California Cases April 21, 2020: Albro v. Modly

Case Description

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT

(Doc. No. 32)

This matter came before the court on October 16, 2019 for a hearing on defendant Thomas B. Modly's motion to dismiss plaintiff's first amended complaint. (Doc. No. 32.) Attorney John T. Harrington appeared on behalf of plaintiff William Albro. Assistant United States Attorney Joseph Frueh appeared on behalf of defendant. The court has considered the parties' briefs and oral arguments, and for the reasons set forth below, will grant defendant's motion to dismiss.

Plaintiff is an employee of the Naval Air Warfare Center Weapons Division ("NAWCWD") in China Lake, California. He brings this action under Title VII of the Civil

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Rights Act of 1964, 42 U.S.C. § 2000e, et seq ., claiming that he experienced disparate treatment at NAWCWD based on his non-affiliation with the Church of Jesus Christ of Latter-day Saints ("LDS Church"), and that he experienced retaliation when he complained of such discrimination.

In his first amended complaint ("FAC") plaintiff alleges as follows. Plaintiff holds a bachelor's degree in Chemistry, as well as a master's degree and Ph.D. in Physical Chemistry. (Doc. No. 28 at ¶ 8.) In November 2006, plaintiff began working NAWCWD. ( Id . at ¶¶ 9, 14.) He performed his job duties well and advanced to the position of Firing Officer, where he had authority to carry out tests using explosives. ( Id . at ¶ 36.) As part of his duties, he received sponsorships from other agencies to fund and carry out testing for projects and research, and he had custody of and responsibility for approximately $10 million worth of laboratory equipment. ( Id . at ¶¶ 38, 42.)

Shortly after plaintiff started working at NAWCWD, his co-worker Ephraim Washburn—a widely-known devout member of the LDS Church, who served as the High Priest and displayed the Book of Mormon at work—began pressuring plaintiff and plaintiff's wife to join the local LDS Church. ( Id . at ¶¶ 14, 16.) Beginning in late 2006, Washburn continuously attempted to recruit plaintiff to join the LDS Church while at work, including by inviting plaintiff to church activities, such as the baptism of Washburn's son. ( Id . at ¶¶ 21, 22.) Other members of the LDS Church who worked at NAWCWD assisted Washburn with his efforts by visiting plaintiff's home, offering favors and assistance, soliciting plaintiff at work to join the LDS Church, and offering promises to plaintiff that he would receive better treatment at work if he joined the LDS Church. ( Id . at ¶ 15.) NAWCWD employees who are members of the LDS Church "worship and socialize together, and provide support, benefits, and advantages at work to their fellow LDS Church members." ( Id . at ¶ 10.) Plaintiff asserts that these employees are often able to influence, negatively or positively, the relationship between employees and their agency sponsors, who make funding decisions that affect the work being done by NAWCWD employees. ( Id . at ¶ 11.) Plaintiff also asserts that these employees are "able to direct and influence other actions that affect the terms and conditions of employment for [NAWCWD] employees based on their membership, or non-membership, in the LDS Church." ( Id . at ¶ 12.)

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Plaintiff's wife reluctantly joined the LDS church and was baptized by Washburn, who proclaimed that he "got Rick's wife," and LDS Church members often said that a husband would typically join within two years after his wife joined. ( Id . at ¶¶ 17-20.) Plaintiff clearly and repeatedly told Washburn that he did not want to join the LDS Church, but Washburn ignored him, and other LDS Church members continued recruiting efforts even after plaintiff's wife disassociated from the LDS Church in 2010. ( Id . at ¶¶ 30-35.)

Plaintiff and Washburn had a collegial work relationship as co-workers until plaintiff's wife disassociated from the LDS Church. ( Id . at ¶¶ 28, 29.) Hostility toward plaintiff in the workplace began almost immediately after Washburn became Branch Head in late 2012 and thus assumed a position as plaintiff's direct supervisor, which "was the first time that Washburn was in a position at [NAWCWD] to impact [plaintiff's] position." ( Id . at ¶¶ 48, 49.) Although plaintiff had applied and interviewed for that Branch Head position, he claims that he was not bitter or resentful that Washburn was selected, but was concerned about being under Washburn's supervision given his resistance to Washburn's LDS-recruiting efforts. ( Id . at ¶¶ 43-45.)

In early 2013, Washburn gave plaintiff's cubicle to another employee and responded to plaintiff's concern that some of his personal property items were missing by commenting "[t]ough[,] [d]eal with it"—which plaintiff alleges was a dismissive response due to plaintiff's refusal to join the LDS Church. ( Id . at ¶¶ 50-52.) Washburn also placed LDS Church member and Brent Headman's son Trevor Headman on plaintiff's team, even though plaintiff was supposed to have autonomy in choosing his team, and Trevor continuously attempted to recruit plaintiff while at work and frequently quoted from the Book of Mormon while working with plaintiff. ( Id . at ¶¶ 46, 47.) In September 2013, Washburn improperly provided secret

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information about a patent that plaintiff was working on to an LDS Church member at Purdue University "due to [plaintiff's] refusal to join the LDS Church." ( Id . at ¶¶ 53, 55.)

In June 2014, plaintiff was the most qualified candidate who interviewed for a Division Head position but was not selected because he was purportedly "too valuable to lose," though plaintiff alleges that "[i]n fact, [he] did not receive the position because of the negative influence of Washburn and other LDS Church members at [NAWCWD], who were displeased by [plaintiff's] refusal to join the LDS Church." ( Id . at ¶¶ 56-58.) In July 2014, Washburn knowingly allowed plaintiff to use a fume hood that had failed a safety inspection and ignored the dangers to plaintiff and others who may have used the hood, "because of [plaintiff's] refusal to join the LDS Church." ( Id . at ¶¶ 59-61.)

