Vasquez v. Washington Department of Veterans Affairs

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UNITED STATES DISTRICT COURT

6 WESTERN DISTRICT OF WASHINGTON

AT TACOMA

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GEORGE VASQUEZ, Case No. 3:23-cv-06178-TMC

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Plaintiff, ORDER GRANTING MOTION TO

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DISMISS WITH LEAVE TO AMEND

v.

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WASHINGTON DEPARTMENT OF

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VETERANS AFFAIRS,

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Defendant.

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14 I. INTRODUCTION

15 Pro se Plaintiff George Vasquez worked for Defendant Washington State Department of

16 Veterans Affairs (DVA) for about seven months before he was fired. Mr. Vasquez, a veteran

17 living with several disabilities, alleges that DVA violated his civil rights when they fired him. In

18 his complaint, Mr. Vasquez alleged age, national origin, and disability discrimination. This Court

19 previously granted DVA’s motion to dismiss nearly all of Mr. Vasquez’s claims but denied the

20 motion as to one of his disability-based claims, which it construed as arising under Section 504

21 of the Rehabilitation Act. Dkt. 27.

22 DVA then moved to dismiss this final claim. Dkt. 29. DVA argues that Mr. Vasquez

23 cannot bring a Section 504 claim against the agency because that section of the Rehabilitation

24 Act does not allow employment claims. This argument is incorrect and misstates decades of

1 precedent. But because Mr. Vasquez’s current complaint does not allege that DVA receives

2 federal funding, the Court must still grant the motion to dismiss. Mr. Vasquez can easily cure

3 this defect, however, by filing an amended complaint. The Court thus GRANTS Defendant

4 DVA’s motion to dismiss and GRANTS Mr. Vasquez leave to amend. Mr. Vasquez must file his

5 amended complaint no later than December 31, 2024. If he does not file an amended complaint

6 by that date, the Court will dismiss his Section 504 claim without prejudice and close the case.

7 II. BACKGROUND

George Vasquez worked as an “IT service desk worker” with the Washington State

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Department of Veterans Affairs (DVA) from May 16, 2022, until DVA terminated his

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employment on November 14, 2022. Dkt. 7-1 at 2, 4. Mr. Vasquez is a veteran living with post-

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traumatic stress disorder (PTSD).1 Id. Mr. Vasquez alleges that he was initially hired to work a

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shift from 4:00 to 8:00 a.m., but, instead, he was scheduled to work from 8:00 a.m. to 12:00 p.m.

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Id. at 2. Working this shift, he experienced increasing stress and anxiety. Id. The stress was

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largely induced by a coworker who would “often interrupt and startle plaintiff while speaking to

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clients in cubicle . . . [and] take on a leadership role, telling plaintiff what their expectations were

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for the office.” Id. Mr. Vasquez claims the coworker’s “tone was bullying, demeaning, and

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aggressive.” Id. And he maintains that he regularly reported the issues to supervisors who failed

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to conduct appropriate oversight, “foster[ing] a distracting and hostile work environment.” Id.

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Mr. Vasquez continued to request that he be moved to the earlier shift, “as this would put

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[him] in a more relaxing and stress-free work environment.” Id. at 2–3. Mr. Vasquez explained

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that “the current work environment” was harming “his psychological well-being.” Id. at 3. He

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1 Mr. Vasquez also alleges that his service-connected disabilities include “depressive disorder,

23 and cognitive disorder with memory loss (adjustment disorder, personality disorder, and

residuals of stroke), residual pituitary tumor, tinnitus, lumbar strain, impairment of visual field.”

24 Dkt. 7-1 at 6.

1 alleges that his “[s]upervisor was told again about his PTSD disability and the pervasive

2 emotional reactions plaintiff was experiencing from the current work environment.” Id. But the

3 “[s]upervisor did not respond to plaintiff’s concerns and did not address or remedy

4 confrontational coworkers continuous bullying.” Id. No action was ever taken. Id.

5 Mr. Vasquez further alleges that he was prevented from participating in trainings and was

6 not given recognition when he did complete necessary certifications. Id. at 3–4. The exclusion

7 from these trainings was “detrimental to plaintiff’s sense of belonging” in the workplace. Id. at 3.

8 On November 3, 2022, Mr. Vasquez requested help in pursuing an accommodation from

9 human resources. Id. On November 9, he formally sent a request for a reasonable

10 accommodation to his supervisor and the human resources team. Id. at 4. The request “outlin[ed]

11 the effects the current work environment was having on [his] disability.” Id. Less than a week

12 later, on November 14, Mr. Vasquez was fired for “not being a good fit.” Id.

