Opinion

Shayne Wallace v. Louis Dejoy

Court
District Court, C.D. California
Filed
Oct 24, 2022
Cited by
0 cases
Authority
More cited than 16.4%

holding that an employee who was 24 prevented from working under his supervisor due to his 25 depression, anxiety, and panic attacks was not 26 substantially impaired in his ability to engage in major 27 life activity of working and thus was not “disabled.”

How later courts described this case

  • holding that an employee who was 24 prevented from working under his supervisor due to his 25 depression, anxiety, and panic attacks was not 26 substantially impaired in his ability to engage in major 27 life activity of working and thus was not “disabled.”
  • finding judicial 21 7 notice appropriate for EEOC charges as “public records 22 | whose accuracy is not in dispute”
  • “A pleading that offers ‘labels and 2 conclusions’” or “‘naked assertion[s]’ devoid of 3 ‘further factual enhancement’” fails to state a claim
  • a 5 court may consider matters properly subject to judicial 6 notice when ruling on a 12(b)(6) motion

Written by the judges who cited it.

The opinion

Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 1 of 21 Page ID #:144

'O'

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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CV 21-08885-RSWL-SK x

12 SHAYNE WALLACE,

ORDER re: MOTION TO

13 Plaintiff,

DISMISS, MOTION TO STRIKE

14 v. [21], AND REQUEST FOR

JUDICIAL NOTICE [21-1]

15

LOUIS DEJOY, POSTMASTER

16 GENERAL OF THE UNITED

STATES POSTAL SERVICE, ET

17 AL.,

18

Defendants.

19

20 Plaintiff Shayne Wallace (“Plaintiff”) brought the

21 instant Action against Defendant Louis DeJoy, the

22 Postmaster General of the United States Postal Service

23 (“Defendant”), alleging racial discrimination, gender

24 discrimination, retaliation, harassment, disability

25 discrimination, and failure to accommodate. Currently

26 before the Court is Plaintiff’s Motion to Dismiss,

27 Motion to Strike [21] (“Motion”), and Request for

28

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Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 2 of 21 Page ID #:145

1 Judicial Notice [21-1].

2 Having reviewed all papers submitted pertaining to

3 this Motion, the Court NOW FINDS AND RULES AS FOLLOWS:

4 the Court GRANTS Defendant’s Motion to Dismiss with

5 leave to amend, DENIES Defendant’s Motion to Strike, and

6 GRANTS Defendant’s Request for Judicial Notice.

7 I. BACKGROUND

8 A. Factual Background

9 Defendant hired Plaintiff to be a city carrier

10 assistant in 2015. First Amended Complaint (“FAC”) ¶ 9,

11 ECF No. 19.1 Prior to September 19, 2019, Plaintiff

12 filed at least seven Equal Employment Opportunity

13 complaints (“EEO complaints”) against her supervisor and

14 Defendant. Id. ¶ 13. Plaintiff alleges that her

15 supervisor became aware of the EEO complaints and as a

16 result, intentionally and purposely retaliated and

17 harassed Plaintiff. Id.

18 Plaintiff references a now time-barred incident

19 occurring in 2019, and states that subsequent to this

20 incident, she “was again subjected to harassment,

21 retaliation, and discrimination by Defendant.” Id.

22 ¶ 12.

23 Plaintiff also asserts that “[d]uring this time

24 period,” she suffered from a “medical

25

1 It is unclear why there are two First Amended Complaint

26 entries on the docket [18 and 19]. The Court reviewed both

filings and refers to the second filing as the FAC throughout

27 this Order.

28

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1 condition/disability” that included “panic attacks,

2 stress, and other symptoms,” and was placed on medical

3 leave. Id. ¶ 14. Defendant required Plaintiff to

4 submit medical leave documentation directly to her

5 supervisor. Id. Plaintiff alleges she submitted

6 medical leave documentation and that her supervisor

7 stopped accepting the documentation, wrote her up,

8 suspended her, attempted to terminate her, and forced

9 her to return from medical leave against her provider’s

10 orders. Id.

