(PS) Channel v. Shulkin ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TASHIA CHANNEL, No. 2:18-cv-02414 MCE AC (PS) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 ROBERT WILKIE, et al., 15 Defendants. 16 17 Plaintiff is proceeding in this matter pro se, and pre-trial proceedings are accordingly 18 referred to the undersigned pursuant to Local Rule 302(c)(21). Defendants’ motion to dismiss the 19 operative Third Amended Complaint, ECF No. 32, came on for hearing on November 30, 2019. 20 Plaintiff appeared on her own behalf, and Assistant United States Attorney Kelli L. Taylor 21 appeared for the remaining defendants: Maria Almes, David Stockwell, and Robert Wilkie. ECF 22 No. 43. For the reasons that follow, the undersigned recommends the motion to dismiss be 23 GRANTED in part and DENIED in part. 24 I. BACKGROUND 25 A. Procedural History 26 Plaintiff Tashia Channel filed this case on August 31, 2018. ECF No. 1. The initial 27 complaint was rejected on screening because it failed to comply with Fed. R. Civ. P. 8. ECF No. 28 6 at 3. The court informed plaintiff that the exact nature of what happened to her was not 1 apparent from the complaint, which contained 123 pages of documents and no clear allegations 2 reflecting violations of federal law. Id. Plaintiff was given an opportunity to amend. Id. at 6. 3 On October 22, 2018, plaintiff filed her First Amended Complaint, which the court found 4 appropriate for service on defendants Robert Wilkie, David Stockwell, and Maria Almes. ECF 5 Nos. 7 and 8. Defendants moved to dismiss. ECF No. 19. On April 4, 2019 the undersigned 6 recommended dismissal with prejudice of plaintiff’s claims under the Family Medical Leave Act 7 and the Americans with Disabilities Act, and leave to amend the remaining claims including those 8 under the Rehabilitation Act. ECF No. 25. The court provided instructions for amendment, 9 including discussion of Rule 8 pleading standards and the requirement that the new complaint be 10 a stand-alone document including all necessary facts and clearly identifying individual causes of 11 action with factual support. Id. at 8-9. Plaintiff prematurely filed a Second Amended Complaint 12 while the Findings and Recommendations were pending before the district judge. ECF No. 26. 13 The Findings and Recommendations were adopted on June 12, 2019. ECF No. 31. 14 Plaintiff filed the operative Third Amended Complaint (“TAC”) on July 8, 2019. ECF 15 No. 32. 16 B. Allegations of the Complaint 17 Plaintiff Channel presents seven enumerated causes of action in her TAC, some of which 18 are duplicative and all of which are difficult to decipher. Claims One and Three allege disability 19 discrimination in the forms of disparate treatment and failure to accommodate, in violation of 20 statutes including the Rehabilitation Act; Claim Two alleges age discrimination in violation of the 21 Age Discrimination in Employment Act (“ADEA”) and 42 U.S.C. §1983; Claim Four alleges 22 retaliation in violation of the No-FEAR Act, 5 U.S.C. § 2302(b)(1)(B),(D), and related favoritism; 23 Claim Five alleges retaliation for filing grievances pursuant to 18 U.S.C. § 245, and related 24 defamation; Claim Six alleges a hostile work environment in violation of Title VII of the Civil 25 Rights Act of 1964; and Claim Seven alleges wrongful termination. ECF No. 32 at 1-2, 19-24. 26 Plaintiff is a former employee of the Northern California Health Care System operated by 27 the Department of Veterans Affairs. The claims arise from plaintiff’s experience with her 28 immediate supervisor, defendant Almes, after Almes became Chief of Voluntary Services at the 1 Northern California Health Care System in late 2009. ECF No. 32 at 5-16. The TAC alleges as 2 follows. Almes made changes to the duties and responsibilities of plaintiff’s position, which led 3 plaintiff to file a grievance some time in 2009. Id. at 6-7, 18. Plaintiff left Voluntary Services for 4 medical reasons at some point in 2009. Id. Though plaintiff was cleared by her health care 5 provider to return to work in September of 2009, she did not return until November of 2011, 6 which was the fault of her employer. Id. at 7-8. Upon return, plaintiff’s work duties were 7 reduced, and she was subjected to harassment and discrimination by Almes. Id. at 8, 18. 8 This harassment and discrimination regularly took the form of denied requests for leave, 9 denied (or ignored) requests for workplace accommodations, and exclusion from employee 10 events. Id. at 8-10, 13. Almes retroactively altered several of plaintiff’s timecards (changing 11 approved sick or medical leave to unapproved, removing holiday pay, and adding absences), 12 which resulted in monetary losses and severe stress. Id. at 9-10, 12, 15, 19. In November 2012, 13 Almes filed a police report accusing plaintiff of stealing gift cards. Id. at 10-11. In July 2012, 14 plaintiff was intentionally excluded from an employee appreciation lunch. Id. at 10. In August 15 2013, Almes followed plaintiff and verbally berated her. Id. at 12, 39. 