dela Cruz v. Brennan ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FERNANDO N. DELA CRUZ, Case No. 19-cv-01140-DMR 8 Plaintiff, ORDER ON MOTION TO DISMISS 9 v. SECOND AMENDED COMPLAINT 10 MEGAN BRENNAN, Re: Dkt. No. 39 11 Defendant. 12 Plaintiff Fernando N. dela Cruz, Jr., representing himself, filed a second amended 13 complaint against Megan Brennan, Postmaster General, alleging claims related to his previous 14 employment with the United States Postal Service (“USPS”). [Docket No. 38 (Second Amended 15 Complaint, “SAC”).] Defendant now moves to dismiss the SAC pursuant to Federal Rules of 16 Civil Procedure 8(a), 12(b)(1), and 12(b)(6). [Docket No. 39.] Plaintiff concurrently moves for 17 leave to add a claim to the SAC, which Defendant opposes. [Docket Nos. 42, 48.] 18 An attorney subsequently entered an appearance on behalf of Plaintiff and counsel 19 appeared for both parties at the February 13, 2020 hearing. For the following reasons, the motion 20 to dismiss is granted. Plaintiff’s motion for leave to add a claim to the SAC is granted. Any third amended complaint must be filed within 14 days of the date of this order. 21 22 I. BACKGROUND 23 A. Allegations in the SAC Plaintiff makes the following allegations in the SAC: Plaintiff worked as a letter carrier for 24 the USPS for over 15 years in Petaluma, California. SAC ¶ 8. On January 19, 2016, Plaintiff 25 reported to his supervisor, Ryan Goodman, that the vehicle he was driving had a defective signal 26 light. Due to poor weather conditions, Plaintiff believed that it was unsafe to continue using the 27 1 “severe stress and emotional distress.” Plaintiff consulted with his doctor, obtained a doctor’s 2 note and a prescription for medication for stress, and went on leave from January 19 to 29, 2016. 3 Plaintiff later discovered that Defendant “marked him AWOL” during that period. Id. at ¶¶ 9-11. 4 Plaintiff subsequently filed a grievance regarding his supervisors’ insistence that he “use a 5 defective car.” Id. at ¶ 12. 6 In March 2016, Postmaster Raj Ghoman and Goodman “harassed” Plaintiff by following 7 him when he was on his route and “imped[ing] his movements to prevent” Plaintiff from timely 8 delivering the mail. Id. at ¶ 13. In addition, they retaliated against Plaintiff by issuing a Letter of 9 Warning dated March 10, 2016, which “contained alleged violations of [USPS] procedures” by 10 Plaintiff. The alleged violations “were nitpicky, and they were acts which other employees 11 committed but for which other employees were not disciplined.” Id. at ¶ 14. The Letter of 12 Warning lists four examples of violations of various employee responsibilities by Plaintiff, and 13 states that one of his responsibilities is to “[k]eep physically and mentally fit to meet the 14 requirements of the job.” SAC Ex. 2. Plaintiff alleges that this statement “was in jest of 15 [Plaintiff’s] stress he suffered due to the January 19, 2016 incident” and accordingly “was 16 discriminatory against [Plaintiff] on the basis of his disability: stress for which [Plaintiff] had to 17 take stress leave and take medication.” SAC ¶ 15. Plaintiff submitted a written response to the 18 Letter of Warning on March 13, 2016. Id. at ¶¶ 16-17, Ex. 3. 19 Plaintiff requested bereavement leave in August 2016, which his supervisor denied. He 20 took the leave anyway. SAC ¶ 18. He also missed work in September 2016 due to back pain. Id. 21 at ¶ 19. On October 7, 2016, Plaintiff attended a “Joint Cooperation Process” meeting with his 22 manager, Sue Moore, during which she alleged that he “failed to follow instructions and failed to 23 be in regular attendance from January 2016 to the present,” referring to his January 2016 stress 24 leave, August 2016 bereavement leave, and September 2016 absence due to back pain. Id. at ¶ 20. 25 The same day, Plaintiff sent a letter to Postmaster Ghoman requesting a “Grievance Conference” 26 to discuss management’s alleged retaliation against him and violations of his “sick leave and 27 bereavement rights,” among other things. Id. at ¶ 21, Ex. 4. 1 was under investigation for manipulating Collection Point Management Systems (“CPMS”) scans 2 on two occasions. As part of the investigation, Moore interviewed Plaintiff on October 31, 2016. 3 Plaintiff alleges that Moore’s notes of the interview “contained inaccuracies” that she refused to 4 correct. SAC ¶ 23-24, Ex. 6. 