(PS) Auten v. County of Calaveras ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONALD AUTEN, No. 1:20-cv-00329-NONE-EPG (PS) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, 13 RECOMMENDING DENYING, IN PART, v. AND GRANTING, IN PART, DEFENDANT’S 14 MOTION TO DISMISS AND DENYING COUNTY OF CALAVERAS, DEFENDANT’S REQUEST FOR JUDICIAL 15 NOTICE Defendant. 16 (ECF No. 33) 17 18 Plaintiff Donald Auten, proceeding pro se and in forma pauperis, filed the complaint 19 commencing this action under the Americans with Disabilities Act (ADA) on August 28, 2019, 20 and a first amended complaint on December 2, 2019. (ECF Nos. 1, 6). On March 18, 2020, 21 Defendant County of Calaveras filed a motion to dismiss or for a more definite statement. (ECF 22 No. 19). The District Court referred the motion to the undersigned on November 30, 2020, and it 23 was recommended that the motion to dismiss be granted and that Plaintiff be given leave to file a 24 second amended complaint (SAC). (ECF Nos. 27, 28). The District Court adopted the findings 25 and recommendations in full. (ECF No. 31). 26 On March 17, 2021, Plaintiff filed his SAC. (ECF No. 32). Defendant filed the instant 27 motion to dismiss or for a more definite statement on April 1, 2021, which was referred to the 28 undersigned. (ECF Nos. 33, 34). Included in Defendant’s filing is a request for the Court to take 1 judicial notice of certain documents. (ECF No. 33-2). For the reasons that follow, it is 2 recommended that the District Court deny, in part, and grant, in part, the motion to dismiss or for 3 more definite statement and deny the request to take judicial notice. 4 I. SUMMARY OF ALLEGATIONS 5 The SAC alleges as follows: 6 Defendant hired Plaintiff as “a road maintenance worker I in March of 2012,” and, after 7 Plaintiff received favorable performance reviews, promoted him to “road maintenance worker II 8 (Haz) in March of 2013.”1 (ECF No. 32, p. 8). When he was hired, Plaintiff had “a history of 9 recorded mental impairments, ‘learning disabilities’ that substantially limited a major life 10 activity.” (Id.). However, Plaintiff “was an otherwise fully qualified individual and was able to 11 perform the essential functions of the position [he] held,” having “a 20 year employment history 12 in Civil Service/Public Works along with several certificates and licences that required [him] to 13 utilize ADA accommodations for written examinations and study material for such exams” and 14 “disabilities [that] never limited [his] ability to perform the essential functions of any position 15 throughout [his] career.” (Id.). 16 On June 8, 2014, while working for Defendant at a landfill, Plaintiff “was injured by a 17 fellow employee/supervisor who shot an explosive humane pest control device across the inside 18 of the tripping building that landed inches from [Plaintiff’s] head and exploded.” (Id.). Because of 19 this incident, Plaintiff “blacked out, suffered hearing loss, ringing in [his] ears, blurred vision and 20 [a] severe headache.” (Id.). Plaintiff reported the incident to the acting director the next day, June 21 9, 2014. (Id. at 9). “From June 09, 2014 until July 09, 2014 [he] continued to report to work every 22 day after the incident and was able to perform the essential functions of [his] job.” (Id.). 23 On July 9, 2014, the Public Works Director learned about the incident and told Plaintiff 24 that he “had to file a workers compensation claim, and a formal investigation of the incident 25 began.” (Id.). Plaintiff saw a workers’ compensation doctor, Dr. Alexis Dasig, on July 16, 2014, 26 who told Plaintiff that he was to remain out of work until a neurological evaluation was 27 1 Minor alterations, such as omitting capitalization and correcting misspellings have been made to quoted 28 portions of Plaintiff’s filings without indicating each specific change. 1 conducted and noted that the decision to prohibit Plaintiff from working was “against [Plaintiff’s] 2 will.” (Id.). 3 Plaintiff saw Dr. Francis on August 1, 2014, who recommended “a neurological 4 evaluation.” (Id.). Thereafter, Plaintiff contacted the workers’ compensation appeal board and 5 was instructed to request “a neurology panel of doctors to choose from because no one could give 6 [him] an answer as to why [he] was placed out of work until he was released.” (Id.). While 7 waiting for a qualified medical examiner panel, Plaintiff’s “mental stability was worsening.” (Id.). 