Andrew Mattioda v. Clarence William Nelson II

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW MATTIODA, No. 22-15889

Plaintiff-Appellant, D.C. No. 5:20-cv-

v. 03662-SVK

CLARENCE WILLIAM NELSON II;

NATIONAL AERONAUTICS AND OPINION

SPACE ADMINISTRATION,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Susan G. Van Keulen, Magistrate Judge, Presiding

Argued and Submitted September 13, 2023

San Francisco, California

Filed April 22, 2024

Before: J. Clifford Wallace, Danny J. Boggs, * and Danielle

J. Forrest, Circuit Judges.

Opinion by Judge Forrest

*

The Honorable Danny J. Boggs, United States Circuit Judge for the U.S.

Court of Appeals for the Sixth Circuit, sitting by designation.

2 MATTIODA V. NELSON

SUMMARY **

Employment Law

The panel reversed the district court’s dismissal of

Dr. Andrew Mattioda’s hostile-work-environment claim,

affirmed the district court’s summary judgment in favor of

his employer the National Aeronautics and Space

Administration (“NASA”) on his disability-discrimination

claim, and remanded for further proceedings.

Dr. Mattioda, a scientist with NASA, has physical

disabilities related to his hips and spine that he alleged

required him to purchase premium-class airlines tickets for

flights over an hour long. He sued NASA under the

Rehabilitation Act of 1973, alleging that he suffered a hostile

work environment after informing his supervisors of his

disabilities and requesting upgraded airline tickets for work

travel, and alleging he was discriminated against due to his

disability by being passed over for a promotion.

Addressing the hostile-work-environment claim, the

panel held that a disability-based harassment claim is

available under the Americans with Disabilities Act of 1990

and the Rehabilitation Act. Turning to the merits of

Dr. Mattioda’s claim, the panel held that the district court

correctly applied the Iqbal/Twombly standard in assessing

his complaint. The district court erred, however, in

concluding that Dr. Mattioda failed to allege a plausible

causal nexus between the claimed harassment and his

disabilities. The panel also rejected NASA’s argument that

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MATTIODA V. NELSON 3

Dr. Mattioda’s hostile-work environment claim failed on the

alternative ground that he did not allege sufficiently severe

or pervasive harassment. The panel concluded that

Dr. Mattioda alleged sufficiently severe or pervasive

harassment to survive NASA’s motion to dismiss, and

plausibly alleged a hostile-work environment claim based on

his disability.

Addressing the disability-discrimination claim, the panel

held that the district court correctly applied the McDonnell

Douglas burden-shifting framework in assessing

Dr. Mattioda’s claim. Even assuming that Dr. Mattioda

established a prima facie case of disability discrimination,

NASA proffered a legitimate nondiscriminatory reason for

not selecting Dr. Mattioda for an available senior scientist

position. Accordingly, the district court did not err in

granting summary judgment to NASA on this claim.

COUNSEL

Erika A. Heath (argued), Duckworth & Peters LLP, San

Francisco, California; Richard D. Schramm, Berliner Cohen

LLP, San Jose, California; for Plaintiff-Appellant.

Adrienne Zack (argued), Assistant United States Attorney;

Michelle Lo, Chief, Civil Division; Stephanie M. Hinds,

United States Attorney; United States Department of Justice,

Office of the United States Attorney, San Francisco,

California; James A. Scharf, Assistant United States

Attorney, United States Department of Justice, Office of the

United States Attorney, San Jose, California; for

Defendants-Appellees.

4 MATTIODA V. NELSON

OPINION

FORREST, Circuit Judge:

Dr. Andrew Mattioda, a scientist with the National

Aeronautics and Space Administration (NASA), has

physical disabilities related to his hips and spine that he

alleges require him to purchase premium-class airlines

tickets for flights over an hour long. He sued NASA and its

Administrator (collectively referred to as NASA) under the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. § 791 et seq., alleging, among other things, that he

suffered a hostile work environment after informing his

supervisors of his disabilities and requesting upgraded

airline tickets for work travel as a reasonable

accommodation and that he was discriminated against due to

his disability by being passed over for a promotion. The

district court dismissed Dr. Mattioda’s hostile-work-

environment claim for failure to state a claim and granted

summary judgment for NASA on Dr. Mattioda’s disability-

discrimination claim based on the denied promotion.

Dr. Mattioda appeals from both orders, and we affirm in

part, reverse in part, and remand for further proceedings. We

agree that the district court erred in dismissing

Dr. Mattioda’s hostile-work-environment claim and hold,

consistent with our sister circuits, that this claim may be

asserted under the Rehabilitation Act. However, we affirm

the district court’s order granting summary judgment for

NASA on the disability-discrimination claim.

I. BACKGROUND

Because much of the background is relevant to the

district court’s Federal Rule of Civil Procedure 12(b)(6)

MATTIODA V. NELSON 5

dismissal, we primarily refer to Dr. Mattioda’s allegations in

his operative complaint. See Wilson v. Craver, 994 F.3d

1085, 1089–90 (9th Cir. 2021) (“The [c]ourt is obliged to

accept all factual allegations in the complaint as true and

construe them” favorably to the plaintiff. (alterations

adopted) (citation omitted)). To the extent we rely on

evidence presented at summary judgment, we view such

evidence in the light most favorable to Dr. Mattioda.

Alexander v. Nguyen, 78 F.4th 1140, 1144 (9th Cir. 2023).

A. Dr. Mattioda’s Employment at NASA

Dr. Mattioda began working for NASA in 2000. He

suffers from, among other things, a degenerative defect in

his hips and Scheurermann’s disease of the spine, which

causes uneven vertebrae growth and scoliosis. Since 2007,

his orthopedist has written reasonable-accommodation

letters stating that Dr. Mattioda must fly in premium class

for flights longer than an hour because he needs to avoid

prolonged sitting and be able to change positions frequently

and stretch due to physical disabilities affecting his hips and

spine. By 2011, after multiple surgeries, Dr. Mattioda had

informed the NASA Ames Research Center, where he

worked, about all his disabilities and orthopedic limitations.

