Shayne Wallace v. Louis Dejoy

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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 [27]

14 v.

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LOUIS DEJOY, POSTMASTER

16 GENERAL OF THE UNITED

STATES POSTAL SERVICE, ET

17 AL.,

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Defendants.

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20 Plaintiff Shayne Wallace (“Plaintiff”) brought an

21 action against Defendant Louis DeJoy, the Postmaster

22 General of the United States Postal Service

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

24 discrimination, retaliation, harassment, disability

25 discrimination, and failure to accommodate. The Court

26 granted [25] Defendant’s first Motion to Dismiss with

27 leave to amend, and Plaintiff filed a Second Amended

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1 Complaint [26]. Plaintiff now brings this Action

2 against Defendant, alleging gender discrimination,

3 retaliation, harassment, disability discrimination, and

4 failure to accommodate. Currently before the Court is

5 Defendant’s Motion to Dismiss Plaintiff’s Second Amended

6 Complaint [27].

7 Having reviewed all papers submitted pertaining to

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

9 the Court GRANTS Defendant’s Motion.

10 I. BACKGROUND

11 A. Factual Background

12 Defendant hired Plaintiff to be a city carrier

13 assistant in 2015. Second Amended Complaint (“SAC”)

14 ¶ 9, ECF No. 26. Prior to September 19, 2019, Plaintiff

15 filed at least seven Equal Employment Opportunity

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

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

18 supervisor became aware of the EEO complaints and as a

19 result, intentionally and purposely retaliated and

20 harassed Plaintiff. Id.

21 Plaintiff references a now time-barred incident

22 occurring in 2019, and states that subsequent to this

23 incident, she “was again subjected to harassment,

24 retaliation, and discrimination by Defendant.” Id.

25 ¶¶ 11-12.

26 Plaintiff contends that on or about December 18,

27 2019, Plaintiff received a fourteen-day suspension for

28 missing two weeks of work between November 30, 2019, to

1 December 15, 2019. Id. ¶ 14. She argues that she

2 provided Defendant with the appropriate medical

3 documentation placing her off work, and through the

4 negotiated grievance process, Defendant agreed to

5 rescind the suspension. Id.

6 Subsequently, Plaintiff allegedly received another

7 fourteen-day suspension on or about March 21, 2020, for

8 missing work from January 17, 2020, through March 9,

9 2020. Id. ¶ 15. Plaintiff once again claims she

10 provided Defendant with the required medical

11 documentation excusing her from work, but Plaintiff’s

12 supervisor still issued the suspension. Id.

13 On or about June 15, 2020, Plaintiff’s supervisor

14 issued a “Notice of Removal” to Plaintiff for allegedly

15 missing work during April 2020. Id. ¶ 16. But

16 Plaintiff asserts she “provided Defendant with the

17 necessary paperwork/documentation for her excused

18 absences from work.” Id.

19 Plaintiff also states that during this time,

20 Plaintiff was pregnant, which Defendant was aware of.

21 Id. ¶ 17. Further, on or about July 7, 2020, Defendant

22 allegedly “continued to harass and create a hostile work

23 environment towards Plaintiff, by and through

24 [Plaintiff’s supervisor] and other supervisors.” Id.

25 ¶ 18.

26 Subsequently, Defendant “again retaliated against

27 Plaintiff.” Id. ¶ 20. Specifically, Defendant was

28 allegedly aware of Plaintiff’s pregnancy and had

1 previously acquiesced to Plaintiff wearing a different

2 uniform. Id. But, Plaintiff contends, “subsequent to

3 Plaintiff filing and participating in the EEOC process,

4 Defendant further retaliated against Plaintiff.” Id.

5 Plaintiff does not specify what these allegedly

6 retaliatory actions were.

7 Plaintiff states that throughout this time, she

8 suffered from panic attacks, adjustment disorders with

9 anxiety, and emotional distress due to the actions and

10 conduct of her supervisor, among others. Id. ¶ 21.