13 Based on these allegations, Mr. Vasquez brought discrimination and retaliation claims

14 (for firing and creating a hostile work environment under Title VII of the Civil Rights Act of

15 1964; failing to provide a reasonable accommodation under Section 501 of the Rehabilitation

16 Act of 1973; discrimination under Section 501; creating a hostile work environment under the

17 Rehabilitation Act; age discrimination under the Age Discrimination in Employment Act

18 (ADEA); discrimination under the Americans with Disabilities Act (ADA); and national origin

19 discrimination under Title VII). See id. at 6–14. The DVA filed two motions to dismiss

20 Mr. Vasquez’s complaint. See generally Dkt. 12; Dkt. 16.

21 On August 22, 2024, this Court granted in part and denied in part DVA’s motions to

22 dismiss. See generally Dkt. 27. The Court dismissed Mr. Vasquez’s ADA, ADEA, Section 501,

23 Title VII retaliation, and Title VII national origin discrimination claims with prejudice and

24 without leave to amend. See generally id. However, the Court construed his hostile work

1 environment Rehabilitation Act claim as arising under Section 504 of the Act and declined to

2 dismiss it. Id. at 8. DVA then filed a third motion to dismiss. Dkt. 29. DVA argues that

3 Mr. Vasquez’s hostile work environment claim should be dismissed because Section 504 cannot

4 be used to bring a discrimination claim against an employer, as employment is not a “benefit or

5 service” within the language of the statute. See id. at 4.

6 Mr. Vasquez responded to DVA’s motion, Dkt. 33; DVA replied, Dkt. 34; and

7 Mr. Vasquez submitted a surreply, Dkt. 35. The motion is fully briefed and ripe for the Court’s

8 consideration.

9 III. DISCUSSION

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A. Legal Standard

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Under Federal Rule of

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Civil Procedure 12(b)(6), the Court may dismiss a complaint for “failure to state a claim upon

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which relief can be granted.” Rule 12(b)(6) motions may be based on either the lack of a

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cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.

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Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citation

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omitted).

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To survive a Rule 12(b)(6) motion, the complaint “does not need detailed factual

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allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), but “must contain sufficient

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

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Courtney, 32 F.4th 764, 773 (9th Cir. 2022) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009)). “A claim is facially plausible ‘when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’”

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Id. (quoting Iqbal, 556 U.S. at 678).

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1 The Court “must accept as true all factual allegations in the complaint and draw all

2 reasonable inferences in favor of the nonmoving party,” Retail Prop. Tr. v. United Bhd. of

3 Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014), but need not “accept as true a

4 legal conclusion couched as a factual allegation,” Twombly, 550 U.S. at 555. “[A] plaintiff’s

5 obligation to provide the grounds of his entitlement to relief requires more than labels and

6 conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

7 Twombly, 550 U.S. at 555 (internal quotation marks omitted). “Threadbare recitals of the

8 elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

9 556 U.S. at 678.

10 B. Plaintiff can bring a hostile work environment claim under Section 504.

11 1. Section 504 encompasses employment-related claims.

Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual

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with a disability . . . shall, solely by reason of her or his disability, be excluded from the

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participation in, be denied the benefits of, or be subjected to discrimination under any program or

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activity receiving Federal financial assistance . . . .” 29 U.S.C. 794(a). Congress enacted the first

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version of Section 504 in 1973. Section 504’s purpose is to ensure that disabled individuals “are

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not denied jobs or other benefits because of prejudiced attitudes or the ignorance of others.” Sch.

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Bd. of Nassau Cnty., Fla. v. Arline, 480 U.S. 273, 284 (1987). Section 504 was passed alongside

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Section 501, which expressly protects individuals with disabilities in federal employment.

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Buckingham v. United States, 998 F.2d 735, 739 (9th Cir. 1993) (“The duty on [federal]

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employers thus goes beyond mere non discrimination; the regulations promulgated under section

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501 emphasize the affirmative obligation to accommodate . . . ”). Together, the two provisions

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offer protection to employees of entities that receive federal financial assistance and entities

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within the federal government itself. See, e.g., Womanchild v. Nicholson, No. C06-1823RAJ,

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1 2008 WL 714091, at *3 (W.D. Wash. Mar. 13, 2008) (discussing the differences in applicability

2 of Section 501 and Section 504); Sharpe v. Henderson, No. CV-00-71-ST, 2001 WL 34039485,

3 at *6 (D. Or. Oct. 19, 2001) (explaining the comprehensive coverage of the two statutes for

4 employment cases).