5 On November 10, 2016, Plaintiff received a Notice of Removal effective December 23, 6 2016 based on alleged improper conduct, including placing false information in the CPMS system. 7 SAC ¶ 25, Ex. 7. Defendant subsequently ordered Plaintiff to return to work from December 20- 8 29, 2016, but he refused to sign a “Last Chance Agreement.” He was again suspended on 9 December 30, 2016 before being terminated effective January 18, 2017. Id. at ¶¶ 29-31. 10 Plaintiff alleges that in November 2016, a letter carrier “witnessed a female letter carrier, 11 Winne He, being assisted by her supervisor, Larry Lovejoy, in scanning parcel barcodes in photos 12 that Ms. He had taken on her smartphone versus in the address location,” which is “the exact thing 13 for which [Plaintiff] was being removed.” Id. at ¶ 30. 14 Plaintiff filed an EEO complaint alleging “retaliation based on prior EEO activity.” Id. at ¶ 15 33. 16 The SAC contains four claims for relief: 1) sex discrimination in violation of Title VII, 42 17 U.S.C. § 2000e; 2) retaliation for taking Family Medical Leave Act-protected leave, based on his 18 January 19-29, 2016 stress leave; 3) disability discrimination in violation of the Rehabilitation 19 Act, 29 U.S.C. § 791; and 4) retaliation in violation of Title VII. 20 B. Procedural History 21 Plaintiff filed a complaint against Defendant on February 28, 2019. He filed an amended 22 complaint (“FAC”) on August 15, 2019. Defendant moved to dismiss, and on November 4, 2019, 23 the court granted the motion. The court dismissed with prejudice Plaintiff’s Whistleblower 24 Protection Act and fraud claims. [Docket No. 37 (Nov. 4, 2019 Order).] It also dismissed 25 Plaintiff’s disability and sex discrimination claims with leave to amend, noting that Defendant 26 argued on reply that Plaintiff had failed to exhaust his administrative remedies as to those claims 27 before filing suit. The court warned Plaintiff that in amending the complaint, “he should be 1 EEO proceedings and thus were not administratively exhausted.” Id. at 5 n.2 (emphasis removed). 2 The court instructed Plaintiff to “plead his best case” in the SAC. Id. at 7. 3 Defendant now moves to dismiss the SAC. She argues that Plaintiff’s claims for sex 4 discrimination, disability discrimination, and Title VII retaliation must be dismissed because they 5 were not administratively exhausted and/or because they are insufficiently pleaded. She further 6 argues that Plaintiff’s new claim for FMLA retaliation should be dismissed because the court did 7 not grant him leave to add any new claims to the SAC. After Defendant filed her motion to 8 dismiss, Plaintiff moved for leave to add the FMLA retaliation claim to the SAC. 9 II. LEGAL STANDARDS 10 Defendant moves to dismiss Plaintiff’s SAC pursuant to Federal Rules of Civil Procedure 11 8(a), 12(b)(1), and 12(b)(6). Rule 8(a) provides that a pleading must contain “a short and plain 12 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 13 “[T]he short and plain statement must provide the defendant with fair notice of what the plaintiff’s 14 claim is and the grounds upon which it rests.” Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346 15 (2005) (quotation omitted). 16 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in 17 the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). 18 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all 19 of the factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) 20 (citation omitted), and may dismiss a claim “only where there is no cognizable legal theory” or 21 there is an absence of “sufficient factual matter to state a facially plausible claim to relief.” 22 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing 23 Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 24 2001)) (quotation marks omitted). A claim has facial plausibility when a plaintiff “pleads factual 25 content that allows the court to draw the reasonable inference that the defendant is liable for the 26 misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged 27 must demonstrate “more than labels and conclusions, and a formulaic recitation of the elements of 1 Papasan v. Allain, 478 U.S. 265, 286 (1986)); see Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 2 2001), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 3 2002). 