Thereafter, from 2011 to 2018, Dr. Mattioda’s

experience at NASA was plagued by: (a) derogatory

comments from his supervisors; (b) supervisors who

inhibited his work opportunities; (c) unwarranted negative

job reviews; and (d) resistance to his accommodation

requests. In 2011, Dr. Mattioda approached his supervisor,

Dr. Timothy Lee, about an upcoming work trip and advised

Dr. Lee of his physical disabilities and premium-class travel

request. After Dr. Lee learned of the cost for the requested

travel upgrade, he “openly discussed” Dr. Mattioda’s

6 MATTIODA V. NELSON

disabilities in front of others, “compared [his] disabilities to

Dr. Lee’s own hip issues,” and asked why Dr. Mattioda

could not “just tough it out or suck it up and travel coach.”

This incident was the first in a “series of harassing

comments and events.” For example, Dr. Lee told

Dr. Mattioda that he believed another scientist was “doing

all the work for” Dr. Mattioda and that he did not “respect

[Dr. Mattioda] or [his] work.” And during a meeting with

colleagues, Dr. Lee criticized Dr. Mattioda’s work to the

point that one of the meeting attendees told Dr. Mattioda

after the meeting that he felt Dr. Lee was acting “aggravated

or angry at” Dr. Mattioda. In another meeting years later,

Dr. Mattioda suggested that he could oversee a colleague’s

work, and Dr. Lee nearly shouted at him. Additionally, at a

NASA holiday party, Dr. Lee told Dr. Mattioda “not to get

his ‘hopes up’” for a promotion for which Dr. Mattioda’s

name had been submitted.

Dr. Lee also made comments about Dr. Mattioda to other

NASA employees. On one occasion, Dr. Mattioda’s

coworker “insisted on photographing” Dr. Mattioda giving a

presentation because Dr. Lee had stated that he did not

believe Dr. Mattioda was involved with the project. This

same coworker told Dr. Mattioda that Dr. Lee had expressed

that he did not respect Dr. Mattioda’s work, thought

Dr. Mattioda was lazy, and thought Dr. Mattioda was “using

his medical and disability issues to avoid work.” Other

colleagues told Dr. Mattioda that Dr. Lee disparaged

Dr. Mattioda so often that they considered such comments

“background noise.”

In addition to openly criticizing Dr. Mattioda, Dr. Lee

inhibited Dr. Mattioda’s work opportunities. For instance,

he declined to support Dr. Mattioda’s nomination for a

MATTIODA V. NELSON 7

promotion but supported other candidates. He failed to

authorize a spot for Dr. Mattioda’s Postdoctoral Program

candidate, who would have supported Dr. Mattioda’s work.

He lied to Dr. Mattioda by stating that Dr. Mattioda could

not virtually present at a conference to which he was unable

to travel. And he declined to involve Dr. Mattioda in projects

and required Dr. Mattioda to submit an itemized travel

request for a project that Dr. Lee did not require from another

colleague.

Dr. Mattioda alleges that he also had problems with

another supervisor, Dr. Jessie Dotson. Dr. Mattioda

requested a travel upgrade as an accommodation from

Dr. Dotson in 2011. Dr. Dotson improperly told

Dr. Mattioda that he would have to use his own grant money

to pay for the upgrade. 1 Dr. Dotson also warned

Dr. Mattioda that he could “lose [his] job” if he kept

requesting travel accommodations. She was also resistant to

other accommodation requests from Dr. Mattioda, telling

him she could not “find any magic pots of” money and

requiring him to go through steps not required of others to

receive his requests.

Dr. Dotson also mishandled her performance reviews of

Dr. Mattioda. In a May 2013 performance review,

Dr. Mattioda expressed concern that his disability-related

inability to travel would impact his career. Dr. Dotson told

Dr. Mattioda “not to worry” but then lowered one of

Dr. Mattioda’s ratings, which affected his yearly bonuses,

for this reason. During another review, Dr. Dotson showed

Dr. Mattioda an unexplained list of “proposal success rates,”

1

Dr. Mattioda also alleged that Dr. Dotson and other NASA officials

were resistant to his travel-related accommodation and other funding

requests on other occasions.

8 MATTIODA V. NELSON

and informed Dr. Mattioda that he was the lowest on the list.

At another review, Dr. Dotson questioned whether

Dr. Mattioda was “still committed to being a high-profile

scientist at NASA,” criticized him for not traveling, and

lowered his performance rating for not submitting a

particular proposal that she had previously counseled him

was the “right thing to do.” Thereafter, Dr. Dotson

acknowledged Dr. Mattioda’s failure to submit the proposal

should have had no impact on his performance rating, but

she denied Dr. Mattioda’s request to reconsider his

performance rating and also required Dr. Mattioda to sign

her rejection letter.

Dr. Mattioda’s other harassment-based allegations

include that his supervisors disclosed his disabilities and

Equal Employment Opportunity (EEO) activity to other

employees, and otherwise inhibited his opportunities at

NASA. And that in June 2016, NASA transferred

Dr. Mattioda to a different division “[t]o help calm the

waters and to provide [Dr. Mattioda] with a safe space.”

B. Denied Promotion

In November 2016, a senior scientist position became

available at NASA (ST Position). Dr. Lee and other NASA

employees emailed about the position, and a human

resources (HR) manager emailed Dr. Eugene Tu, a Center

Director at NASA, asking for approval to appoint Dr. Scott

Sandford directly. Dr. Tu also supported Dr. Sandford’s

appointment, but he wanted “to have a brief discussion on

all the upcoming ST positions (including this one) and which

ones we are expecting to compete or fill directly” and

expressed that he thought they “need[ed] to take a look at the

diversity of our ST positions.”

