisinger Health, No. CV 21-4294-KSM, 2022 WL 10208553, at *17 (E.D. Pa. Oct. 25 17, 2022) (cleaned up); see Equal Emp. Opportunity Comm’n v. JBS USA, LLC, 481 F. Supp. 3d 26 1204, 1216 (D. Colo. 2020) (“[T]he EEOC can give defendant fair notice of its claims, and the 27 grounds upon which they rest, without pleading specific, individualized facts establishing that 1 (concluding the Commission can state a § 706 claim without identifying an aggrieved individual); 2 E.E.O.C. v. United Parcel Serv., Inc., No. 09-CV-5291, 2013 WL 140604, at *6 (N.D. Ill. Jan. 11, 3 2013) (ruling the Commission is not required “to plead detailed factual allegations supporting the 4 individual claims of every potential member of a class. EEOC must merely ‘plead factual content 5 that allows the court to draw the reasonable inference’ that UPS violated provisions of the ADA as 6 to the unidentified individuals.”); PBM Graphics Inc., 877 F. Supp. 2d at 347 (“[T]he complaint is 7 not deficient for failing to identify the numerous alleged victims of discrimination or setting out 8 the names of specific employees at PBM who expressed a preference for Hispanic temporary 9 workers. . . . It is sufficient that the facts, taken as true, allege different treatment among similarly 10 situated workers based on national origin.”); E.E.O.C. v. U.S. Steel Corp., No. CIV.A. 10-1284, 11 2012 WL 3017869, at *10 (W.D. Pa. July 23, 2012) (“Iqbal and Twombly do not require the 12 EEOC to name all of the potential class members in its Amended Complaint.”). 13 Tesla also raises E.E.O.C. v. La Rana Hawaii, LLC, to argue the Commission’s complaint 14 fails to state a claim if it does not include the dates of the alleged discrimination or identities of the 15 alleged harassers. 888 F. Supp. 2d 1019 (D. Haw. 2012). In La Rana Hawaii, the dates of the 16 alleged discrimination were required to demonstrate one defendant employer was under contract 17 with another defendant employer at the time of the alleged discrimination. 888 F. Supp. 2d at 18 1046-47. Because the Commission’s complaint failed to identify the dates of the alleged 19 discrimination or distinguish between the two defendant employers, the district court was unable 20 to draw the reasonable inference one defendant employer was liable for the misconduct alleged. 21 Id. For the same reason, the district court required the Commission to identify the alleged 22 harassers. Id. at 1047-48 (“The EEOC must allege specifically what wrongdoing it is assigning to 23 each Defendant.”). Here, Tesla is the lone defendant employer. So, the Court can draw the 24 reasonable inference Tesla is “liable for the misconduct alleged” without the dates of the alleged 25 discrimination or identities of the alleged harassers. Iqbal, 556 U.S. at 678. 26 Finally, Tesla relies on Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189 (9th Cir. 27 2016), to argue “[b]ecause [the Commission] fails to provide a date for any of the incidents 1 Section 706.” (Dkt. No. 27 at 12.) Title VII requires “a charge shall be filed by or on behalf of 2 the person aggrieved within three hundred (300) days after the alleged unlawful employment 3 practice occurred.” Id. at 1202. But in Arizona ex rel. Horne, the Ninth Circuit “doubt[ed] that 4 the [Commission] is subject to the same strict timing requirements with respect to the exhaustion 5 of remedies in Title VII as a private party before bringing class suit,” and did “not address whether 6 the [Commission] is subject to the same strict timing requirements as private litigants.” Id. at 7 1202 n.8. And here, the Commission brings this enforcement action in its own name, not on 8 behalf of aggrieved persons. So, Arizona ex rel. Horne does not support Tesla’s argument the 9 complaint is insufficient for failing to provide the dates of alleged incidents. 10 * * * 11 The Commission’s factual allegations are sufficient to support the inference the alleged 12 racial harassment was sufficiently severe to pollute Tesla’s Fremont Factory and create an abusive 13 workplace for Black employees. Sharp, 69 F.4th at 978-79 (“We have consistently sustained Title 14 VII claims challenging a workplace polluted with insult and intimidation.”); see JBS USA, LLC, 15 481 F. Supp. 3d at 1219 (denying motion to dismiss the Commission’s hostile work environment 16 claim where the complaint “allege[d] that Black, Somali, and Muslim employees were subjected 17 to harassment from management, supervisors, and co-workers, describe[d] the type of harassment 18 that these employees faced, and describe[d] the time frame in which this harassment occurred.” 19 (cleaned up)). Accordingly, Tesla’s motion to dismiss the Commission’s hostile work 20 environment claim is DENIED. 21 B. Retaliation 22 The complaint is not required to plead a prima facie case of retaliation as long as it 23 contains “a short and plain statement of the claim showing that the pleader is entitled to relief.” 24 Swierkiewicz, 534 U.S. at 508 (quoting Federal Rule of Civil Procedure 8(a)(2)).