8 On January 9, 2015, Plaintiff was seen by Dr. Robert Rose, “a qualified medical examiner 9 in neurology” who requested a MRI and “a neuropsychological evaluation by a certified 10 neuropsychologist for both cognitive and affective difficulties.” (Id. at 9-10). Thereafter, Dr. Rose 11 “would re-evaluate [Plaintiff] and finalize [his] overall difficulties.” (Id. at 10). Dr. Rose’s report 12 stated as follows: 13 An explosion could cause significant alterations in the patient’s pre-existing cognitive conditions and that at this point in time, the patient is temporarily 14 partially disabled, able to return to work provided he does not work above ground level, around open bodies of water or around active machinery, he should avoid 15 unusual light fixtures and he needs to be wearing hearing protection around any noisy environments until September 9, 2015. 16 (Id. at 10). 17 On February 6, 2015, Plaintiff saw Dr. Holly Chandler at JobCare, who “requested this 18 follow up treatment.” (Id.). On April 3, 2014, “JobCare recognized cognitive dysfunction and a 19 note was made for a MRI w/contrast and neurology approval.” (Id.). 20 On June 19, 2015, Plaintiff presented Defendant with “a request for medical leave from 21 [his] primary care physician, Dr. Steven Mills” who supported the [qualified medical examiner] 22 findings and recommendations.” (Id. at 11). On June 22, 2015, Plaintiff wrote “a letter to County 23 Management requesting that they honor [his] requests for these reasonable accommodations and 24 to engage with [him] in an interactive process, and received no response. [He] expressed [his] 25 concerns [and] included a copy of Dr. Rose’s [qualified medical examiner] report stating [that] 26 ‘[he] had restrictions placed on work until September 9, 2015’ and [he] requested that the 27 accommodation be honored.” (Id.). 28 1 On July 16, 2015, Plaintiff “was cut off of all temporary workers compensation benefits 2 after exactly one year.” (Id. at 10). “Dr. Shields at JobCare changed [Plaintiff’s] work status with 3 no treatment completed, no follow up to the [qualified medical examiner] requests for treatment 4 or work restrictions until September 9, 2015 had been made.” (Id.). 5 Defendant failed to make any “formal individualized assessment.” (Id.). Defendant thus 6 “could not determine on [its] own whether [he] could perform the essential functions of the job 7 that [he] held with or without an accommodation.” (Id.). The qualified medical examiner opinions 8 “were the fundamental structure for creating an individualized assessment that would have based 9 meaning into an interactive process.” (Id.). “Without appropriate corrective action after the initial 10 injury and the time that was passing without the reasonable accommodations, [Plaintiff] sustained 11 a secondary injury caused by psychological responses that were eventually categorized as PTSD 12 and depression by Qualified Medical Examiner, Dr. Nicole Napier- Ionascu, Neuropsychologist.” 13 (Id.). 14 Plaintiff met with Kate Husk from human resources on July 17, 2015, “request[ing] an 15 interactive process” but he “was told to return to work without restrictions or be deemed 16 insubordinate and receive disciplinary actions.” (Id. at 11). “After leaving HR that morning, [he] 17 returned to the job site confused. [He] worked that day with struggle but [he] was able to perform 18 the ‘essential functions’ of the job. Tom Wilson and Ray Satkamo, the two foremen expressed 19 their concerns in a letter on [his] behalf.” (Id.). 20 On August 26, 2015, Plaintiff met with a clinical neuropsychologist, Dr. Napier-Ionascu, 21 who prepared a report stating as follows: 22 Mr. Auten is claiming a psychiatric injury following an industrial injury that occurred on June 8, 2014. Given the patient’s long history of ADHD, dyslexia, and 23 what appears to be some kind of nonspecific cognitive disorder, his current injuries are most likely related to depression and posttraumatic stress disorder rather than 24 new cognitive deficits. He most likely developed depression and posttraumatic stress disorder as a result of his injury and subsequent time off of work. Given that 25 he has not gone through any form of psychological care the patient is not permanent and stationary. He has significant social and occupational problems that 26 he views as insurmountable at the current time. He spends much of his time at home and reports constant fear, worry and increased crying spells. I find that the 27 applicant’s psychiatric injury was 100% caused by his industrial continuous specific injury occurring on June 8, 2014. The applicant is not yet permanent and 28 stationary. I recommend that the applicant receive 20 sessions of weekly 1 individual cognitive behavioral therapy for the treatment of depression and posttraumatic stress disorder. I would like to see him back after 6 months of the 2 above outlined treatment. 