1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

John Doe, 

Plaintiff, 

v. 

State of Arizona, 

Defendant.

No. CV-15-02399-PHX-DGC

ORDER 

 On November 23, 2015, Plaintiff initiated this action against the State of Arizona, 

using a fictitious name to protect his identity. Plaintiff alleges that the State’s 

Department of Corrections (“ADOC”) has violated his rights under Title VII of the Civil 

Rights Act of 1964 by discriminating against him on the basis of his gender identity and 

retaliating against him based on his filing of a charge of discrimination with the Equal 

Employment Opportunity Commission (“EEOC”). Doc. 1. The State of Arizona has 

filed a motion to dismiss (Doc. 11) which has been fully briefed (Docs. 17, 18). The 

Court heard oral argument on March 16, 2016. For the reasons set forth below, the 

motion to dismiss will be granted in part and denied in part. 

I. Background. 

The allegations of Plaintiff’s complaint are taken as true for purposes of this 

motion. Plaintiff is a transgender male employed as a Corrections Officer by the ADOC. 

Doc. 1, ¶¶ 5, 8. Plaintiff’s co-workers and supervisors have subjected him to severe and 

pervasive harassment based on his gender identity. Id., ¶ 10. His supervisors and coCase 2:15-cv-02399-DGC Document 26 Filed 03/21/16 Page 1 of 9
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

workers have repeatedly made disparaging remarks about his gender, referring to him as 

a “he/she,” “it,” and “whatever.” Id., ¶ 11. Plaintiff’s supervisors have told him that 

other officers in the Department are offended by his gender, that Plaintiff is not safe in 

the Department, and that they would not respond to emergency calls from him. Id., ¶ 12. 

Plaintiff’s tire has been slashed in the ADOC employee parking lot. Id., ¶ 14. Although 

Plaintiff has repeatedly complained to his supervisors about the harassment, it continues 

unabated. Id., ¶ 15. The Department has not conducted an investigation into the 

harassment or disciplined the responsible employees. Id., ¶ 16. 

 On April 13, 2015, Plaintiff filed a charge of discrimination with the EEOC 

complaining of ongoing sex discrimination. Doc. 1-1 at 2-3. Plaintiff alleged that other 

correctional officers had made transphobic comments about him, that his co-workers had 

informed prison inmates of his status, and that his supervisors had failed to undertake any 

investigation or corrective action with respect to this breach of his confidentiality. Id. 

On August 26, 2015, the U.S. Department of Justice, Civil Rights Division, issued 

Plaintiff a right-to-sue letter, explaining that the letter was being provided because the 

EEOC would not be able to investigate Plaintiff’s Charge within 180 days of receiving it, 

and because Plaintiff’s attorney had specifically requested the letter. Doc. 1-1 at 5. 

Thereafter, Plaintiff initiated this action, seeking (1) a declaration that the State of 

Arizona violated his rights under Title VII; (2) injunctive relief prohibiting similar 

unlawful conduct; (3) nominal and compensatory damages; and (4) reasonable costs and 

attorney’s fees. Doc. 1 at 3-4.

II. Analysis.1

 Defendant argues that Plaintiff’s claims for gender discrimination and retaliation 

should be dismissed for lack of subject matter jurisdiction because Plaintiff has failed to 

exhaust his administrative remedies. Doc. 11 at 7-11. In the alternative, Defendant 

 

1

 Plaintiff’s response to Defendant’s motion includes a footnote that describes 

prior litigation against the ADOC in an attempt to show that ADOC is “a serial violator 

of . . . federal civil rights laws.” Doc. 17 at 3 n.1. The Court cannot consider such 

information in ruling on a motion to dismiss, and therefore has disregarded the footnote. 

Case 2:15-cv-02399-DGC Document 26 Filed 03/21/16 Page 2 of 9
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

argues that these claims should be dismissed for failure to state a claim. Id. at 11-15. 

Defendant also argues that Plaintiff lacks standing to pursue declaratory or injunctive 

relief. Id. at 15-17. 

 A. Exhaustion. 

 1. Legal Standard. 

To establish subject matter jurisdiction over a Title VII claim, an employee must 

first exhaust his administrative remedies by filing a charge with the EEOC or the 

appropriate state agency. B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 

2002); see 42 U.S.C. § 2000e-5(f)(1). The Court’s jurisdiction extends to all allegations 

that are “like or reasonably related to the allegations made before the EEOC, as well as 

charges that are within the scope of an EEOC investigation that reasonably could be 

expected to grow out of the allegations.” Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 

2003). EEOC charges are construed “with the utmost liberality since they are made by 

those unschooled in the technicalities of formal pleading.” Id. But “[t]he EEOC charge 

must at least describe the facts and legal theory with sufficient clarity to notify the agency 

that employment discrimination is claimed.” Id. at 319 (quoting Cooper v. Bell, 628 F.2d 

1208, 1211 (9th Cir. 1980)). 

