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`Case 2:21-cv-00054-KJM-DB Document 15 Filed 04/30/21 Page 1 of 7
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`
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`Scott Philip Jang (State Bar No. 260191)
`Hardev S. Chhokar (State Bar No. 311802)
`JACKSON LEWIS P.C.
`50 California Street, 9th Floor
`San Francisco, California 94111-4615
`Telephone: (415) 394-9400
`Facsimile: (415) 394-9401
`E-mail: Scott.Jang@jacksonlewis.com
`E-mail: Hardev.Chhokar@jacksonlewis.com
`
`Attorneys for Defendant
`INTEL CORPORATION
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF CALIFORNIA
`
`SONIA RANDHAWA,
`Plaintiff(s),
`
`v.
`INTEL CORPORATION,
`Defendant(s).
`
`
`
`Case No. 2:21-cv-00054-KJM-DB
`
`DEFENDANT INTEL
`CORPORATION’S REPLY TO
`PLAINTIFF’S OPPOSITION TO
`MOTION TO DISMISS
`
`
`Date:
`Time:
`Ctrm:
`Judge:
`
`FAC Filed:
`Trial Date:
`
`May 7, 2021
`10:00 a.m.
`3, 15th Floor
` Hon. Kimberly J. Mueller
`March 11, 2021
`None
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`I.
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`INTRODUCTION
`Plaintiff’s Opposition to Defendant’s Motion to Dismiss fails to show that she exhausted
`her administrative remedies as to her Third and Fourth Causes of Action for retaliation under Title
`VII and California’s Fair Employment and Housing Act (“FEHA”). Plaintiff relies heavily on a
`standalone reference in her EEOC Charge that she complained about a coworker’s “stalking and
`sexual harassment” to Human Resources to argue that her retaliation claims are apparent on the
`face of the Charge or reasonably related to her discrimination allegations in the Charge. Plaintiff
`is wrong on both counts.
`///
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`DEFENDANT’S REPLY TO PLAINTIFF’S
`OPPOSITION TO MOTION TO DISMISS
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`Case No. 2:21-cv-0054 KJM DB
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`Case 2:21-cv-00054-KJM-DB Document 15 Filed 04/30/21 Page 2 of 7
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`First, any contention that Plaintiff’s retaliation claims are somehow apparent on the face of
`the Charge is refuted by Plaintiff’s concession that, even after reviewing and approving the Charge,
`she left the box for “retaliation” unchecked and did not otherwise reference “retaliation” in the
`Charge. Plaintiff’s own conduct “creates a presumption” at the outset that she did not intend to
`assert a retaliation claim. Jones v. UPS, Inc., 502 F.3d 1176, 1186 (10th Cir. 2007).
`Further, Plaintiff cannot overcome this presumption by clinging to a brief reference in the
`Charge that her complaints about harassment in 2015 and 2016 allegedly went ignored by Human
`Resources. The Charge provides no causal link between these alleged complaints and Plaintiff’s
`layoff – the only adverse employment action mentioned in the Charge. Temporal proximity does
`not exist, as Plaintiff’s layoff occurred in 2018 – which was more than two years after Plaintiff’s
`first alleged complaints in 2015 and still more than a year after Plaintiff’s last alleged complaints
`in 2016. Nor is any other causal connection discernable where, according to the Charge, the actors
`allegedly involved in the harassment complaints (i.e., a co-worker and Human Resources) were
`different than the actor purportedly involved in Plaintiff’s discriminatory termination (i.e., Brian
`Staab). Plaintiff’s reference to harassment in the Charge might support a harassment claim (or
`arguably Plaintiff’s sex discrimination claim), but the standalone, causally-disconnected reference
`simply does not come close to overcoming the “presumption” that Plaintiff did not assert a separate
`retaliation claim. Id.
`Second, contrary to Plaintiff’s contention, her retaliation claims are not reasonably related
`to the discrimination claims in her Charge such that an EEOC agent would have been expected to
`investigate the retaliation claims. Perhaps most tellingly is the conduct of the actual EEOC agent
`in this case. According to Plaintiff, an EEOC agent assisted her with intake and completing the
`charge. Yet, the EEOC agent evidently did not construe Plaintiff’s allegations as giving rise to a
`retaliation claim, as the EEOC agent did not check the “retaliation” box or otherwise reference
`“retaliation” in the Charge.