4 Defendant also moves to dismiss Plaintiff’s sex and disability discrimination claims 5 pursuant to Rule 12(b)(1). A motion to dismiss filed pursuant to Rule 12(b)(1) is a challenge to 6 the court’s subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). A court will dismiss a party’s 7 claim for lack of subject matter jurisdiction “only when the claim is so insubstantial, implausible, 8 foreclosed by prior decisions of th[e Supreme] Court, or otherwise completely devoid of merit as 9 not to involve a federal controversy.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 10 (1998) (citation and quotation marks omitted); see Fed. R. Civ. P. 12(b)(1). The challenging party 11 may make a facial or factual attack challenging subject matter jurisdiction. White v. Lee, 227 F.3d 12 1214, 1242 (9th Cir. 2000). A facial challenge asserts that “the allegations contained in a 13 complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. 14 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In contrast, a factual attack disputes “the truth of the 15 allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id. at 1039. A 16 factual challenge permits the court to look beyond the complaint, without “presum[ing] the 17 truthfulness of the plaintiff’s allegations.” White, 227 F.3d at 1242 (citation omitted). Even the 18 presence of disputed material facts “will not preclude the trial court from evaluating for itself the 19 merits of jurisdictional claims.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) 20 (citations omitted). 21 Pro se pleadings must be liberally construed and “held to less stringent standards than 22 formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94. The Ninth Circuit has held that 23 “where the petitioner is pro se,” courts have an obligation, “particularly in civil rights cases, to 24 construe the pleadings liberally and to afford the petitioner the benefit of any doubt.” Bretz v. 25 Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). “However, a liberal interpretation of 26 a civil rights complaint may not supply essential elements of the claim that were not initially 27 pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). III. DISCUSSION 1 The court will first address Plaintiff’s sex discrimination, disability discrimination, and 2 retaliation claims before turning to Plaintiff’s motion for leave to add the FMLA retaliation claim 3 to the SAC. 4 A. Exhaustion of Administrative Remedies 5 Defendant moves pursuant to Rule 12(b)(1) to dismiss Plaintiff’s sex and disability 6 discrimination claims on the ground that the claims exceed the scope of the EEO proceedings. It 7 argues that the court lacks jurisdiction over these claims because he did not raise them in his EEO 8 charge and thus did not exhaust his administrative remedies as to the claims. 9 A federal employee must exhaust the administrative process required by statute before 10 filing an employment discrimination claim in federal court. Brown v. Gen. Servs. Admin., 425 11 U.S. 820, 832 (1976); Sommatino v. United States, 255 F.3d 704, 707 (9th Cir. 2001) (citing 42 12 U.S.C. § 2000e-16(c)); see also Leorna v. United States Dep’t of State, 105 F.3d 548, 550 (9th Cir. 13 1997) (individuals claiming disability discrimination under the Rehabilitation Act must exhaust 14 administrative remedies). “Under the Title VII statutory and regulatory scheme, a federal 15 employee must notify an EEO counselor of discriminatory conduct within 45 days of the alleged 16 conduct, and then, if the matter is not resolved, the employee may submit a formal administrative 17 complaint.” Sommatino, 255 F.3d at 708. “While not all administrative exhaustion requirements 18 are jurisdictional in nature, Ninth Circuit ‘case law holds that substantial compliance with the 19 presentment of discrimination complaints to an appropriate administrative agency is a 20 jurisdictional prerequisite.’” McCarthy v. Brennan, 230 F. Supp. 3d 1049, 1058 (emphasis in 21 original) (quoting Sommatino, 255 F.3d at 709). However, the Supreme Court recently clarified in 22 Fort Bend County, Texas v. Davis, 139 S. Ct. 1843, 1851 (2019), that “Title VII’s charge-filing 23 requirement is a processing one, albeit a mandatory one, not a jurisdictional prescription 24 delineating