11 Next, Plaintiff states that on several occasions,

12 she requested Defendant reassign her to a different

13 facility so she could avoid her supervisor, but

14 Defendant failed to act. Id. ¶ 15. Plaintiff

15 eventually requested a civil restraining order against

16 her supervisor from the Los Angeles Superior Court. Id.

17 Plaintiff now alleges that she exhausted

18 administrative remedies for her current claims but did

19 not provide the date that she initiated Equal Employment

20 Opportunity Commission (“EEOC”) contact, nor the dates

21 of the alleged misconduct. Id. ¶ 8. Defendant contends

22 that Plaintiff initiated contact with the EEOC on July

23 7, 2020, so her allegations regarding incidents that

24 occurred prior to May 23, 2020, are time-barred. Mot.

25 6:22-23, ECF No. 21 (citing Decl. of Haley 2:3-4, ECF

26 No. 21-2).

27 B. Procedural Background

28 Plaintiff filed her FAC [19] on July 29, 2022.

3

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1 Defendant filed the instant Motion [21] on August 12,

2 2022. Plaintiff opposed [22] the Motion on August 19,

3 2022. Defendant replied [23] on August 30, 2022.

4 II. DISCUSSION

5 A. Legal Standard

6 1. Motion to Dismiss

7 Federal Rule of Civil Procedure (“Rule”) 12(b)(6)

8 allows a party to move for dismissal of one or more

9 claims if the pleading fails to state a claim upon which

10 relief can be granted. A complaint must “contain

11 sufficient factual matter, accepted as true, to state a

12 claim to relief that is plausible on its face.”

13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation

14 omitted). Dismissal is warranted for a “lack of a

15 cognizable legal theory or the absence of sufficient

16 facts alleged under a cognizable legal theory.”

17 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

18 (9th Cir. 1988) (citation omitted).

19 In ruling on a 12(b)(6) motion, a court may

20 generally consider only allegations contained in the

21 pleadings, exhibits attached to the complaint, and

22 matters properly subject to judicial notice. Swartz v.

23 KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007); see also

24 White v. Mayflower Transit, LLC, 481 F. Supp. 2d 1105,

25 1107 (C.D. Cal 2007), aff’d sub nom. White v. Mayflower

26 Transit, L.L.C., 543 F.3d 581 (9th Cir. 2008). (“unless

27 a court converts a Rule 12(b)(6) motion into a motion

28 for summary judgment, a court cannot consider material

4

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1 outside of the complaint (e.g., facts presented in

2 briefs, affidavits, or discovery materials”).

3 A court must presume all factual allegations of

4 the complaint to be true and draw all reasonable

5 inferences in favor of the non-moving party. Klarfeld

6 v. United States, 944 F.2d 583, 585 (9th Cir. 1991).

7 “[T]he issue is not whether a plaintiff will ultimately

8 prevail but whether the claimant is entitled to offer

9 evidence to support the claims.” Jackson v. Birmingham

10 Bd. of Educ., 544 U.S. 167, 184 (2005) (quoting Scheuer

11 v. Rhodes, 416 U.S. 232, 236 (1974)). While a complaint

12 need not contain detailed factual allegations, a

13 plaintiff must provide more than “labels and

14 conclusions” or “a formulaic recitation of the elements

15 of a cause of action.” Bell Atl. Corp. v. Twombly, 550

16 U.S. 544, 555 (2007). However, “a well-pleaded

17 complaint may proceed even if it strikes a savvy judge

18 that actual proof of those facts is improbable, and

19 ‘that a recovery is very remote and unlikely.’” Id. at

20 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236

21 (1974)).

22 2. Motion to Strike

23 Under Federal Rule of Procedure 12(f), the Court

24 may, by motion or sua sponte, strike “an insufficient

25 defense or any redundant, immaterial, impertinent or

26 scandalous matter” from the pleadings. The purpose of

27 12(f) is “to avoid the expenditure of time and money

28 that must arise from litigating spurious issues by

5

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1 dispensing with those issues prior to trial.”

2 Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973

3 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984

4 F.2d 1524, 1527 (9th Cir. 1993)). “Immaterial” matters

5 have no bearing on the controversy. See Fantasy,

6 984 F.2d at 1527. “Motions to strike are generally

7 disfavored.” Leghorn v. Wells Fargo Bank, N.A., 950 F.