`Moreover, a side-by-side comparison between the EEOC Charge and the First Amended
`Complaint (“FAC”) only further demonstrates the stark differences between the discrimination
`claims in the Charge and the retaliation claims later asserted in the FAC. The claims are different
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`DEFENDANT’S REPLY TO PLAINTIFF’S
`OPPOSITION TO MOTION TO DISMISS
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`and mismatched with respect to the alleged (1) acts, (2) dates, and (3) perpetrators – all of which
`preclude any conclusion that the claims are “reasonably related” such that the EEOC would been
`expected to investigate retaliation.
`In sum, Plaintiff failed to exhaust her administrative remedies with respect to her retaliation
`claims. The claims should be dismissed.
`II.
`ARGUMENT
`A.
`A Retaliation Claim is Not “Apparent on the Face” of the EEOC Charge.
`A retaliation claim is nowhere identified on the face of Plaintiff’s EEOC Charge. Plaintiff
`concedes that she did not check the “retaliation” box in the Charge. (ECF No. 14 (“Opp’n”) at 3.)
`Nor did Plaintiff reference “retaliation,” “retaliate,” or “retaliatory,” – or any similar words – in
`the narrative of the Charge. (ECF No. 10-1 (“EEOC Charge”), Ex. A at 1.) This is all despite
`Plaintiff admitting that she reviewed a draft prepared by an EEOC agent before she signed and
`submitted the Charge. (Opp’n at 3.) Plaintiff’s own conduct “creates a presumption” that she did
`not intend to assert a retaliation claim. Jones, 502 F.3d at 1186.
`Plaintiff nevertheless contends that her retaliation claim is somehow apparent “on the face
`of the EEOC Charge” because the Charge states that Plaintiff complained to Human Resources
`about a coworker’s “stalking and sexual harassment” in 2015 and 2016. (Opp’n at 3.) Plaintiff’s
`heavy reliance on this allegation is sorely misplaced.
`To start, Plaintiff ignores the Charge’s grammatical structure. The reference in the Charge
`to Human Resources allegedly ignoring Plaintiff’s complaints in 2015 and 2016 forms a separate,
`standalone paragraph that is disconnected from the preceding paragraph’s allegation regarding
`Plaintiff’s termination. (EEOC Charge, Ex. A at 1.) Therefore, from a grammatical standpoint,
`Plaintiff’s allegation regarding Human Resources ignoring her harassment complaints appears to
`constitute a separate, standalone issue/claim.
`More critically, the Charge offers no causal connection between these alleged complaints
`and Plaintiff’s layoff – the only adverse employment action mentioned in the Charge. Temporal
`proximity does not exist, as Plaintiff’s layoff occurred in 2018 – which was more than two years
`after Plaintiff’s first alleged complaints in 2015 and still more than a year after Plaintiff’s last
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`DEFENDANT’S REPLY TO PLAINTIFF’S
`OPPOSITION TO MOTION TO DISMISS
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`Case 2:21-cv-00054-KJM-DB Document 15 Filed 04/30/21 Page 4 of 7
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`alleged complaints in 2016. Nor is any other causal nexus discernable where, according to the
`Charge, the actors allegedly involved in the harassment complaints (i.e., a co-worker and Human
`Resources) were different than the actor involved in Plaintiff’s discriminatory termination (i.e.,
`Brian Staab). Again, Plaintiff’s reference to harassment in the Charge might support a harassment
`claim, but the reference does not come anywhere close to overcoming the “presumption” that she
`did not assert a separate retaliation claim – let alone that such a claim is “apparent on face of the
`Charge,” as Plaintiff contends.1 (Opp’n at 3.)
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`B.
`
`Plaintiff’s Retaliation Claims in the FAC Are Not “Reasonably Related” to
`the Allegations in Her EEOC Charge.
`
`Plaintiff’s retaliation claims in her FAC could not be “reasonably be expected to grow” out
`of an investigation of the discrimination allegations in her Charge, and Plaintiff’s Opposition fails
`to show otherwise. Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990). In determining whether
`a retaliation claim is reasonably related to the discrimination claims in an EEOC Charge, this Court
`has considered factors such as “the alleged basis of discrimination, dates of discriminatory acts
`specified within the charge, perpetrators of discrimination named in the charge, and any locations
`at which discrimination is alleged to have occurred.” Bradley v. Cnty. of Sacramento Dep’t of
`Human Assistance of N.Cal. Welfare Div., 2015 U.S. Dist. LEXIS 95747, at *8-9 (E.D. Cal. July
`22, 2015) (citing cases).