2. Gender Discrimination. 

Title VII prohibits “discriminat[ion] against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, because of such 

individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). The EEOC and courts have held that 

this provision prohibits workplace discrimination based on gender identity. See Macy v. 

Holder, App. No. 0120120821, 2012 WL 1435995 (EEOC Apr. 20, 2012); see also

Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (“discrimination against a 

transgender individual because of her gender-nonconformity is sex discrimination”). A 

prima facie claim of workplace discrimination must allege: “(1) that the plaintiff belongs 

to a class of persons protected by Title VII; (2) that the plaintiff performed his or her job 

satisfactorily; (3) that the plaintiff suffered an adverse employment action; and (4) that 

Case 2:15-cv-02399-DGC Document 26 Filed 03/21/16 Page 3 of 9
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

the plaintiff’s employer treated the plaintiff differently than a similarly situated employee 

who does not belong to the same protected class as the plaintiff.” Cornwell v. Electra 

Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006) (citation omitted). In the Ninth 

Circuit, the term “adverse employment action” is defined broadly and is not limited to 

ultimate employment actions such as hiring, firing, promoting, and demoting. Ray v. 

Henderson, 217 F.3d 1234, 1240-43 (9th Cir. 2000). Examples of adverse employment 

actions include “demotions, disadvantageous transfers or assignments, refusals to 

promote, unwarranted negative job evaluations and toleration of harassment by other 

employees,” id. at 1242 (citing Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir. 

1994)), as well as any other “materially adverse change in the terms and conditions of 

employment,” id. (citing Torres v. Pisano, 116 F.3d 625, 640 (2nd Cir. 1997)). 

 The allegations in Plaintiff’s EEOC Charge describe a gender discrimination claim 

with sufficient clarity to render the claim exhausted. Doc. 1-1 at 2-3. In his Charge, 

Plaintiff states that he is transgender (id. at 3), thereby satisfying the “protected status” 

element of a gender discrimination claim. Plaintiff alleges that his supervisors have 

tolerated harassment of him and have breached his confidentiality by informing prison 

inmates of his transition. Id. These allegations satisfy the “adverse employment action” 

and “disparate treatment” elements of a gender discrimination claim. See Wyatt, 35 F.3d 

at 15-16 (employer’s toleration of harassment may be an adverse employment action). 

Plaintiff need not allege “satisfactory job performance” because the adverse employment 

action at issue in this case was not an ultimate employment decision. The Court 

concludes that Plaintiff exhausted his gender discrimination claim by adequately 

presenting it to the EEOC. 

3. Retaliation. 

Title VII prohibits retaliation against an employee for opposing an unlawful 

employment practice or participating in a Title VII proceeding. 42 U.S.C. § 2000e-3(a). 

A successful retaliation claim must establish that (1) the employee engaged in a protected 

activity; (2) the employer took an adverse employment action against the employee; and 

Case 2:15-cv-02399-DGC Document 26 Filed 03/21/16 Page 4 of 9
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

(3) the employer would not have taken the adverse employment action but for a design to 

retaliate. Nilsson v. City of Mesa, 503 F.3d 947, 953-54 (9th Cir. 2007); see Univ. of Tex. 

Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2535 (2013) (clarifying that employee must 

show “but for” causation). In the context of a retaliation claim, an adverse employment 

action is one that “might have dissuaded a reasonable worker from making or supporting 

a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 

(2006) (citation and quotation marks omitted). 

Plaintiff acknowledges that his EEOC Charge did not contain a retaliation claim, 

but contends that this is excused because the retaliation he alleges occurred in response to 

the filing of the Charge itself. Doc. 17 at 7. Plaintiff is incorrect. See Vasquez v. Cty. of 

L.A., 349 F.3d 634, 645 (9th Cir. 2003) (“we have no jurisdiction to hear the claim that 

the County retaliated against Vasquez for filing an EEOC charge” because he failed to 

exhaust the claim); see also Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 851 (8th 

Cir. 2012) (“We reject Richter’s contention that retaliation claims arising from a charge 

filed with the EEOC are excepted from the statutory exhaustion requirement.”). 