11 From approximately December 2019 to September 2020,

12 Plaintiff provided medical documentation to Defendant

13 “identifying her disabilities and request for

14 accommodations, which included but were not limited to:

15 time off from work and a possible transfer to another

16 USPS facility.” Id. ¶ 21. Plaintiff further claims

17 that Defendant did not engage in a good faith

18 interactive process to determine what Plaintiff’s

19 disabilities were and how Defendant could assist in

20 providing a reasonable accommodation to Plaintiff. Id.

21 Defendant required Plaintiff to submit medical

22 leave documentation directly to her supervisor. Id.

23 ¶ 23. Plaintiff alleges she submitted medical leave

24 documentation and that her supervisor stopped accepting

25 the documentation, wrote her up, suspended her,

26 attempted to terminate her, and forced her to return

27 from medical leave against her provider’s orders. Id.

28 Next, Plaintiff states that on several occasions,

1 she requested Defendant reassign her to a different

2 facility so she could avoid her supervisor, but

3 Defendant failed to act. Id. ¶ 24.

4 Plaintiff alleges that she exhausted administrative

5 remedies “for Agency Case No. 4F-900-024720.” Id. ¶ 8.

6 She also alleges that in or around September 2020,

7 Plaintiff, Defendant, and Plaintiff’s supervisors

8 “engaged in the EEOC grievance process in which

9 Plaintiff complained and opposed the unlawful conduct of

10 Defendant and its supervisors.” Id. ¶¶ 19.

11 B. Procedural Background

12 Plaintiff filed her original complaint [1] on

13 November 10, 2021, and her first amended complaint

14 (“FAC”) [18] on July 29, 2022. Defendant moved to

15 dismiss [21] Plaintiff’s FAC on August 12, 2022, and the

16 Court dismissed [25] the FAC with leave to amend on

17 October 24, 2022. Plaintiff filed a Second Amended

18 Complaint [26] on November 20, 2022, and Defendant moved

19 to dismiss [27] on December 5, 2022. Plaintiff opposed

20 [28] on January 3, 2023, and Defendant replied [29] on

21 January 10, 2023.

22 II. DISCUSSION

23 A. Legal Standard

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

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

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

27 relief can be granted. A complaint must “contain

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

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

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

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

4 cognizable legal theory or the absence of sufficient

5 facts alleged under a cognizable legal theory.”

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

7 (9th Cir. 1988) (citation omitted).

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

9 generally consider only allegations contained in the

10 pleadings, exhibits attached to the complaint, and

11 matters properly subject to judicial notice. Swartz v.

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

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

14 1107 (C.D. Cal 2007), aff’d sub nom. White v. Mayflower

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

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

17 for summary judgment, a court cannot consider material

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

19 briefs, affidavits, or discovery materials”). A court

20 must presume all factual allegations of the complaint to

21 be true and draw all reasonable inferences in favor of

22 the non-moving party. Klarfeld v. United States, 944

23 F.2d 583, 585 (9th Cir. 1991). “[T]he issue is not

24 whether a plaintiff will ultimately prevail but whether

25 the claimant is entitled to offer evidence to support

26 the claims.” Jackson v. Birmingham Bd. of Educ., 544

27 U.S. 167, 184 (2005) (quoting Scheuer v. Rhodes, 416

28 U.S. 232, 236 (1974)). While a complaint need not

1 contain detailed factual allegations, a plaintiff must

2 provide more than “labels and conclusions” or “a

3 formulaic recitation of the elements of a cause of

4 action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

5 (2007). However, “a well-pleaded complaint may proceed

6 even if it strikes a savvy judge that actual proof of

7 those facts is improbable, and ‘that a recovery is very

8 remote and unlikely.’” Id. at 556 (quoting Scheuer v.

9 Rhodes, 416 U.S. 232, 236 (1974)).

10 B. Discussion

11 Plaintiff has only exhausted her administrative

12 remedies for Agency Case No. 4F-900-0247-20. As

13 discussed in the Court’s last Order, before filing Title

14 VII and Rehabilitation Act complaints in federal court,

15 federal employees must exhaust administrative remedies

16 by consulting an EEO counselor within forty-five days of

17 the allegedly unlawful conduct. See 29 C.F.R.