Since becoming Branch Head, Washburn has interfered with plaintiff's relationships with sponsors, making it more difficult to obtain funding, and instructed potential sponsors and NAWCWD employees not to work with plaintiff and to deny plaintiff adequate facilities to continue his research. ( Id . at ¶¶ 62-63.) Between November 2014 and January 2015, plaintiff reported the troubles he faced completing work for agency sponsors because of interference from Washburn and Washburn's subordinates to his third-level supervisor, Greg Wheelock, who had expressed interest in plaintiff's projects and research. ( Id . at ¶¶ 64-65.)

In January 2015, plaintiff had a performance review meeting with Washburn, who told him that "it will be political from here on out," and plaintiff found himself defending against false allegations of wrongdoing roughly every other week following that meeting. ( Id . at ¶¶ 66, 67.) When someone tried multiple times to access plaintiff's explosives safe, causing a lock-out, someone else contacted 911 because of the potential security risk, and Washburn and management accused plaintiff of having caused unnecessary panic by alerting 911 and mismanaging the situation, even though he was not the person who called 911. ( Id . at ¶ 68, 69.) Plaintiff alleges that Washburn made this false accusation "because of [plaintiff's] refusal to join the LDS Church." ( Id . at ¶ 70.) Then, in February 2015, NAWCWD management ordered a mediation between plaintiff and Washburn, and the conclusion of that mediation was a conclusion that there was a "lack of trust" between them. ( Id . at ¶ 71.) In March 2015, plaintiff saw the

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words "TO BE FIRED" next to his name on a board at the office, which was visible to a number of people, and plaintiff alleges this too was done "because of his refusal to join the LDS Church." ( Id . at ¶ 72.)

Also in March 2015, plaintiff met with Human Resources Specialist Christine Farris and Division Head of the Energetics Division Jeff Davis, plaintiff's second level supervisor, and reported to them that he did not believe having Washburn as his supervisor was appropriate because Washburn had baptized his wife into the LDS Church and had tried to recruit plaintiff to join the LDS Church. ( Id . at ¶¶ 73, 74.) At that meeting, plaintiff also reported his belief that NAWCWD employees who were LDS Church members were treated more favorably than him. ( Id . at ¶ 75.) There was no investigation into his complaint that "he was being treated unfairly due to his refusal to join the LDS Church." ( Id . at ¶ 76.) Later that month, plaintiff learned that a co-worker had falsely charged hours of work to his funding account and had been incentivized by Washburn to sabotage plaintiff's funds in exchange for a promotion. ( Id . at ¶¶ 77, 78.)

In April 2015, a physicist who worked in an office that plaintiff had vacated two years earlier discovered a gun on a top shelf, and though it was a tranquilizer gun of unknown origin, Washburn falsely accused plaintiff of having an unauthorized gun because of his refusal to join the LDS Church. ( Id . at ¶¶ 79, 81-82.) Later that month, plaintiff learned that he had not been receiving emails about upcoming inspections because Washburn directed plaintiff's name be removed from the email list or that his email address be altered to prevent delivery "due to his refusal to join the LDS Church." ( Id . at ¶¶ 85-87.) Then in May 2015, Washburn directed the same co-worker who sabotaged plaintiff's accounts to try to gain access to plaintiff's explosives safes "because of [plaintiff's] refusal to join the LDS Church." ( Id . at ¶¶ 83, 84.)

In June 2015, plaintiff had a second meeting with HR Specialist Christine Farris and Division Head Jeff Davis, which was also attended by Darlene Soto. ( Id . at ¶ 88.) At that second meeting, Davis said he had conducted a managerial investigation and concluded that

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plaintiff was "the problem," and he refused to accept the documents that plaintiff brought with him to corroborate his claims that Washburn and others targeted him "due to his refusal to join the LDS Church." ( Id . at ¶¶ 89-91.) Davis and Farris also told plaintiff that he would not be permitted to bring representatives to any future meetings. ( Id . at ¶ 93.) Davis informed Wheelock that plaintiff had been offered disciplinary measures and refused them; however, plaintiff was never offered any such measures. ( Id . at ¶¶ 94, 95.) Later that month, plaintiff learned that, at Washburn's direction, management planned to reassign plaintiff to work under Martin Minthorn, which would require plaintiff to leave his lab and equipment behind, "because of [plaintiff's] refusal to join the LDS Church." ( Id . at ¶¶ 96-98.) Washburn and Davis confronted plaintiff and ordered him to cut the locks of the secure area in his lab and threatened to escort plaintiff to base counseling when he expressed concern about that plan. ( Id . at ¶¶ 99-102.) Again, according to plaintiff, Washburn directed these actions "because of [plaintiff's] refusal to join the LDS Church." ( Id . at ¶ 103.)

In July 2015, plaintiff learned from Davis that there had been a recommendation to remove plaintiff's security clearance. ( Id . at ¶ 104.) Around the same time, Washburn directed NAWCWD management to require plaintiff to undergo a psychological exam by the base psychologist, who found no psychological issues with plaintiff. ( Id . at ¶¶ 105, 106.) Later that month, the NAWCWD security team told plaintiff the investigation into his security clearance had been adjudicated in his favor. ( Id . at ¶ 107.) Shortly thereafter, "HR and management, as a result of Washburn's influence and direction, ordered an inquiry of [plaintiff] by [Division Head] Robert Long." ( Id . at ¶ 108.) Long was argumentative in interviews with plaintiff and refused to accept documents plaintiff offered in his defense. ( Id . at ¶ 109.) On or about October 8, 2015, Long issued the report of his investigation, which found a number of instances of purported wrongdoing by plaintiff. ( Id . at ¶ 112.) Plaintiff denied the allegations contained in the report, which he contends were not true or were grossly distorted, though he had difficulty responding fully because the report he received was heavily redacted. ( Id . at ¶¶ 113, 114.)

