Catanghal v. Greyhound Lines Inc ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 GERALD DE LEON CATANGHAL, Case No. 1:22-cv-00961-EPG 11 Plaintiff, SCREENING ORDER 12 v. ORDER FOR PLAINTIFF TO: 13 GREYHOUND LINES, INC., (1) FILE A FIRST AMENDED COMPLAINT; OR 14 Defendant. (2) NOTIFY THE COURT THAT HE WISHES 15 TO STAND ON HIS COMPLAINT 16 (ECF NO. 1) 17 THIRTY (30) DAY DEADLINE 18 19 Plaintiff Gerald De Leon Catanghal, proceeding pro se and in forma pauperis, filed this action on August 2, 2022, under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112 20 et seq., and alleges that Defendant Greyhound Lines, Inc. has engaged in discriminatory 21 employment practices. Plaintiff further alleges Defendant has engaged in unfair labor practices 22 pursuant to 5 U.S.C. § 7116. The Court now screens Plaintiff’s complaint pursuant to 28 U.S.C. § 23 1915. 24 The Court has reviewed Plaintiff’s complaint and finds that Plaintiff fails to state any 25 cognizable claims. Plaintiff now has the following options as to how to move forward. Plaintiff 26 may file an amended complaint if he believes that additional facts would state a cognizable claim 27 or claims. If Plaintiff files an amended complaint, the Court will screen that amended complaint 28 1 in due course. Or Plaintiff may file a statement with the Court that he wants to stand on his 2 complaint and have it reviewed by the District Judge, in which case the Court will issue findings 3 and recommendations to the District Judge consistent with this order. 4 I. SCREENING REQUIREMENT The Court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 7 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 8 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 9 As Plaintiff is proceeding in forma pauperis (ECF No. 3), the Court may also screen the 10 complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that 11 may have been paid, the court shall dismiss the case at any time if the court determines that the 12 action or appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 13 1915(e)(2)(B)(ii). 14 A complaint is required to contain “a short and plain statement of the claim showing that 15 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 16 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 18 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient 19 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 20 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 21 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are 22 not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 23 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 24 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 25 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 26 pro se complaints should continue to be liberally construed after Iqbal). 27 \\\ 28 1 II. PLAINTIFF’S COMPLAINT 2 Plaintiff alleges as follows in his complaint: on or about November 19, 2021, Plaintiff 3 sought to resume working for Defendant Greyhound Lines, Inc. (Defendant) after being deemed 4 physically fit by his physician and receiving a three-month DOT1 license from the Department of Motor Vehicles. (ECF No. 1, at 6). Plaintiff submitted paperwork to that effect to supervisor 5 Nancy Pinedo. (Id.). Ms. Pinedo forwarded the documents to manager Kathy Hartman. Three 6 weeks later, Plaintiff was informed by Ms. Pinedo that he had to repeat his physical examination 7 because he went to the wrong medical facility. (Id.). Plaintiff was unable to secure an 8 appointment with the approved medical facility until January 5, 2022, at which time Plaintiff 9 underwent another physical examination and passed all medical tests. (Id.). Plaintiff received a 10 medical certification and a one-year DOT license from the DMV. (Id.). 11 Plaintiff submitted the paperwork regarding his medical clearance and DOT license to Ms. 12 Pinedo. (Id.). Several weeks later, Ms. Hartman instructed Ms. Pinedo to inform Plaintiff that 13 certain medical documents were missing. (Id.). Ms. Hartman requested that Plaintiff undergo the 14 physical examination for a third time. (Id.). Plaintiff filed a claim with the Equal Employment 15 Opportunity Commission and received a Notice of Right to Sue on May 2, 2022. (Id. at 6, 8-9). 16 Plaintiff has been unemployed since November 21, 2021. (Id. at 7). 