18 § 1614.105(a); Sommatino v. United States, 255 F.3d 704,

19 708 (9th Cir. 2001); Cherosky v. Henderson, 330 F.3d

20 1243, 1245 (9th Cir. 2003). “Failure to comply with

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

22 330 F.3d at 1245 (quoting Lyons v. England, 307 F.3d

23 1092, 1105 (9th Cir. 2002)).

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

25 alleged in the EEOC Charge and accepted for

26 investigation, (2) are reasonably related to the

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

28 investigation that can reasonably be expected to grow

1 out of the charges. Sommatino, 255 F.3d at 708

2 (9th Cir. 2001).

3 Here, the EEOC only accepted four discrete events

4 for investigation: when Plaintiff was (1) issued a

5 Notice of Removal for Failure to Maintain Regular

6 Attendance/Unacceptable Conduct/AWOL on June 15, 2020;

7 (2) allegedly harassed by her supervisor on July 7,

8 2020; (3) sent home for wearing inappropriate footwear

9 and uniform on September 15, 2020, through September 17,

10 2020; and (4) not granted reasonable accommodations.

11 Decl. of Ellison, Ex. E, at 00011, ECF No. 28-1.

12 Plaintiff’s allegations that are not clearly time-barred

13 will only be deemed timely if they fall within these

14 four discrete events, relate to the events, or are

15 reasonably likely to be discovered in an investigation

16 of these events. See Sommatino, 255 F.3d at 708.

17 As discussed in the Court’s last Order, the Court

18 will only consider information that is timely pled or

19 reasonably related to timely pled information.

20 1. Title VII Claims

21 a. Claim One: Gender Discrimination

22 To establish a prima facie disparate treatment

23 case, plaintiffs must offer evidence (1) that they

24 belong to a protected class; (2) that they were

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

26 satisfactorily; (3) that they experienced adverse

27 employment actions; and (4) that similarly situated

28 individuals outside their protected class were treated

1 more favorably, or other circumstances surrounding the

2 adverse employment action give rise to an inference of

3 discrimination. Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d

4 1151, 1156 (9th Cir. 2010). Each “adverse employment

5 action[]” must be adequately supported by “specific

6 factual support.” Mohsin v. California Dep’t of Water

7 Res., 52 F. Supp. 3d 1006, 1013-14 (E.D. Cal. 2014). A

8 plaintiff can use either direct or circumstantial

9 evidence of discriminatory intent to satisfy their prima

10 facie burden. Godwin, 150 F.3d 1217, 1220 (9th Cir.

11 1998).

12 Importantly, a plaintiff is not required to plead a

13 prima facie case of discrimination to survive a motion

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

15 1045, 1050 n.2 (9th Cir. 2012). Instead, courts look to

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

17 of judicial experience and common sense, whether the

18 challenged complaint contains sufficient factual matter,

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

20 plausible on its face. See id.

21 Plaintiff again fails to provide specific support

22 for her claim that she was discriminated against due to

23 her gender. See generally SAC. Indeed, Plaintiff lists

24 several dates where she was absent from work, provided

25 medical leave documentation, and her supervisor did not

26 promptly excuse her absence, ultimately leading to

27 Plaintiff being suspended from work and receiving a

28 notice of removal. Id. ¶¶ 14—16. Plaintiff contends

1 that Defendant, through Plaintiff’s supervisors,

2 “continued to harass and create a hostile work

3 environment toward Plaintiff.” Id. ¶ 17. But Plaintiff

4 does not explain what actions precisely constitute

5 discrimination and does not claim that she was suspended

6 from work due to Defendant’s gender-related

7 discriminatory motive.

8 Plaintiff now states that Defendant was aware she

9 was pregnant and had previously acquiesced to Plaintiff

10 wearing a different uniform due to her pregnancy. Id.