On or about December 9, 2015, plaintiff met with Farris and Wheelock, who informed him that Wheelock had proposed suspending plaintiff for seven days and told him to "resign or

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face the consequences." ( Id . at ¶ 115.) The Notice of Proposed Suspension (the "Notice") was based primarily on allegations mirroring those in Long's report. ( Id . at ¶ 116.) To respond to the Notice, plaintiff requested an unredacted copy of the report from Charles Bechtel, who refused plaintiff's request. ( Id . at ¶¶ 117, 118.) Plaintiff also requested the identities of the witnesses relied upon for Long's report, but management did not provide this information or copies of the written notes underlying the report. ( Id . at ¶ 119.) On January 11, 2016, plaintiff submitted a 234-page response to the Notice denying the allegations. ( Id . at ¶ 120.) Despite this lengthy and detailed response, Bechtel upheld the Notice on February 16, 2016, and told plaintiff that if plaintiff did not do what Washburn wanted, he would be fired. ( Id . at ¶¶ 121, 122.) Plaintiff alleges that Long's report, the Notice, and the suspension all "resulted from the influence and interference of Washburn and other LDS Church members at [NAWCWD] who were displeased by [plaintiff's] refusal to join the LDS Church. ( Id . at ¶ 123.)

On February 23, 2016, Wheelock assigned plaintiff to work under Minthorn. ( Id . at ¶ 124.) Under this arrangement, plaintiff's lab and equipment were turned over to Washburn, and plaintiff "was also subjected to undefined 'constraints' and threatened with additional discipline if he violated any of [them]." ( Id .) Plaintiff was barred from owning future equipment and was subjected to petty administrative harassment. ( Id . at ¶¶ 125, 126.) "Wheelock took this action because of the influence and interference of Washburn and other LDC Church members at [NAWCWD] and the suspension that resulted from their influence and interference." ( Id . at ¶ 127.) Plaintiff reached out to management for assistance in locating a facility to perform testing but was unable to secure facilities, as a result of which he lost some of his funding and was pressured to turn over funding he had received to Washburn. ( Id . at ¶¶ 125, 126.)

After receiving the Notice on or about December 9, 2015, plaintiff contacted the Equal Employment Opportunity ("EEO") Office and made an informal complaint, and he amended his EEO informal complaint on or about February 16, 2016 to include the upholding of his

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suspension. ( Id . at ¶¶ 128, 129.) Plaintiff filed a formal EEO complaint on or about April 18, 2016. ( Id . at ¶ 130.)

On August 24, 2018, plaintiff initiated this civil action against the Secretary of the United States Department of the Navy asserting three claims under Title VII: (1) discrimination based on his non-affiliation with the LDS Church; (2) a hostile work environment based on his non-affiliation with the LDS Church; and (3) retaliation for engaging in EEO activity. (Doc. No. 1.) On March 29, 2019, defendant filed a motion to dismiss, which the court granted in part. (Doc. Nos. 20, 27.)

Plaintiff filed his FAC on July 17, 2019, alleging a Title VII claim for discrimination based on his non-affiliation with the LDS Church and a Title VII claim for retaliation based on his engaging in the protected activity of complaining about that discrimination. (Doc. No. 28.) Defendant filed the pending motion to dismiss on August 7, 2019. (Doc. No. 32.) Plaintiff filed his opposition on September 3, 2019, and defendant filed its reply on October 1, 2019. (Doc. No. 36.)

The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is to test the legal sufficiency of the complaint. Navarro v . Block , 250 F.3d 729, 732 (9th Cir. 2001). A dismissal may be warranted where there is "the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v . Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl . Corp . v . Twombly , 550 U.S. 544, 570 (2007). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v . Iqbal , 556 U.S. 662, 678 (2009).

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v . King & Spalding , 467 U.S. 69, 73 (1984); Love v . United States , 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. U . S . ex rel . Chunie v . Ringrose , 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal , 556 U.S. at 678. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly , 550 U.S. at 555; see also Iqbal , 556 U.S. at 676 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen . Contractors of Cal ., Inc . v . Cal . State Council of Carpenters , 459 U.S. 519, 526 (1983).

In ruling on such a motion, the court may consider material that is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v . City of Los Angeles , 250 F.3d 668, 688-89 (9th Cir. 2001).

Defendant moves to dismiss plaintiff's FAC in its entirety, arguing that plaintiff has not stated plausible claims for disparate treatment based on his non-affiliation with the LDS Church or for retaliation for complaining about such treatment. (Doc. No 32-1.) Below, the court addresses both of those claims.

A. Disparate Treatment Claim

Defendant contends that plaintiff's disparate treatment claim must fail because there are no specific facts alleged in the FAC giving rise to a plausible inference that any of the adverse

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employment actions that plaintiff suffered—proposed suspension, adoption of the suspension, and reassignment—were based on plaintiff's non-affiliation with the LDS Church. (Doc. No. 32 at 2.)