8 Supp. 2d 1093, 1122 (N.D. Cal. 2013) (citation omitted);

9 see also Sapiro v. Encompass Ins., 221 F.R.D. 513, 518

10 (N.D. Cal. 2004) (“Courts have long disfavored Rule

11 12(f) motions, granting them only when necessary to

12 discourage parties from making completely tendentious or

13 spurious allegations.”). “If there is any doubt as to

14 whether the allegations might be an issue in the action,

15 courts will deny the motion.” In re 2TheMart.com, Inc.

16 Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000).

17 The grounds for a motion to strike must appear on

18 the face of the pleading under attack or from matters

19 which the court may judicially notice. SEC v. Sands,

20 902 F. Supp. 1149, 1165 (C.D. Cal. 1995). In addition,

21 the Court must view the pleadings in the light most

22 favorable to the pleading party. In re 2TheMart.com,

23 Inc. Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal.

24 2000). As a result, motions to strike are infrequently

25 granted. Freeman v. ABC Legal Servs., Inc., 877 F.

26 Supp. 2d 919, 923 (N.D. Cal. 2012). “[C]ourts

27 frequently require the moving party to demonstrate

28 prejudice before granting the requested relief, and

6

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1 ultimately whether to grant a motion to strike falls on

2 the sound discretion of the district court.” Cook v.

3 Cnty. of Los Angeles, No. CV 19-2417 JVS (KLSx), 2021 WL

4 1502704, at *2 (C.D. Cal. Mar. 31, 2021) (internal

5 quotation marks and citation omitted).

6 If a claim is stricken, leave to amend should be

7 freely given when doing so would not prejudice the

8 opposing party. Vogel v. Huntington Oaks Del. Partners,

9 LLC, 291 F.R.D. 438, 440 (C.D. Cal. 2013) (citing Wyshak

10 v. City Nat’l Bank, 607 F.2d 824, 826 (9th Cir. 1979)).

11 B. Analysis

12 1. Judicial Notice

13 Defendant requests the Court take judicial notice

14 of the EEO Alternative Dispute Resolution Specialist

15 Inquiry Report and the Letter of Acceptance for

16 Investigation for Agency Case Number 4F-900-0247-20.

17 See Def.’s Req. for Judicial Notice, ECF No. 21-1; Decl.

18 of Marissa Haley, Exs. 1 and 2, ECF No. 21-2. Plaintiff

19 asserts that Defendant’s Request for Judicial Notice “is

20 an incomplete and partial representation of Plaintiff’s

21 EEO Complaint,” but fails to specify how it is partial

22 or incomplete. Pl.’s Opp’n to Mot. (“Opp’n.”) 2:23-26.

23 Plaintiff also provides an EEO Complaint dated October

24 14, 2020, a Notice of Right to File Individual Complaint

25 for Case Number 4F-900-0247-20, and an EEO Alternative

26 Dispute Resolution Specialist’s Inquiry Report for Case

27 Number 4F-900-0247-20 (collectively, the “EEOC Charge”).

28 See Decl. of Christopher Ellison (“Decl. of Ellison”),

7

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1] Exs. D and EK, ECF No. 22-2.

2 A court may take judicial notice of “a fact that is

3 | not subject to reasonable dispute because it: (1) is

4] generally known within the court’s territorial

5 | jurisdiction; or (2) can be accurately and readily

6 | determined from sources whose accuracy cannot reasonably

7 | be questioned.” Fed. R. Evid. 201(b). Courts may also

8 | take judicial notice of administrative bodies’ records

9f and reports. Anderson v. Holder, 673 F.3d 1089, 1094

10 J n.1 (9th Cir. 2012). “This includes EEOC charges.”

11] Griggs v. Sacramento City Unified Sch. Dist., No. 2:20-

12 | CV-0O724-KJM-JDP, 2021 WL 1614405, at *1 (E.D. Cal. Apr.

13 4 26, 2021); accord Lacayo v. Donahoe, No. 14-CV-04077-

14] JSC, 2015 WL 993448, at *9 (N.D. Cal. Mar. 4, 2015)

15 | (holding that in employment discrimination cases, “it is

16 J well established that courts may consider the

17 | administrative record of a plaintiff’s claims before the

18 | EEOC as judicially noticeable matters of public

19 | record”); see also Dornell v. City of San Mateo, 19 F.