11 ¶¶ 17, 20. Yet Plaintiff does not argue that she was

12 discriminated against due to her pregnancy and she does

13 not offer any evidence or even argue that her

14 attendance-related suspensions and notice of removal

15 were issued based on her gender. Accordingly,

16 Plaintiff’s claim for gender discrimination fails. See

17 Austin v. City of Oakland, No. 17-CV-03284 YGR, 2018 WL

18 485969, at *3 (N.D. Cal. Jan. 18, 2018) (“Plaintiff

19 alleges several contentious incidents involving his

20 coworkers and supervisors and asserts that these

21 incidents constitute gender discrimination. . . . Such

22 conclusory assertions are insufficient to raise a

23 plausible inference that Austin was treated differently

24 because of his membership in the protected class.”)

25 b. Claim Two: Retaliation

26 To establish a prima facie retaliation claim,

27 federal employees must show (1) they engaged in

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

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

2 exists between the protected activity and the adverse

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

4 2000). The EEOC interprets adverse employment action as

5 any adverse treatment based on a retaliatory motive

6 reasonably likely to deter the party or others from

7 engaging in protected activity; accordingly, the Ninth

8 Circuit defines adverse employment action broadly. Id.

9 at 1240, 1243.

10 Plaintiff contends that she engaged in protected

11 activity, such as filing EEO complaints and opposing

12 unlawful practices. SAC ¶ 7. Plaintiff also raises

13 time-barred incidents once again. Beyond those,

14 Plaintiff argues that her supervisor issuing Plaintiff

15 notices of removal was “harassing, discriminatory[,] and

16 retaliatory due to Plaintiff’s disability/medical

17 condition and gender.” Id. ¶ 17. This conclusory

18 statement does not show that Defendant issued the

19 notices due to Plaintiff’s participation in protected

20 activity, namely filing EEO complaints and opposing

21 unlawful practices. Plaintiff also states that after

22 she “engaged in the EEOC grievance process,” Defendant

23 “again retaliated against Plaintiff,” but does not

24 specify what actions were retaliatory. Id. ¶¶ 19-20.

25 Plaintiff fails to support her retaliation claim with

26 specific facts, and thus her claim fails. See Mohsin,

27 52 F. Supp. 3d at 1013-14 (finding the plaintiff did not

28 plead a plausible claim where she asserted only that

1 defendant was “retaliating” against her without

2 providing appropriate factual support).

3 c. Claim Three: Harassment

4 To establish a prima facie Title VII claim for

5 harassment resulting in a hostile work environment,

6 federal employees must allege that (1) they were

7 subjected to verbal or physical conduct of a racial or

8 sexual nature because of their identity in a protected

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

10 conduct was sufficiently severe or pervasive to alter

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

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

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

14 amended (Jan. 2, 2004).

15 Plaintiff has not alleged a plausible harassment

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

17 allegations are conclusory and without factual support.

18 Indeed, Plaintiff makes the same bare allegations of

19 harassment, discrimination, aggression, hostility, and

20 retaliation without identifying specific facts. SAC

21 ¶¶ 12, 22. Thus, Plaintiff’s allegations do not amount

22 to a plausible harassment claim.

23 2. Rehabilitation Act Claims

24 a. Claim Four: Disability Discrimination,

25 Failure to Accommodate

26 In determining whether an employee has stated a

27 claim for failure to accommodate under the

28 Rehabilitation Act, courts look to the “substantive

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

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

3 2010), aff’d, 461 F. App’x 542 (9th Cir. 2011). A prima

4 facie case of failure to accommodate under the

5 Rehabilitation Act requires a plaintiff to establish

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

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

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

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

10 her disability, the employer did not offer reasonable

11 accommodations. See id. If “an employee requests

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

13 interactive process to find a reasonable accommodation.”

14 Id.

15 Plaintiff has not alleged a plausible failure to

16 accommodate claim. The ADA defines disability as “a

17 physical or mental impairment that substantially limits

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

19 29 C.F.R. § 1630.2; 42 U.S.C. § 12102(1)(A). “Major

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

21 § 12102(1)(B). Plaintiff alleges she suffered “panic

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

23 medical provider placed her “on medical leave.” SAC

24 ¶¶ 21, 23. She also asserts that her supervisor “caused

25 [her] the panic attacks and stress.” Id. ¶ 23.