17 Plaintiff generally alleges that he was subject to unfair and discriminatory treatment by 18 Defendant because of medical conditions, such as unstable blood pressure. (Id. at 4). Plaintiff 19 further alleges that Defendant subjected him to unequal terms and conditions of his employment 20 and that Defendant failed to accommodate Plaintiff’s disability. (Id.). Lastly, Plaintiff alleges 21 Defendant engaged in unfair labor practices.2 (Id.). 22 III. ANALYSIS 23 A. Legal Standards 1. Discrimination Under the ADA 24 A prima facie case of discrimination under the ADA requires a plaintiff to demonstrate: 25 26 1 The court assumes that “DOT” refers to the Department of Transportation. 27 2 Although Plaintiff’s complaint has checked the box on the Civil Cover Sheet for a class action under Federal Rule of Civil Procedure 23, the Court does not reach this issue as Plaintiff has not indicated that he is representing a class 28 of plaintiffs in this action. (ECF No. 1, at 10). 1 “(1) that [plaintiff] is disabled within the meaning of the ADA; (2) that [plaintiff] is a qualified 2 individual with a disability; and (3) that [plaintiff] was discriminated against because of [their] 3 disability.” Smith v. Clark County School Dist., 727 F.3d 950, 955 (9th Cir. 2013). “Disabled” 4 under the ADA means an individual with “[a] physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or 5 being regarded as having such an impairment . . . .” 42 U.S.C. § 12102(1). A qualified individual 6 is an “individual with a disability who, with or without reasonable accommodation, can perform 7 the essential functions of the employment position that such individual holds or desires.” Nunes v. 8 Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999) (quoting 42 U.S.C. § 12111(8)) 9 (internal quotation marks omitted). 10 Title I of the ADA prohibits discrimination “against a qualified individual on the basis of 11 disability in regard to job application procedures, the hiring, advancement, or discharge of 12 employees, employee compensation, job training, and other terms, conditions, and privileges of 13 employment.” Bates v. United Parcel Service, Inc., 511 F.3d 974, 988 (9th Cir. 2007) (quoting 42 14 U.S.C. § 12112(a)). This prohibition extends to requiring improper medical examinations. See 15 Equal Employment Opportunity Commission v. BNSF Railway Company, 902 F.3d 916, 922 (9th 16 Cir. 2018). “Under the ADA, employer medical inquiries are divided into three categories, each 17 with different rules: (1) inquiries conducted before employers make offers of employment; (2) 18 inquiries conducted after an offer of employment has been made but prior but to the 19 commencement of employment duties (employment entrance examinations); and (3) inquiries 20 conducted at any later point.” Id. (internal quotation marks omitted) (quoting Norman-Bloodsaw 21 v. Lawrence Berkeley Lab., 135 F.3d 1260, 1273 (9th Cir. 1998). The ADA rules for these 22 categories are quoted in relevant part below: 23 (d) Medical examinations and inquiries 24 (2) Preemployment 25 (A) Prohibited examination or inquiry 26 Except as provided in paragraph (3) [below], a covered entity3 shall 27 3 Employers are included under the definition of a “covered entity” within the scope and meaning of the ADA. See 42 28 U.S.C. §§ 12111(2), (5). For purposes of this screening, the Court assumes that Defendant is an employer within the 1 not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a 2 disability or as to the nature or severity of such disability. 3 (B) Acceptable inquiry 4 A covered entity may make preemployment inquiries into the 5 ability of an applicant to perform job-related functions. 6 (3) Employment entrance examination 7 A covered entity may require a medical examination after an offer 8 of employment has been made to a job applicant and prior to the commenced of the employment duties of such applicant, and may 9 condition an offer of employment on the results of such examination, if-- 10 11 (A) all entering employees are subjected to such an examination regardless of disability; 12 (B) information obtained regarding the medical condition of history 13 of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical 14 record, except that-- 15 (i) supervisors and managers may be informed regarding necessary 16 restrictions on the work or duties of the employee and necessary accommodations; . . . . 17 (C) the results of such examination are used only in accordance 18 with this subchapter. 