20 | Supp. 3d 900, 904 n.3 (N.D. Cal. 2013) (finding judicial

21 7 notice appropriate for EEOC charges as “public records

22 | whose accuracy is not in dispute”); Hellmann-Blumberg v.

23] Univ. of Pac., No. 2:12-CV-00286-GEB, 2013 WL 1326469,

24] at *1 (E.D. Cal. Mar. 29, 2013) (granting judicial

25 | notice of an EEOC right to sue letter and EEOC charge as

26] “public records subject to judicial notice”).

27 The Court takes judicial notice of the parties’

28 | proffered documents because they constitute EEOC

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1 records, reports, and documentation and therefore are

2 judicially noticeable matters of public record. Thus,

3 for the current Motion, the Court may consider the EEOC

4 documents. See Swartz v. KPMG LLP, 476 F.3d at 763 (a

5 court may consider matters properly subject to judicial

6 notice when ruling on a 12(b)(6) motion); Hellman-

7 Blumberg, 2013 WL 1326469, at *4 (considering a

8 plaintiff’s factual statements and her EEOC Charge).

9 2. Motion to Dismiss

10 Defendant asserts that Plaintiff’s claims are

11 untimely and asks the Court to instruct Plaintiff to

12 provide dates of the alleged misconduct in the event

13 that the Court dismisses Plaintiff’s claims with leave

14 to amend. See generally Def.’s Mot. to Dismiss

15 (“Mot.”), ECF No. 21. Plaintiff counters that she has

16 only included untimely information to provide context,

17 but fails to specify which allegations are to be used

18 solely for context. See generally Opp’n. For the

19 foregoing reasons, the Court declines to determine

20 whether each of Plaintiff’s allegations are timely, and

21 instead DISMISSES Plaintiff’s claims with leave to amend

22 for failure to state a claim upon which relief can be

23 granted.

24 Plaintiff’s claims arise under Title VII and the

25 Rehabilitation Act. Title VII prohibits employment

26 practices that discriminate on the basis of race, color,

27 religion, sex, or national origin. 42 U.S.C. § 200e-16.

28 The Rehabilitation Act adopted the rights, remedies, and

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1 procedures of Title VII and made them applicable to

2 disabled persons. See 29 U.S.C. §794(a)(1).

3 Accordingly, the same EEOC regulations apply to claims

4 under Title VII and the Rehabilitation Act. 29 C.F.R.

5 § 1614.103(a).

6 Before filing Title VII and Rehabilitation Act

7 complaints in federal court, federal employees must

8 exhaust administrative remedies by consulting an EEO

9 counselor within forty-five days of the allegedly

10 unlawful conduct. See 29 C.F.R. § 1614.105(a);

11 Sommatino v. United States, 255 F.3d 704, 708 (9th Cir.

12 2001); Cherosky v. Henderson, 330 F.3d 1243, 1245

13 (9th Cir. 2003). “Failure to comply with this

14 regulation is ‘fatal’ to . . . a claim.” Cherosky,

15 330 F.3d at 1245 (quoting Lyons v. England, 307 F.3d

16 1092, 1105 (9th Cir. 2002)).

17 The Court can only assess claims that (1) were

18 alleged in the EEOC Charge and accepted for

19 investigation, (2) are reasonably related to the

20 allegations in the EEOC Charge, or (3) fall within an

21 investigation that can reasonably be expected to grow

22 out of the charges. Sommatino, 255 F.3d at 708 (9th

23 Cir. 2001).

24 Here, Plaintiff did not exhaust administrative

25 remedies for several allegations in her Complaint. See

26 FAC ¶¶ 11-12; Opp’n. 6:3-4. In fact, Plaintiff already

27 filed a claim pertaining to those allegations, and the

28 Honorable Dean D. Pregerson of the United States

10

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1 District Court for the Central District of California

2 dismissed the claim with prejudice for lack of subject

3 matter jurisdiction due to failure to exhaust

4 administrative remedies.2 See Decl. of Ellison, Ex. A,

5 ECF No. 22-2. Plaintiff still pled those incidents in

6 this Action, though she later conceded that “some of the

7 alleged harassing conduct occurred outside of the

8 statutory time period.” FAC ¶¶ 10-13; Opp’n. 6:3-4.