Plaintiff cites Lyons v. England, 307 F.3d 1092 (9th Cir. 2002), for the proposition 

that a claimant need not file a new EEOC claim to address discrimination that occurs 

after the first EEOC charge is filed, but Lyons concerned additional instances of 

discrimination like those already presented to the EEOC, not entirely new claims. Id. at 

1104 (original EEOC claims and new instances of discrimination concerned failure to 

promote). Lyons specifically recognized that “‘[i]ncidents of discrimination not included 

in an EEOC charge may not be considered by a federal court unless the new claims are 

like or reasonably related to the allegations contained in the EEOC charge.’” Id. (quoting 

Green v. L.A. Cty. Superintendent of Sch., 883 F.2d 1472, 1475-76 (9th Cir.1989)) 

(internal quotation marks omitted). The same is true of the other cases cited by Plaintiff. 

See Anderson v. Reno, 190 F.3d 930, 935 (9th Cir. 1999) (later incidents must be “like or 

reasonably related to” the allegations of the EEOC charge); Oubichon v. N. Am. Rockwell 

Corp., 482 F.2d 569, 571 (9th Cir. 1973) (same).

Case 2:15-cv-02399-DGC Document 26 Filed 03/21/16 Page 5 of 9
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Plaintiff asserted at oral argument that his retaliation claim is like or reasonably 

related to his allegations of gender-identity harassment. He argued that such harassment 

often results in EEOC charges, and that EEOC charges often result in retaliation. The 

Court cannot conclude from these generalizations, however, that Plaintiff’s retaliation 

claim was exhausted. Applying the “like or reasonably related” standard, courts hold that 

“[s]ubject matter jurisdiction extends to all claims of discrimination that fall within the 

scope of the EEOC’s actual investigation or an EEOC investigation that could reasonably 

be expected to grow out of the charge.” Vasquez, 349 F.3d at 644. The right-to-sue letter 

makes clear that the EEOC did not actually investigate any retaliation claim from 

Plaintiff, and the Court cannot conclude that such an investigation could reasonably have 

been expected to grow out of Plaintiff’s charge. The charge included a checked box for 

sex discrimination, not for retaliation. Doc. 17-1 at 7. The facts alleged in the charge all 

related to Plaintiff’s claim of harassment, and all were alleged to have occurred in 2014, 

months before the charge was filed in April of 2015. The charge would not reasonably 

give rise to an investigation of retaliation resulting from the charge. See Studymire v. 

Bright Horizons Children’s Ctr., Inc., No. CV-09-1122 PHX DGC, 2010 WL 653459, at 

*2 (D. Ariz. Feb. 22, 2010) (retaliation claim not exhausted by claim for discrimination). 

Plaintiff also argues that dismissal of his retaliation charge will only result in him 

later seeking to amend or file another action, a needless waste of time and resources. 

Plaintiff argued at the hearing that the Court can exercise jurisdiction over the retaliation 

charge even if it was not exhausted. The Court does not agree. It is true, as Plaintiff 

suggested at oral argument, that a federal court may exercise jurisdiction over a Title VII 

claim notwithstanding the employee’s failure to file a timely EEOC charge. See Zipes v. 

Trans World Airlines, 455 U.S. 385, 397 (1982). But “substantial compliance with the 

presentment of discrimination complaints to an appropriate administrative agency is a 

jurisdictional prerequisite.” Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 

2001) (emphasis in original). Where an employee entirely fails to exhaust a claim and 

the claim is not “like or reasonably related to” one that has been exhausted, the Court is 

Case 2:15-cv-02399-DGC Document 26 Filed 03/21/16 Page 6 of 9
- 7 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

without jurisdiction to consider the claim. Id. at 709 (“In cases where the plaintiff has 

never presented a discrimination complaint to the appropriate administrative authority, 

the district court does not have subject matter jurisdiction.”). 

Plaintiff has not substantially complied with the exhaustion requirement for his 

retaliation claim. Plaintiff’s retaliation claim must therefore be dismissed for lack of 

jurisdiction.

 B. Failure to State a Claim. 

 1. Legal Standard. 

 A successful Rule 12(b)(6) motion must show either that the complaint lacks a 

cognizable legal theory or fails to allege facts sufficient to support its theory. Balistreri 

v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint that sets forth a 

cognizable legal theory will survive a motion to dismiss as long as it contains “sufficient 

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 570 (2007)). A claim has facial plausibility when “the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). 

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more 

than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 

U.S. at 556). 