19 (4) Examination and inquiry 20 (A) Prohibited examinations and inquiries 21 A covered entity shall not require a medical examination and shall 22 not make inquiries of an employee as to whether such employee is 23 an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job- 24 related and consistent with business necessity. 25 (B) Acceptable examinations and inquiries 26 A covered entity may conduct voluntary medical examinations, 27 meaning of the ADA. See Smith v. Greyhound Lines, Inc., No. 118CV01354LJOBAM, 2018 WL 6593365 (E.D. Cal. 28 Dec. 14, 2018) (plaintiff suing Greyhound Lines, Inc. as an employer). 1 including voluntary medical histories, which are part of an employee health program available to employees at the work site. A 2 covered entity may make inquiries into the ability of an employee to perform job-related functions. 3 4 (C) Requirement 5 Information obtained under subparagraph (B) [above] regarding the medical condition or history of any employee are subject to the 6 requirements of subparagraphs (B) and (C) of paragraph (3) 7 [above]. 8 42 U.S.C. §§ 12112(d)(2)-(4). 9 “Unlike examinations conducted at any other time, an employment entrance examination need not be concerned solely with the individual’s ability to perform job-related functions; nor 10 must it be job-related or consistent with business necessity . . . [h]owever, these examinations 11 must still be used in accord with the ADA and cannot violate the ADA’s generic disability 12 prohibitions set forth in § 12112(a).” BNSF Railway Company, 902 F.3d at 922. (emphasis in 13 original, internal quotation marks and citations omitted) (quoting Norman-Bloodsaw, 135 F.3d at 14 1273). 15 Additionally, federal regulations provide that individuals may not operate commercial 16 motor vehicles unless they are “medically certified as physically qualified to do so . . .” 49 C.F.R. 17 § 391.41(a)(1)(i); see also 49 C.F.R. §§ 391.43, 1630.13-1630.14 (specific provisions regarding 18 medical examinations, largely tracking the language of the ADA statutes). The physical 19 qualification standards require that the prospective driver “[h]as no current clinical diagnosis of 20 high blood pressure likely to interfere with his/her ability to operate a commercial motor vehicle 21 safely[.]” 49 C.F.R. § 391.41(b)(6). 22 B. Analysis of Plaintiff’s Complaint 23 Plaintiff alleges that he has a disability or perceived disability, described in the complaint 24 as a “health issue like unstable blood pressure.” (ECF No. 1, at 4). Plaintiff’s complaint appears 25 to allege that Defendant discriminated against him by requiring him to repeat a medical 26 examination a third time, despite Plaintiff’s DOT certifications from prior examinations. (Id. at 27 6). As discussed above, it is not unlawful under the ADA for employers to require medical 28 1 examinations in certain situations. Here, Plaintiff has alleged that he sought a job as a bus driver 2 working for Defendant, which does validly require a medical certification. (ECF No. 1, at 6); See 3 49 C.F.R. § 391.41(a)(1)(i) (one may not operate commercial motor vehicles without a medical 4 certification). Plaintiff appears to allege that Defendant violated the ADA by failing to accept his 5 medical certification. However, the facts alleged, even if true, would not establish a violation of 6 the ADA. Plaintiff alleges that the examination results were rejected because they were not 7 complete, either because they were conducted by the wrong professional or without the correct 8 paperwork. Such administrative requirements alone do not violate the ADA. 9 The facts alleged also do not establish that Plaintiff met the physical requirements of the 10 job. Although Plaintiff alleges that he “was already physically fit”, that he “passed all medical 11 tests”, and that he “was cleared” by a physician, Plaintiff also alleges that he has a “health issue 12 like unstable blood pressure.” (ECF No. 1, at 4, 6-7). As explained above, high blood pressure is a 13 disqualifying condition for commercial motor vehicle operators. 49 C.F.R. § 391.41(b)(6). 14 Accordingly, Plaintiff has not set forth a cognizable claim of discrimination under the 15 ADA. Should Plaintiff choose to amend his complaint, he should provide additional facts 16 regarding this claim including the results of the medical examinations and reasons given by 17 Defendant for rejecting the examinations. If Plaintiff is claiming he was discriminated based on 18 his disability, he should also include facts about that disability and why he believes Defendant has 19 discriminated against him due to that disability. 