9 Accordingly, these prior incidents are not actionable,

10 and the Court’s discussion centers on her remaining

11 allegations.

12 Plaintiff exhausted her administrative remedies

13 with respect to only four discrete events that the EEOC

14 accepted for investigation. Decl. of Ellison, Ex. E, at

15 00011.3 Plaintiff’s allegations that are not clearly

16

2 Plaintiff received a Notice of Right to File her formal

17 EEO complaint on December 19, 2019, and had to file her complaint

within fifteen days after receipt of the Notice. See Decl. of

18 Ellison, Ex. A at 3-4. Plaintiff proceeded to untimely file her

EEO complaint on January 11, 2020. See id. And where “a

19 complainant fails to file a timely formal complaint, the

complainant has failed to exhaust her administrative remedies.”

20

See Leorna v. U.S. Dep’t of State, 105 F.3d 548 (9th Cir. 1997).

21 Judge Pregerson therefore dismissed Plaintiff’s claims. See

Decl. of Ellison, Ex. A.

22 3 The first discrimination claim stated that “management

issued [Plaintiff] a Notice of Removal for Failure to Maintain

23

Regular Attendance” on June 15, 2020. Decl. of Ellison, Ex. E,

24 at 00011. Next, Plaintiff alleged that on July 7, 2020,

Plaintiff’s “supervisor continued to harass her . . . based on

25 the supervisor’s personal agenda.” Id. Third, “management sent

[Plaintiff] home for wearing . . . inappropriate uniform and

26 footwear” from September 15, 2020, through September 17, 2020.

Id. Lastly, Plaintiff contended that “management failed to

27

accommodate her medical condition and physical disability” on an

28 unspecified date. Id.

11

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1 time-barred will only be deemed timely if they fall

2 within these four discrete events, relate to the events,

3 or are reasonably likely to be discovered in an

4 investigation of these events. Regardless of whether

5 Plaintiff’s allegations fall within, relate to, or would

6 be discovered in an investigation of these events, she

7 still has not pled plausible claims for relief. The

8 Court therefore declines to address whether Plaintiff

9 has exhausted her administrative remedies with respect

10 to her current allegations. The Court addresses

11 Plaintiff’s claims in turn.

12 a. Title VII Claims

13 i. Claims One and Two: Racial and Gender

14 Discrimination

15 To establish a prima facie disparate treatment

16 case, plaintiffs must offer evidence “(1) that they

17 [belong to] a protected class; (2) that they were

18 qualified for their positions and perform[ed] their jobs

19 satisfactorily; (3) that they experienced adverse

20 employment actions; and (4) that ‘similarly situated

21 individuals outside [their] protected class were treated

22 more favorably, or other circumstances surrounding the

23 adverse employment action give rise to an inference of

24 discrimination.’” Hawn v. Exec. Jet Mgmt., Inc.,

25 615 F.3d 1151, 1156 (9th Cir. 2010) (quoting Peterson v.

26 Hewlett–Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)).

27 Each “adverse employment action[]” must be adequately

28 supported by “specific factual support.” Mohsin v.

12

Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 13 of 21 Page ID #:156

1 California Dep’t of Water Res., 52 F. Supp. 3d 1006,

2 1013-14 (E.D. Cal. 2014). A plaintiff can use either

3 direct or circumstantial evidence of discriminatory

4 intent to satisfy their prima facie burden. Godwin,

5 150 F.3d 1217, 1220 (9th Cir. 1998).

6 Importantly, a plaintiff is not required to plead a

7 prima facie case of discrimination to survive a motion

8 to dismiss. Sheppard v. David Evans & Assoc., 694 F.3d

9 1045, 1050 n.2 (9th Cir. 2012). Instead, courts look to

10 the elements of the prima facie case to decide, in light

11 of judicial experience and common sense, whether the

12 challenged complaint contains sufficient factual matter,

13 accepted as true, to state a claim for relief that is

14 plausible on its face. See id.