3 (Id. at 11-12). “Dr. Napier-Ionascu diagnosed [him] that day with major depressive disorder 4 recurrent and moderate, posttraumatic stress disorder chronic, ADHD by history, severity of 5 psychosocial stressors of financial loss, occupational issues.” (Id. at 12). Although Plaintiff 6 requested “that the County authorize the treatment for the 20 cognitive behavioral weekly 7 treatments . . . the County failed to allow [Plaintiff] this reasonable accommodation and it had 8 been formally requested several times.” (Id.). 9 On November 13, 2015, Dr. Rose prepared a supplemental report “requesting his prior 10 studies to be approved and arranged.” (Id.). “On December 30, 2015, [Plaintiff] was seen by Dr. 11 Mohamed and he presented to the County an official, extended medical leave requesting [his] 12 evaluation by the neurologist be completed and removing [him] from work duties until this 13 evaluation was complete.” (Id.). Plaintiff made three attempts in January 2016 to contact human 14 resources “requesting accommodations and payment for these services.” (Id.). However, 15 Defendant “failed to respond.” (Id.). 16 On July 21, 2016, Plaintiff received a letter from Defendant indicating an intent to 17 terminate his employment for failing to return after his leave of absence had ended and stating 18 that “the human resources department had not been provided information requesting an extension 19 of leave.” (Id. at 12-13). “On the contrary, Judy Hawkins [in human resources] received that 20 request for an extension of leave per Dr. Mohammed on December 30, 2015 and never once 21 indicated that the duration of the leave was unacceptable or not approved.” (Id. at 13). 22 On August 8, 2016, Plaintiff was terminated from his job because he was “absent without 23 leave.” (Id.). If Defendant had “honored and acknowledged all the requested reasonable 24 accommodations, requests for an interactive process and leave of absences while [Plaintiff] was 25 awaiting treatment [he] could have returned to [his] previous job, and been spared termination.” 26 (Id.). “On September 24, 2019, [Plaintiff] settled [his] workers compensation claim with ‘stale’ 27 medical reports, [he] was never accommodated with treatment and was never found permanent 28 and stationary. [He] was never released back to work.” (Id. at 14). 1 The SAC brings the following claims: (1) employment discrimination; (2) failure to 2 engage in interactive process; (3) failure to accommodate; and (4) retaliation. 3 II. SUMMARY OF ARGUMENTS 4 Defendant moves to dismiss, arguing that Plaintiff’s factual allegations are too threadbare 5 and conclusory, and that they do not track the elements for disability discrimination, failure to 6 accommodate, and retaliation. (ECF No. 33-1, p. 9). Defendant also argues that Plaintiff’s claim 7 for failure to engage in the interactive process fails because there is no independent cause of 8 action for failure to engage. (Id. at 6). Lastly, Defendant argues that Plaintiff did not exhaust his 9 administrative remedies with respect to his retaliation claim within 180 days. (Id. at 9-11). In the 10 alternative, Defendant moves for an order requiring Plaintiff to provide a more definite statement 11 under Federal Rule of Civil Procedure 12(e). (Id. at 11). 12 Plaintiff’s opposition disputes some of the factual allegations that Defendant made in its 13 motion to dismiss but does not offer any developed legal arguments. (ECF No. 38). 14 III. LEGAL STANDARDS 15 In considering a motion to dismiss, the Court must accept all allegations of material fact in 16 the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Hosp. Bldg. Co. v. Rex 17 Hosp. Trustees, 425 U.S. 738, 740 (1976). The Court must also construe the alleged facts in the 18 light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on 19 other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Barnett v. Centoni, 31 F.3d 813, 20 816 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff’s 21 favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro se pleadings “must be 22 held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 23 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally 24 construed after Ashcroft v. Iqbal, 556 U.S. 662 (2009)). “While the Court cannot accept 25 new facts alleged in opposition papers, a plaintiff’s briefing may always be used to clarify 26 allegations in a complaint.” Yordy v. Astrue, No. 1:09-CV-03028-NJV, 2010 WL 653099, at *2 27 (N.D. Cal. Feb. 22, 2010) (citing Pegram v. Herdrich, 530 U.S. 211, 230 (2000)). 28 /// 1 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the 2 complaint. See Iqbal, 556 U.S. at 679. “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a 3 short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to 4 ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell 5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. 