MATTIODA V. NELSON 9

Dr. Tu then sent out a letter explaining that the open

position would follow NASA’s “procedural framework for

merit staffing of ST positions,” which includes convening a

panel “of three or more senior leaders . . . to assist in the

selection process.” The designated selection panel consisted

of Dr. Steven Zornetzer, as chair, and Drs. Max Bernstein,

Steve Howell, and Lee, as voting members. An equal

opportunity (EO) officer and an HR manager served as non-

voting member and staff, respectively, on the panel.

Dr. Mark Fonda ultimately replaced Dr. Howell. And

Dr. Lee recused himself a week after initially agreeing to

serve, and he was replaced by Dr. Jaya Bajpayee.

The ST Position posting stated that candidates would be

evaluated according to criteria assessing: (1) education level

and training; (2) technical excellence and contributions

including experience, technical problem solving, and

publications and “[i]nformation [t]ransfer”; (3) awards and

recognition; (4) outside professional activities; and

(5) corporate cooperation and technical leadership skills,

including “coaching/mentoring and diversity and inclusion.”

The posting also mentioned that candidates should possess

experience related to supporting “space science missions.”

The evaluation criteria warned “[u]ndue emphasis should

not be accorded to the mere number of publications.”

There were seven applicants, and the selection panel

ultimately narrowed their consideration to Drs. Mattioda,

Sandford, and Farid Salama. Dr. Mattioda’s application

indicated that he qualified for Schedule A hiring

consideration, which is an affirmative-action schedule for

federal employees with disabilities. See U.S. Off. of Pers.

Mgmt., Disability Employment, Hiring, available at

https://www.opm.gov/policy-data-oversight/disability-

employment/hiring/ (stating that “[i]n the non-competitive

10 MATTIODA V. NELSON

hiring process, agencies use a special authority (Schedule A)

to hire persons with disabilities without requiring them to

compete for the job. In the competitive process, applicants

compete with each other through a structured process.”)

However, Dr. Mattioda does not appear to dispute that his

Schedule A hiring eligibility was not transmitted to NASA’s

internal system nor that the ST Position was subject to the

typical competitive process. Of the panel members,

Drs. Fonda and Bernstein were aware of Dr. Mattioda’s

disability status and prior EEO activity during the selection

process.

In their applications for the ST Position, Drs. Salama and

Sandford self-reported their “h-index” values, a score which

measures the impact of a scientist’s published research

articles. Dr. Salama reported an h-index of 34, and

Dr. Sandford reported an h-index of 67 and that he had

“published 207 papers.” In his application, Dr. Mattioda

stated that he had 33 publications in peer-reviewed journals,

but he did not disclose his h-index. Dr. Mattioda also pointed

out in his written responses to the evaluation criteria that

“due to the lack of sufficient travel funding for scientists

with disabilities at NASA . . . I have been unable to

participate more fully in . . . professional activities.” Before

Dr. Lee recused himself from the selection panel, he emailed

Dr. Zornetzer information containing each candidate’s h-

index, with Dr. Sandford having the highest score.

The panel did not interview the candidates, but all panel

members individually rated them according to the evaluation

criteria included in the job posting, and each rated

Dr. Sandford the highest. Although Dr. Bajpayee gave

Drs. Mattioda and Sandford the same overall rating,

Dr. Bajpayee rated Dr. Sandford higher on the “awards and

recognition” criteria and stated that he thought

MATTIODA V. NELSON 11

Dr. Sandford’s application was the “most articulate.”

Dr. Bernstein noted that Dr. Mattioda’s publications were

low and that he did not have impressive mission experience.

In contrast, he thought that Dr. Sandford’s publications are

“really changing paradigms” and that Sandford’s mission-

involvement experience was “far beyond the other[s’.]” 2 The

other panel members made similar observations on their

rating sheets.

After the panel members individually rated the

candidates, they met to discuss their ratings and

unanimously decided to recommend Dr. Sandford for the ST

Position. Dr. Zornetzer sent Dr. Tu the panel’s

recommendation emphasizing Dr. Sandford’s “strong

professional contributions to major deep space missions”

and his “positive impact and robust recognition by his

peers,” among other qualifications.

Dr. Tu reviewed Dr. Zornetzer’s memorandum and each

candidate’s application materials. Dr. Tu agreed with the

panel’s recommendation to select Dr. Sandford because he

thought Dr. Sandford had a strong publication record,

mission experience, and engagement with professional

societies, and Dr. Mattioda and the other candidate did not

have “backgrounds as strong as Dr. Sandford” in these areas.

After receiving the selection panel’s recommendation,

Dr. Tu sent a memorandum to NASA’s Acting

Administrator indicating he wanted to select Dr. Sandford,

and the Acting Administrator concurred in his decision.

2

Dr. Bernstein sent an email indicating that his overall rating was “not

merely the average of all of the scores” as that would make it “harder to

see the very real differences between the candidates in the technical

area[.]”

12 MATTIODA V. NELSON

Dr. Zornetzer later told Dr. Mattioda that he was

considered for the ST Position but not selected mainly

because of his lower h-index score and lack of “‘deep space’

mission experience,” neither of which was listed as a

requisite qualification in the job position announcement. In

the same conversation, Dr. Zornetzer informed Dr. Mattioda

that he had no knowledge about the h-index and thought it

was a “astrophysics thing.”

