Unreported / Non-Citable
Background
Pro se plaintiff Ivette Rivera, an EBMUD employee since 2005 represented by AFSCME Local 444, filed this 2025 lawsuit alleging seventeen claims of retaliation and race-based discrimination under federal and California statutes. The suit follows two prior actions: a 2015 sex-discrimination suit against EBMUD that settled after Local 444 claims were dismissed, and a 2024 suit alleging retaliation and sex discrimination that was narrowed to two Title VII retaliation claims and resolved in EBMUD's favor. The court previously dismissed Rivera's original complaint with leave to amend, admonishing her not to re-allege claims already dismissed, settled, or pending in the 2024 suit.
Rivera's first amended complaint centers on events between April and November 2024, alleging that EBMUD and its employees subjected her to racial discrimination by declining to reclassify her as a 'Supervisor' through a classification study completed in April 2024, and retaliated against her for statements about claimed discrimination. She also faults AFSCME for 'colluding with' EBMUD and failing to investigate her complaints. The EBMUD defendants and Union defendants each moved to dismiss; the court took the motions under submission without oral argument.
The Court’s Holding
The court dismissed Count I (§§ 1981/1983 retaliation against individual defendants Chan, Charan, Briggs, and Larsen) for failure to plausibly allege adverse employment action or retaliatory motivation. The classification study and title change without pay increase were not plausibly adverse actions likely to deter protected speech. Rivera's negative 2024 performance evaluation was undermined by a history of negative evaluations in 2021-2023, and she failed to specify lost supervisory duties or timing to support proximity or pretext. As to Larsen, declining to act on a union member's request is neither an adverse employment action nor suggestive of retaliatory motive.
Counts II and III (§§ 1981/1983 race discrimination against Chan and Charan) were dismissed for failure to plead discriminatory intent. Rivera's allegations that two non-Hispanic employees received more favorable reclassifications years earlier in different job titles (Water Reclamation Operator, Senior Business Analyst) did not support an inference of discriminatory intent under Arlington Heights and Iqbal. Counts XVI and XVII (Title VII failure-to-promote and race discrimination against EBMUD and union defendants) were dismissed on similar grounds: the classification study was not plausibly tied to discriminatory intent, the comparators were not similarly situated, and the union's failure to process complaints alone does not permit an inference of discriminatory intent. The court declined supplemental jurisdiction over Counts IV-XV (state law claims) under 28 U.S.C. § 1367(c)(3) and granted leave to file a second amended complaint by November 20, 2026, staying the case pending further order.
Key Takeaways
- A classification study that changes a job title without a pay increase, without more, is not an adverse employment action likely to deter protected speech about discrimination.
- A history of negative performance evaluations predating protected activity undermines an inference that a subsequent negative evaluation was retaliatory.
- A union official's decision not to pursue a member's grievance against the employer does not constitute an adverse employment action or support a retaliation claim.
- Disparate treatment comparisons require similarly situated comparators; employees in different job classifications reclassified years apart are not similarly situated.
- Conclusory allegations of 'bad faith' or 'fraudulent' classification studies, without factual support, are insufficient to state a discrimination claim under Twombly/Iqbal.
Why It Matters
This order illustrates the heightened pleading standards applied to serial employment discrimination litigants, particularly where prior litigation history undercuts new allegations. The court's refusal to infer discriminatory intent from temporally and categorically distinct reclassifications reinforces Arlington Heights' requirement that disparate impact be 'unexplainable on grounds other than race.' The dismissal of union liability based on failure to process grievances aligns with Ninth Circuit precedent that such inaction alone does not establish discriminatory motive.
The grant of leave to amend—despite the court's observation that 'further amendment would serve little purpose'—reflects the liberal amendment policy for pro se plaintiffs, while the stay and strict deadline signal judicial management of repetitive litigation. The order is not a final judgment; the case remains open pending Rivera's second amended complaint or dismissal under Rule 41(b) for noncompliance.