6 Gibson, 355 U.S. 41, 47 (1957)). “The issue is not whether a plaintiff will ultimately prevail but 7 whether the claimant is entitled to offer evidence to support the claims.” Scheuer, 416 U.S. at 236 8 (1974). 9 The first step in testing the sufficiency of the complaint is to identify any conclusory 10 allegations. Iqbal, 556 U.S. at 679. “Threadbare recitals of the elements of a cause of action, 11 supported by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. at 12 555). “[A] plaintiff’s obligation to provide the grounds of his entitlement to relief requires more 13 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will 14 not do.” Twombly, 550 U.S. at 555 (citations and quotation marks omitted). 15 After assuming the veracity of all well-pleaded factual allegations, the second step is for 16 the court to determine whether the complaint pleads “a claim to relief that is plausible on its 17 face.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). A claim is facially plausible 18 when the plaintiff “pleads factual content that allows the court to draw the reasonable inference 19 that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 20 556). The standard for plausibility is not akin to a “probability requirement,” but it requires “more 21 than a sheer possibility that a defendant has acted unlawfully.” Id. 22 IV. DISCUSSION 23 A. Employment Discrimination 24 The ADA prohibits covered employers from discriminating “against a qualified individual 25 on the basis of disability in regard to job application procedures, the hiring, advancement, or 26 discharge of employees, employee compensation, job training, and other terms, conditions, and 27 privileges of employment.” 42 U.S.C. § 12112(a). To establish a prima facie of employment 28 discrimination, a plaintiff must show that: (1) he is disabled within the meaning of the ADA; (2) 1 he is a qualified individual able to perform the essential functions of the job; and (3) his employer 2 terminated him because of his disability. Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 3 (9th Cir. 1999). 4 Under the ADA, “[t]he term ‘disability’ means, with respect to an individual (A) a 5 physical or mental impairment that substantially limits one or more of the major life activities of 6 such individual; (B) a record of such an impairment; or (C) being regarded as having such an 7 impairment.” Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 563 (1999) (quoting 42 U.S.C. 8 § 12102(1)). “The ADA further defines the second prong of the prima facie case, ‘qualified 9 individual with a disability,’ as an ‘individual with a disability who, with or without reasonable 10 accommodation, can perform the essential functions of the employment position that such 11 individual holds or desires.’” Nunes, 164 F.3d at 1246 (quoting 42 U.S.C. § 12111(8)). 12 There is a two-step inquiry to determine whether an individual is qualified: 13 We first determine whether the individual satisfies the prerequisites of the job; more specifically, whether “the individual satisfies the requisite skill, experience, 14 education and other job-related requirements of the employment position such 15 individual holds or desires.” At step two, we determine whether, “with or without reasonable accommodation,” the individual is able to “perform the essential 16 functions of such position.” 17 Anthony v. Trax Int’l Corp., 955 F.3d 1123, 1127–28 (9th Cir. 2020) (quoting 29 C.F.R. 18 § 1630.2(m)). 19 Defendant argues that Plaintiff has not alleged that he is a qualified individual because he 20 “has not alleged he is able to perform the essential functions of his job with or without a 21 reasonable accommodation.” (ECF No. 33-1, p. 7). The Court disagrees—the SAC specifically 22 alleges that Plaintiff could have performed the essential functions of his job with reasonable 23 accommodations.2 24 “Reasonable accommodations are mechanisms to remove barriers or provide assistance to 25 disabled individuals so that they can perform the ‘essential functions’ of employment positions.” 26 Cripe v. City of San Jose, 261 F.3d 877, 889 (9th Cir. 2001). Construing the complaint in a light 27 2 Because Defendants have not raised it, the Court does not decide, at this stage, any other issues related to 28 a prima facie case, such as whether the requested accommodations were reasonable. 