 The Court must take the well-pleaded factual allegations as true and construe them 

in the light most favorable to the plaintiff. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th 

Cir. 2009). Legal conclusions couched as factual allegations do not enjoy a presumption 

of truth and are not sufficient to defeat a Rule 12(b)(6) motion. Iqbal, 556 U.S. at 678. 

2. Gender Discrimination.

Defendant argues that Plaintiff has not stated a claim for gender discrimination 

because he fails to identify any adverse employment action that he was subjected to 

because of his gender. Doc. 11 at 15. The Court does not agree. The Complaint alleges 

Case 2:15-cv-02399-DGC Document 26 Filed 03/21/16 Page 7 of 9
- 8 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

that Plaintiff was subjected to severe and pervasive harassment by his coworkers and 

supervisors. Doc. 1, ¶¶ 10-17, 21. These allegations are sufficient to state a claim for 

gender discrimination. See Wyatt, 35 F.3d at 15-16; Torres, 116 F.3d at 640. 

Defendant also argues that Plaintiff fails to describe the “specific incidents, dates, 

and/or actors” relevant to his claim. Doc. 11 at 15. To the contrary, Plaintiff has 

described several specific incidents of harassment. See Doc. 1, ¶¶ 12-14; 1-1 at 2-3. The 

Court is not persuaded that Plaintiff must allege specific dates or employee names to state 

a claim, particularly where Plaintiff has withheld the names to protect his identity. See 

Doc. 17 at 5 n. 2. Plaintiff has adequately alleged that he has been subject to workplace 

harassment and that his supervisors know of and refuse to investigate these events. From 

these allegations, the Court can draw the reasonable inference that Defendant is liable for 

tolerating the harassment. Plaintiff has stated a claim for gender discrimination. 

Defendant also argues that Plaintiff has not stated a claim for “discrimination.” 

Doc. 11 at 8-11. Plaintiff interprets this as an argument regarding a disparate treatment 

claim, and argues that a hostile work environment constitutes a form of disparate 

treatment, citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 64 (1986). Doc. 17 at 8. 

Plaintiff then asserts that his complaint sufficiently pleads a hostile work environment. 

Id. The Court agrees. Plaintiff has stated a claim for gender discrimination based on 

harassment giving rise to a hostile work environment. 

 C. Declaratory and Injunctive Relief. 

 Defendant argues that Plaintiff lacks standing to pursue declaratory relief because 

he has not shown that clarification of his rights would prevent a specific, concrete injury. 

Doc. 15-17 (citing Leu v. Int’l Boundary Comm’n, 605 F.3d 693 (9th Cir. 2010); Rhoades 

v. Avon Products, Inc., 504 F.3d 1151 (9th Cir. 2007)). In addition, Defendant argues 

that Plaintiff lacks standing to pursue injunctive relief because he has not adequately 

alleged “a real and immediate threat of repeated injury.” Id. at 17 (quoting City of L.A. v. 

Lyons, 461 U.S. 95, 103 (1983)). Plaintiff counters that Defendant’s arguments are not 

properly resolved on a motion to dismiss. Doc. 17 at 9. 

Case 2:15-cv-02399-DGC Document 26 Filed 03/21/16 Page 8 of 9
- 9 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

The Court agrees with Plaintiff. Plaintiff is seeking declaratory and injunctive 

relief for his Title VII claims. A request for relief cannot be dismissed for failure to state 

a claim. See Fed. R. Civ. P. 8(a) (distinguishing between “claim showing that the pleader 

is entitled to relief” and “demand for relief”); Benhur v. Madavaram, No. 15-6826, 2015 

WL 6739109, at *6 (D.N.J. Nov. 2, 2015) (“While Defendants have asked the Court to 

dismiss this form of relief with prejudice, the dismissal of particular forms of relief would 

be premature at this stage of the litigation. The test of the complaint upon a motion to 

dismiss lies in the claim not in the demand.”) (quoting Falk v. Levine, 60 F. Supp. 660, 

663 (D. Mass. 1945)). 

D. Leave to Amend.

The Court will not grant leave to amend because the jurisdictional defect in 

Plaintiff’s retaliation claim cannot be cured by amendment. 

 IT IS ORDERED that Defendant’s motion to dismiss (Doc. 11) is granted with 

respect to Plaintiff’s retaliation claim, and otherwise denied. 

 Dated this 21st day of March, 2016. 

Case 2:15-cv-02399-DGC Document 26 Filed 03/21/16 Page 9 of 9