the adjudicatory authority of courts.” At least one court in this district has concluded 25 that in light of Fort Bend, Sommatino’s holding that “substantial compliance with the presentment 26 of discrimination complaints . . . is a jurisdictional prerequisite” is no longer good law, and that 27 “the administrative complaint requirement for Title VII claims by federal employees is not 1 jurisdictional.” Williams v. Wolf, 19-cv-00652-JCS, 2019 WL 6311381, at *6 (N.D. Cal. Nov. 25, 2 2019); see also Cloud v. Brennan, ---F. Supp. 3d---, 2020 WL 533003, at *7-8 (N.D. Cal. Feb. 3, 3 2020) (analyzing issue of administrative exhaustion for federal employee’s Title VII claims under 4 Rule 12(b)(6), citing Fort Bend and Williams). The court finds the analysis in Williams persuasive 5 and concludes that the issue of exhaustion of EEO administrative remedies is not jurisdictional. 6 However, Title VII’s charge-filing requirement remains a “mandatory processing rule,” and a 7 plaintiff “must allege compliance with that requirement . . . in order to state a claim on which 8 relief may be granted.” Williams, 2019 WL 6311381, at *6 (quoting Fort Bend, 139 S. Ct. at 9 1851) (internal quotation marks omitted). Therefore, the court will consider Defendant’s 10 administrative exhaustion arguments under a Rule 12(b)(6) standard. 11 In order to show substantial compliance with Title VII’s claim presentment requirements, 12 the allegations of a plaintiff’s judicial complaint must be “like or reasonably related to the 13 allegations” in an EEO complaint, “such that they would fall within ‘the scope of an EEOC 14 investigation which [could] reasonably be expected to grow out of the [administrative] charge of 15 discrimination.’” Id. (quoting Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990) (citations, 16 quotation marks, and emphasis omitted)). Further, courts “should consider [a] plaintiff’s civil 17 claims to be reasonably related to allegations in the charge to the extent that those claims are 18 consistent with the plaintiff’s original theory of the case.” B.K.B. v. Maui Police Dep’t, 276 F.3d 19 1091, 1100 (9th Cir. 2002). The Ninth Circuit has instructed courts to construe “EEOC charges . . 20 . with utmost liberality since they are made by those unschooled in the technicalities of formal 21 pleading.” Sosa, 920 F.2d at 1458. 22 Here, the SAC includes the following allegations about Plaintiff’s EEO charge. He “filed 23 a formal EEO complaint on February 3, 2017 on the basis of retaliation based on prior EEO 24 activity,” and the USPS EEO “accepted [Plaintiff’s] formal complaint as to the allegation” on 25 February 21, 2017. SAC ¶ 33. He further alleges that his complaint was dismissed on July 11, 26 2018, and that the Office of Federal Operations affirmed the dismissal on or about November 28, 27 2018. Id. Plaintiff did not attach his EEO complaint or any related documents to the SAC, but 1 this motion. [See Docket Nos. 39-1 (Davis Decl., Dec. 9, 2019) Ex. 1; 45 (dela Cruz Decl., Dec. 2 23, 2019) Exs. 1, 2.] Generally a district court may not consider any material beyond the 3 pleadings in ruling on a Rule 12(b)(6) motion. Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 4 1994). If “matters outside the pleading are presented to and not excluded by the court,” the court 5 must treat the motion as a Rule 56 motion for summary judgment. See Fed. R. Civ. P. 12(d). “A 6 court may, however, consider certain materials—documents attached to the complaint, documents 7 incorporated by reference in the complaint, or matters of judicial notice—without converting the 8 motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 9 908 (9th Cir. 2003). 10 Given the early stage of the litigation, the court declines to convert Defendant’s motion 11 into a motion for summary judgment. Instead, the court takes judicial notice of certain official 12 records from Plaintiff’s EEO proceedings pursuant to Federal Rule of Evidence 201; specifically, 13 Plaintiff’s 17-page formal EEO Complaint of Discrimination, received on February 3, 2017, which 14 is attached to Plaintiff’s declaration as Exhibit 1, and the six-page “Partial Acceptance/Partial 15 Dismissal of Formal EEO Complaint” dated February 21, 2017, which is attached to the Davis 16 declaration as a portion of Exhibit 1 (Docket No. 39-2 at ECF pp. 3-8). Under Rule 201, a court 17 may take judicial notice of “an adjudicative fact if it is ‘not subject to reasonable dispute.’” Khoja 18 v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018) (quoting Fed. R. Evid. 201(b)). 