16 Plaintiff filed an Equal Employment Opportunity (“EEO”) complaint sometime in 2013 17 and received a decision from the EEO Administrative Judge on September 1, 2017. Id. at 7, 14. 18 C. The Claims 19 As discussed above, plaintiff brings claims of discrimination, hostile work environment, 20 and retaliation under a wide variety of federal statutes including the Rehabilitation Act, Title VII, 21 the No-FEAR Act, and the Age Discrimination in Employment Act. ECF No. 32 at 1-2. Plaintiff 22 alleges that the treatment she suffered from defendant Almes was due to hostility based on her 23 disability and age. Plaintiff alleges that defendants Stockwell and Wilkie are liable for Almes’s 24 discrimination as her supervisors. Plaintiff seeks general, compensatory, and special damages. 25 Id. at 24-25. 26 II. MOTION TO DISMISS 27 Defendants move for dismissal on the grounds that (a) the Rehabilitation Act claims are 28 administratively unexhausted and plaintiff’s factual allegations fail to state a claim; (b) the 1 complaint fails to state an age discrimination claim under the Age Discrimination in Employment 2 Act; (c) the complaint fails to state a retaliation or disparate treatment claim under the No-FEAR 3 Act; (d) the defamation claim is administratively unexhausted and barred by sovereign immunity; 4 (e) plaintiff lacks standing to bring a false statement claim under the criminal code (18 U.S.C. 5 245); (f) the complaint fails to state a hostile work environment claim under Title VII; and (7) the 6 complaint fails to state sufficient facts for a constructive discharge claim. ECF No. 43 at 14, 16, 7 18-19, 2, 24-25, 27. The motion also contends that defendants Almes and Stockwell must be 8 dismissed because the only proper defendant is the head of the agency (Wilkie) or the United 9 States itself. Id. at 28. 10 II. ANALYSIS 11 A. Dismissal Standards 12 1. Rule 12(b)(1) Standards 13 To invoke a federal court’s subject-matter jurisdiction, a plaintiff needs to provide only “a 14 short and plain statement of the grounds for the court’s jurisdiction.” Fed. R. Civ. P. 8(a)(1). The 15 plaintiff must allege facts, not mere legal conclusions, in compliance with the pleading standards 16 established by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 17 U.S. 662 (2009). See Harris v. Rand, 682 F.3d 846, 850-51 (9th Cir. 2012). Assuming 18 compliance with those standards, the plaintiff's factual allegations will ordinarily be accepted as 19 true unless challenged by the defendant. See 5C Charles Alan Wright & Arthur R. Miller, 20 Federal Practice and Procedure § 1363, at 107 (3d ed.2004). 21 Under Rule 12(b)(1), a “facial” attack accepts the truth of the plaintiff’s allegations but 22 asserts that they “are insufficient on their face to invoke federal jurisdiction.” Safe Air for 23 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The district court resolves a facial 24 attack as it would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff’s allegations as 25 true and drawing all reasonable inferences in the plaintiff’s favor, the court determines whether 26 the allegations are sufficient as a legal matter to invoke the court’s jurisdiction. Pride v. Correa, 27 719 F.3d 1130, 1133 (9th Cir. 2013). 28 //// 1 2. Rule 12(b)(6) Standards 2 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 3 sufficiency of the Complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 4 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 5 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t., 901 6 F.2d 696, 699 (9th Cir. 1990). 7 To survive dismissal for failure to state a claim, a complaint must contain more than a 8 “formulaic recitation of the elements of a cause of action;” it must contain factual allegations 9 sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. It is 10 insufficient for the pleading to contain a statement of facts that “merely creates a suspicion” that 11 the pleader might have a legally cognizable right of action. Id. (quoting 5 C. Wright & A. Miller, 12 Federal Practice and Procedure § 1216, pp. 235-35 (3d ed. 2004)). Rather, the complaint “must 13 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 14 face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial 15 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 16 inference that the defendant is liable for the misconduct alleged.” Id. 17 In reviewing a complaint under this standard, the court “must accept as true all of the 18 factual allegations contained in the complaint,” construe those allegations in the light most 19 favorable to the plaintiff and resolve all doubts in the plaintiff’s favor. See Erickson v. Pardus, 20 551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 21 960 (9th Cir. 2010), cert. denied, 131 S. Ct. 3055 (2011); Hebbe v. Pliler, 627 F.3d 338, 340 (9th 22 Cir. 2010). However, the court need not accept as true, legal conclusions cast in the form of 23 factual allegations, or allegations that contradict matters properly subject to judicial notice. See 24 Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); Sprewell v. Golden State 25 Warriors, 266 F.3d 979, 988 (9th Cir.), as amended, 275 F.3d 1187 (2001). 