`In her Opposition, Plaintiff fails to address the factual dissimilarities Defendant highlights
`in its Motion to Dismiss between the EEOC Charge and Plaintiff’s retaliation claims. Nor does
`she explain how an investigation into the Charge’s discrimination allegations could have been
`expected to uncover the retaliation claims as asserted in the FAC. Instead, she summarily argues:
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`A reasonable EEOC investigation would uncover additional details spanning the years
`[between 2015 to 2018]. Thus, any investigation of the sexual harassment and stalking
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`1 The reader might ask: “Why did Plaintiff reference sexual harassment complaints allegedly being
`ignored by Human Resources?” Plaintiff answers that question in the Charge itself: Plaintiff
`sought to assert a sexual discrimination claim. Had Plaintiff omitted the allegations regarding her
`sexual harassment complaints, there would have been no factual underpinning for her expressly
`asserted sexual discrimination claim. See Gerald v. Locksley, 785 F.Supp.2d 1074, 1114 (D.N.M.,
`Aug. 1, 2011) (dismissing retaliation because reasonable reader would understand that plaintiff’s
`reference to management inaction of his harassment complaints, which was referenced in EEOC
`Charge, was “merely an explanation leading up to the gist of his complaint of discrimination”).
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`DEFENDANT’S REPLY TO PLAINTIFF’S
`OPPOSITION TO MOTION TO DISMISS
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`Case 2:21-cv-00054-KJM-DB Document 15 Filed 04/30/21 Page 5 of 7
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`claims would have reached the retaliatory Improvement Required Notice entered against
`Plaintiff and, it follows, the wrongful denial of a promotion [in 2017] . . . , all other
`subsequent events described in the Plaintiff’s FAC culminating in termination of Plaintiff’s
`employment.
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`(Opp’n at 5:5-11.) Plaintiff’s conclusory argument fails.
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`As an initial matter, it is telling that the EEOC agent who actually handled Plaintiff’s intake
`and drafting of the Charge did not think her allegations sounded in retaliation. The EEOC agent
`did not check the “retaliation” box or otherwise reference “retaliation” in the Charge. Nor, again,
`did Plaintiff make any effort to change this – to the extent that she had any intention of asserting a
`retaliation claim.
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`Moreover, a side-by-side comparison between the EEOC Charge and the First Amended
`Complaint (“FAC”) only further demonstrates the stark differences between the discrimination
`claims in the Charge and the retaliation claims later asserted in the FAC. First, the FAC includes
`completely new alleged adverse employment actions. There is no mention in the Charge of the
`retaliatory acts (or corresponding dates) that Plaintiff specifies as the basis for her retaliation claims
`in the FAC. Specifically, the alleged wrongful Improvement Required Notice in 2015 and denied
`promotion in 2017 are nowhere referenced in the Charge. The EEOC could not have been expected
`to investigate these matters.
`Second, the FAC identifies completely different alleged perpetrators. The only perpetrator
`named in the Charge, Brian Staab, has no relationship with the individuals implicated in Plaintiff’s
`Third and Fourth Causes of Action. Mr. Stabb – the individual who Plaintiff claims discriminated
`against her because he did not extend her employment past her pre-established layoff date – was
`(a) not the subject of Plaintiff’s alleged sexual harassment complaints (Sam Phillips) (see ECF No.
`9 (“FAC”) ¶ 19); (b) not the manager who allegedly placed Plaintiff on an Improvement Required
`Notice in 2015 (Charles Rostocil) (see ECF No. 1 (“Verified Complaint”) ¶ 24), and (c) not the
`manager who allegedly denied Plaintiff a promotion in 2017 (Subramanian) (see FAC ¶ 30).
`Plaintiff’s failure to name these perpetrators necessarily limited the scope of her EEOC Charge
`and would not have led to an investigation into Plaintiff’s retaliation claims.