5 Importantly, Section 504 applies only to those entities receiving federal funds. Arline,

6 480 U.S. at 277; see also United States Dep’t of Trans. v. Paralyzed Veterans of Amer., 477 U.S.

7 597, 605 (1986). Thus, a plaintiff suing under Section 504 must show that (1) he is an individual

8 with a disability; (2) he otherwise qualifies to receive the benefit; (3) he was denied the benefits

9 solely by reason of his disability; and (4) the program receives federal funding. Duvall v. Cnty. of

10 Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), as amended on denial of reh’g (Oct. 11, 2001).

11 In its third motion to dismiss, DVA does not question the severity or pervasiveness of the

12 harassment Mr. Vasquez alleges he suffered. See Dkt. 29. Instead, DVA narrowly argues that the

13 complaint fails to assert a plausible claim because employment actions are not cognizable under

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Section 504.2 Id. at 3–4. DVA claims that Mr. Vasquez has “failed to allege that he was qualified

15 for a particular benefit or service in the first place” because Section 504 bars “discrimination, on

16 the basis of disability, in federally-funded programs, not as to governmental employment.”

17 Dkt. 29 at 4. This argument is unavailing.

18 In Consolidated Rail Corporation v. Darrone, 465 U.S. 624, 632 (1984), the Supreme

19 Court recognized that one of the key purposes of Section 504 was “enhancing employment of the

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2 DVA raises additional arguments in its reply brief. See Dkt. 34 at 2–3. When moving to dismiss

21 under Rule 12(b)(6), a defendant must include all arguments supporting dismissal in the initial

motion. “It is well established that new arguments and evidence presented for the first time in

22 Reply are waived.” Docusign, Inc. v. Sertifi, Inc., 468 F. Supp. 2d 1305, 1307 (W.D. Wash.

2006) (citing United States v. Patterson, 230 F.3d 1168, 1172 (9th Cir. 2000)). The Court

23 declines to consider those arguments here. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir.

2007) (“The district court need not consider arguments raised for the first time in a reply brief.”).

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1 handicapped.” The Court explained, “the language of § 504 suggests that its bar on employment

2 discrimination should not be limited to programs that receive federal aid the primary purpose of

3 which is to promote employment.” Id. at 632–33. The Court found that the legislative and

4 administrative history of the law affirmed that Section 504 was intended “to prohibit

5 employment discrimination by all recipients of federal financial aid, regardless of the primary

6 objective of that aid.” Id. at 634. The Court declined to hold that the main purpose of the federal

7 funds needed to be promoting employment. Id. at 636–37. The Court concluded “that respondent

8 may recover backpay due to her decedent under [Section] 504 and that this suit for employment

9 discrimination may be maintained even if petitioner receives no federal aid the primary purpose

10 of which is to promote employment.” Id. at 637.

11 Darrone does not stand alone. In School Board of Nassau County v. Arline, the Court

12 again held that “[a]llowing discrimination based on [disability] would be inconsistent with the

13 basic purpose of [Section] 504, which is to ensure that handicapped individuals are not denied

14 jobs or other benefits because of the prejudiced attitudes or the ignorance of others.” 480 U.S. at

15 284. In Arline, the Court considered whether someone with a contagious illness could be

16 considered disabled and entitled to the protections of Section 504. Id. at 276. The Court

17 ultimately held that Section 504 covered such a case. In doing so, the Court analyzed the 1978

18 amendments to Section 504. The Court noted that Congress had amended the law to recognize

19 that “employers . . . might have legitimate reasons not to extend jobs or benefits to drug addicts

20 and alcoholics, but [Congress] also understood the danger of improper discrimination against

21 such individuals if they were categorically excluded from coverage under the Act.” Id. at 285 n.

22 14. In doing so, Congress, and the Court, again recognized that Section 504 covers disability-

23 based employment discrimination.

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1 In the years since Darrone and Arline, courts have continuously maintained that Section

2 504 covers disability-based employment discrimination. See, e.g., Smith v. Barton, 914 F.2d

3 1330, 1339 (9th Cir. 1990) (citing B.L. Schlei & P. Grossman, Employment Discrimination Law

4 281 (2d ed. 1983) (“Most section 504 suits are brought by plaintiffs who have been denied a job

5 or some other benefit as a consequence of a classification or disqualification based on disability

6 or perceived disability.”); Meyerson v. State of Ariz., 740 F.2d 684 (9th Cir. 1984) (relying on

7 Darrone to find that university professor plaintiff could maintain a Section 504 discrimination

8 suit against university even if federal financial assistance did not have the primary objective of

9 providing employment); Rose v. U.S. Postal Serv., 774 F.2d 1355, 1363 (9th Cir. 1985) (“The

10 thrust of the Rehabilitation Act is to require access for handicapped persons to employment and

11 federal programs.”).