15 Here, the Court finds Plaintiff’s allegations are

16 insufficient to establish plausible discrimination

17 claims because her only possibly timely allegations lack

18 specific factual support. Plaintiff states that after

19 September 2019, she was subjected to “harassment,

20 retaliation and discrimination by Defendant.” Id. ¶ 13.

21 She also alleges that after her supervisor became aware

22 of the EEO complaints she filed prior to September 19,

23 2019, her supervisor became “more aggressive, harassing,

24 hostile, and retaliatory towards Plaintiff.” Id. But

25 Plaintiff “must plead factual content that allows the

26 [C]ourt to draw a reasonable inference that the

27 [D]efendant is liable for the misconduct alleged.”

28 Mohsin, 52 F. Supp. 3d at 1013-14; see also Iqbal,

13

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1 556 U.S. at 678 (“A pleading that offers ‘labels and

2 conclusions’” or “‘naked assertion[s]’ devoid of

3 ‘further factual enhancement’” fails to state a claim)

4 (quoting Twombly, 550 U.S. at 555-57). And here,

5 Plaintiff’s conclusory contentions are inadequate to

6 state a claim upon which relief can be granted under

7 Rule 12(b)(6). See Mohsin, 52 F. Supp. 3d at 1013-14

8 (finding bare allegations of defendant “retaliating” and

9 “refusing to provide” reasonable accommodations

10 insufficient to state a claim).

11 ii. Claim Three: Retaliation

12 To establish a prima facie retaliation claim,

13 federal employees must show (1) they engaged in

14 protected activity; (2) their employer subjected them to

15 an adverse employment action; (3) and a causal link

16 exists between the protected activity and the adverse

17 action. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir.

18 2000). The EEOC interprets adverse employment action as

19 any adverse treatment based on a retaliatory motive

20 reasonably likely to deter the party or others from

21 engaging in protected activity; accordingly, the Ninth

22 Circuit defines adverse employment action broadly. Id.

23 at 1240, 1243.

24 Here, Plaintiff has not pled a plausible Title VII

25 retaliation claim. Plaintiff alleges that after her

26 supervisor learned of Plaintiff’s EEO complaints, she

27 became “more aggressive, harassing, hostile, and

28 retaliatory towards Plaintiff” and “intentionally and

14

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1 purposely retaliated and harassed Plaintiff due to the

2 filing” of the EEO complaints without specifying what

3 actions constitute retaliation. FAC ¶ 13. Just as with

4 Plaintiff’s discriminations claims, here, Plaintiff’s

5 assertions are unsupported by specific facts and

6 therefore do not state a plausible claim. See Mohsin,

7 52 F. Supp. 3d at 1013-14 (finding the plaintiff did not

8 plead a plausible claim where she asserted only that

9 defendant was “retaliating” against her without

10 providing factual support).

11 iii. Claim Four: Harassment

12 To establish a prima facie Title VII claim for

13 harassment resulting in a hostile work environment,

14 federal employees must allege that (1) they were

15 subjected to verbal or physical conduct of a racial or

16 sexual nature because of their identity in a protected

17 category, (2) the conduct was unwelcome, and (3) the

18 conduct was sufficiently severe or pervasive to alter

19 the conditions of employment. Manatt v. Bank of Am.,

20 NA, 339 F.3d 792, 798 (9th Cir. 2003); Vasquez v. Cnty.

21 of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003), as

22 amended (Jan. 2, 2004).

23 Plaintiff has not alleged a plausible harassment

24 claim. Once again, Plaintiff’s only potentially timely

25 allegations are conclusory and without factual support.

26 Indeed, Plaintiff makes the same bare allegations of

27 harassment, discrimination, aggression, hostility, and

28 retaliation without identifying specific facts. FAC

15

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1 ¶¶ 12-13. Thus, Plaintiff’s allegations do not amount

2 to a plausible harassment claim.

3 b. Rehabilitation Act Claims

4 i. Claim Five: Failure to Accommodate

5 Disability

6 In determining whether an employee has stated a

7 claim for failure to accommodate under the

8 Rehabilitation Act, courts look to the “substantive

9 standards of liability under the ADA.” Blanchard v.