19 A fact is “not subject to reasonable dispute” if it is “generally known,” or “can be accurately and 20 readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 21 201(b). Neither party disputes the accuracy of these documents. While the court does not take 22 judicial notice of every assertion of fact within the documents, see Khoja, 899 F.3d at 999, it takes 23 judicial notice of Plaintiff’s own description of the discrimination he alleged in his EEO 24 complaint, along with the EEO Investigative Services Office’s description of the discrimination 25 allegation that it accepted for investigation. See Cloud, 2020 WL 533003, at *8 (judicially 26 noticing plaintiff’s references to sexual harassment in official records of EEO proceeding). 27 Plaintiff’s EEO complaint consists of a form entitled, “EEO Complaint of Discrimination 1 Discrimination You Are Alleging,” with check-off boxes next to eight categories of 2 discrimination, including sex, disability, and retaliation. Plaintiff checked off only the box for 3 “Retaliation (Specify Prior EEO Activity):” and under question 16, which has space for an 4 explanation or narrative of the alleged discrimination, Plaintiff wrote “Please See the Attached 5 Explanation.” The one-page “Attached Explanation for Question Number 16 of PS Form 2565” 6 states, “On March 9, 2016, I was retaliated by respondent of the above captioned case named RAJ 7 GHOMAN, postmaster of Petaluma Post Office because I filed a grievance, complaining about the 8 ‘Unsafe Order’ of the management to continue using a delivery vehicle whose emergency lights 9 were not working.” Plaintiff went on to describe the circumstances of the order to continue using 10 the vehicle, stating, “[l]ast October 26, 2016, I was retaliated again” by Ghoman in the form of an 11 indefinite suspension “because I made a grievance conference inviting him and [a union 12 representative] . . . , I wrote a letter to the Postmaster General of the U.S. Postal Service reporting 13 respondent’s abuse of authority . . . , and I answered the Letter of Warning issued to me and gave 14 it to supervisor SUE MOORE . . .” The remaining pages of the EEO complaint consist of copies 15 of Plaintiff’s communications with his union representatives, Ghoman, and the Postmaster 16 General, as well as communications from the USPS regarding Plaintiff’s employment. 17 Plaintiff did not check off the boxes to indicate that he was complaining of discrimination 18 based on sex or disability, and neither basis for discrimination is mentioned anywhere in his 19 explanation or the documents attached to his complaint. On February 21, 2017, the National EEO 20 Investigative Services Office issued a “Partial Acceptance/Partial Dismissal of Formal EEO 21 Complaint” that stated the following: 22 A portion of the complaint has been accepted for investigation: 23 Specific Issue(s): You allege discrimination based on Retaliation (Grievance activity) when: 24 2. On October 26, 2016, you were put on Emergency Placment [sic] 25 in an Off-Duty Status, and subsequently, on November 12, 2016, you were issued a Notice of Removal. 26 . . . 27 If you do not agree with the defined accepted issue(s), you must 1 Partial Acceptance/Partial Dismissal at 1-2. It also notified Plaintiff that the investigation would 2 not involve Plaintiff’s claim of retaliation based on Ghoman’s March 10, 2016 observation of 3 Plaintiff on his route and subsequent issuance of a Letter of Warning. Id. at 2. Therefore, no 4 claims of discrimination based on sex and/or disability were accepted for investigation. 