12 In Zimmerman v. Oregon Department of Justice, 170 F.3d 1169, 1171–72 (9th Cir.

13 1999), the Ninth Circuit addressed an ADA Title II employment claim. In determining that the

14 claim could not move forward under Title II of the ADA, the Court explained that the

15 substantive employment protections of Section 504 had not been imputed to Title II. Id. at 1179–

16 80. In doing so, the Court explained that Section 504 does offer protections against disability-

17 based workplace discrimination. Id.

18 A decade later, the Ninth Circuit extended Section 504’s protections to independent

19 contractors seeking relief for disability-based workplace discrimination. Fleming v. Yuma Reg’l

20 Med. Ctr., 587 F.3d 938, 939–42 (9th Cir. 2009) (“Section 504 creates a private right of action

21 for individuals subjected to disability discrimination by any program or activity receiving federal

22 financial assistance . . . including employment discrimination in such programs[.]”) (cleaned up).

23 Looking to Zimmerman, the Court explained: “As we observed there, under the Rehabilitation

24 Act, ‘[d]iscrimination is prohibited under any program or activity that receives such [Federal

1 financial] assistance. This focus naturally encompasses the entire operation of the program or

2 activity, for its federal funding may well flow into compensation for employees,’ and, we would

3 add, for independent contractors as well.” Id. at 942 (quoting Zimmerman, 170 F.3d at 1181).

4 District courts in the Ninth Circuit, including this one, have followed suit. See, e.g.,

5 Robinson v. Green River Cmty. Coll., No. C 10-0112-MAT, 2010 WL 3947493, at *3 (W.D.

6 Wash. Oct. 7, 2010) (granting summary judgment on Section 504 claim for employment

7 discrimination); Aki v. Univ. of California Lawrence Berkeley Nat’l Lab’y, 74 F. Supp. 3d 1163,

8 1175 (N.D. Cal. 2014) (allowing Section 504 failure to accommodate claim to proceed against

9 state employer); Quinones v. Potter, 661 F. Supp. 2d 1105, 1118 (D. Ariz. 2009) (considering

10 Section 504 failure to accommodate claim against United States Postal Service, the only federal

11 agency covered by 504, rather than 501); Ham v. State of Nev., 788 F. Supp. 455, 457 (D. Nev.

12 1992) (denying summary judgment on Section 504 claim based on employment discrimination).

13 DVA identifies no cases that hold to the contrary. See Dkt. 29 at 3–4. Rather, DVA

14 argues—without citation to any relevant authority—that only Section 501 prohibits

15 discrimination based on disability in employment and Section 501, being limited to federal

16 government employment, does not apply here. Id. at 3. The Court agreed with the second half of

17 this argument as it was raised in DVA’s first motions to dismiss. Dkt. 27 at 7. But, considering

18 the cases discussed above, the Court does not agree with DVA’s argument about the bounds of

19 the Rehabilitation Act. Both Section 501 and Section 504 prohibit discrimination based on

20 employment. Buckingham, 998 F.2d at 739; Fleming, 587 F.3d at 939–42. Section 501 is limited

21 to federal government employment. Johnston v. Horne, 875 F.2d 1415, 1418–1420 (9th Cir.

22 1989). Section 504 is not. Id.; see also Darrone, 465 U.S. at 626.

23 Thus, DVA’s argument that Mr. Vasquez cannot bring a claim for employment

24 discrimination under Section 504 fails. And given DVA’s failure to disclose or acknowledge

1 binding Supreme Court and Ninth Circuit precedent foreclosing its argument, the Court cautions

2 counsel for DVA to review their obligations under Federal Rule of Civil Procedure 11(b)(2).

3 2. The Rehabilitation Act of 1973 allows for hostile work environment claims.