26 Pro se pleadings are held to a less stringent standard than those drafted by lawyers. 27 Haines v. Kerner, 404 U.S. 519, 520 (1972). Pro se complaints are construed liberally and may 28 only be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in support 1 of his claim which would entitle him to relief. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2 2014). A pro se litigant is entitled to notice of the deficiencies in the complaint and an 3 opportunity to amend, unless the complaint’s deficiencies could not be cured by amendment. See 4 Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). 5 The district court, when it has already granted a plaintiff leave to amend, has broad 6 discretion regarding further amendment. Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 879 (9th 7 Cir. 1999). This broad discretion must be considered against the backdrop of a general policy to 8 permit amendment with “extreme liberality.” Morongo Band of Mission Indians v. Rose, 893 9 F.2d 1074, 1079 (9th Cir. 1990). Any denial of leave to amend must have a declared reason – 10 “such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to 11 cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by 12 virtue of allowance of the amendment, [or] futility of the amendment.” Foman v. Davis, 371 U.S. 13 178, 182 (1962). 14 B. Rehabilitation Act Claims (Claims 1 and 3) 15 Plaintiff presents her Rehabilitation Act claims in the first and third causes of action. 16 Both claims contain references to disparate treatment and to failure to accommodate. A claim 17 brought under the Rehabilitation Act for disability discrimination must first show that the 18 claimant is an “individual with a disability.” 29 U.S.C. § 794(a). An individual with a disability 19 is “any individual who (i) has a physical or mental impairment which for such individual 20 constitutes or results in a substantial impediment to employment and (ii) can benefit in terms of 21 an employment outcome from vocational rehabilitation services provided pursuant to subchapter I 22 [Vocational Rehabilitation Services, including rehabilitation technology], III [Professional 23 Development and Special Projects and Demonstrations], or VI [Employment Opportunities].” 29 24 U.S.C. §§ 705(20), 723, 723(a)(14), 771, 795j. Rehabilitation Act claims are also subject to the 25 definitions of the Americans with Disabilities Act. 29 U.S.C. § 794(d); Coons v. Sec’y of U.S. 26 Dept. of Treasury, 383 F.3d 879, 884 (9th Cir. 2004). Therefore, a claimant must (1) have a 27 physical or mental impairment that substantially limits one or more major life activities of the 28 //// 1 claimant, (2) there must be a record of such an impairment, or (3) the claimant must be regarded 2 as having such an impairment. 42 U.S.C. § 12102. 3 1. Administrative Exhaustion 4 A claimant who is an employee of an agency of the United States “must exhaust her 5 administrative remedies by filing a claim of discrimination with the allegedly offending agency in 6 accordance with published procedures.” Leorna v. U.S. Dept. of State, 105 F.3d 548, 550 (9th 7 Cir. 1997) (citation omitted); see also Boyd v. U.S. Postal Service, 752 F.2d 410, 413 (9th Cir. 8 1985). The Code of Federal Regulations governing Rehabilitation Act claims requires an agency 9 “to provide a[n] … employee who is denied reasonable accommodation with a written notice at 10 the time of the denial, in an accessible format when requested, that – (A) [e]xplains the reasons 11 for the denial and notifies the … employee of any available internal appeal or informal dispute 12 resolution processes; (B) [i]nforms the … employee of the right to challenge the denial by filing a 13 complaint of discrimination under this part; (C) [p]rovides instructions on how to file such a 14 complaint; and (D) [e]xplains that, pursuant to 29 CFR 1614.105, the right to file a complaint will 15 be lost unless the … employee initiates contact with an EEO Counselor within 45 days of the 16 denial, regardless of whether the … employee participates in an informal dispute resolution 17 process.” 20 C.F.R. § 1614.203(3)(iii). The requirement of exhaustion of administrative 18 remedies is subject to the doctrine of equitable tolling. Leorna at 551. Inadequate notice of 19 administrative remedies from the agency allows for the extension of the time limit to file an 20 administrative complaint, but it does not entitle the claimant to file a claim in federal court 21 without first exhausting administrative remedies. Ross v. U.S. Postal Service, 696 F.2d 720, 722 22 (9th Cir. 1983); 29 C.F.R. § 1614.105(a)(2). 23 A complainant may amend her complaint to the EEO “to include issues or claims like or 24 related to those raised in the complaint.” 