1 most favorable to Plaintiff, he alleges that if he were accommodated with certain restrictions at 2 work and given additional unpaid leave of absence to pursue medical treatment, he would have 3 been able to perform or return to his job. 4 For example, after citing Dr. Rose’s report stating that Plaintiff could return to work 5 “provided he does not work above ground level, around open bodies of water or around active 6 machinery, he should avoid unusual light fixtures and he needs to be wearing hearing protection 7 around any noisy environments until September 9, 2015,” Plaintiff indicates in subsequent 8 paragraphs that this was one of the “accommodations requests [that] had been made” to 9 Defendant. (ECF No. 32, p. 10; see also p. 11) (“On June 22, 2015 I wrote a letter to County 10 Management requesting that they honor my requests for these reasonable accommodations and to 11 engage with me in an interactive process, and received no response. I expressed my concerns, I 12 included a copy of Dr. Rose’s [qualified medical examiner] report stating ‘I had restrictions 13 placed on work until September 9, 2015’ and I requested that the accommodation be honored.”) 14 (emphasis added); cf. Yonemoto v. McDonald, 114 F. Supp. 3d 1067, 1111, 1122 (D. Haw. 2015), 15 aff’d sub nom. Yonemoto v. Shulkin, 725 F. App’x 482 (9th Cir. 2018) (concluding that Plaintiff’s 16 use of headphones to reduce noise was a reasonable accommodation under the Rehabilitation Act, 17 which incorporates provisions of the ADA in analyzing workplace discrimination claims). 18 As another example, Plaintiff states that he requested leave to pursue medical treatment: 19 “On December 30, 2015, I was seen by Dr. Mohamed and he presented to the County an official, 20 extended medical leave requesting my evaluation by the neurologist be completed and removing 21 me from work duties until this evaluation was complete.” (ECF No. 32, p. 12) (emphasis added). 22 And Plaintiff sufficiently alleges that, if his request for extended leave had been granted, he 23 would have been able to return to work and perform the essential functions of his job: “I allege 24 that if the County would have honored and acknowledged all the requested reasonable 25 accommodations, requests for an interactive process and leave of absences while I was awaiting 26 treatment I could have returned to my previous job . . . .” (Id. at 13) (emphasis added); see 27 Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1135–36 (9th Cir. 2001) (“A leave of absence 28 for medical treatment may be a reasonable accommodation under the ADA. See 29 C.F.R. 1630 1 app. § 1630.2(o). We have held that where a leave of absence would reasonably accommodate an 2 employee’s disability and permit him, upon his return, to perform the essential functions of the 3 job, that employee is otherwise qualified under the ADA.”). 4 Therefore, Plaintiff has sufficiently alleged he is a qualified individual. 5 B. Failure to Engage in Interactive Process 6 Defendant argues that it is not liable for failing to engage in the interactive process 7 because Plaintiff has not alleged that he is a qualified individual and that “[t]here is no 8 independent cause of action under the ADA for failure to engage in an interactive process.” (ECF 9 No. 33-1 at 6; see also p. 8). The Ninth Circuit has discussed the ADA’s requirement to engage in 10 the interactive process: [A]n employer has a mandatory obligation to engage in an interactive process 11 with employees in order to identify and implement appropriate reasonable 12 accommodations, which can include reassignment. . . . Importantly, however, an employer is obligated to engage in the interactive process only if the individual is 13 otherwise qualified. 14 Anthony v. Trax Int’l Corp., 955 F.3d 1123, 1134 (9th Cir. 2020) (cleaned up, citations omitted, 15 and emphasis added). 16 As discussed above, Plaintiff has sufficiently alleged he is a qualified individual. 17 However, “there exists no stand-alone claim for failing to engage in the interactive process. 18 Rather, discrimination results from denying an available and reasonable accommodation.” Snapp 19 v. United Transportation Union, 889 F.3d 1088, 1095 (9th Cir. 2018). Accordingly, to the extent 20 that Plaintiff’s complaint brings failure to engage in the interactive process as a stand-alone claim, 21 the Court recommends that the claim be dismissed.3 22 C. Failure to Accommodate 23 “To establish a prima facie case for failure to accommodate under the ADA, [Plaintiff] 24 must show that (1) [Plaintiff] is disabled within the meaning of the ADA; (2) [Plaintiff] is a 25 qualified individual able to perform the essential functions of the job with reasonable 26 accommodation; and (3) [Plaintiff] suffered an adverse employment action because of [his] 27 3 Plaintiff may still rely on the failure to engage in the interactive process as part of his other claims, including for 28 employment discrimination and failure to accomodate. 1 disability.” Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) 2 (internal quotation marks and citation omitted). 3 As before, Defendant argues that Plaintiff has not alleged that he is a qualified individual. 4 (ECF No. 33-1, p. 9). However, for the reasons given above, Plaintiff has sufficiently alleged that 5 he is a qualified individual. 6 D. Retaliation 7 “To establish a prima facie case of retaliation under the ADA, an employee must show 8 that: (1) he or she engaged in a protected activity; (2) suffered an adverse employment action; and 9 (3) there was a causal link between the two.” Garity v. APWU Nat’l Labor Org., 828 F.3d 848, 10 863 n. 16 (9th Cir. 2016). “Pursuing one’s rights under the ADA constitutes a protected activity.” 11 Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 850 (9th Cir. 2004). “An adverse employment 12 action is any action “reasonably likely to deter employees from engaging in protected activity.” 13 Id. (quoting Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000)). 14 Plaintiff alleges that he “suffered adverse employment actions by the County, when they 15 refused to acknowledge the requests for accommodation to get me back to work in an appropriate, 16 timely manner.” (ECF No. 32, p. 18). True, “requesting a reasonable accommodation” is a 17 protected activity. LeBarron v. Interstate Grp., LLC, No. 2:19-cv-1739 JCM (DJA), 2021 WL 18 1177792, at *6 (D. Nev. Mar. 26, 2021). However, even assuming that the denial of a requested 19 accommodation is an adverse employment action, Plaintiff fails to allege any facts showing that 20 the denial of his requested accommodations occurred because he was exercising his rights under 21 the ADA. Rather, he offers only conclusory statements that are insufficient to state a claim, such 22 as the following: “There was a causal connection between my requests and the adverse actions of 23 the County throughout this entire experience.” (ECF No. 32, p. 18). 24 Moreover, Defendant argues that Plaintiff did not exhaust his retaliation claim because he 25 did not check the box on his EEOC charge for retaliation and his factual allegations concern a 26 failure to engage in the interactive process. (ECF No. 33-1 at 9). 27 An employee alleging disability discrimination under the ADA must exhaust his 28 administrative remedies before filing suit because Title I of the ADA incorporates the exhaustion 1 requirement of Title VII and thus requires a plaintiff to file a charge with the EEOC before 2 asserting a claim in court. See Abdul-Haqq v. Kaiser Found. Hosps., 669 F. App’x 462, 463 (9th 3 Cir. 2016) (unpublished) (citing Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th 4 Cir. 2002) (setting forth factors exhaustion requirement for Title VII claims); see also 42 U.S.C. 5 § 12117(a) (extending Title VII exhaustion requirement to ADA)). 6 The Ninth Circuit has discussed when a charge is exhausted: 7 The district court must examine both the EEOC charge and the EEOC investigation to determine if claims are exhausted. See EEOC v. Farmer Bros. 8 Co., 31 F.3d 891, 899 (9th Cir.1994). “The EEOC charge must be construed ‘with 9 the utmost liberality.’” Deppe v. United Airlines, 217 F.3d 1262, 1267 (9th Cir.2000) (quoting Farmer Bros., 31 F.3d 891 at 899). Exhausted claims include 10 those actually investigated as well as those which “would have been within the scope of a ‘reasonably thorough investigation.’” Farmer Bros., 31 F.3d at 899 n. 5 11 (citing and quoting Gibbs v. Pierce County Law Enforcement Support, 785 F.2d 1396, 1400 (9th Cir.1986)). This includes “new acts occurring during the 12 pendency of the charge before the EEOC.” Oubichon v. North American Rockwell 13 Corp., 482 F.2d 569, 571 (9th Cir.1973); see also Couveau v. American Airlines, Inc., 218 F.3d 1078, 1082 (9th Cir.2000) (applying principles in analogous FEHA 14 context). 15 Stephenson v. United Airlines, Inc., 9 F. App’x 760, 761–62 (9th Cir. 2001) (unpublished). 16 This is a fact-dependent determination: 17 In determining whether a plaintiff has exhausted allegations that she did not specify in her administrative charge, it is appropriate to consider such factors as 18 the alleged basis of the discrimination, dates of discriminatory acts specified within the charge, perpetrators of discrimination named in the charge, and any 19 locations at which discrimination is alleged to have occurred. In addition, the court should consider plaintiff’s civil claims to be reasonably related to 20 allegations in the charge to the extent that those claims are consistent with the 21 plaintiff’s original theory of the case. 22 B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002), as amended (Feb. 20, 2002). 