The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
MISTY D. BROWN, Case No. 25-cv-10040-AGT
Plaintiff,
ORDER ON MOTION TO DISMISS
v.
Re: Dkt. No. 20
DAVID STEINER,
Defendant.
The Court grants United States Postmaster General David Steiner’s motion to dis-
miss Plaintiff Misty Brown’s complaint, with leave to amend. In evaluating the motion, the
Court didn’t consider new allegations alleged for the first time in the opposition. Canatella
v. Castro, No. 13-CV-05937-HSG, 2015 WL 5818070, at *5 (N.D. Cal. Oct. 6, 2015).
1. Failure to Accommodate Claim
Brown hasn’t plausibly alleged that her employer, the United States Postal Service
(USPS), failed to accommodate her disability. She stopped working in 2014 due to depres-
sion and hasn’t identified any accommodation that would allow her to return. Dkt. 14, FAC
¶¶ 15–16. USPS needn’t accommodate her disability through an indefinite, decade-long
leave of absence when Brown never appears to have stated “when and under what conditions
[she] could return to work.” Dark v. Curry Cnty., 451 F.3d 1078, 1090 (9th Cir. 2006).
2. Discrimination Claim
Brown hasn’t pleaded disability discrimination. As alleged, USPS occasionally is-
sued notices of proposed separation or notices of absence when it believed Brown hadn’t
provided sufficient medical documentation to continue her leave, to which Brown often re-
sponded by challenging USPS and pointing to medical records she had submitted. FAC
¶¶ 17–19, 22–28. On one occasion in 2018, a supervisor also incorrectly wrote on a workers’
compensation form that Brown had “not been employed with USPS since October 9, 2014,”
even though she remained on medical leave. Id. ¶ 20.
Brown contends that these incidents were discriminatory, but her back-and-forth
with USPS over medical records and USPS’s erroneous form, which didn’t result in Brown
losing workers’ compensation benefits, don’t plausibly suggest disability discrimination.
Brown hasn’t identified how these incidents “materially affect[ed] the compensation, terms,
conditions, or privileges of [her] employment,” as she must do to plead disability discrimi-
nation. Lau v. Mayorkas, No. 21-CV-04756-TLT, 2025 WL 1482385, at *6 (N.D. Cal. Jan.
27, 2025) (quoting Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008)).
3. Retaliation Claim
Brown alleges that USPS retaliated against her after she initiated union grievances,
arbitration, and EEOC proceedings. FAC ¶ 56. She hasn’t, however, identified any “adverse
employment action”—i.e., an action that “materially affect[ed] the compensation, terms,
conditions, or privileges of employment”—that USPS took because of her “protected activ-
ity.” Davis, 520 F.3d at 1089, 1094 (quoting another source). She cannot plead retaliation
without an adverse employment action. See id. at 1093–94.
4. Hostile Work Environment Claim
Brown hasn’t identified any “verbal or physical conduct of a harassing nature,” as
needed to maintain this claim. Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1206
(9th Cir. 2016) (quoting another source).
5. Procedural Due Process Claim
Lastly, Brown hasn’t plausibly alleged that USPS violated the Fifth Amendment’s
Due Process Clause, or a regulation governing EEOC investigations, 29 C.F.R. § 1614.108,
when it engaged in “procedural misconduct” during EEOC proceedings. FAC 4 66; see id.
(alleging that USPS withheld evidence, challenged the admissibility of Brown’s evidence,
and failed to interview one of Brown’s former employees).
Brown hasn’t identified any protected “liberty” or “property” interest that she lost
from USPS’s alleged misconduct, as necessary to maintain this claim. Regino v. Staley, 133
F.4th 951, 966 (9th Cir. 2025) (quoting another source). The EEOC oversaw the investiga-
tion, not USPS; and “[t]he EEOC’s negligence or inaction in [its] internal [proceedings] . . .
has no determinative consequences because such actions are merely preparatory to a lawsuit
[filed] . . . in federal district court.” Ward v. EEOC, 719 F.2d 311, 313-14 (9th Cir. 1983).
6. Leave to Amend Complaint
Because Brown 1s proceeding pro se and an amendment may not be futile, the Court
will give her leave to amend her complaint. If she intends to file an amended complaint, she
must file it by June 19, 2026. If she doesn’t file an amended complaint by then, the Court
will dismiss her claims with prejudice. The hearing on the motion to dismiss is vacated. The
initial case management conference is continued to August 14, 2026.
IT IS SO ORDERED.
Dated: May 19, 2026
Alex G. Tse
United States Magistrate Judge