granting motion to dismiss ADA claim 11 because plaintiff made no allegations that he suffered from or was ever diagnosed with a 12 specific mental or physical disorder
How later courts described this case
- granting motion to dismiss ADA claim 11 because plaintiff made no allegations that he suffered from or was ever diagnosed with a 12 specific mental or physical disorder
- noting that “[t]he language of § 1915(e)(2)(B)(ii) parallels the language of Federal 8 Rule of Civil Procedure 12(b)(6).”
- explaining that the Title VII statute of limitations 20 can be tolled in exceptional circumstances such as when a plaintiff is misled about a 21 deadline
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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BILAL MEHBOOB SHAH, Case No.: 23cv1073-JO-BGS
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Plaintiff,
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11 v.
ORDER SCREENING COMPLAINT
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DESERT AUTO GROUP V LLC,
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Defendant.
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18 On January 10, 2024, pro se Plaintiff Bilal Mehboob Shah filed an amended
19 complaint alleging that his former employer, Defendant Desert Auto Group V LLC
20 (“Desert Auto”), discriminated and retaliated against him and failed to pay him certain
21 wages in violation of employment laws. Dkt. 28. Upon screening the amended complaint
22 pursuant to 28 U.S.C. § 1915(e)(2), the Court dismisses his disability discrimination claim
23 and allows his various discrimination, retaliation, and wage and hour claims to proceed.
24 I. BACKGROUND
25 Plaintiff, a Pakistani male, was hired by Desert Auto, a car dealership, on September
26 21, 2021. Dkt. 14, Second Amended Complaint (“SAC”) at 6. Plaintiff worked as a sales
27 manager until Desert Auto terminated his employment on November 4, 2021. Id. at 7.
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1 Plaintiff alleges that, during the course of his employment, he was treated differently
2 than other employees on account of his race. For example, Plaintiff claims that Desert
3 Auto gave preferential treatment to its Hispanic employees by purposefully funneling a
4 substantial number of sales leads as well as “divert[ing] internet sales” to these employees.
5 Id. at 6. Plaintiff made a complaint about this unfair treatment on or around October 28,
6 2021. Id.
7 Plaintiff also claims that the dealership’s finance office engaged in questionable
8 business practices, such as charging customers higher amounts for Department of Motor
9 Vehicles fees and failing to provide certain customers with written contracts for their
10 purchases. Id. at 2, 6. Plaintiff complained about these practices to the dealership’s general
11 sales manager, but nothing was done to remedy the issue. Id. at 2. Subsequently, Plaintiff
12 complained to Desert Auto’s president on October 28, 2021. Id. at 6.
13 Further, Plaintiff alleges that Defendant discriminated against him based on his
14 disability. Id. at 2. Plaintiff relates that he experienced “high anxiety and trauma” and was
15 “in a state of shock” on November 3, 2021. Id. at 10. He asked for a day off on November
16 4, 2021. Id. at 7. Defendant agreed to this request but fired him later that same day. Id.
17 Plaintiff claims that prior to his termination, he had an “impeccable work record”
18 and had not received any verbal or written complaints about his job performance. Id. In
19 fact, during Plaintiff’s six weeks of employment, he “had the top sales record . . . and had
20 been verbally appreciated and complimented by [his] manager for performance.” Id.
21 Upon his termination, Plaintiff did not receive his final paycheck until November 9,
22 2021—five days after his last day. Id. at 4. He claims this final paycheck was short by
23 $5500. Specifically, Plaintiff states that Desert Auto owes him $4000 in wages for his
24 work and an additional $1500 in “earned vouchers.” Id. at 7.
25 Based on the above facts, Plaintiff sought legal redress, first with the EEOC and then
26 in federal court. In November 2021, Plaintiff raised his grievances against Desert Auto
27 with the Equal Employment Opportunity Commission (“EEOC”). Dkt. 1-2 at 5. He
28 received a right to sue letter from the EEOC on March 8, 2023, permitting him to pursue
1 his claims against Desert Auto in federal court. Id. Upon issuing the right to sue letter, the
2 EEOC employee assigned to the case told Plaintiff that he had until June 8, 2023, to file
3 his lawsuit when, in fact, the proper ninety-day deadline was June 6, 2023. Dkt. 22.