10 LaHood, 2010 WL 11508016, at *5 (C.D. Cal. Mar. 8,

11 2010), aff’d, 461 F. App’x 542 (9th Cir. 2011). A prima

12 facie case of failure to accommodate under the

13 Rehabilitation Act requires a plaintiff to establish

14 that: (1) she was disabled within the meaning of the

15 ADA; (2) the employer had notice of her disability;

16 (3) she is otherwise qualified to perform the essential

17 functions of her job; and (4) despite its knowledge of

18 her disability, the employer did not offer reasonable

19 accommodations. See id. If “an employee requests

20 accommodation[,] . . . the employer must engage in an

21 interactive process to find a reasonable accommodation.”

22 Id.

23 Plaintiff has not alleged a plausible failure to

24 accommodate claim. The ADA defines disability as “a

25 physical or mental impairment that substantially limits

26 one or more major life activities of [an] individual.”

27 29 C.F.R. § 1630.2; 42 U.S.C. § 12102(1)(A). “Major

28 life activities” include “working.” 42 U.S.C.

16

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1 § 12102(1)(B). Plaintiff alleges she suffered “panic

2 attacks, stress, and other symptoms” and that her

3 medical provider placed her “on medical leave.” FAC

4 ¶ 14. She also asserts that her supervisor “caused

5 [her] the panic attacks and stress.” Id. Moreover, it

6 appears the accommodations she requested were additional

7 medical leave and reassignment to a different facility

8 to “avoid and prevent the unlawful actions of her

9 supervisor.” Id. ¶¶ 14-15.

10 But Plaintiff does not plead that her “panic

11 attacks, stress, and other symptoms” substantially limit

12 her major life activities. Instead, she makes

13 conclusory statements lacking factual support. Indeed,

14 she contends that “[a]s a result of [her] disability,

15 [she] was unable to perform the essential functions of

16 her job position without reasonable accommodation”

17 without specifying facts to support this claim. Id.

18 ¶ 44. And to the extent that she is insinuating that

19 she is prevented from working under her supervisor but

20 could work in another facility under a different

21 supervisor, she still fails to show substantial

22 impairment. See Potter v. Xerox Corp., 1 F. App’x 34,

23 35 (2d Cir. 2001) (holding that an employee who was

24 prevented from working under his supervisor due to his

25 depression, anxiety, and panic attacks was not

26 substantially impaired in his ability to engage in major

27 life activity of working and thus was not “disabled.”).

28 Thus, Plaintiff has not stated a plausible claim for

17

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1 failure to accommodate.

2 ii. Claim Six: Disability Discrimination

3 The Rehabilitation Act provides that “no otherwise

4 qualified individual with a disability in the United

5 States . . . shall, solely by reason of her or his

6 disability, be excluded from the participation in, be

7 denied the benefits of, or be subjected to

8 discrimination under any program or activity receiving

9 Federal financial assistance.” 29 U.S.C. § 794(a). To

10 establish discrimination on the basis of disability, a

11 plaintiff must show that (1) she is disabled under the

12 Act; (2) she is otherwise qualified; and (3) she

13 suffered an adverse employment action because of her

14 disability. See Snead v. Metro Prop. & Cas. Ins.,

15 237 F.3d 1080, 1087 (9th Cir. 2001).

16 Plaintiff fails to establish that she suffered an

17 adverse employment action due to her alleged disability.

18 Plaintiff states that she was “was subject to adverse

19 employment actions and treated less favorably than those

20 similarly situated employees who were not part of

21 [P]laintiff’s protected class.” FAC ¶ 50. But

22 Plaintiff fails to provide facts supporting her

23 statement and has not shown that any adverse employment

24 actions she may have experienced occurred due to her

25 alleged disability. Plaintiff instead asserts that she

26 was subject to harassment and retaliation due to her

27 EEOC complaints. Id. ¶ 13. She also states that she

28 was “subjected to harassment, retaliation and

18

Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 19o0f21 Page ID #:162

1] discrimination by Defendant,” but does not claim

2 | Defendant’s conduct was motivated by discriminatory

3 | intent related to her alleged disability. Id. @ 12.