29 C.F.R. § 1614.106(d). “Although allegations of 25 discrimination not included in a plaintiff’s EEOC charge generally may not be considered by a 26 federal court, subject matter jurisdiction extends over all allegations of discrimination that either 27 ‘fell within the scope of the EEOC’s actual investigation or an EEOC investigation which can 28 reasonably be expected to grow out of the charge of discrimination.’” Freeman v. Oakland 1 Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002) (quoting B.K.B. v. Maui Police Dep’t, 276 2 F.3d 1091, 1100 (9th Cir. 2002) (emphasis in original)). In determining whether the allegations 3 in the EEOC complaint are sufficiently related to satisfy the exhaustion requirement, the court 4 may consider such factors as “the alleged basis of the discrimination, dates of discriminatory acts 5 specified within the charge, perpetrators of discrimination named in the charge, and any locations 6 at which discrimination is alleged to have occurred.” B.K.B., 276 F.3d at 1100. 7 Exhaustion of administrative remedies is generally—unless the applicable statute provides 8 otherwise, which the Rehabilitation Act does not—considered a non-jurisdictional claims 9 processing requirement, and thus an affirmative defense rather than an element plaintiff must 10 plead and prove. See, generally, Jones v. Block, 549 U.S. 199, 216 (2007) (Prison Litigation 11 Reform Act); Kraus v. Presidio Tr. Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 12 1046 n.7 (9th Cir. 2009) (Title VII); Payne v. Peninsula School Dist., 653 F.3d 863, 867-71 (9th 13 Cir. 2011), cert. denied, 565 U.S. 1196 (2012) (Individuals with Disabilities Education Act). 14 Administrative exhaustion is therefore most often determined on summary judgment, as in Leorna 15 and Freeman, supra, which permits the court to go beyond the pleadings and examine the EEOC 16 charge and related record. In cases where the allegations of the complaint fully support 17 application of an affirmative defense, such that reference to outside materials is unnecessary, 18 dismissal on that basis may be appropriate at the pleading stage. See Jones, 549 U.S. at 215. 19 Defendants contend that this is such a case. The court disagrees. 20 Here, the TAC alleges that plaintiff filed an EEO complaint in 2013, addressing her 21 alleged abuse by “fraudulent and illegal acts” in the workplace. ECF No. 32 at 7. The TAC does 22 not specify whether the EEO complaint addressed other issues, or how the alleged “fraudulent 23 and illegal acts” were described; the EEO complaint is not attached as an exhibit.1 Elsewhere the 24 TAC states that three people in plaintiff’s department filed EEO grievances regarding 25 discrimination, and it implies that plaintiff was one of the complainants. Id. at 18. Plaintiff states 26 that she received an EEO decision on September 1, 2017, thereafter filed an appeal with the 27 1 In opposition to the motion to dismiss, plaintiff contends that issues related to her disability 28 were included in the EEO complaint. See ECF No. 44 at 2. 1 Office of Federal Operations, and received a decision regarding her appeal in March of 2019. 2 ECF No. 32 at 14. Liberally construed, the TAC thus alleges the filing and exhaustion of EEO 3 administrative remedies. That the allegation is conclusory does not matter, because plaintiff is 4 under no obligation to plead exhaustion at all, let alone with specificity. Whether plaintiff’s 5 administrative remedies were actually exhausted, and as to which issues, are questions that cannot 6 be determined from the face of the complaint. Accordingly, the allegations of the TAC do not 7 establish non-exhaustion. The motion to dismiss should be denied on this point. 8 2. Failure to Accommodate 9 The failure to accommodate an employee’s disability may amount to disability 10 discrimination under the Rehabilitation Act. See Zukle v. Regents of the Univ. of California, 166 11 F.3d 1041, 1045-46 (9th Cir. 1999). To state a failure to accommodate claim, a complaint must 12 allege facts sufficient to show that: (1) plaintiff is a person with a disability, (2) plaintiff can 13 perform the essential functions of the job, with or without accommodation, and (3) reasonable 14 accommodation is possible. Buckingham v. U.S., 998 F.2d 735, 739-40 (9th Cir. 1993). To 15 establish a prima facie claim for discrimination, plaintiff must show that: (1) she is “disabled” as 16 that term is defined in Section 504 of the Act, (2) she was “otherwise qualified” for benefits she 17 was denied, and (3) she was discriminated against solely on the basis of disability. Zukle, 166 18 F.3d at 1045. 