23 See also Studymire v. Bright Horizons Children’s Center, Inc. No. CV-09-1122 PHX DGC, 2010 24 WL 653459, at *3 (D. Ariz. Feb. 22, 2010) (after review of Ninth Circuit law, finding plaintiff 25 had not exhausted retaliation claim when she filed EEOC charge based on job discrimination but 26 she did not mention retaliation). 27 Plaintiff attached his EEOC charge to his SAC. (ECF No. 32, p. 21). The charge form 28 permits Plaintiff to check boxes indicating what the “discrimination [was] based on,” and Plaintiff 1 checked the box only for disability. (Id.). Plaintiff did not check the box for retaliation. (Id.). His 2 particular allegations state, in relevant part: 3 On June 8, 2014, I was injured on the job. After I was injured on the job I was placed on leave. I attempted to return to work with restrictions from my doctor, 4 but Respondent refused to engage in the interactive process and refused to allow me to return to work. On August 8, 2016, I was constructively discharged. 5 I believe that I have been discriminated against based on my disability in violation 6 of the Americans with Disabilities Act of 1990, as amended. 7 (Id.). 8 Thus, Plaintiff’s retaliation charge was not exhausted because he did not check the box for 9 retaliation and his factual allegations do not reference any retaliation. Moreover, Plaintiff has 10 failed to allege facts indicating that his EEOC charge was sufficient for a retaliation claim. 11 Therefore, the Court recommends that Defendant’s motion to dismiss be granted as to the 12 retaliation claim. 13 V. REQUEST FOR JUDICIAL NOTICE 14 Defendant requests for the Court to take judicial notice of certain documents filed in this 15 case and the record in Plaintiff’s workers’ compensation case. (ECF 33-2). The request should be 16 denied for multiple reasons. First, “[a] request for a court order must be made by motion,” with 17 the motion stating “with particularity the grounds for seeking the order.” Fed. R. Civ. P. 7(b)(1). 18 Here, Defendant filed a request, not a motion. Moreover, the request does not state with 19 particularity the grounds for seeking judicial notice; rather, it summarily asserts that the 20 documents “are essential to assessment of Defendant’s Motion and Plaintiff’s Second Amended 21 Complaint.” (Id. at 3). 22 Furthermore, it does not appear that the documents are essential to assessing the SAC. For 23 example, Defendant asks that the Court take judicial notice of the first amended complaint in this 24 case. However, the operative complaint is the SAC, not the first amended complaint. See Local 25 Rule 220 (noting that amended pleadings supersede earlier pleadings). And, as to the other 26 documents filed of record in this case, the Court does not need to take judicial notice of them— 27 Defendant only need cite to them. NovelPoster v. Javitch Canfield Grp., 140 F. Supp. 3d 954, 960 28 1 | (N.D. Cal. 2014) (“With the exception of the TRO application and order, I find that the 2 | documents submitted by defendants are not necessary to resolve this motion, and defendants’ 3 | request for judicial notice of those documents is DENIED AS MOOT. Defendants’ request for 4 | judicial notice of the TRO application and order is GRANTED, although defendants are advised 5 | for future reference that they need not seek judicial notice of documents previously filed in the 6 || same case. An accurate citation will suffice.”’). VIL FINDINGS AND RECOMMENDATIONS 8 Based on the foregoing, IT IS HEREBY RECOMMENDED as follows: 9 1. Defendant’s motion to dismiss (ECF No. 33) be denied as to Plaintiffs claims of 10 employment discrimination and failure to accommodate; 11 2. Defendant’s motion to dismiss (ECF No. 33) be granted as to Plaintiffs claims of 12 failure to engage in the interactive process‘ and retaliation; and 13 3. Defendant’s request for judicial notice (ECF No. 33-2) be denied. 14 These findings and recommendations will be submitted to the United States district judge 15 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one 16 | (21) days after being served with these findings and recommendations, either party may file 17 | written objections with the Court. The document should be captioned “Objections to Magistrate 18 || Judge’s Findings and Recommendations.” 19 The parties are advised that failure to file objections within the specified time may result 20 | inthe waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 21 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. 23 | Dated: _ July 22, 2021 [see ey UNITED STATES MAGISTRATE JUDGE 25 26 27 || * As discussed above, the dismissal of Plaintiff’s stand-alone claim for failure to engage in the interactive 38 process does not preclude him from relying on his allegations in the SAC complaint regarding another 1A