4 On June 8, 2023, Plaintiff initiated a lawsuit in this Court along with a request to
5 proceed in forma pauperis (“IFP”). Dkt. 1 (“Compl.”). In his first complaint, Plaintiff
6 raised several employment law claims against Desert Auto such as disability
7 discrimination, race discrimination, and whistleblower retaliation. Id. On June 16, 2023,
8 the Court granted Plaintiff leave to proceed IFP but, upon screening the complaint,
9 dismissed the federal claims as untimely because he filed his complaint more than ninety
10 days after receiving his right to sue letter.1 Dkt. 4. at 3–4 (“Order Dismissing Compl.”).
11 Plaintiff filed a second amended complaint on January 10, 2024, addressing the
12 untimeliness of his complaint along with a motion to appoint counsel. See SAC. His
13 operative complaint, as liberally construed by the Court, alleges several claims against
14 Defendant Desert Auto: (1) race discrimination under Title VII of the Civil Rights Act of
15 1964 (“Title VII”) and the California Fair Employment and Housing Act (“FEHA”);
16 (2) retaliation under Title VII and FEHA; (3) disability discrimination under the Americans
17 with Disabilities Act (“ADA”); (4) whistleblower retaliation under California Labor Code
18 § 1102.5; and (5) failure to timely pay wages. See generally id.
19 II. LEGAL STANDARD
20 Because Plaintiff was granted leave to proceed IFP, his Complaint must undergo a
21 sua sponte screening for dismissal. A complaint filed by any person proceeding IFP
22 pursuant to 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and
23 dismissal by the Court to the extent it is frivolous, malicious, fails to state a claim upon
24 which relief may be granted, or seeks monetary relief from a defendant immune from such
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27 1 In response to this initial dismissal, Plaintiff filed a first amended complaint on October 10, 2023, but
once again did not address why his initial complaint was untimely. Dkt. 15. The Court dismissed this
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1 relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001)
2 (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”).
3 “The standard for determining whether a plaintiff has failed to state a claim upon
4 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
5 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
6 1108, 1112 (9th Cir. 2012); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.
7 1998) (noting that “[t]he language of § 1915(e)(2)(B)(ii) parallels the language of Federal
8 Rule of Civil Procedure 12(b)(6).”). Rule 12(b)(6) requires that a complaint “contain
9 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
10 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation and quotation marks
11 omitted). Detailed factual allegations are not required, but “[t]hreadbare recitals of the
12 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
13 Id. A pro se litigant need only satisfy a “low threshold” to “proceed past the screening
14 stage.” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (internal citation and
15 quotation marks omitted).
16 III. DISCUSSION
17 Upon screening his amended complaint, the Court finds that Plaintiff has sufficiently
18 alleged reasons why his complaint was timely. SAC at 1; Baldwin Cnty. Welcome Ctr. v.
19 Brown, 466 U.S. 147, 150–51 (1984) (explaining that the Title VII statute of limitations
20 can be tolled in exceptional circumstances such as when a plaintiff is misled about a
21 deadline). Additionally, the Court finds that Plaintiff has met the “low threshold” required
22 to survive screening on the following claims: (1) Title VII and FEHA race discrimination;
23 (2) Title VII and FEHA retaliation; (3) section 1102.5 whistleblower retaliation; and (4)
24 failure to timely pay wages under the California Labor Code. See Wilhelm, 680 F.3d at
25 1121. The Court will thus only address whether Plaintiff adequately pleaded his remaining
26 ADA claim.
27 To make out a prima facie case for employment discrimination under the ADA, a
28 Plaintiff must show that they (1) suffer from a covered disability, (2) are qualified to
1 perform the essential duties of the job, and (3) were discriminated against due to their
2 disability. Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999). The ADA
3 broadly covers “any physiological disorder condition affecting body systems . . . and any
4 mental or psychological disorder.” Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d
5 879, 884–85 (9th Cir. 2004); 29 C.F.R. § 1630.2(h). In order to qualify as a disability,
6 however, an impairment must substantially limit one or more of the individual’s major life
7 activities. Coons, 383 F.3d at 884. Further, when a party alleges that they are disabled
8 under the ADA, the disability must be pled with some factual specificity. Bresaz v. Cnty.
9 of Santa Clara, 136 F. Supp. 3d 1125, 1136 (N.D. Cal. 2015) (citing O’Guinn v. Lovelock
10 Corr. Ctr., 502 F.3d 1056, 1058 (9th Cir. 2007) (granting motion to dismiss ADA claim
11 because plaintiff made no allegations that he suffered from or was ever diagnosed with a
12 specific mental or physical disorder).