19 Here, the TAC alleges that plaintiff has been diagnosed with “herniated disc, compressed 20 vertebrae, osteoarthritis, fibromyalgia, and degenerate joint disease.” ECF No. 32 at 6. Attached 21 to the TAC is a letter from a medical provider stating that plaintiff experiences chronic neck pain, 22 and requesting the accommodation of a headset. Id. at 46. The identified conditions are physical 23 impairments that could benefit from vocational rehabilitation services, such as the requested 24 headset, which would be considered rehabilitation technology under Subchapter I. The TAC also 25 alleges that plaintiff has difficulty with standing as a result of her impairments. ECF No. 32 at 26 18. Plaintiff’s medical provider recommended a sit/stand option at work. Id. at 46. The ability to 27 stand is one of the major life activities outlined in the definition of disability in the Americans 28 //// 1 with Disabilities Act. 42 U.S.C. § 12102(2)(A). Accordingly, the alleged impairments come 2 within the Act’s definition of disability. 3 The TAC further alleges that plaintiff’s impairments were diagnosed in 2009 and that they 4 persisted through at least 2013 when Ms. Channel’s healthcare provider wrote a note requesting 5 accommodations. ECF No. 32 at 7, 46. This indicates a history of physical impairments that 6 substantially limit a major life activity. The TAC also indicates that the VA regarded Channel as 7 a person with a disability, because they had previously afforded her work accommodations. Id. at 8 7. For all these reasons, plaintiff has adequately alleged that she is a person with a disability as 9 defined in the Rehabilitation Act. Particularly in light of the liberality with which pro se 10 pleadings must be construed, the TAC’s failure to utilize talismanic language regarding disability 11 is not dispositive. 12 Plaintiff does not expressly allege that she was qualified to perform the essential functions 13 of her job at Voluntary Services. However, she alleges that she received performance reviews of 14 “Satisfactory” or better from her supervisors, including defendant Almes, until October of 2013. 15 ECF No. 32 at 5, 9. Additionally, plaintiff alleges that she was “fully trained, capable and 16 qualified” to fulfill the duties of Chief of Voluntary Services, a supervisory role above her regular 17 position. Id. at 4. She further states that a Human Resources administrator cleared her to return 18 to her original role, with no indication that the duties of that role had changed, and with the same 19 accommodations as she had before. Id. at 7. These facts are sufficient to allege that plaintiff was 20 a qualified individual capable of performing the essential functions of her position. 21 Plaintiff has alleged that she made multiple requests for accommodations. At some point 22 in 2009, plaintiff requested she be able to vary standing and sitting, but her duties were restricted 23 to those that would require sitting the entire day (typing and answering phones) or standing at the 24 front desk for three fourths of the day. ECF No. 32 at 6. In 2011, when she returned to Voluntary 25 Services, plaintiff requested her previously-approved accommodations and adjustments. Id. 26 Although the TAC does not specify what those accommodations or adjustments were, they had 27 been provided in 2009 and there is no indication that plaintiff’s need for accommodation had 28 changed to cause an undue hardship to her employer. Id. at 7. Accordingly, the court concludes 1 that plaintiff has adequately alleged that reasonable accommodation was possible. See 2 Buckingham, 998 F.2d at 741. Because the TAC references accommodations that had previously 3 been provided by the agency and that were directed by agency management, id. at 7-8, the 4 complaint provides sufficient notice to defendants as to the nature of the accommodations at 5 issue. 6 Plaintiff’s second request for accommodations, in November 2013, was for a phone 7 headset to alleviate her chronic neck pain. ECF No. 32 at 46. A headset is a rehabilitative 8 technology device as contemplated in Subchapter I of the Rehabilitation Act. 29 U.S.C. § 9 723(a)(14). A phone headset does not eliminate an essential function of plaintiff’s position and at 10 least on its face suggests an accommodation that would be feasible for the employer. See U.S. 11 Airways, Inc. v. Barnett, 535 U.S. 391, 402 (2002). 12 For these reasons, the court rejects defendants’ argument that no requests for 13 accommodations were made. ECF No. 43 at 17. The TAC repeatedly uses the word 14 “accommodations,” and the above-referenced factual allegations and exhibit adequately elucidate 15 what is meant. The adequacy of plaintiff’s accommodation requests is not before the court at the 16 pleading stage. The TAC sufficiently states a prima facie case for failure to accommodate under 17 the Rehabilitation Act, and dismissal of this claim is not warranted. 