4 Mr. Vasquez’s existing claim under Section 504 alleges that DVA created a hostile work

5 environment. Dkt. 7-1 at 12–14; Dkt. 27 at 8. Recent Ninth Circuit precedent has clarified that

6 not only does the Rehabilitation Act allow employment related claims, it also specifically allows

7 hostile work environment claims. Mattioda v. Nelson, 98 F.4th 1164, 1173–74 (9th Cir. 2024). In

8 Mattioda, the Ninth Circuit held that a hostile work environment claim is cognizable under both

9 the ADA and Section 501 of the Rehabilitation Act. Id. The Ninth Circuit joined several other

10 circuits who had already held the same. Id. (collecting cases). The Ninth Circuit thus “join[ed]

11 the weight of consensus in holding that a disability-based harassment claim is available under the

12 ADA and the Rehabilitation Act.” Id. at 1173. Though Mattioda is a case brought under Section

13 501, rather than Section 504, of the Rehabilitation Act, the Court fails to distinguish between the

14 two throughout the opinion and in its holding. Id. (“[W]e . . . hold that hostile-work-environment

15 claims are cognizable under the Rehabilitation Act.” (cleaned up).

16 Since Mattioda was decided, district courts in the Ninth Circuit have applied its holding

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to Section 504 and ADA Title II claims.3 See, e.g., James Andrew Lawrence, Jr. v. Star

18 Protection Agency LLC, No. 23-35234, 2024 WL 4707888, at *1 (9th Cir. Nov. 7, 2024) (citing

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20 3 Although Title II does not cover employment, see Zimmerman, 170 F.3d 1169, Section 504 and

Title II of the ADA are otherwise analogous and often treated nearly identically by courts. See,

21 e.g., Duvall, 260 F.3d at 1135 (“Title II of the ADA was expressly modeled after § 504 of the

Rehabilitation Act.”); Zukle v. Regents of Univ. of Cali., 166 F.3d 1041, 1045 n. 11 (9th Cir.

22 1999) (citing cases from various circuits holding that the two provisions are to be interpreted

coextensively); Reidy v. Cent. Puget Sound Transit Reg’l Auth., No. C13-536RSL, 2014 WL

23 7340373, at *3 (W.D. Wash. Dec. 22, 2014) (“There is no significant difference in the analysis

of rights and obligations created by Title II of the ADA and Section 504 of the Rehabilitation

24 Act, and they may be interpreted and applied together.”) (citations omitted).

1 Mattioda to hold that the ADA allows hostile work environment claims); Brown v. Wormuth,

2 No. CV-21-00477-TUC-RM (MSA), 2024 WL 3553112, at *8 (D. Ariz. July 26, 2024), report

3 and recommendation adopted, No. CV-21-00477-TUC-RM (MSA), 2024 WL 4347864 (D. Ariz.

4 Sept. 30, 2024) (citing Mattioda in determining that plaintiff could allege a Section 504 claim);

5 Feroz v. Commex Corp., No. 3:23-CV-05592-LB, 2024 WL 3643087, at *7 (N.D. Cal. July 31,

6 2024) (allowing plaintiff to make a supplemental filing describing her disability and how a

7 hostile work environment “resulted from her disability” to plead a Section 504 claim).

8 For example, in Fox v. MHM Health Pros. LLC, the District of Arizona denied

9 defendants’ motion to dismiss when the plaintiff alleged a hostile work environment under a

10 comparable section of the ADA. No. CV-23-00190-PHX-DWL, 2024 WL 4364133, at *18–22

11 (D. Ariz. Sept. 30, 2024). The complaint alleged that the plaintiff’s colleagues gossiped about the

12 plaintiff, spreading inaccurate information about her disability (PTSD), and claimed that the

13 plaintiff was not suitable for the job because of her PTSD. Id. at *21. The Court, citing to

14 Mattioda, held that “[t]hese additional details are sufficient to establish, at least at the pleading

15 stage, that the complained-of acts of harassment were linked to Plaintiff's disability.” Id.

16 The Court thus declines to adopt DVA’s argument that Mr. Vasquez cannot raise a

17 hostile work environment claim under Section 504. The broader case law on Section 504,

18 coupled with the Ninth Circuit’s recent holding in Mattioda, indicate that Mr. Vasquez may

19 maintain a Section 504 claim against DVA for creating a hostile work environment.

20 3. The Eleventh Amendment does not shield WDVA from liability from a Section 504

hostile work environment claim.