Title VII makes it unlawful for an employer to discriminate against an employee because of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). In this context, religion includes "all aspects of religious observance and practice, as well as belief," including an employee's non-religious affiliation. Id . § 2000e(j); Noyes v . Kelly Servs ., 488 F.3d 1163, 1168-69 (9th Cir. 2007) (recognizing that Title VII discrimination claim may be based on an employee's lack of adherence to religious beliefs promoted by the employer). A plaintiff alleging discrimination under Title VII may proceed under two theories: disparate treatment or disparate impact. Watson v . Fort Worth Bank & Trust , 487 U.S. 977, 986-87 (1988). Here, plaintiff asserts his discrimination claim based on a theory of disparate treatment. (Doc. No. 34 at 7.)

A plaintiff in a disparate treatment case bears the burden of alleging and proving that the defendant employer intentionally discriminated against him. Tex . Dep't of Cmty . Affairs v . Burdine , 450 U.S. 248, 253 (1981); see also Int'l Bhd . of Teamsters v . United States , 431 U.S. 324, 335 n.15 (1977) (noting "[p]roof of discriminatory motive is critical" in disparate treatment claims); McGinest v . GTE Serv . Corp ., 360 F.3d 1103, 1122 (9th Cir. 2004) (a plaintiff "must show the employer's intent to discriminate, but intent may be inferred from circumstantial evidence"). A plaintiff may prove intent through either "direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated the employer." Metoyer v . Chassman , 504 F.3d 919, 930 (9th Cir. 2007).

To demonstrate discriminatory intent, a plaintiff may rely on the familiar burden shifting framework under McDonnell Douglas Corp . v . Green , 411 U.S. 792, 802 (1973). See Reynaga v . Roseburg Forest Prods ., 847 F.3d 678, 691 (9th Cir. 2017). Under the McDonnell Douglas framework, a plaintiff can establish an inference of discrimination by satisfying the prima facie elements: "(1) the plaintiff belongs to a protected class, (2) he was performing according to his employer's legitimate expectations, (3) he suffered an adverse employment action, and (4) similarly situated employees were treated more favorably, or other circumstances surrounding

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the adverse employment action give rise to an inference of discrimination." Reynaga , 847 F.3d at 691. Once plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. See McDonnell Douglas , 411 U.S. at 802-03; Diaz v . Eagle Produce Ltd . P'ship , 521 F.3d 1201, 1207 (9th Cir. 2008). If the defendant meets its burden in this regard, the burden shifts back to plaintiff to establish that defendant's proffered reason was a pretext for discrimination. St . Mary's Honor Ctr . v . Hicks , 509 U.S. 502, 507 (1993); Diaz , 521 F.3d at 1207.

Here, the parties focus their arguments on the fourth element of plaintiff's prima facie case, and in particular, whether he has sufficiently alleged that "other circumstances surrounding the adverse employment action give rise to an inference of discrimination." (Doc. Nos. 32-1 at 9-10; 34 at 8 (plaintiff stating that defendant "does not challenge that [he] is a member of a protected class, that he was qualified for his position[,] or that he experienced an adverse employment action," and "[b]ecause they are uncontested, [he] does not address those elements here"); 36 at 5.) Thus, the court will address whether plaintiff's allegations of "other circumstances surrounding" the specific adverse employment actions he suffered—the December 9, 2015 notice of proposed suspension, the February 16, 2016 decision to uphold the suspension, and the February 23, 2016 reassignment—give rise to an inference of discrimination.

Plaintiff contends that his FAC cures the deficiencies this court identified in its previous order addressing defendant's motion to dismiss plaintiff's original complaint, including that plaintiff's citation to Magden v . Easterday Farms , No. 2:16-cv-00068-JLQ, 2017 WL 1731705 (E.D. Wash. May 3, 2017), was unavailing because his original complaint did not contain allegations comparable to those in Magden . (Doc. Nos. 34 at 8-9; 27 at 11.) In Magden , a plaintiff avoided summary judgment on his claim for discrimination based on his non-Mormon

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affiliation where he alleged and submitted evidence to prove that: his supervisor gave him a Mormon bible while they were at work and asked him approximately every two weeks whether he had read selected verses; he complained about his supervisor's proselytizing but his complaint was ignored and no investigation was conducted; his supervisor confronted him about his complaint, and he told his supervisor that he "only wanted to talk about work, and not personal matters"; and his supervisor accused him of being "defiant" and terminated plaintiff later that same day purportedly "due to poor communication." Id .

Plaintiff contends that his FAC includes allegations that closely align with the facts presented in Magden . Specifically, plaintiff points to his new allegations that Washburn, a widely-known, devout member of the LDS Church: (i) displayed a Book of Mormon at work; (ii) proclaimed that he "got [plaintiff's] wife" after her baptism in 2006; (iii) pressured plaintiff to join the LDS Church by inviting plaintiff to church activities, like his son's baptism; (iv) continued recruitment efforts despite plaintiff repeatedly telling him that he did not want to join the LDS Church; and (v) placed an LDS Church member on plaintiff's team who continuously attempted to recruit plaintiff while at work and frequently quoted the Book or Mormon while working with plaintiff. ( See Doc. No. 34 at 8-9.) In addition, plaintiff contends that like the plaintiff in Magden , he complained about the discrimination he was experiencing when he met with Christine Farris and Jeff Davis in March 2015 and reported that he believed NAWCWD employees who were members of the LDS Church were treated more favorably than him, and that it was inappropriate for plaintiff to be supervised by Washburn, who baptized his wife into the LDS Church and tried to recruit him to join that church. ( Id . at 9.) Plaintiff further alleges in his FAC that his complaint was ignored, and no investigation conducted, also like the plaintiff in Magden . ( Id . at 9.)