18 3. Disparate Treatment/Disability Discrimination 19 To state a prima facie case of disparate treatment under the Rehabilitation Act, a plaintiff 20 must demonstrate that “(1) she is a person with a disability, (2) who is otherwise qualified for 21 employment, and (3) suffered discrimination because of her disability.” Walton v. U.S. Marshals 22 Serv., 492 F.3d 998, 1005 (9th Cir. 2007) (superseded by statute on other grounds) (emphasis 23 added). The court agrees with defendants that plaintiff fails to state a disparate treatment claim 24 because she fails to connect any disparate treatment to her disabilities. For example, plaintiff 25 alleges she was isolated from co-workers and intentionally left out of office social activities, acts 26 which are unkind but apparently unrelated to her physical disabilities. ECF No. 32 at 6. Plaintiff 27 also alleges that she was not given time off during holidays for two consecutive years while other 28 co-workers were granted leave, even though plaintiff requested leave well in advance. Id. at 8. 1 Although such treatment is unfair, the complaint is devoid of facts which would support a finding 2 that it was “because of” plaintiff’s disabilities. Plaintiff’s characterization of the mistreatment as 3 discriminatory is speculative and conclusory, and need not be accepted as true. See Sprewell, 266 4 F.3d at 988. Because plaintiff’s allegations do not make out a prima facie case of disparate 5 treatment under the Rehabilitation Act, this claim must be dismissed. 6 C. Age Discrimination Claim (Claim 2) 7 1. Age Discrimination in Employment Act 8 To establish a claim for age discrimination under the Age Discrimination in Employment 9 Act (“ADEA”), a claimant must show that (1) she was 40 years of age or older, (2) she was 10 performing her job in a satisfactory manner, (3) she was discharged or suffered an adverse 11 employment action, and (4) she was replaced or given less favorable treatment than a sufficiently 12 younger person with equal or inferior qualifications. 29 U.S.C. § 633a; McDonnell Douglas 13 Corp. v. Green, 411 U.S. 792, 802 (1973); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 14 (9th Cir. 1996); Whitman v. Mineta, 541 F.3d 929, 932 (9th Cir. 2008). A claimant must show, 15 by a preponderance of the evidence, that her age was the “but-for” cause of the discrimination. 16 Gross v. FBL Financial Services, Inc., 557 U.S. 167, 180 (2009). 17 Even assuming that plaintiff meets the age requirement for an ADEA claim, she does not 18 state a claim upon which relief can be granted. Plaintiff does not allege facts demonstrating that 19 any discrimination she suffered was because of her age, let alone that “but for” her age the 20 discrimination would not have occurred. Plaintiff does allege that she was to be directed by a 21 “lower grade employee” at the office, but she does not allege that this employee was younger than 22 herself. ECF No. 32 at 8. Even if the court were to assume that the “lower grade” employee was 23 also a younger employee, this would not demonstrate that plaintiff was being discriminated 24 against because of her age. No other facts in the TAC indicate that plaintiff faced discrimination 25 due to her age. Accordingly, this claim cannot support relief and must be dismissed. 26 2. Section 1983 Civil Rights 27 Section 1983 is a statute creating a civil action for deprivation of constitutional rights. 28 The Ninth Circuit has held that “the ADEA precludes the assertion of age discrimination in 1 employment claims, even those seeking to vindicate constitutional rights, under § 1983.” 2 Ahlmeyer v. Nevada System of Higher Educ., 555 F.3d 1051, 1057 (9th Cir. 2009). Plaintiff’s § 3 1983 claim is accordingly preempted by the ADEA and must be dismissed without leave to 4 amend. 5 D. Retaliation Claims (Claim 4) 6 To allege a prima facie case for retaliation, a claimant must show that she (1) engaged in 7 activity protected by Title VII of the Civil Rights Act, (2) was subjected to an adverse 8 employment action, and (3) the protected activity was the “but-for” cause of the adverse 9 employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362-63 (2013); Cohen 10 v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982). 11 Ms. Channel filed a grievance in 2009 and an EEO complaint in 2013. ECF No. 32 at 7. 12 The grievance is an activity protected by Title VII because it concerns discrimination prohibited 13 by Title VII. See 29 U.S.C. §§ 633a, 794(a); Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1411 14 (9th Cir. 1987). Plaintiff alleges that defendant displayed hostility towards her based on her 15 disability absences and the 2009 grievance. ECF No. 32 at 9. However, plaintiff does not allege 16 any facts showing that her filing of a grievance was the cause of, or even related to, her 17 termination or any other adverse employment action. Again, she has only provided conclusory 18 statements which the court need not accept as true. Sprewell, 266 F.3d at 988. 19 Defendants note that plaintiff also lists the “No-FEAR Act” as a basis for her retaliation 20 claim, arguing that such a claim would fail for the same reasons as those discussed above. ECF 21 No. 43-1 at 19, n.6. Defendants are correct. Moreover, the No-FEAR Act creates no substantive 22 rights or private right of action. See Davis v. Brennan, No. EDCV 18-1679 JGB (SHKx), 2019 23 WL 2932642, at *3 (C.D. Cal. Mar. 20, 2019) (“While the Court is aware of no binding authority 24 holding that the NO FEAR Act does not provide for enforcement by private citizens, the 25 decisions addressing the question uniformly conclude that the NO FEAR Act does not create any 26 private cause of action or substantive rights.”) (internal citation omitted, referencing case law 27 collecting multiple district court cases). 