Dr. Mattioda filed an EEO complaint alleging that he

was not selected because of his disabilities and prior EEO

activity. 3 Dr. Mattioda did not know who was on the

selection panel when he filed his EEO complaint and

speculated that Drs. Michael Bicay, Dotson, and Lee were

involved. Dr. Mattioda criticized the panel’s reliance on the

h-index. As Dr. Mattioda points out, the record is

inconsistent as to the source of the candidates’ h-indices

considered by the selection panel. 4 He also contends that the

panel had differing understandings of this metric and that the

panel give it undue weight. According to Dr. Mattioda, a

better index would have been the “M index,” which accounts

for the time from a person’s first publication in the field,

giving more weight to a shorter publication history with the

same productivity. Dr. Mattioda further attacked the panel’s

reliance on “deep space” mission experience because this

3

Dr. Mattioda had filed three prior EEO complaints alleging he was

discriminated against in prior incidents because he is Native American

and because he is disabled.

4

Dr. Fonda attested that Dr. Zornetzer provided the h-index information

for each candidate. Dr. Zornetzer attested that Dr. Bernstein provided the

h-index for each candidate. Drs. Bernstein and Bajpayee attested that the

candidates’ h-indices were in the application packets.

MATTIODA V. NELSON 13

was not listed in the job posting and panel members also did

not have a uniform understanding of this criteria.

Additionally, Dr. Mattioda asserted that panel members

were biased. He claimed that Dr. Bernstein had a conflict of

interest because Dr. Sandford mentored him for years.

Dr. Mattioda also claimed that most of the panel members

were aware of his disabilities or EEO activity, and that the

panel should have considered his disabilities to account for

why he had less experience.

Despite Dr. Mattioda’s various challenges, he

acknowledged that Dr. Sandford has significantly more

experience and publications, noting that because

Dr. Sandford entered the field early on, his publications were

the first in the novel field. In Dr. Mattioda’s view, the panel

was “determined to pick the candidate with the most years

of experience,” which was Dr. Sandford.

C. NASA’s Motion to Dismiss

Dr. Mattioda filed four actions in 2020 (following his

separate EEO complaints), which the district court

consolidated. In his complaint in the consolidated action, he

alleged various claims under the Rehabilitation Act,

including hostile work environment, harassment, and

discrimination. NASA moved to dismiss the consolidated

action, and the district court granted NASA’s motion in part.

In doing so, the court explained that discrimination claims

based on discrete adverse actions are analyzed separately for

purposes of exhaustion of administrative remedies and

timeliness. The district court concluded that Dr. Mattioda

could not state a discrimination claim based on events

occurring before July 7, 2015 (45 days before Dr. Mattioda

contacted an EEO counselor) or after August 8, 2017 (the

final date of allegations in Dr. Mattioda’s EEO actions), to

14 MATTIODA V. NELSON

the extent the conduct was not sufficiently similar to the

allegations made in the EEO complaints, but that those

incidents could be used as background to support

Dr. Mattioda’s exhausted and timely claims.5 As for

Dr. Mattioda’s timely claim of discrimination, the district

court concluded that Dr. Mattioda had stated a prima facie

case under the Rehabilitation Act.

The district court indicated that hostile-work-

environment claims are different from discrimination claims

because they “involve[] repeated conduct,” and are timely

“so long as all acts which constitute the claim are part of the

same unlawful employment practice and at least one act falls

within the time period.” The district court acknowledged that

this court had not yet decided whether a harassment claim is

cognizable under the Rehabilitation Act but assumed that it

was. Concluding that Dr. Mattioda’s allegations did not

contain a “readily apparent link to [his] disability” or

establish that he suffered severe or pervasive harassment, the

district court dismissed Dr. Mattioda’s harassment claim

with leave to amend.

Dr. Mattioda then filed his operative complaint, which

NASA again moved to dismiss. In its order on this motion,

the district court reiterated that Dr. Mattioda had plausibly

alleged a discrimination claim based on his disability. But

the district court granted NASA’s motion in part, without

leave to amend, concluding that Dr. Mattioda still failed to

link the alleged harassment that he endured to his disability.

5

Dr. Mattioda does not challenge the court’s exhaustion or timeliness

holdings.

MATTIODA V. NELSON 15

D. NASA’s Motion for Summary Judgment

NASA subsequently moved for summary judgment on

Dr. Mattioda’s surviving claims, which the district court

granted in relevant part. Applying the burden-shifting

framework established in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973), to Dr. Mattioda’s

discrimination claim based on his non-selection for the ST

Position, the district court first held that Dr. Mattioda failed

to establish a prima facie case of disability-based

discrimination because his “wide-ranging complaints about

the selection of [Dr.] Sandford over him for the ST position

focus on process issues.” The district court rejected

Dr. Mattioda’s cat’s-paw theory—that Dr. Lee had

discriminatory animus and influenced the selection panel’s

decision—reasoning that, even if Dr. Lee had such bias,

there was no evidence that Dr. Lee improperly influenced

the panel. The district court further explained that

Dr. Mattioda had not demonstrated that Dr. Lee provided

inaccurate information regarding the candidates’ h-indices.

And the district court emphasized that Dr. Mattioda admitted

that he was less experienced than Dr. Sandford in several

areas the panel considered, and that all panel members, even

the one who Dr. Mattioda described as “obviously neutral,”

rated Dr. Sandford the highest.

Even if Dr. Mattioda had established a prima-facie case,

the district court further concluded that NASA established a

non-discriminatory justification for its hiring decision: that

Dr. Sandford was a superior candidate. And the court also

held that Dr. Mattioda failed to present any evidence that

NASA’s justification was pretext by showing, for example,

that he was the superior candidate.

16 MATTIODA V. NELSON

After the district court’s rulings, the parties settled

Dr. Mattioda’s remaining discrimination claim based on his

negative performance reviews, which was scheduled for

trial, and the district court dismissed that claim with

prejudice and entered judgment in May 2022.