5 In response, Plaintiff asserts that his “sex discrimination claim could reasonably be 6 expected to grow out of his original charge because the investigative file included testimony and 7 documents which made the claim apparent.” Opp’n 7. Specifically, he states that during the 8 investigation, he testified that “a letter carrier witnessed a female letter carrier, Winnie He, being 9 assisted by her supervisor in scanning parcel barcodes in photos which Ms. He had taken on her 10 smartphone versus in the address location.” Id. In support, he cites Exhibit 1 to his declaration, 11 which he describes as “a portion of the Investigative Summary of Plaintiff’s EEO Investigative 12 File.” Id. (citing dela Cruz Decl. Ex. 1). Exhibit 1 is a one-page document with the footer 13 “Investigative Summary, Page 14 of 16,” but only the page numbered 14 is attached to his 14 declaration. The document includes the following statement: 15 Comparator testified that Comparator Winny He was treated more favorably than Complainant when Comparator brought photocopied 16 barcodes to the supervisor for assistance. Complainant states both management and the union steward assisted Comparator in entering 17 the barcodes and no one was removed or placed in an emergency status. Comparator He has no past EEO filing. 18 dela Cruz Decl. Ex. 1. 19 Given that Exhibit 1 appears to be a portion of a larger document that is not in the record, 20 it does not appear appropriate to take judicial notice of the exhibit. Moreover, even if the court 21 could properly consider the document, it does not support Plaintiff’s argument. In addition to He, 22 the document lists a number of comparators who were purportedly treated more favorably than 23 Plaintiff, including at least three who appear to be men (Recto Devera, Giovanni Galvez, and Hai 24 (Sam) Liu). Moreover, Exhibit 1 does not even identify He’s sex. The court concludes that 25 Plaintiff’s identification of He as a comparator during the investigation of his EEO complaint does 26 not demonstrate that a sex discrimination claim could “reasonably be expected to grow out of” the 27 EEO complaint. See Sosa, 920 F.2d at 1456. Nothing in Plaintiff’s EEO complaint suggests that 1 Plaintiff was subjected to sex discrimination, and there is no evidence or argument that Plaintiff 2 challenged the scope of the investigation to include such an allegation. Accordingly, the court 3 concludes that Plaintiff failed to exhaust administrative remedies as to his sex discrimination 4 claim, since it was not presented to the agency for investigation and was not “like or reasonably 5 related to” the allegations he made in his EEO complaint. See Leong v. Potter, 347 F.3d 1117, 6 1122 (9th Cir. 2003). The sex discrimination claim is therefore dismissed with prejudice. 7 As to the disability discrimination claim, Plaintiff argues that he exhausted this claim 8 because he requested the following remedy in his EEO complaint: “management should pay all 9 my medical expenses due to pain and suffering.” EEO Complaint at 1. Further, he notes that in 10 his January 22, 2016 grievance, which was an attachment to his EEO Complaint, he wrote that 11 after Goodman’s instruction to continue using his allegedly defective vehicle, he “was terribly 12 stressed by this situation and felt I could not concentrate on working anymore” and “immediately 13 called my doctor on my way home and requested his immediate attention.” Id. at 3. In another 14 attachment to the EEO complaint, Plaintiff noted that “due to [the disagreement about the vehicle] 15 I felt sick and went to see my doctor and my doctor gave me a doctor’s note that I have to be on 16 stress leave for ten (10) days.” Id. at 7. According to Plaintiff, these references to his medical 17 expenses and medical condition “brought to light Plaintiff’s disability discrimination claim, 18 whether the agency chose to investigate additional claims or not.” Opp’n 8. 19 The court disagrees. Plaintiff’s mention of his “pain and suffering,” stress, and medical 20 treatment for the same in his EEO complaint are insufficient to give notice that he intended to 21 allege disability as a basis for a discrimination claim. A claim for disability discrimination under 22 the Rehabilitation Act is not “like or reasonably related to” the retaliation claim Plaintiff described 23 in his EEO complaint because it “relies on a different theory and a different statute.” See Leong, 24 347 F.3d at 1122 (comparing disability discrimination claim with Title VII claims). Specifically, 25 Plaintiff asserted in his EEO complaint that the USPS retaliated against him for complaining about 26 an order to continue using an unsafe vehicle. Although he asserted in his EEO complaint that his 27 supervisors’ actions caused him stress that necessitated medical attention and caused