28 For all these reasons, plaintiff’s retaliation claims must be dismissed. 1 E. Defamation Claim (Claim 5) 2 The Federal Tort Claims Act provides the exclusive remedy for torts committed by 3 employees of the United States. United States v. Smith, 499 U.S. 160, 166; Wilson v. Drake, 87 4 F.3d 1073, 1076 (9th Cir. 1996). The United States is the only proper defendant in an FTCA 5 claim. Smith, 499 U.S. at 167. However, the United States has immunity for the tort of 6 defamation (libel and slander). 28 U.S.C. § 2680(h). Therefore, Channel’s defamation claim is 7 barred and must be dismissed with prejudice. See Smith, 499 U.S. at 166. 8 F. Criminal False Statements (Claim 5) 9 Title 18 Section 245 is a criminal statute. 18 U.S.C. § 245. A citizen does not have 10 authority to bring criminal charges. “Criminal proceedings, unlike private civil proceedings, are 11 public acts initiated and controlled by the Executive Branch.” Clinton v. Jones, 520 U.S. 681, 12 718 (1997). Accordingly, Title 18 of the United States Code does not establish any private right 13 of action and cannot support a civil lawsuit. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 14 1980) (criminal provisions provide no basis for civil liability). This claim must be dismissed with 15 prejudice. 16 G. Hostile Work Environment Claim (Claim 6) 17 To establish a hostile work environment claim under Title VII of the Civil Rights Act of 18 1964, a claimant must show that (1) she was subjected to verbal or physical harassment because 19 of her membership in a protected class, (2) the conduct was unwelcome, (3) the conduct was 20 sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive 21 work environment, and (4) the employer knew or should have known of the harassment. Ellison 22 v. Brady, 924 F.2d 872, 881 (9th Cir. 1991); Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th 23 Cir. 1995); Manatt v. Bank of America, NA, 339 F.3d 792, 798 (9th Cir. 2003). “[S]imple 24 teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to 25 discriminatory changes in the ‘terms and conditions of employment.’” Faragher v. City of Boca 26 Raton, 524 U.S. 775, 788 (1998) (internal citation omitted). 27 The conduct alleged by plaintiff, while certainly not indicative of a respectful workplace, 28 appears to consist of isolated incidents perpetrated by defendant Almes. ECF No. 32 at 6, 8, 10, 1 12, 39. These incidents fall far short of the pervasive and persistent conduct which the Ninth 2 Circuit has found constitutes a hostile work environment. See Nichols v. Azteca Rest. Enters., 3 256 F.3d 864, 872-73 (9th Cir. 2001) (finding a hostile work environment where a male employee 4 was called “faggot” and “fucking female whore” by co-workers and supervisors at least once a 5 week and several times per day) (emphasis added); Anderson v. Reno, 190 F.3d 930 (9th Cir. 6 1999) (finding a hostile work environment where a supervisor repeatedly referred to the 7 employee as “office sex goddess,” “sexy,” and “the good little girl”) (emphasis added); Draper v. 8 Coeur Rochester, 147 F.3d 1104, 1109 (9th Cir. 1998) (finding hostile work environment where 9 plaintiff’s supervisor made repeated sexual remarks to her) (emphasis added). Compare Kortan 10 v. Cal. Youth Auth., 217 F.3d 1104, 1111 (9th Cir. 2000) (finding no hostile work environment 11 where the supervisor referred to females as “castrating bitches,” “Madonnas,” or “Regina” in 12 front of plaintiff on several occasions and directly called plaintiff “Medea”) (emphasis added). 13 Plaintiff has specifically alleged that on August 29, 2013, when she was the only 14 employee in the office, Almes said “Are you stupid? What are you blind? Can you read?” and 15 that plaintiff was afraid enough to call the VA police because she thought Almes would 16 physically harm her. ECF No. 32 at 12, 39. Were this type of verbal harassment a regular 17 occurrence, then there might be a basis for a hostile work environment claim. See Manatt, 339 18 F.3d at 799 (9th Cir. 2003) (had the racially offensive gestures and insults directed at the claimant 19 occurred repeatedly, there would likely have been an actionable hostile work environment claim). 20 However, there are no allegations that this type of treatment occurred with any frequency or even 21 more than once. The incidents between Plaintiff and Almes do not demonstrate the severity or 22 pervasiveness required to establish a hostile work environment. 