Perez v. Hunter

Background

Carolina Perez alleges that the Department of Veterans Affairs violated Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act by discriminating against her, creating a hostile work environment, and retaliating against her for protected activity. Perez worked at the VA beginning in 2003 and became chief nurse of the Palo Alto VA in 2018. After a 2021 investigation related to a COVID-19 outbreak, VA officials disciplined Perez. She alleges that Joy Abbey, a younger Caucasian woman who had similar supervisory responsibilities, was not disciplined for comparable conduct.

Perez alleges that she was moved from the chief nurse position to other assignments, including a December 2021 detail to the Quality, Safety, and Value division, and that the detail was repeatedly extended before she was permanently reassigned in November 2022. She also alleges that these actions followed her contacts with the VA's equal-employment office and that Abbey later replaced her as chief nurse. Perez filed a second amended complaint after the court previously dismissed her first amended complaint with leave to amend.

Administrative exhaustion

The court explained that a federal employee bringing a Title VII claim generally must contact an equal-employment counselor within 45 days of the alleged discriminatory event. The parties agreed that claims based on conduct before September 14, 2021, were untimely because Perez first contacted an equal-employment manager on October 29, 2021. The court stated that earlier events could still be used as background evidence for timely claims.

Disparate treatment

A disparate-treatment claim alleges that an employer treated an employee worse because of a protected characteristic. The court held that Perez plausibly stated race- and national-origin discrimination claims, and an age-discrimination claim under the Age Discrimination in Employment Act, to the extent they were based on the December 2021 detail, the lack of reinstatement, and the permanent reassignment. The court relied in part on Perez's allegation that Abbey, who was outside the relevant protected classes, replaced her. Perez also alleged that Abbey received staff complaints but was not investigated or detailed away from her position. The court found those allegations sufficient at the pleading stage to support an inference of discrimination based on race, national origin, and age.

The court granted the motion to dismiss Perez's Title VII disparate-treatment claim based on sex and gender without leave to amend because Perez had not alleged evidence suggesting that those characteristics motivated the employment actions. The court also found that Perez's allegations concerning her 2022 performance evaluation did not sufficiently state a disparate-treatment claim. The opinion's conclusion does not separately identify the disposition of that performance-evaluation theory.

Retaliation

The court denied the motion to dismiss Perez's Title VII retaliation claim. Perez alleged that VA officials knew about her equal-employment activity and repeatedly extended her detail to a nonmanagerial position soon after that activity. The court found that the alleged timing, together with Perez's allegations about the VA's temporary-detail policy and her work history, plausibly showed a connection between her protected activity and the adverse employment actions.

Hostile work environment

The court granted the motion to dismiss the hostile-work-environment claim without leave to amend. It found that Perez's allegations about Renfro's references to her "harsh" leadership style did not show harassment occurring with enough frequency to create an abusive working environment. The court also found the comments facially neutral and related to professional performance, and noted the absence of other alleged non-discrete acts of harassment.

Disposition

The court denied the motion to dismiss Perez's Title VII disparate-treatment claim based on race and national origin and her Age Discrimination in Employment Act claim, to the extent those claims were based on the December 2021 detail posting, subsequent lack of reinstatement, and permanent reassignment. It also denied the motion as to Perez's Title VII retaliation claim. The court granted the motion to dismiss the Title VII disparate-treatment claim based on sex and gender and the hostile-work-environment claim without leave to amend.