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'
1
2
3
4
5
6
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11
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
1
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
2
Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 3 of 21 Page ID #:146
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
Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 5 of 21 Page ID #:148
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
Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 7 of 21 Page ID #:150
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
Case 2°-21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 8 of 21 Page ID#:151
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
Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 9 of 21 Page ID #:152
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
9
Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 10 of 21 Page ID #:153
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
Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 12 of 21 Page ID #:155
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
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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
Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 15 of 21 Page ID #:158
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
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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
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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
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20
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22
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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