# Shayne Wallace v. Louis Dejoy

> District Court, C.D. California · April 13, 2023

URL: https://www.frixlaw.com/law-library/cases/9982975

## Case

- **Court:** District Court, C.D. California
- **Decided:** April 13, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9982975

## How later opinions describe it (automated extraction)

- 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
- 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.”

## Opinion text

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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.
15
LOUIS DEJOY, POSTMASTER
16 GENERAL OF THE UNITED
STATES POSTAL SERVICE, ET
17 AL.,
18
Defendants.
19
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
28
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9982975. Public record. Not legal advice.