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Even if Mr. Vasquez may bring a Section 504 claim for a hostile work environment, the

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Eleventh Amendment may still offer DVA a shield. The Eleventh Amendment provides that

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“[t]he Judicial power of the United States shall not be construed to extend to any suit in law or

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1 equity, commenced or prosecuted against one of the United States by Citizens of another State,

2 or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The amendment “bars a

3 citizen from bringing a suit against their own state in federal court.” Micomonaco v. Washington,

4 45 F.3d 316, 319 (9th Cir. 1995) (citing Hans v. Louisiana, 134 U.S. 1 (1890)). “This immunity

5 extends not just to suits in which the state itself is a named party but also to those against” state

6 entities, such as agencies, that are considered “arm[s] of the [s]tate.” Kohn v. State Bar of Cal.,

7 87 F.4th 1021, 1026 (9th Cir. 2023) (en banc) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v.

8 Doyle, 429 U.S. 274, 280 (1977)). As to states and state agencies, “[t]his jurisdictional bar

9 applies regardless of the nature of the relief sought.” Pennhurst State Sch. & Hosp. v.

10 Halderman, 465 U.S. 89, 100 (1984), superseded by statute on other grounds.

11 A plaintiff can overcome the Eleventh Amendment bar, however, if the state has

12 consented to waive its immunity or if Congress has abrogated the state’s immunity. Tron-

13 Haukebo v. Wash. State DOT, No. C23-5691JLR, 2023 WL 7183573, at *2 (W.D. Wash. Nov. 1,

14 2023) (citing Micomonaco, 45 F.3d at 319).

15 First, this Court concluded in its order on DVA’s first two motions to dismiss that DVA

16 is an arm of the state. Dkt. 27 at 5–6. Second, Section 504 does abrogate Eleventh Amendment

17 immunity for state agencies, but the abrogation applies only when the state agency accepts

18 federal financial assistance. Lane v. Peña, 518 U.S. 187, 193–94 (1996); Vinson v. Thomas, 288

19 F.3d 1145, 1151 (9th Cir. 2002). If DVA receives financial assistance, then Eleventh

20 Amendment immunity is abrogated for Vasquez’s claim.

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But Mr. Vasquez has not alleged that DVA receives federal financial assistance.4 See

22 generally Dkt. 7-1. Mr. Vasquez’s complaint does not mention that DVA receives federal

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4 Mr. Vasquez does contend in his opposition to DVA’s motion to dismiss that DVA receives

24 federal funding. Dkt. 33 at 3. But a Rule 12(b)(6) motion challenges the sufficiency of the

1 funding. See generally id. At this stage, he need not provide actual evidence of DVA’s federal

2 funding, but the complaint “must allege sufficient facts to state the elements of a hostile work

3 environment claim.” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1122 (9th Cir.

4 2008) (first citing Twombly, 127 S.Ct. at 1974; and then citing Williams v. Boeing Co., 517 F.3d

5 1120, 1130 (9th Cir. 2008)). Without the federal funding allegation, Mr. Vasquez has not pled

6 sufficient facts to abrogate DVA’s immunity and state the elements of a hostile work

7 environment claim under Section 504.

8 Still, this error may be remedied. As Mr. Vasquez has shown in his opposition briefing,

9 he can plausibly allege that DVA receives federal financial assistance. Dkt. 33 at 3 (“The

10 WDVA is a state agency that receives federal funds, falling under section 504 of the

11 Rehabilitation Act of 1973, which prohibits discrimination based on disability.”). The Ninth

12 Circuit has long held that “a district court should grant leave to amend even if no request to

13 amend the pleading was made, unless it determines that the pleading could not possibly be cured

14 by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (cleaned

15 up). Mr. Vasquez may easily remedy this error by submitting an amended complaint.

16 IV. CONCLUSION

For the reasons explained above, DVA’s Third Motion to Dismiss is GRANTED and

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Mr. Vasquez’s complaint is DISMISSED without prejudice. Mr. Vasquez is GRANTED leave to

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amend. Mr. Vasquez must file an amended complaint no later than December 31, 2024.

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21 complaint as it exists when the motion is filed. The plaintiff thus cannot use opposition briefs to

introduce entirely new factual allegations. See, e.g., Schneider v. California Dep’t of Corr., 151

22 F.3d 1194, 1197 n. 1 (9th Cir. 1998) (“In determining the propriety of a Rule 12(b)(6) dismissal,

a court may not look beyond the complaint to a plaintiff’s moving papers, such as a

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memorandum in opposition to a defendant’s motion to dismiss.”) (citations omitted). Instead,

Mr. Vasquez must add this allegation if he chooses to amend his complaint.

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l The Clerk is directed to send uncertified copies of this Order to all counsel of record and

2 || to any party appearing pro se at said party’s last known address.

3 Dated this 4th day of December, 2024.

Cig

5 Tiffany M>Cartwright

United States District Judge

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