However, as defendant points out in his reply, plaintiff alleges that Davis told plaintiff at their second meeting in June 2015 that Davis had conducted a managerial investigation and had concluded that plaintiff was "the problem." (Doc. No. 36 at 6.) Thus, plaintiff's allegations are themselves inconsistent and support neither a conclusion that no investigation occurred nor an inference of discrimination, particularly where plaintiff does not allege that Farris and Davis are

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members of the LDS Church. Unlike the proselytizing supervisor in Magden , who confronted that plaintiff about his discrimination complaints and terminated his employment later that day, Washburn was not involved in the three adverse employment actions that plaintiff suffered in late 2015 and early 2016, and Washburn's direct recruitment efforts of plaintiff allegedly began nearly a decade before those actions were taken and appeared to have stopped in 2010 when plaintiff's wife disassociated from the LDS Church, if not sooner.

In addition, plaintiff cannot avoid dismissal of his discrimination claim merely by appending the phrase "due to [plaintiff's] refusal to join the LDS Church" or "because of [plaintiff's] refusal to join the LDS Church" at the end of each of his allegations about incidents that occurred after Washburn became his supervisor in late 2012—incidents that were alleged in his original complaint and that the court found insufficient to support an inference of discrimination. ( See Doc. No. 28 at ¶ 52 (cubicle reassignment), ¶ 55 (secret patent information), ¶ 58 (not selected for promotion), ¶ 61 (ignoring fume hood risks), ¶ 70 (mismanagement of lock-out), ¶ 72 ("to be fired" on whiteboard), ¶ 81 (tranquilizer gun incident), ¶ 84 (explosives safe access), ¶ 87 (inspection emails), ¶ 98 (reassignment under Minthorn), ¶ 103 (cutting locks to lab area).) Plaintiff characterizes these allegations as Washburn "[taking] a series of discriminatory actions against him, culminating in his suspension . . ." and argues that these allegations "provide the required 'some additional evidence to support the inference that the employment actions were taken because of a discriminatory motive based upon the employee's failure to hold or follow his or her employer's religious beliefs.'" (Doc. No. 34 at 9-10 (no citation provided though the internal quotation appears to be from Magden ).) The court is not persuaded by plaintiff's conclusory argument in this regard.

First, merely adding "due to [plaintiff's] refusal to join the LDS Church" to his allegations regarding those incidents does not provide the kind of "factual enhancement" that Iqbal requires.

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See Iqbal , 556 U.S. at 678 (a complaint does not suffice it if tenders naked assertions devoid of further factual enhancement) (internal quotation marks omitted). Second, even if the court accepts as true plaintiff's bare assertion that those alleged incidents occurred because he refused to join the LDS Church , those incidents are not the adverse employment actions on which plaintiff's discrimination claim is based. ( See Doc. No. 34 at 3 (stating "[t]he discriminatory actions alleged by [plaintiff] prior to the issuance of the Notice of Proposed Suspension to him on December 9, 2015 are properly alleged as background evidence of the Navy's discriminatory animus, not as separately actionable claims.").) Third, plaintiff merely states in conclusory fashion that these incidents "culminated" in his suspension, without alleging how these incidents are supposedly related to Wheelock's decision to propose a suspension or to Bechtel's decision to uphold plaintiff's suspension. At best, plaintiff's only allegations that could be construed as connecting the adverse employment actions alleged to his refusal to join the LDS Church are that: (i) the Notice of Proposed Suspension was primarily based on Long's report, and Long's inquiry into plaintiff had been ordered by human resources and management "as a result of Washburn's influence and direction" (Doc. No. 28 at ¶ 108); (ii) Bechtel upheld the suspension and "told [plaintiff] that if [plaintiff] did not do what Washburn wanted, [plaintiff] would be fired" ( id . at ¶ 122); and (iii) Wheelock reassigned plaintiff "because of the influence and interference of Washburn and other LDS Church members at [NAWCWD]" ( id . at ¶ 127). Defendant persuasively contends that plaintiff has not adequately alleged "facts supporting the conclusory allegation that the 'influence' and 'interference' of Washburn or unspecified 'LDS Church Members' brought about the discrete employment decisions at issue in this case—i.e., Wheelock's proposed suspension, Bechtel's adoption of the suspension, and Plaintiff's ensuing reassignment." (Doc. No. 36 at 6.) Plaintiff's allegations in this regard are similarly conclusory and lack supporting allegations providing the sort of factual enhancement that could give rise to an inference of discrimination. As noted, plaintiff has also not alleged that Wheelock or Bechtel are members of the LDS Church nor has he alleged any other facts from which it could be inferred that they had a motive to discriminate against plaintiff based on his non-affiliation with

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the LDS Church. Merely asserting in conclusory fashion that Washburn influenced their actions is not sufficient.

Accordingly, the court finds that plaintiff has not sufficiently alleged facts that give rise to an inference of discrimination and will dismiss plaintiff's disparate treatment cause of action for failure to state a claim. Plaintiff has already had an opportunity to amend his complaint and to do so with the guidance of the court's prior dismissal order, which discussed deficiencies in his original complaint. Moreover, plaintiff did not request leave to amend his FAC or proffer any additional facts that he could allege in a second amended complaint if the court were to find that his FAC failed to state a cognizable claim. Rather, plaintiff maintained in his opposition brief and at the hearing on the pending motion to dismiss that he had sufficiently alleged his claims. Under these circumstances, the court concludes that the granting of further leave to amend would be futile and will therefore dismiss plaintiff's disparate treatment claim with prejudice. See Ecological Rights Found . v . Pac . Gas & Elec . Co ., 713 F.3d 502, 520 (9th Cir. 2013) ("Although a district court 'should freely give leave [to amend] when justice so requires,' Fed. R. Civ. P. 15(a)(2), the court's discretion to deny such leave is 'particularly broad' where the plaintiff has previously amended its complaint.") (quoting Miller v . Yokohama Tire Corp ., 358 F.3d 616, 622 (9th Cir. 2004)); see also Cooper v . Cate , No. 1:10-cv-899-AWI-DLB, 2012 WL 1669353, at *13 (E.D. Cal. May 11, 2012) (dismissing Title VII retaliation and disparate treatment claims without leave to amend, noting that the plaintiff's additional allegations in her third amended complaint did not address the problems discussed in the court's prior order dismissing those claims with leave to amend, which indicated that she was unwilling or unable to cure the repeated deficiencies, and the fact that she had not requested leave to amend again indicated that her "TAC represents the best allegations that can be made consistent with Federal Rule of Civil Procedure 11").