II. DISCUSSION

A. Hostile-Work-Environment Claim

We review the district court’s dismissal of

Dr. Mattioda’s hostile-work-environment claim for failure

to state a claim under Fed. R. Civ. P. 12(b)(6) de novo.

Lathus v. City of Huntington Beach, 56 F.4th 1238, 1240 (9th

Cir. 2023). “We accept as true all well-pleaded allegations

of material fact in the operative complaint and construe them

in favor of [Dr. Mattioda], the non-moving party.” Id.

1.

As an initial matter, while this court has held that “[t]here

is no significant difference in analysis of the rights and

obligations created by the [Americans with Disabilities Act

of 1990 (ADA)] and [the Rehabilitation Act],” Zukle v.

Regents of Univ. of California, 166 F.3d 1041, 1045 n.11

(9th Cir. 1999), we have not yet decided whether a hostile-

work-environment claim is cognizable under either statute.

See McIntyre v. Eugene Sch. Dist. 4J, 976 F.3d 902, 916 (9th

Cir. 2020). But we have recognized that the “weight of

authority supports” concluding that a plaintiff can bring a

disability-based harassment claim under the ADA—and thus

under the Rehabilitation Act—because “every circuit to have

[addressed this issue] has [so] concluded.” Id.; see also Ford

v. Marion County Sheriff’s Off., 942 F.3d 839, 851–52 (7th

Cir. 2019) (collecting cases). Today we affirmatively decide

this threshold question and join the weight of consensus in

MATTIODA V. NELSON 17

holding that a disability-based harassment claim is available

under the ADA and the Rehabilitation Act.

It is well established that a plaintiff may bring a hostile-

work-environment claim under Title VII of the Civil Rights

Act, 42 U.S.C. § 2000e et seq. See Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993). And as the Seventh Circuit

succinctly stated, this same claim is available under the ADA

because “Congress wrote the ADA using the language of

Title VII.” Ford, 942 F.3d at 852. The Fifth Circuit similarly

reasoned that because the ADA and Title VII use almost

identical language and “are also alike in their purposes and

remedial structures,” the ADA also “provides a cause of

action for disability-based harassment.” Flowers v. S. Reg’l

Physician Servs. Inc., 247 F.3d 229, 234 (5th Cir. 2001).

Specifically, the Fifth Circuit concluded that “[i]t is evident,

after a review of the ADA’s language, purpose and remedial

framework, that Congress’s intent in enacting the ADA was

. . . to eradicate disability-based harassment in the

workplace.” Id. at 233. And the Fifth Circuit observed that

the Supreme Court construed Title VII, which has nearly

identical language, “to provide a cause of action for

‘harassment [which is] sufficiently severe or persuasive to

alter the conditions of [the victim’s] employment and create

an abusive working environment . . . because it affects a

term, condition, or privilege of employment.’” Id. (quoting

Patterson v. McLean Credit Union, 491 U.S. 164, 180

(1989) (alterations in original); see also 42 U.S.C.

§ 12112(a). Thus, applying the Supreme Court’s

interpretation of Title VII, the Fifth Circuit “interpret[ed] the

phrase ‘terms, conditions, and privileges of employment,’ as

it is used in the ADA to ‘strike at’ harassment in the

workplace.” Id.

18 MATTIODA V. NELSON

This reasoning is sound, and we now join our sister

circuits that have held that hostile-work-environment claims

are cognizable under the ADA. Additionally, we have held

that “[t]he Rehabilitation Act is materially identical to and

the model for the ADA,” the difference being the application

of the Rehabilitation Act is limited to federally funded

programs. Castle v. Eurofresh, Inc., 731 F.3d 901, 908 (9th

Cir. 2013) (quoting Armstrong v. Davis, 275 F.3d 849, 862

n.17 (9th Cir. 2001), abrogated on other grounds by Johnson

v. California, 543 U.S. 499, 504–05 (2005)). Thus, we also

hold that hostile-work-environment claims are cognizable

under the Rehabilitation Act.

2.

We now turn to whether Dr. Mattioda pleaded a plausible

hostile-work-environment claim. For this claim,

Dr. Mattioda must allege that he was subjected to

harassment because of his disability, and that the harassing

“conduct was sufficiently severe or pervasive to alter the

conditions of [his] employment and create an abusive work

environment.” Manatt v. Bank of Am., N.A., 339 F.3d 792,

798 (9th Cir. 2003) (citation omitted); see also Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007) (stating that a

complaint must provide “enough facts to state a claim to

relief that is plausible on its face”). The district court

concluded that Dr. Mattioda failed to state a plausible

allegation that the harassing conduct occurred because of his

disability. On appeal, Dr. Mattioda argues that the district

court erred because he adequately pleaded causation and the

district court should have applied the more liberal pleading

standard articulated by Swierkiewicz v. Sorema N. A., 534

U.S. 506 (2002), over the Iqbal/Twombly standard.

MATTIODA V. NELSON 19

As an initial matter, we hold that the district court

correctly applied the Iqbal/Twombly standard in assessing

Dr. Mattioda’s complaint. The Supreme Court decided

Swierkiewicz before Iqbal and Twombly, holding that an

employment-discrimination claim is not subject to a

heightened pleading standard. 534 U.S. at 510–15. In

Twombly, the Supreme Court explained that “Swierkiewicz

did not change the law of pleading, but simply re-

emphasized that the . . . use of a heightened pleading

standard for Title VII cases was contrary to the Federal

Rules’ structure of liberal pleading requirements.” Twombly,

550 U.S. at 570 (alteration adopted) (citation omitted). To

the extent that any differences remain between the pleading

standards relied upon in Swierkiewicz and Twombly, in

reconciling these decisions, we have explained that a

complaint must contain sufficient factual allegations that

plausibly suggest entitlement to relief. Starr v. Baca, 652

F.3d 1202, 1215–16 (9th Cir. 2011); see also Austin v. Univ.

of Oregon, 925 F.3d 1133, 1136–38 (9th Cir. 2019) (“In

Swierkiewicz, the Supreme Court reiterated that the prima

facie case under McDonnell Douglas . . . is an evidentiary

standard, not a pleading requirement.”). The district court

did not employ a heightened pleading standard as prohibited

by Swierkiewicz, see Austin, 925 F.3d at 1136–38, nor did it

err in applying the Iqbal/Twombly standard.