`///
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`DEFENDANT’S REPLY TO PLAINTIFF’S
`OPPOSITION TO MOTION TO DISMISS
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`Case No. 2:21-cv-0054 KJM DB
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`Case 2:21-cv-00054-KJM-DB Document 15 Filed 04/30/21 Page 6 of 7
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`Indeed, the alleged discriminatory act specified in the Charge occurred when Plaintiff was
`working in a different department than the department where Plaintiff worked when she made her
`sexual harassment complaint to Human Resources. Specifically, Plaintiff transferred to a new
`department (Information Technology), worked under a new manager (Subramanian), and received
`a new title (Department Compliance and Controls Manager) shortly after she allegedly complained
`to Human Resources in 2015 about her coworker’s harassing conduct. (Verified Complaint ¶¶ 28-
`30.) On or about January 18, 2018, Plaintiff was informed that she was being laid off, effective
`March 31, 2018, due to a department-wide reorganization effort. (FAC ¶ 41.) Plaintiff was then
`denied a layoff extension and was not re-hired. (FAC ¶ 45.) Because Plaintiff’s internal transfer
`meant she was working with different coworkers and under a different manager and because it was
`her new department that committed the alleged discriminatory act, an EEOC investigation into the
`circumstances surrounding Plaintiff’s layoff in 2018 would not have led to an investigation about
`alleged retaliation based on Plaintiff’s complaints to Human Resources two years prior.
`In sum, the retaliation claims in the FAC are not reasonably related to the discrimination
`claims in Plaintiff’s Charge such that an EEOC agent would have been expected to investigate the
`retaliation claims. Plaintiff has failed to exhaust her administrative remedies.
`C.
`This Case Mirrors Gerald v. Locksley
`As discussed in Defendant’s Motion to Dismiss, Plaintiff cannot avoid the same fate as the
`plaintiff in Gerald v. Locksley, 785 F.Supp.2d 1074 (D.N.M. Aug. 1, 2011). In Gerald, the plaintiff
`filed a lawsuit against the defendant, his former employer, for retaliation and race discrimination
`under Title VII. Id. at 1085. However, the plaintiff’s EEOC charge did not check the box for
`“retaliation” and, in the narrative section of his EEOC charge, the plaintiff only stated that he
`“reported [his discriminatory working terms and conditions] to management and nothing was
`done.” Id. at 1114. The defendant moved to dismiss the plaintiff’s retaliation claims for failure to
`exhaust administrative remedies, arguing that the plaintiff failed to check the “retaliation” box on
`his EEOC Charge and failed to present sufficient information that could reasonably be expected
`to lead the EEOC to investigate a retaliation claim. Id. The plaintiff countered that his statement
`that he “reported this to management and nothing was done” saves his retaliation claim and
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`DEFENDANT’S REPLY TO PLAINTIFF’S
`OPPOSITION TO MOTION TO DISMISS
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`Case 2:21-cv-00054-KJM-DB Document 15 Filed 04/30/21 Page 7 of 7
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`overcomes the presumption that his failure to check the retaliation box created. Id. The court
`ruled in the defendant’s favor and, importantly, rejected the plaintiff’s argument by reasoning as
`follows:
`
`Plaintiff’s assertion that ‘nothing was done’ does not sound in retaliation, because
`it does not suggest that Plaintiff suffered an adverse employment action in response
`to his protected activity. A reasonable reader would understand that Plaintiff’s
`mention of management inaction as merely an explanation leading up to the gist of
`his complaint of discrimination.
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`JACKSON LEWIS P.C.
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`Id.
`The facts in Gerald mirror those in this case. Accordingly, as in Gerald, Plaintiff’s claims
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`for retaliation should be dismissed.
`III. CONCLUSION
`For the foregoing reasons, Defendant respectfully requests the Court grant its Motion to
`Dismiss and dismiss Plaintiff’s Third and Fourth Causes of Action with prejudice.
`
`
`Dated: April 30, 2021
`
`
`By:
`
`/s/ Scott P. Jang
`
`Scott Philip Jang
`Hardev S. Chhokar
`Attorneys for Defendant
`INTEL CORPORATION
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`4832-2286-2567, v. 1
`4832-2286-2567, v. 1
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`DEFENDANT’S REPLY TO PLAINTIFF’S
`OPPOSITION TO MOTION TO DISMISS
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`Case No. 2:21-cv-0054 KJM DB
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