B. Retaliation Claim

Defendant also moves to dismiss plaintiff's second cause of action for retaliation. Title VII prohibits retaliation by an employer "against an employee for making a charge or otherwise

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participating in a Title VII proceeding." Nilsson v . City of Mesa , 503 F.3d 947, 953 (9th Cir. 2007). Under § 704 of the Civil Rights Act of 1964, it is unlawful:

for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].

42 U.S.C. § 2000e-3 (2000). To make out a prima facie case of retaliation under Title VII, a plaintiff must allege facts demonstrating that "(1) [he] engaged in a protected activity, (2) [he] suffered an adverse employment action, and (3) there was a causal link between [his] activity and the employment decision." Stegall v . Citadel Broad . Co ., 350 F.3d 1061, 1065-66 (9th Cir. 2003) (quoting Raad v . Fairbanks N . Star Borough Sch . Dist ., 323 F.3d 1185, 1196-97 (9th Cir. 2003)); see also Poland v . Chertoff , 494 F.3d 1174, 1179-80 (9th Cir. 2007).

1. Whether Plaintiff Alleged that He Engaged in Protected Activity

A plaintiff can satisfy the first element of a Title VII retaliation claim, participation in a protected activity, by alleging that he filed a formal or informal complaint regarding unlawful employment practices. See Passantino v . Johnson & Johnson Consumer Prods ., Inc ., 212 F.3d 493, 506 (9th Cir. 2000). The disputed employment practices need not have been actually unlawful; plaintiff need only show that his belief that an unlawful employment practice occurred was "reasonable." Id .

Here, plaintiff alleges that he engaged in protected activity under Title VII when he complained to Farris and Davis in March and June 2015 that he believed NAWCWD employees who were members of the LDS Church were treated more favorably than him, and that it was inappropriate for him to be supervised by Washburn, who baptized his wife and tried to recruit him to join the LDS Church. (Doc. No. 28 at ¶ 155.) Plaintiff also alleges that he engaged in protected activity "when he contacted the EEO Office on December 9, 2015, amended his informal complaint in February 2016, filed a formal EEO complaint in April 2016, and requested an EEOC Hearing in November 2016." ( Id . at ¶ 156.) Defendant does not dispute that these are allegations of engagement in protected activity.

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The court therefore finds that plaintiff has sufficiently alleged the first element of his Title VII retaliation claim—that he engaged in protected activity. See Raad , 323 F.3d at 1197 ("Protected activity includes the filing of a charge or a complaint, or providing testimony regarding an employer's alleged unlawful practices, as well as engaging in other activity intended to oppose an employer's discriminatory practices.") (internal quotations and brackets removed); see also Finley v . United Parcel Serv . Inc ., No. 2:16-cv-00055-ROS, 2018 WL 6422082, at *12 (D. Ariz. Mar. 30, 2018) (noting that protected activity "must plausibly bear some relation to discrimination on the basis of a protected characteristic" and that "general complaints about the workplace or unfairness are not sufficient").

2. Whether Plaintiff Alleged that He Suffered Adverse Employment Actions

As to the second element of a retaliation claim, a challenged action must be "materially adverse," meaning that it would dissuade a reasonable worker from exercising protected rights. See Burlington N . & Santa Fe Ry . Co . v . White , 548 U.S. 53, 68 (2006); Ellins v . City of Sierra Madre , 710 F.3d 1049, 1062 (9th Cir. 2013); Ray v . Henderson , 217 F.3d 1234, 1242-43 (9th Cir. 2000) (describing an adverse employment action as "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity").

Plaintiff alleges that he suffered the following adverse employment actions: (i) "[defendant] imposed the proposed suspension against [plaintiff] in February 2016"; (ii) "on February 23, 2016, [defendant] removed [plaintiff] from his laboratory and forced him to turn over custody of his equipment to Washburn"; (iii) "on February 23, 2016, [defendant] began requiring [plaintiff] to report to Martin Minthorn and demoted [plaintiff]" and "subjected [him] to undefined 'constraints' and threatened [him] with discipline if he violated any of the undefined 'constraints'"; and (iv) "from 2016 through 2017, [defendant] refused to provide [plaintiff] with

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adequate facilities to conduct his research and projects, which resulted in some of the funding being lost." (Doc. No. 28 at ¶¶ 157-161; see also Doc. No. 34 at 12-13 (arguing that "all of these actions are likely to dissuade an employee from complaining about discrimination" and thus, constitute protected activity under Title VII).) Defendant does not contend that these alleged actions do not constitute adverse employment actions; rather, defendant argues that plaintiff has failed to allege a causal link between those actions and his engagement in protected activity. (Doc. No. 32-1 at 12-14.) In response to defendant's causation arguments, plaintiff wholly ignores those adverse actions he has relied upon and instead contends—for the first time—that "he has sufficiently pled a causal link between his protected activity" in March and June 2015 and the following other actions:

On or about June 16, 2015 (six days after [plaintiff] complained to management), [he] learned that the Navy planned to transfer him. On or about July 7, 2015 (twenty-seven days after [he] complained to management), [he] learned that a recommendation was made to remove his security clearance. And on or about July 27, 2015 (forty-seven days after [he] complained to management), the Navy ordered an inquiry into [him].