26 Moreover, it appears the accommodations she requested

27 were time off from work and a possible transfer to

28 another facility. Id. ¶ 21.

1 But Plaintiff does not plead that her “panic

2 attacks, stress, and other symptoms” substantially limit

3 her major life activities. Instead, she makes

4 conclusory statements lacking factual support. Indeed,

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

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

7 her job position without reasonable accommodation”

8 without specifying facts to support this claim. Id.

9 ¶ 46. And to the extent that she is insinuating that

10 she is prevented from working under her supervisor but

11 could work in another facility under a different

12 supervisor, she still fails to show substantial

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

14 35 (2d Cir. 2001) (holding that an employee who was

15 prevented from working under his supervisor due to his

16 depression, anxiety, and panic attacks was not

17 substantially impaired in his ability to engage in major

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

19 Thus, Plaintiff has not stated a plausible claim for

20 failure to accommodate.

21 b. Claim Five: Disability Discrimination,

22 Disparate Treatment

23 The Rehabilitation Act provides that “no otherwise

24 qualified individual with a disability in the United

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

26 disability, be excluded from the participation in, be

27 denied the benefits of, or be subjected to

28 discrimination under any program or activity receiving

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

2 establish discrimination on the basis of disability, a

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

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

5 suffered an adverse employment action because of her

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

7 237 F.3d 1080, 1087 (9th Cir. 2001).

8 Plaintiff fails to establish that she suffered an

9 adverse employment action due to her alleged disability.

10 Plaintiff states that she was “was subject to adverse

11 employment actions and treated less favorably than those

12 similarly situated employees who were not part of

13 [P]laintiff’s protected class.” SAC ¶ 53. She also

14 claims that she was “retaliated against” due to her

15 “disability/medical condition.” Id. ¶ 17. But

16 Plaintiff fails to provide facts supporting her

17 statements and has not shown that any adverse employment

18 actions she may have experienced occurred due to her

19 alleged disability. Plaintiff instead asserts that she

20 was subject to harassment and retaliation due to her EEO

21 complaints. Id. ¶ 20. Finally, Plaintiff contends that

22 “Defendant refused to provide [reasonable]

23 accommodation[s],” but this assertion does not show that

24 Defendant denied accommodations due to animus toward

25 Plaintiff’s alleged disability. Id. ¶ 47. Therefore,

26 Plaintiff has failed to state a plausible claim for

27 relief on her disability discrimination claim.

28 ///

1 3. Leave to Amend

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

3 court must decide whether to grant leave to amend.”

4 Winebarger v. Pennsylvania Higher Educ. Assistance

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

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

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

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

9 to pleadings should be applied with ‘extreme

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

11 (9th Cir. 1981). Against this extremely liberal

12 standard, the Court may consider “the presence of any of

13 four factors: bad faith, undue delay, prejudice to the

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

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

16 2001). Although a district court should freely give

17 leave to amend when justice so requires under Rule

18 15(a)(2), “the court’s discretion to deny such leave is

19 ‘particularly broad’ where the plaintiff has previously

20 amended its complaint[.]” Ecological Rights Found. v.

21 Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013)

22 (quoting Miller v. Yokohama Tire Corp., 358 F.3d 616,

23 622 (9th Cir. 2004))

24 Here the Court denies leave to amend. Plaintiff

25 has had three opportunities to adequately plead her

26 claims and has consistently failed to do so. See

27 Ecological Rights Found., 713 F.3d at 520. Therefore,

28 Plaintiff has shown that amendment is futile, and leave

1 to amend is DENIED.

2 III. CONCLUSION

3 Based on the foregoing, the Court GRANTS

4 Defendant’s Motion to Dismiss without leave to amend.

5 IT IS SO ORDERED.

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8 DATED: April 13, 2023 _ _ _ _ _ _ _ /S_/ _R_O_N_A_LD_ _S_.W_._ L_EW__________

HONORABLE RONALD S.W. LEW

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Senior U.S. District Judge

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