23 Additionally, the inappropriate and hostile comments allegedly made by Almes do not 24 appear on their face to relate to plaintiff’s disability or age. Channel has alleged only physical 25 disabilities, none which could reasonably be expected to impact her vision or ability to read and 26 comprehend. ECF No. 32 at 6. Because it is not alleged that the offensive conduct was related to 27 plaintiff’s age or disability, or sufficiently severe and pervasive to establish a hostile work 28 environment, this claim must be dismissed. 1 H. Constructive Discharge Claim (Claim 7) 2 “The constructive-discharge doctrine contemplates a situation in which an employer 3 discriminates against an employee to the point that his ‘working conditions become so intolerable 4 that a reasonable person in the employee’s position would have felt compelled to resign.’” Green 5 v. Brennan,136 S.Ct. 1769, 1776 (2016) (quoting Pa. State Police v. Suders, 542 U.S. 129, 141 6 (2004)). A claimant must prove she was discriminated against by her employer to the point 7 where a reasonable person in her position would have felt compelled to resign, and that she 8 actually resigned. Green, 136 S.Ct. at 1777. 9 As discussed above, the TAC does contain allegations of unfair treatment. Based on the 10 facts alleged, however, this alleged discrimination does not appear to the court sufficient to cause 11 a reasonable person in the employee’s position to resign; the alleged mistreatment was not 12 objectively severe, pervasive, or seemingly more than incidental. Further incidents suffered by 13 plaintiff including (1) repeated denial of annual leave requests, (2) alteration of timecards, and (3) 14 negative performance evaluations, are not connected factually to plaintiff’s age or disability, and 15 plaintiff appears to attribute them to personal animus. See ECF No. 32 at 9, 10, 13, 18. 16 Importantly, the TAC indicates that plaintiff chose to retire rather than face removal due to 17 violations of the attendance policy. ECF No. 32 at 19. This does not establish that the 18 resignation was forced by discrimination. Accordingly, the court does not find that there were 19 sufficiently intolerable working conditions to compel a resignation. The cause of action for 20 constructive discharge therefore fails to state a claim. 21 I. Defendant Wilkie is the Only Proper Defendant 22 The head of the agency is the only proper defendant in an employment discrimination 23 case. 42 U.S.C. 2000e-16(c); Romain v. Shear, 799 F.2d 1416, 1418 (9th Cir. 1986) (Title VII 24 and ADEA); Johnston v. Horne, 875 F.2d 1415, 1419 (9th Cir. 1989) (Rehabilitation Act). The 25 only cause of action that states a claim in this case is plaintiff’s reasonable accommodation claim 26 under the Rehabilitation Act. Accordingly, Stockwell and Almes are not proper defendants and 27 they must be dismissed. The Secretary of the Department of Veterans Affairs, defendant Wilkie, 28 is the only proper defendant. 1 J. Leave to Amend 2 Plaintiff has previously been granted leave to amend with the “extreme liberality” 3 generally afforded to pro se litigants. See, Morongo Band of Mission Indians v. Rose, 893 F.2d 4 1074, 1079 (9th Cir. 1990). Leave to amend does not continue indefinitely, however, and may be 5 denied where amendment is futile or there has been a repeated failure to cure deficiencies. 6 Foman v. Davis, 371 U.S. 178, 182 (1962). The undersigned agrees with the government that 7 further leave to amend would be futile in this case, in light of the deficiencies in plaintiff’s 8 previous complaints and her failure cure them. Plaintiff has had two previous opportunities to 9 amend, and received instructions regarding the requirements for stating a claim. In her TAC, she 10 has presented a viable Rehabilitation Act failure to accommodate claim, but her other claims still 11 fail. This repeated failure strongly indicates that further opportunity to amend would be futile. 12 Moreover, defendants have already brought two motions to dismiss and it would be unjust to 13 require the remaining defendant to evaluate and respond to yet another amended complaint. For 14 these reasons, further leave to amend should not be granted. 15 III. CONCLUSION 16 For the reasons explained above, IT IS HEREBY RECOMMENDED that defendants’ 17 motion to dismiss, ECF No. 43, be GRANTED IN PART AND DENIED IN PART as follows: 18 1. DENIED as to plaintiff’s failure to accommodate claim brought under the Rehabilitation 19 Act, as stated against Robert Wilkie, Secretary of the Department of Veterans Affairs, 20 only; and 21 2. GRANTED, without further leave to amend, as to all other claims and defendants. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 24 days after being served with these findings and recommendations, any party may file written 25 objections with the court. Such document should be captioned “Objections to Magistrate Judge’s 26 Findings and Recommendations.” Local Rule 304(d). Failure to file objections within the 27 //// 28 //// 1 || specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 2 | F.2d 1153 (9th Cir. 1991). 3 | DATED: November 4, 2019 ~ 4 Attten— ALLISON CLAIRE 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18