(Doc. No. 34 at 15 (internal citations omitted).) But, these actions taken in June and July 2015 were not alleged in plaintiff's FAC as forming the basis for his retaliation claim and were not mentioned in the "adverse actions" section of his brief in opposition to the pending motion. Moreover, plaintiff explicitly stated in his FAC that "he cites the earlier actions against him as evidence of the discriminatory motivation of the actions that occurred on or after December 2015." (Doc. No. 28 at ¶ 148.) In addition, this court has already determined that plaintiff's Title VII claims cannot be predicated on unexhausted and untimely incidents; that is, adverse employment actions that occurred on or before December 9, 2015, because plaintiff initially sought EEO counseling on January 19, 2016. (Doc. No. 27 at 7-8) (citing 29 C.F.R. § 1614.105(a)(1)); see also Nguyen v . Dep't of Navy , 412 F. App'x 926, 928 (9th Cir. 2011) ("[T]o support her discrimination and retaliation claims[,] Nguyen cannot rely on incidents prior to . . .

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forty-five days before she initiated contact with an EEO counselor."). Accordingly, the incidents that occurred in June and July 2015 cannot support plaintiff's Title VII retaliation claim.

The court therefore finds that plaintiff has sufficiently alleged that he suffered adverse employment actions beginning with his suspension in early February 2016 and no earlier.

3. Whether Plaintiff Alleged a Causal Link

Plaintiff alleges that each of the adverse employment actions beginning with his suspension in February 2016 was taken "in part because [he] had previously complained that he was being treated unfairly because of his refusal to join the LDS Church." (Doc. No. 28 at ¶¶ 157, 158, 160, 161.) Defendant argues that plaintiff has not sufficiently alleged a causal link because: (1) he failed to allege the requisite but-for causation in that he asserts that the adverse actions were taken in part because of his protected activity; (2) he did not allege that Bechtel or Wheelock were aware of his complaints to Farris and Davis; (3) the eight- to eleven-month gap between his complaints to Farris and Davis and the adverse actions precludes an inference of causation based on temporal proximity; and (4) an inference of causation based on temporal proximity does not arise because his allegations suggest an "obvious alternative explanation." (Doc. No. 32-1 at 11-14.)

a . But-For Causation

The Supreme Court has clarified that "Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action." Univ . of Texas Sw . Med . Ctr . v . Nassar , 570 U.S. 338, 339 (2013). "Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened [motivating factor] causation test stated in [42 U.S.C.] § 2000e-2(m)." Id . at 360. But-for causation "requires proof that the unlawful retaliation would not have occurred in the absence of the alleged protected activity of the employee, activity which includes opposition to employment discrimination, and submitting or supporting a complaint about employment discrimination." Goins v . Cty . of Merced , No. 1:13-cv-01245-AWI-SK, 2014 WL 3362254, at *5 (E.D. Cal. July 9, 2014)

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(concluding that even though plaintiffs' complaint did "not actually use the phrase 'but-for,' they adequately pled but-for causation by alleging their supervisor's retaliatory conduct started after he learned that plaintiffs had filed administrative complaints against him for harassment").

Defendant argues that by alleging the adverse actions were taken "in part" because of his protected activity, plaintiff has failed to allege but-for causation. (Doc. No. 32-1 at 12.) Plaintiff contends that defendant misstates "but-for" causation as a "sole" or "exclusive" cause standard, and that one bringing such a claim is not required to allege that "his complaint to HR of his discriminatory treatment were the sole cause of the adverse actions he suffered." (Doc. No. 34 at 13, 14.)

While plaintiff was not required to use the phrase "but-for" as magic words, by using the phrase "in part," plaintiff essentially alleges that his protected activity played a role, played a part, and was a cause—he has not alleged that his protected activity was the but-for cause. See Diorio v . Cty . of Kern , No. 1:11-cv-01569-LJO, 2013 WL 1127687, at *9 (E.D. Cal. Mar. 18, 2013) (finding the plaintiff failed to show a causal link with respect to her Title VII retaliation claim where her statement that she was terminated "in part due to her insubordination issues with each of her three supervisors actually detracts from her effort to show that her [] complaint [about a hostile work environment] was a but-for cause of her termination"); see also Arnold v . Research Found . for State Univ . of N . Y ., 216 F. Supp. 3d 275, 288-89 (E.D.N.Y. 2016) (finding the plaintiff failed "to allege that her age was a but for cause of her termination" because she "admits that her termination was motivated 'at least in part' by her age," which is "insufficient because [she] must allege that age was more than a mere motivating factor; [she] must show that her age was a but for cause"); Mazur v . N . Y . City Dep't of Educ ., 53 F. Supp. 3d 618, 638 (S.D.N.Y. 2014), aff'd , 621 F. App'x 88 (2d Cir. 2015) (applying Supreme Court's decision in Nassar and concluding that "it is not enough for a defendant's adverse employment action to be based in part on the plaintiff engaging in a protected activity"); Silva v . City of Hidalgo , Tex ., 575 F. App'x 419, 426 (5th Cir. 2014) ("[plaintiff's] own allegation is fatal to her claim because she asserts only that 'she was terminated in part because she rejected the sexual advances [] and because she made [] reports []").