4] Finally, Plaintiff contends that “Defendant refused to

5 | provide [reasonable] accommodation[s],” but this

6 | assertion does not show that Defendant denied

7 | accommodations due to animus toward Plaintiff’s alleged

8 | disability. Therefore, Plaintiff has failed to state a

9 | plausible claim for relief on her disability

10 | discrimination claim.

11 3. Leave to Amend

12 “Where a motion to dismiss is granted, a district

13 | court must decide whether to grant leave to amend.”

14 | Winebarger v. Pennsylvania Higher Educ. Assistance

15] Agency, 411 F. Supp. 3d 1070, 1082 (C.D. Cal. 2019).

16] “The court should give leave [to amend] freely when

17 | justice so requires.” Fed. R. Civ. P. 15(a) (2). In the

18 | Ninth Circuit, “Rule 15’s policy of favoring amendments

19 Jf to pleadings should be applied with ‘extreme

20 | liberality.’” United States v. Webb, 655 F.2d 977, 979

21] (9th Cir. 1981). Against this extremely liberal

22 | standard, the Court may consider “the presence of any of

23 | four factors: bad faith, undue delay, prejudice to the

24 | opposing party, and/or futility.” Owens v. Kaiser

25 | Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir.

269 2001).

27 Here, leave to amend Plaintiff’s claims should be

28 | granted because Plaintiff can cure her claims by

19

Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 20 of 21 Page ID #:163

1 pleading specific facts supporting her claims. There is

2 no evidence of bad faith or undue delay by Plaintiff,

3 nor potential prejudice to Defendant by allowing

4 amendment. The Court therefore GRANTS Defendant’s

5 Motion to Dismiss Plaintiff’s claims with leave to

6 amend.

7 4. Motion to Strike

8 Under Rule 12(f), a court may strike “immaterial”

9 matter that has no bearing on the controversy. See

10 Fantasy, 984 F.2d at 1527. However, “[i]f there is any

11 doubt as to whether the allegations might be an issue in

12 the action, courts will deny the motion.” 2TheMart.com,

13 114 F. Supp. 2d at 965.

14 Here, Defendant requested the Court strike

15 allegations of the September 2019 incidents as time-

16 barred and Defendant’s failure to accommodate

17 Plaintiff’s reassignment requests for not appearing in

18 the EEO investigation. Mot. 6:25-7:8; see also FAC

19 ¶¶ 11-12, 15. However, prior acts can constitute

20 background evidence or “circumstances [that] give rise

21 to an inference of discrimination” for disparate

22 treatment claims.4 See Nat’l R.R. Passenger Corp. v.

23

4 The Court currently declines to assess whether the time-

24 barred 2019 incidents serve as background for her potentially

timely allegations because these allegations are nonetheless

25

insufficient to state a plausible claim. See generally Compl.

26 Regardless, Defendant argues that Plaintiff has not clearly shown

that any of her claims are timely. See generally Mot. While the

27 EEOC has accepted some of Plaintiff’s claims for investigation,

the undated allegations in her Complaint make it difficult to

28 discern whether her claims fall within or reasonably relate to

20

Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 21 of 21 Page ID #:164

1 Morgan, 536 U.S. 101, 113 (2002); McDonnell Douglas

2 Corp. v. Green, 411 U.S. 792, 802 (1973). The Court

3 should not determine that there is “no doubt” as to

4 whether either will impact the amended Action.

5 Therefore, the Court DENIES the motion to strike.

6 III. CONCLUSION

7 Based on the foregoing, the Court GRANTS

8 Defendant’s Motion to Dismiss Claim with leave to amend,

9 DENIES Defendant’s Motion to Strike, and GRANTS

10 Defendant’s Request for Judicial Notice. Plaintiff may

11 file an amended complaint by no later than November 20,

12 2022.

13

14 IT IS SO ORDERED.

15

16 DATED: October 24, 2022 ________/S_/ _R_O_N_A_LD_ _S._W_. _L_EW_________

HONORABLE RONALD S.W. LEW

17

Senior U.S. District Judge

18

19

20

21

22

23

24

25

26

her EEO complaint. The Court therefore advises Plaintiff to

27

include specific factual information, including the dates of the

28 purported incidents, in her Second Amended Complaint.

21

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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