13 Here, Plaintiff has not pled facts showing that he suffers from a covered disability.
14 His complaint does not identify any medical condition or impairment nor include facts
15 about how it affects his day-to-day life. See generally SAC. He alleges only that an
16 incident at work “aggravated [his] anxiety and put [him] in a state of shock.” Id. at 2, 7,
17 10. Without more information regarding the nature of Plaintiff’s impairment, its duration,
18 and the extent to which it hinders his life activities, the Court cannot determine if he is
19 disabled under the ADA. See Bresaz, 136 F. Supp. 3d at 1136; O’Guinn, 502 F.3d at 1058.
20 As Plaintiff has not alleged facts showing that he suffers from a covered disability, the
21 Court dismisses Plaintiff’s ADA disability discrimination claim.
22 However, because Plaintiff may be able to allege specific facts to show that he (1)
23 suffers from a recognized disability, (2) was qualified to perform the duties of his job, and
24 (3) was discriminated against because of this disability, the Court grants leave to amend
25 his ADA claim. See Chaset v. Fleer/Skybox Int’l, LP, 300 F.3d 1083, 1088 (9th Cir. 2002)
26 (finding leave to amend futile where “plaintiffs cannot cure the basic flaw in their
27 pleading”).
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1 IV. MOTION TO APPOINT COUNSEL
2 Plaintiff also moves the Court to appoint him an attorney. Unlike the Sixth
3 Amendment’s guarantee of representation in criminal matters, there is generally no right
4 to counsel in civil cases. Adir Int’l, LLC v. Starr Indem. & Liab. Co., 994 F.3d 1032,
5 1038–39 (9th Cir. 2021). While courts have the discretion to appoint counsel in civil
6 cases, this is only allowed in “exceptional circumstances.” Wilborn v. Escalderon, 789
7 F.2d 1328, 1331 (9th Cir. 1986); see 28 U.S.C. § 1915(e)(1). “A finding of exceptional
8 circumstances requires an evaluation of both the likelihood of success on the merits and
9 the ability of the petitioner to articulate his claims pro se in light of the complexity of the
10 legal issues involved.” Id. Plaintiff bears the burden of showing that exceptional
11 circumstances exist. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
12 The Court declines to appoint counsel for Plaintiff in this matter. Upon reviewing
13 the documents that Plaintiff has filed in this case, the Court finds that these filings
14 demonstrate his ability to articulate his legal claims. For example, in his second amended
15 complaint, Plaintiff has shown that he can successfully outline the causes of action he
16 seeks to bring as well as the facts relevant to these claims. See generally SAC.
17 Moreover, the Court finds that Plaintiff’s claims for employment discrimination,
18 retaliation, and wage-and-hour violations are not factually or legally complex. See id.
19 Because Plaintiff is capable of pursuing his action pro se, this case does not present
20 exceptional circumstances which justify a departure from the general rule that courts do
21 not appoint counsel in civil cases. See Wilborn, 789 F.2d at 1331. Accordingly, the
22 Court denies Plaintiff’s motion to appoint counsel without prejudice.
23 V. CONCLUSION
24 For the reasons set forth above, the Court DISMISSES Plaintiff’s ADA disability
25 discrimination claim without prejudice under 28 U.S.C. § 1915(e)(2) and allows the
26 remainder of his claims to proceed. Dkt. 15. Plaintiff may (1) notify the Court of his intent
27 to proceed only with his retaliation, race discrimination, and wage and hour claims; or
28 (2) file an Amended Complaint that also attempts to correct the deficiencies with respect
1 his ADA disability discrimination claim. Plaintiff's amended complaint must be
2 || complete by itself without reference to his prior complaints. Plaintiff must choose one of
3 || those options within thirty (30) days from the date this Order is filed. Failure to choose
4 || either option by May 30, 2024, will result in dismissal of this action. See Edwards vy. Marin
5 || Park, 356 F.3d 1058, 1065 (9th Cir. 2004) (“The failure of the plaintiff eventually to
6 ||respond to the court’s ultimatum—either by amending the complaint or by indicating to
7 ||the court that [he] will not do so—is properly met with the sanction of a Rule 41(b)
8 || dismissal.”). If Plaintiff notifies the Court that he wishes to proceed without amending his
9 || ADA claim, the Court will order the U.S. Marshal Service to serve a copy of the Second
10 |} Amended Complaint and summons upon Defendant. All costs of that service will be
11 ||advanced by the United States. See 28 U.S.C. § 1915; Fed. R. Civ. P. 4(c)(3).
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13 IT IS SO ORDERED.
14 Dated: April 30, 2024
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16 Hon. Jinsook Ohta
7 United States District Judge
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