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Critically, plaintiff here fails to allege that the adverse actions "would not have occurred in the absence of—that is, but for—" his protected activity. Nassar , 570 U.S. at 346-47. In Nassar , the Supreme Court clarified that the heightened standard of but-for causation applies to Title VII retaliation claims, not the lesser "motivating factor" standard, which applies to status-based discrimination claims. Nassar , 570 U.S. at 360. But even under that lesser standard, a plaintiff must allege that the discrimination was "a motivating factor for any employment practice, even though other factors also motivated the practice." Nassar , 570 U.S. at 348-49. By merely alleging that his protected activity was a factor, plaintiff Albro has not even satisfied the lesser standard of alleging his protected activity was a "motivating factor" for the adverse action. It follows that plaintiff's allegations do not satisfy the heightened but-for causation standard as required for Title VII retaliation claims pursuant to the decision in Nassar .

b . Inference of Causation Based on Temporal Proximity

A plaintiff may establish a causal link between the protected activity engaged in and the adverse action taken by circumstantial evidence, including the employer's knowledge of the protected activity and the proximity in time between the protected action and the adverse employment act. Jordan v . Clark , 847 F.2d 1368, 1376 (9th Cir. 1988); see also Van Asdale v . Int'l Game Tech ., 577 F.3d 989, 1003 (9th Cir. 2009) ("[C]ausation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity.") (quoting Villiarimo v . Aloha Island Air , Inc ., 281 F.3d 1054, 1065 (9th Cir. 2002)); Passantino , 212 F.3d at 507 ("[W]hen adverse employment decisions are taken within a reasonable period of time after complaints of discrimination have been made, retaliatory intent may be inferred").

Here, the length of time between plaintiff's complaints in March and June 2015 and Bechtel's decision in February 2016 to uphold Wheelock's proposed suspension of plaintiff—a span of eight to eleven months—does not suggest that the February 2016 actions "follow[ed] on the heels of [plaintiff's] protected activity" under the circumstances in this case. See Villiarimo , 281 F.3d at 1065. As the Ninth Circuit has explained, "a rule that any period over a certain time is per se too long (or, conversely, a rule that any period under a certain time is per se short enough) would be unrealistically simplistic." Coszalter v . City of Salem , 320 F.3d 968, 978 (9th

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Cir. 2003); see also Howard v . City of Coos Bay , 871 F.3d 1032, 1046 (9th Cir. 2017). Under some circumstances an eight-month gap in time may be too great to allow the inference of a causal link. See Cornwell v . Electra , 439 F.3d 1018, 1035-36 (9th Cir. 2006) (gap of eight months was too great to support an inference that a complaint was related to the termination); see also Manatt v . Bank of Am ., NA , 339 F.3d 792, 802 (9th Cir. 2003) (nine-month lapse between protected activity and alleged retaliatory employment decision was too long to infer causation). Under other circumstances, however, even a gap of eleven months may not be too great to allow for such an inference. See Allen v . Iranon , 283 F.3d 1070, 1078 (9th Cir. 2002) ("[A]n eleven-month gap in time is within the range that has been found to support an inference that an employment decision was retaliatory.").

Moreover, to support an inference of causation based on temporal proximity, a plaintiff must show that the particular decision makers involved in the adverse employment action knew of plaintiff's protected activity. See Reed v . Avis Budget Grp ., Inc ., 472 F. App'x 525, 526 (9th Cir. 2012) (citing Cohen v . Fred Meyer , Inc ., 686 F.2d 793, 796 (9th Cir. 1982) ("Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.")). Here, plaintiff does not respond to defendant's argument that he has failed to allege that the decision makers in his adverse employment actions—Bechtel (who upheld plaintiff's suspension in February 2016) and Wheelock (who reassigned plaintiff in February 2016)—were aware that plaintiff had complained to Farris and Davis in March and June of 2015. Thus, the court is not inclined to infer causation under these circumstances. See Cooper v . Cate , No. 1:10-cv-899-AWI-DLB, 2012 WL 1669353, at *9 (E.D. Cal. May 11, 2012) (dismissing retaliation claim where there were "no allegations that the specific individuals who inflicted the particular

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adverse employment actions on [plaintiff] had actual knowledge of [his] protected activities" explaining that "[w]ithout actual knowledge of protected activity by the individual who causes an adverse employment action to occur, there can be no retaliation").

In sum, the court finds that plaintiff has not sufficiently alleged a causal link between his protected activity and the adverse employment actions that he suffered. He did not allege but-for causation, and the eight- to eleven-month gap between his protected activity and the adverse actions does not support an inference of causation based on temporal proximity alone because he did not allege that the decision-makers were aware of his protected activity.

Thus, the court will dismiss plaintiff's retaliation claim. As noted above, plaintiff has already had an opportunity to amend his complaint and has failed to correct the previously noted deficiencies. Moreover, and as noted above with respect to his disparate treatment claim, plaintiff has not requested leave to amend his FAC as to either claim. Rather, plaintiff's counsel has simply argued that the allegations of the FAC are sufficient to state cognizable claims. Under these circumstances the court concludes that the granting of further leave to amend would be futile with respect to plaintiff's retaliation claim as well. See Ecological Rights Found ., 713 F.3d at 520; see also Cooper , 2012 WL 1669353, at *13.

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For the reasons set forth above, defendant's motion to dismiss (Doc. No. 32) is granted without further leave to amend and the Clerk of the Court is directed to close this case.

IT IS SO ORDERED.

Dated: April 21 , 2020

/s/ _________
UNITED STATES DISTRICT JUDGE