20 C. Failure to Accommodate Disability under the ADA 21 Under the ADA, “[d]iscrimination includes an employer’s not making reasonable 22 accommodations to the known physical or mental limitations of an otherwise qualified … 23 employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of its business.” Garcia v. Salvation Army, 918 F.3d 997, 1009- 24 1010 (9th Cir. 2019) (quoting U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 396 (2002) (internal 25 quotation marks omitted). A reasonable accommodation under the ADA includes “making 26 existing facilities used by employees readily accessible to and usable by individuals with 27 disabilities; and job restructuring . . . modified work schedules, reassignment to a vacant position 28 1 . . . appropriate adjustment or modifications of examinations, and other similar accommodations . 2 . . .” 42 U.S.C. § 12111(9)(A)-(B). 3 The only reference to an accommodation in Plaintiff’s complaint is where Plaintiff 4 checked the “failure to accommodate my disability” box on Form - Pro Se 7. (ECF No. 1, at 4). A conclusion without factual support is insufficient. Iqbal, 556 U.S. at 678. Plaintiff sets forth no 5 facts about an accommodation that was requested, denied, or otherwise not accommodated. 6 Accordingly, Plaintiff’s complaint fails to state a cognizable claim for failure to 7 accommodate his disability. If Plaintiff wishes to assert this claim in an amended complaint, he 8 should allege sufficient facts to establish, if true, that Plaintiff has a disability, Defendant had an 9 obligation to provide a reasonable accommodation, and Defendant failed to reasonably 10 accommodate that disability. 11 D. Unequal Terms and Conditions of Employment 12 “The ADA prohibits discrimination against a qualified individual with a disability in 13 regard to terms, conditions and privileges of employment.” Gribben v. United Parcel Service, 14 Inc., 528 F.3d 1166, 1169 (9th Cir. 2008) (citing 42 U.S.C. § 12112(a)). 15 The only reference in Plaintiff’s complaint to unequal terms and conditions of 16 employment is where he checked the box titled “unequal terms and conditions of my 17 employment” on Form – Pro Se 7. (ECF No. 1, at 4). However, Plaintiff has not stated sufficient 18 facts to show that he was discriminated against regarding the terms, conditions, and privileges of 19 his employment. 20 Accordingly, Plaintiff has not set forth a cognizable claim of unequal terms and conditions 21 of his employment. 22 E. Unfair Labor Practices 23 Unfair labor practices under 5 U.S.C. § 7116 apply to agencies and labor organizations. 5 U.S.C. § 7116(a)-(b). An “agency” means, with some exceptions, an “Executive agency.” 5 24 U.S.C. § 7103(3). A “labor organization” is defined as “an organization composed in whole or in 25 part of employees, in which employees participate and pay dues, and which has as a purpose the 26 dealing with an agency concerning grievances and conditions of employment . . . .” 5 U.S.C. § 27 7103(4). 28 1 The Civil Cover Sheet accompanying Plaintiff’s complaint indicates that the present 2 action is brought pursuant to 5 U.S.C. § 7116.4 (ECF No. 1, at 10). However, Plaintiff does not 3 allege that section 7116 is applicable to Defendant, i.e., that Defendant is an agency or labor 4 organization. See, e.g., American Federation of Government Employees, AFL-CIO (AFE), Council 147 v. Federal Labor Relations Authority, 203 F.3d 1272 (9th Cir. 2000) (considering 5 alleged unfair labor practices by federal agency); Karahalios v. Defense Language Institute 6 Foreign Language Center Presidio of Monterey, 534 F.Supp. 1202 (N.D. Cal. 1982) (federal 7 agency and union). 8 “Section 7116(a) lists unfair labor practices and provides that it shall be an unfair labor 9 practice for an agency … to otherwise fail or refuse to comply with any provision of this 10 chapter.” Montana Air Chapter No. 29, Ass’n of Civilian Technicians, Inc. v. Federal Labor 11 Relations Authority, 898 F.2d 753, 759 (9th Cir. 1990) (internal quotation marks omitted) 12 (quoting 5 U.S.C. § 7116(a)(8)); see also 5 U.S.C. § 7116(b) (listing unfair labor practices for 13 labor organizations). Under § 7116(a), it is an unfair labor practice for an agency, among other 14 things: 15 (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; 16 (2) to encourage or discourage membership in any labor 17 organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment; 18 19 (3) to sponsor, control, or otherwise assist any labor organization, other than to furnish, upon request, customary and routine 20 services and facilities if the services and facilities are also furnished on an impartial basis to other labor organizations 21 having equivalent status; 22 (4) to discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, or 23 petition, or has given any information or testimony under this 24 chapter; . . . . 