Applying the correct pleading standard, the district court

concluded that Dr. Mattioda failed to allege a plausible

causal nexus between the claimed harassment and his

disabilities. This was error. On the record here, the district

court’s conclusion that Dr. Mattioda plausibly alleged

disability-based discrimination, conflicts with its conclusion

that he did not plausibly allege his disability was the basis

for the harassment. For example, the district court

20 MATTIODA V. NELSON

acknowledged that Dr. Dotson’s threat to Dr. Mattioda’s job

was explicitly linked to his disabilities, but concluded that

this allegation concerned only his disability claim based on

“failure to accommodate,” even though this allegation was

“particularly” realleged as part of Dr. Mattioda’s harassment

claim. Such parsing of Dr. Mattioda’s complaint is

inconsistent with the district court’s obligation to construe

well-pleaded allegations in Dr. Mattioda’s favor. See Lathus,

56 F.4th at 1240.

Further, the district court failed to acknowledge

Dr. Mattioda’s allegation that Dr. Lee’s “series of harassing

comments” began after Dr. Mattioda informed Dr. Lee of his

disabilities. 6 See Flowers, 247 F.3d at 236–37 (concluding

that evidence the employer’s treatment of plaintiff changed

after discovering her HIV-positive status supported a verdict

for disability-based harassment). Construing this fact in

Dr. Mattioda’s favor and considering that Dr. Lee denigrated

Dr. Mattioda as lazy and as using his disabilities to avoid

work, Dr. Mattioda plausibly alleged a nexus between the

described harassment and his disabilities. See, e.g., Johnson

v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1123 (9th

Cir. 2008) (concluding that “the inference that racial animus

motivated [a] nurse’s requests that [plaintiff] perform the

tasks of a maintenance man [wa]s a reasonable one that . . .

must [be] construe[d] in his favor at the motion to dismiss

stage”); id. (quoting McGinest v. GTE Serv. Corp., 360 F.3d

1103, 1117 (9th Cir. 2004)) (“[A] coworker’s use of a ‘code

word or phrase’ can, under certain circumstances, contribute

to a hostile work environment.”). Dr. Mattioda’s allegation

that Dr. Dotson treated “non-disabled researchers” better,

6

In fact, after learning of Dr. Mattioda’s disability, Dr. Lee openly asked

why Mattioda could not “tough it out.”

MATTIODA V. NELSON 21

further linked Dr. Dotson’s allegedly harassing conduct to

his disability. See EEOC v. Nat’l Educ. Ass’n, Alaska, 422

F.3d 840, 844–45 (9th Cir. 2005) (concluding discriminatory

harassment claim should survive summary judgment where

plaintiffs alleged supervisor treated female employees worse

than males).

3.

Finally, although it is a close call, we are not persuaded

by NASA’s argument that Dr. Mattioda’s hostile-work-

environment claim fails on the alternative ground that

Dr. Mattioda did not allege sufficiently severe or pervasive

harassment.

To establish a hostile work environment, a plaintiff must

show that the conduct was “sufficiently severe or pervasive

to alter the conditions of the victim’s employment and create

an abusive working environment.” Craig v. M & O Agencies,

Inc., 496 F.3d 1047, 1055 (9th Cir. 2007) (citation omitted).

“[T]he required showing of severity or seriousness of the

harassing conduct varies inversely with the pervasiveness or

frequency of the conduct.” Nat’l Educ. Ass’n, Alaska, F.3d

at 847 (citation omitted). “‘[A]ll the circumstances,’

including the ‘frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating,

or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance’” inform

whether an environment is sufficiently hostile. Faragher v.

City of Boca Raton, 524 U.S. 775, 787–88 (1998) (quoting

Harris, 510 U.S. at 23). “[S]imple teasing, offhand

comments, and isolated incidents (unless extremely serious)

are not sufficient to create an actionable claim.” Reynaga v.

Roseburg Forest Prod., 847 F.3d 678, 687 (9th Cir. 2017)

(internal quotation marks and citation omitted); see also

22 MATTIODA V. NELSON

Faragher, 524 U.S. at 788 (explaining that harassment

claims should not be based on “ordinary tribulations of the

workplace” (citation omitted)). But it is enough if “hostile

conduct pollute[d] the victim’s workplace, making it more

difficult for h[im] to do h[is] job, to take pride in h[is] work,

and to desire to stay in h[is] position.” Reynaga, 847 F.3d at

687 (citation omitted).

The conduct must be both subjectively and objectively

abusive. Craig, 496 F.3d at 1055. Objective hostility is

assessed by looking at the totality of the circumstances

through the lens of a reasonable person with the same

protected characteristic. Id. Supervisor harassment has

“potentially greater impact” than coworker harassment.

Zetwick v. County of Yolo, 850 F.3d 436, 445 (9th Cir. 2017).

While some of our hostile-work-environment cases have

involved relatively extreme conduct, see, e.g., Reynaga, 847

F.3d at 687–88 (employee made “repeated” demeaning and

“explicit racial and national origin comments in the

workplace”); Nichols v. Azteca Rest. Enters. Inc., 256 F.3d

864, 873 (9th Cir. 2001) (plaintiff testified that employees

“habitually called him sexually derogatory names, referred

to him with the [incorrect] gender, and taunted him for

behaving like a woman”); Ellison v. Brady, 924 F.2d 872,

873–75, 880 (9th Cir. 1991) (plaintiff’s male co-worker

repeatedly asked her out and sent her disturbing love letters

and “h[u]ng around her desk” and “pester[ed] her with

unnecessary questions”), we have also recognized that less

extreme conduct may be sufficient if it is repetitive.

