Perez v. McDonough

Background

Carolina Perez alleged that she worked for the Department of Veterans Affairs and became Chief Nurse of the Palo Alto VA in 2018. She alleged that, beginning in 2020 and 2021, the VA removed her from that role, placed her in temporary details, did not return her to the Chief Nurse position, offered her a nonsupervisory position, issued an inaccurate performance review, and permanently reassigned her to a position without supervisory duties and with reduced promotion potential. She also alleged that Joy Abbey, identified in the complaint as Caucasian, was not disciplined after a COVID-19-related incident and was later selected as Chief Nurse.

Perez alleged five claims in her first amended complaint: race and national-origin discrimination under Title VII; sex and gender discrimination under Title VII; age discrimination under the Age Discrimination in Employment Act; retaliation under Title VII; and a hostile work environment based on race, gender, national origin, age, and prior equal-employment activity. The defendants moved to dismiss, arguing that some claims were untimely and that the remaining claims did not state legally sufficient claims.

Administrative exhaustion and timeliness

The court held that Perez’s Title VII claims based on conduct before October 16, 2021, were untimely because she contacted an equal-employment counselor on November 30, 2021, more than 45 days after those events. The court also held that her age-discrimination claims based on conduct before June 3, 2021, were untimely under the applicable 180-day period. The court stated that the June 1, 2021 detail and removal from the Chief Nurse position could not serve as the basis for those claims, although earlier events could be used as background evidence for timely claims.

Disparate-treatment claims

The court dismissed Counts I through III, which alleged race, national-origin, sex, gender, and age discrimination. It concluded that the allegations did not plausibly identify similarly situated employees outside Perez’s protected categories who received more favorable treatment, or other circumstances supporting an inference of discrimination.

The court found that Perez had not adequately shown that Abbey was similarly situated for purposes of the June 1, 2021 removal. It also found insufficient allegations concerning the December 1, 2021 detail, the failure to reinstate Perez, the offer of a nonsupervisory position, and the November 23, 2022 permanent reassignment. The complaint’s allegation that Perez’s FY 2022 performance review contained inaccurate statements and omitted context did not explain the review’s rating, its effect on her employment, or how it resulted from discrimination. The court granted leave to amend these claims.

Retaliation claim

The court dismissed Perez’s Title VII retaliation claim with leave to amend. It held that the complaint did not allege that Howard knew about Perez’s protected equal-employment activity, which was necessary to connect Howard’s actions to retaliation. The December 1, 2021 detail occurred before Renfro allegedly learned of Perez’s December 8, 2021 complaint, so that detail could not have been retaliation for that complaint. The court also found no sufficient causal connection between Perez’s protected activity and her later permanent reassignment or FY 2022 performance review.

Hostile-work-environment claim

The court dismissed the hostile-work-environment claim with leave to amend. It found that the first amended complaint primarily described management decisions, including investigations, performance evaluations, and job reassignments, rather than verbal or physical harassment that was sufficiently severe or pervasive to create an abusive work environment. The court also found that the alleged conduct consisted of discrete employment actions that could not be combined into a hostile-work-environment claim, and that Perez did not provide facts plausibly showing that the conduct occurred because of her protected characteristics or prior protected activity.

Disposition

The court granted the defendants’ motion to dismiss. Perez’s claims were dismissed with leave to amend, and she was allowed 28 days to file an amended complaint solely to cure the deficiencies identified in the order. The court stated that failure to file a timely amended complaint would result in dismissal of the claims with prejudice. The court also continued the case-management conference to March 4, 2025.