25 When a plaintiff does not plead a prima facie case, courts still look to the elements of the prima facie case “to decide, in light of judicial 26 experience and common sense, whether the challenged complaint contains sufficient factual matter, accepted as true, to state a claim for 27 relief that is plausible on its face.” 1 cognizable retaliation claim, the Commission must allege facts sufficient to support the inference 2 Black Tesla Fremont Factory employees 1) engaged in activity protected under Title VII, 2) Tesla 3 subjected Black Tesla Fremont Factory employees to adverse employment action, and 3) a causal 4 link exists between the protected activity and the adverse employment action. Thomas v. City of 5 Beaverton, 379 F.3d 802, 811 (9th Cir. 2004). 6 As to the first element, internal complaints constitute protected activity when a reasonable 7 person would believe the conduct the complaint reports violates Title VII. E.E.O.C. v. Go Daddy 8 Software, Inc., 581 F.3d 951, 963-64 (9th Cir. 2009). The Commission alleges “Black employees 9 reported the slurs, insults, graffiti, and misconduct to Tesla’s human resources, employee 10 relations, and managerial personnel.” (Dkt. No. 1 ¶ 35.) As discussed above, a reasonable person 11 would believe the alleged racial slurs, insults, graffiti, and misconduct violated Title VII. So, the 12 Commission’s allegation Black employees at the Fremont Factory complained to Tesla’s 13 management about the alleged harassment is sufficient to support the inference Black employees 14 engaged in a protected activity. Tesla’s argument the Commission “alleges zero facts to support 15 the ‘protected activity’ element of its retaliation claim” ignores this allegation. (Dkt. No. 27 at 16 16.) 17 As to the second element, an adverse employment action is one that “might have dissuaded 18 a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & 19 Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). “[T]he significance of any given act of 20 retaliation will often depend upon the particular circumstances. Context matters.” Id. at 69. 21 “[T]ermination of employment is an adverse employment action.” Little v. Windermere 22 Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002). The Commission alleges Black employees 23 who complained of the racial harassment were terminated, subjected to schedule changes, assigned 24 less desirable duties, and written-up unjustifiably. (Dkt. No. 1 ¶¶ 40-43.) A Black employee who 25 reported her supervisor “for repeatedly telling Black employees not to stand together and saying 26 that ‘[N-word]s are lazy,’” was moved to a more demanding part of her assembly line. (Id. ¶ 43.) 27 Tesla fired Black employees within weeks of their complaints over the racial harassment, and 1 not to retaliate.” (Id. ¶ 41.) The alleged employment actions by Tesla might have dissuaded a 2 reasonable worker from making or supporting a cause of discrimination. Burlington N. & Santa 3 Fe Ry. Co., 548 U.S. at 68. So, these allegations are sufficient to support an inference Tesla 4 subjected Black Fremont Factory employees to adverse employment actions. 5 As to the third element, the Commission “may allege direct or circumstantial evidence 6 from which causation can be inferred, such as an employer’s ‘pattern of antagonism following the 7 protected conduct,’ or the temporal proximity of the protected activity and the occurrence of the 8 adverse action.” Cloud, 436 F. Supp. 3d at 1301 (cleaned up); see Porter v. California Dep’t of 9 Corr., 419 F.3d 885, 895 (9th Cir. 2005) (“Although a lack of temporal proximity may make it 10 more difficult to show causation, circumstantial evidence of a ‘pattern of antagonism’ following 11 the protected conduct can also give rise to the inference.” (cleaned up)); see also Pardi v. Kaiser 12 Found. Hosps., 389 F.3d 840, 850 (9th Cir. 2004) (“When adverse employment decisions closely 13 follow complaints of discrimination, retaliatory intent may be inferred.”). “[C]ausation can be 14 inferred from timing alone where an adverse employment action follows on the heels of protected 15 activity.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002). “Courts have 16 held that a 3-month gap is enough to give rise to a plausible inference of causation at the pleading 17 stage, but 9 months is too far apart to give rise to a plausible inference of causation.” Lacayo v. 18 Donahoe, No. 14-CV-04077-JSC, 2015 WL 3866070, at *12 (N.D. Cal. June 22, 2015). The 19 Commission alleges Tesla fired Black Fremont Factory employees within weeks of their 20 complaints about the racial harassment, reassigned a Black employee who reported her 21 supervisor’s racial harassment to a more demanding part of her assembly line, and repeatedly 22 wrote-up another employee for formerly acceptable conduct after they complained about the racial 23 harassment. (Dkt. No. 1 ¶¶ 40-43.) These allegations are sufficient to support the inference there 24 exists a causal link between Black employees’ complaints and Tesla’s adverse employment 25 actions. 26 * * * 27 In sum, the complaint alleges facts sufficient to plausibly state all three elements of a prima 1 is DENIED. 2 CONCLUSION 3 For the reasons stated, Tesla’s motions to dismiss and stay are DENIED. The 4 Commission’s motion to strike is DENIED as moot. The Court will hold an initial case 5 management conference on May 9, 2024 at 1:30 p.m. via Zoom video. An updated joint case 6 || management conference statement is due May 2, 2024. 7 This Order disposes of Docket Nos. 22, 27, 41. 8 IT IS SO ORDERED. 9 Dated: March 29, 2024 10

JACQUELINE SCOTT CORLEY

12 United States District Judge

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