For example, in Davis v. Team Electric Company, we

held that it was a “close[] question” whether “an ‘objective’

reasonable woman” would find the harassment at issue

severe or pervasive where “the incidents f[ell] far short of

MATTIODA V. NELSON 23

physical abuse or aggressive sexual advances.” 520 F.3d

1080, 1096 (9th Cir. 2008). The plaintiff was a female

electrician and her supervisor agreed to transfer her, telling

her another employee there needed “a girlfriend,” and the

supervisor repeatedly referred to his wife as “astrobitch.” Id.

at 1085. Her supervisors made it difficult for her to complete

tasks, assigned her to hazardous assignments, and excluded

her from meetings and breaks. Id. at 1085–87. Her

supervisors also made some derogatory comments,

including that “the donuts are for the guys,” and “we don’t

mind if females are working as long as they don’t complain.”

Id. at 1085 (alteration omitted). There, we concluded that in

such close cases “where the severity of frequent abuse is

questionable, it is more appropriate to leave the assessment

to the fact-finder.” Id. at 1096 (emphasis added).

In another case, we recognized that the conduct at

issue—calling plaintiff “Manny” instead of “Mamdouh”

over his repeated objections and belief that the nickname had

racial implications—“may not have been especially severe,”

but was sufficiently pervasive because such incidents, which

continued for almost a year, “were frequent and consistent

rather than isolated.” El-Hakem v. BJY Inc., 415 F.3d 1068,

1073–74 (9th Cir. 2005); see also Zetwick, 850 F.3d at 443–

44 (concluding that where plaintiff’s harasser hugged her

more than 100 times over many years, a reasonable jury

could consider cumulative effect and determine that hugging

was sufficiently severe or pervasive to be actionable); Ray v.

Henderson, 217 F.3d 1234, 1238, 1245 (9th Cir. 2000)

(explaining that “[r]epeated derogatory or humiliating

statements . . . can constitute a hostile work environment”

and concluding plaintiff’s claim should survive summary

judgment where supervisors targeted him “for verbal abuse

. . . for a period lasting over one and [a] half years,” subjected

24 MATTIODA V. NELSON

him to pranks, made a physically threatening gesture toward

him, and falsely accused him of misconduct).

On the other hand, harassment is not sufficiently severe

or pervasive to establish a hostile work environment where

the conduct at issue consists of limited or isolated behavior.

Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1110 (9th Cir.

2000). For example, in Kortan, after the plaintiff complained

about her male supervisor using racist and sexist

terminology on one occasion, he started “giving her looks

instead of smiling” and told her that he made a mistake in

assuming that she was Artemis because she was Medea. Id.

at 1107–08. In affirming summary judgment in favor of the

defendant, we considered the fact that, although offensive,

the comments that the plaintiff complained about “were

mainly made in a flurry on [one day]” and that this conduct

was “concentrated on one occasion.” Id. at 1110–11; see

also, e.g., Vasquez v. County of L.A., 349 F.3d 634, 642–44

(9th Cir. 2003) (relying on Kortan to conclude that “[t]wo

isolated offensive remarks,” two incidents of yelling, and a

couple of false complaints about plaintiff was not

sufficiently severe or pervasive conduct for a hostile-work-

environment claim).

Here, Dr. Mattioda has alleged sufficiently severe or

pervasive harassment to survive NASA’s motion to

dismiss. 7 Similar to El-Hakem, Ray, and Zetwick,

Dr. Mattioda alleges that Dr. Lee inhibited Dr. Mattioda’s

work opportunities and repeatedly made harassing and

derogatory comments over a period of years, and he has

described several specific examples. Dr. Mattioda further

7

Most of our cases assessing whether sufficiently severe or pervasive

harassment was present were resolved at summary judgment. See, e.g.,

Kortan, 217 F.3d at 1108; Vasquez, 349 F.3d at 639.

MATTIODA V. NELSON 25

alleges, among other conduct, that Dr. Dotson vaguely

threatened his job, demeaned him by making him sign a

letter acknowledging Dr. Dotson’s refusal to reconsider

Dr. Mattioda’s poor performance rating, and made insulting

comments about his reasonable-accommodation requests

and job performance. While neither the severity nor the

frequency of the alleged offensive conduct alone indicates

that the hostile-work-environment standard obviously is

satisfied, see, e.g., Kortan, 217 F.3d at 1110–11,

Dr. Mattioda’s allegations do indicate that the “severity of

frequent abuse is questionable” such that “it is more

appropriate to leave the assessment to the fact-finder.”

Davis, 520 F.3d at 1096.

For these reasons, we conclude that Dr. Mattioda

plausibly alleged a hostile-work-environment claim based

on his disability.

B. Disability-Discrimination Claim

We review a district court’s grant of summary judgment

de novo “to determine whether, viewing all evidence in the

light most favorable to the nonmoving party, there are any

genuine issues of material fact and whether the district court

correctly applied the relevant substantive law.” Whitman v.

Mineta, 541 F.3d 929, 931 (9th Cir. 2008).

As previously stated, the parties agree that the district

court correctly used the McDonnell Douglas burden-shifting

framework in assessing Dr. Mattioda’s claim. Mustafa v.

Clark County. Sch. Dist., 157 F.3d 1169, 1174–76 (9th Cir.

1998) (applying McDonnell Douglas framework to

plaintiff’s Rehabilitation Act discrimination claim). Under

this framework, a plaintiff must make a prima facie case

establishing that (1) he is a person with a disability;

(2) otherwise qualified for employment; and (3) suffered

26 MATTIODA V. NELSON

discrimination because of his disability. See Snead v. Metro.

Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001).

Where a plaintiff establishes such a prima facie case, the

burden shifts to the employer to provide a non-

discriminatory reason for the adverse action. Coghlan v. Am.

Seafoods Co. LLC, 413 F.3d 1090, 1094 (9th Cir. 2005). If

the employer meets that burden, then the employee must

show that the employer’s reason is pretextual. Id. Even if a

biased employee was not the final decisionmaker, a plaintiff

may rely on a “cat’s paw” theory to establish a causal link

by proving that the biased non-decision-making employee

“influenced or was involved in the decision or

decisionmaking process.” France v. Johnson, 795 F.3d

1170, 1176 (9th Cir. 2015), as amended on reh’g (Oct. 14,

2015) (internal quotation marks and citation omitted).

Dr. Mattioda argues that Dr. Lee influenced the selection

panel to prevent Dr. Mattioda’s selection. 8 Dr. Mattioda’s

reliance on the cat’s-paw theory is dubious where the only

supporting evidence is his own speculative declaration and

evidence that Dr. Lee was initially appointed to the selection

panel and shared the candidates’ h-indices before recusing

himself. The record is devoid of evidence that the panel

“deferred to” Dr. Lee or that the h-index values Dr. Lee

provided were a determinative factor in the panel’s decision,

particularly where Dr. Mattioda concedes that he is less

experienced than Dr. Sandford and that the two other

8

Dr. Mattioda also argues in passing that NASA failed “to take

‘affirmative action’” or give him a preference for the ST Position based

on his disability status. But he points to no authority that the failure to

give him a preference supports a discrimination claim and, therefore, the

argument is waived. See United States v. Graf, 610 F.3d 1148, 1166 (9th

Cir. 2010) (“Arguments made in passing and not supported by citations

to the record or to case authority are generally deemed waived.”).

MATTIODA V. NELSON 27

candidates self-reported their h-indices. 9 Cf. France, 795

F.3d at 1176 (reversing summary judgment where biased

employee formally recommended the candidates and the

other interviewers deferred to his recommendation); Shager

v. Upjohn Co., 913 F.2d 398, 399–400, 405 (7th Cir. 1990)

(concluding there was evidence a biased supervisor tainted

the committee’s firing decision where supervisor

recommended termination and exaggerated the employee’s

deficiencies, and committee’s deliberations were “brief” or

“perfunctory” and deferential).

But even assuming, as the district court did, that

Dr. Mattioda established a prima facie case of disability

discrimination, he repeatedly conceded that NASA’s non-

discriminatory reason for not selecting him for the

position—that Dr. Sandford was more qualified for the

selective position—is valid. Further, there is no evidence

that the “technical excellence” criteria that the selection

panel considered, including a candidate’s mission

experience and publication impact, were invented to

discriminate against Dr. Mattioda based on his disability.

“Technical excellence” was one of the five criteria listed on

NASA’s evaluation form for the ST Position. And although

Dr. Mattioda contends that the form makes no mention of the

h-index or “deep space” mission experience, the form

referenced experience and publications as considerations,

the job posting referenced “space science missions,” and

other NASA panels have considered the “h-index as a

criteria for selecting a scientist.”

9

Dr. Mattioda contends that Dr. Howell was a “panelist who was clearly

influenced by Dr. Lee’s data.” But Dr. Howell was not ultimately on the

panel that selected the candidate for the ST Position.

28 MATTIODA V. NELSON

Where NASA proffered a legitimate nondiscriminatory

reason for selecting Dr. Sandford for the ST Position, and

Dr. Mattioda concedes that Dr. Sandford has more relevant

experience, the district court did not err in granting summary

judgment on this claim. See Opara v. Yellen, 57 F.4th 709,

725–27 (9th Cir. 2023) (explaining that employer’s burden

under McDonnell Douglas is one of production, not

persuasion, and affirming summary judgment in favor of

employer based on employee’s failure to raise a genuine

dispute as to the employer’s motive); see also Dep’t of Fair

Emp. & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 746–48

(9th Cir. 2011) (same).

Relying primarily on Bergene v. Salt River Project

Agricultural Improvement & Power District, 272 F.3d 1136

(9th Cir. 2001), Dr. Mattioda argues that there is sufficient

evidence to create a genuine issue of material fact as to

pretext. But Bergene is inapposite. In that case, where a

plaintiff alleged that she was denied a promotion in

retaliation for bringing a Title VII claim, there was

“evidence of a direct threat [from her former supervisor] of

adverse employment consequences if [she] vigorously

pursued her earlier Title VII claim.” Id. at 1142. The plaintiff

in Bergene also produced circumstantial evidence

supporting that the employer’s justification for denying her

promotion was pretextual, including that her immediate

supervisor—who was responsible for selecting the candidate

for promotion—called her “trouble” and said that he had

“heard about [her],” and that the job promotion was awarded

to another candidate who was qualified only because the

plaintiff’s supervisor changed the job requirements to

“remove [the plaintiff’s] competitive advantage.” Id. There

is no similar direct or circumstantial evidence here.

Moreover, unlike in Bergen, where the comments were made

MATTIODA V. NELSON 29

by either the decisionmaker or someone that could influence

the decision, Dr. Lee’s prior comments to and treatment of

Dr. Mattioda are irrelevant to the pretextual analysis because

the selection panel made an independent assessment and

selection.

Accordingly, we affirm the district court’s summary

judgment in NASA’s favor on Dr. Mattioda’s disability-

discrimination claim based on his non-selection for the ST

Position.

AFFIRMED in part; REVERSED in part;

REMANDED for further proceedings consistent with

this opinion. 10

10

Each party shall bear its own costs. Fed. R. App. P. 39(a)(4).