25 5 U.S.C. §§ 7116(a)(1)-(4). 26 Under § 7116(b), it is an unfair labor practice for a labor organization, among other 27 4 The Court has not analyzed the sufficiency of Plaintiff’s complaint under another labor practice statute, e.g., the 28 National Labor Relations Act 29 U.S.C. § 151 et seq. 1 things: (1) to interfere with, restrain, or coerce any employee in the 2 exercise by the employee of any right under this chapter; 3 (2) to cause or attempt to cause an agency to discriminate against 4 any employee in the exercise by the employee of any right under this chapter; 5 (3) to coerce, discipline, fine, or attempt to coerce a member of the 6 labor organization as punishment, reprisal, or for the purpose of hindering or impeding the member’s work performance or 7 productivity as an employee or the discharge of the member’s 8 duties as an employee; 9 (4) to discriminate against an employee with regard to the terms or conditions of membership in the labor organization on the basis 10 of race, color, creed, national origin, sex, age, preferential or nonpreferential civil service status, political affiliation, marital 11 status, or handicapping condition; . . . . 12 5 U.S.C. §§ 7116(b)(1)-(4). 13 Plaintiff has not alleged facts that would violate these restrictions. Again, an employer 14 requiring a medical examination for an employee seeking to drive commercial motor vehicles is 15 not itself a violation of labor practices. 16 Accordingly, Plaintiff fails to state a cognizable claim of unfair labor practices. 17 IV. CONCLUSION AND ORDER 18 The Court finds that Plaintiff’s complaint fails to state any cognizable claims for the 19 reasons described above. Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “the court should freely give 20 leave [to amend] when justice so requires.” Accordingly, the Court will provide Plaintiff with 21 time to file an amended complaint curing the deficiencies identified above. Lopez v. Smith, 203 22 F.3d 1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to file an amended complaint within 23 thirty days. 24 If Plaintiff chooses to file an amended complaint, the amended complaint must allege 25 violations under the law as discussed above. Plaintiff should note that although he has been given 26 the opportunity to amend, it is not for the purpose of changing the nature of this suit or adding 27 unrelated claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 28 1 Plaintiff is advised that an amended complaint supersedes the original complaint, Lacey v. 2 | Maricopa County, 693 F.3d. 896, 907 n.1 (9th Cir. 2012) (en banc), and must be complete in 3 | itself without reference to the prior or superseded pleading, Local Rule 220. Therefore, in an 4 || amended complaint, as in an original complaint, each claim and the involvement of each 5 | defendant must be sufficiently alleged. The amended complaint should be clearly and boldly 6 titled “First Amended Complaint,” refer to the appropriate case number, and be an original signed 7 under penalty of perjury. 8 Alternatively, Plaintiff may choose to stand on this complaint, in which case the Court 9 will issue findings and recommendations to the District Judge recommending dismissal of the action consistent with this order. Based on the foregoing, it is HEREBY ORDERED that: 1. The Clerk of Court is directed to send Plaintiff a complaint for employment 12 discrimination form (Form - Pro Se 7); 13 2. Within thirty (30) days from the date of service of this order, Plaintiff shall either: a. File a First Amended Complaint; or 15 b. Notify the Court in writing that he wants to stand on his complaint. 16 3. Should Plaintiff choose to amend his complaint, Plaintiff shall caption the 17 amended complaint “First Amended Complaint” and refer to the case number 18 1:22-cv-00961-EPG; and 19 4. Failure to comply with this order may result in the dismissal of this action. 20 > IT IS SO ORDERED. 22 | Dated: _ November 7, 2022 [see ey 3 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 11