him to miss 1 medical condition. Further, references to stress or illness that cause an employee to miss work are 2 not equivalent to alleging the existence of a “disability” within the meaning of the Rehabilitation 3 Act, which defines disability as “(A) a physical or mental impairment that substantially limits one 4 or more of the major life activities of such individual, (B) a record of such an impairment, or (C) 5 being regarded as having such an impairment.” Walton v. U.S. Marshals Serv., 492 F.3d 998, 6 1005 (9th Cir. 2007) (citing 42 U.S.C. § 12102(2)). Therefore, the EEOC never investigated 7 disability discrimination, and such an investigation could not have been reasonably expected to 8 grow out of Plaintiff’s EEO complaint. See Leong, 347 F.3d at 1122 (“Nothing in Leong’s 9 affidavit would have led the EEOC to suspect that he was disabled or had been subjected to 10 disability discrimination.”). Accordingly, Plaintiff’s disability discrimination claim is dismissed 11 with prejudice. 12 B. Failure to State a Claim 13 Defendant next moves to dismiss Plaintiff’s fourth claim for unlawful retaliation in 14 violation of Title VII. Title VII provides in relevant part: 15 It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed 16 any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or 17 participated in any manner in an investigation, proceeding, or hearing under this subchapter. 18 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII, “a plaintiff 19 must demonstrate: (1) a protected activity; (2) an adverse employment action; and (3) a causal link 20 between the protected activity and the adverse employment action.” Cornwell v. Electra Cent. 21 Credit Union, 439 F.3d 1018, 1034-35 (9th Cir. 2006). The Ninth Circuit has held that to satisfy 22 the protected activity requirement, a plaintiff must either oppose conduct that he or she 23 “reasonably perceive[s] as discrimination under [Title VII]” or participate in an investigation or 24 proceeding regarding discrimination that is “reasonably perceived as discrimination prohibited by 25 Title VII.” Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988) (emphasis removed). 26 Defendant argues that Plaintiff has not stated a claim for Title VII retaliation because he 27 does not allege any protected acts that have a nexus to Title VII. The SAC lists the following 1 protected activities: a) opposing an order to continue driving an unsafe vehicle; b) taking leave for 2 stress caused by the order to drive an unsafe vehicle; c) filing a grievance regarding the order to 3 drive an unsafe vehicle; d) sending a letter to management “opposing unlawful acts, such as 4 harassment, intimidation, retaliation on March 9, 2016 during his delivery; and an unwarranted, 5 discriminatory and retaliatory Letter of Warning dated March 10, 2016; a violation of the Civil 6 Rights Act of 1964 and ELM sections”; e) requesting a Grievance Conference and informing 7 management and the Postmaster General that “management were violating his rights, intimidating 8 him, and fabricating statements against him . . . and that he was going to file administrative agency 9 complaints if management continued to ignore him; f) filing another grievance on October 16, 10 2016 and informing the Postmaster General about management’s “violations, harassment and 11 intimidation of him through unwarranted discipline”; g) opposing an investigative interview in 12 which he was denied an interpreter; h) filing a Step A grievance on December 7, 2016; i) opposing 13 a discriminatory and retaliatory Notice of Removal; and j) refusing to sign a Last Chance 14 Agreement which required Plaintiff to dismiss his administrative complaints, including his EEO 15 complaints. SAC ¶ 76. According to Defendant, none of these activities involve opposition to 16 practices prohibited by Title VII. For example, opposition to using a vehicle Plaintiff considered 17 unsafe is not opposition to an unlawful employment practice under Title VII, because that statute 18 is not a whistleblower statute protecting employees who report allegedly unsafe activity. 19 In response, Plaintiff asserts that the protected activities at issue include threats to file EEO 20 charges and refusal to sign a document that would result in the loss of the ability to file an EEO 21 charge, citing Gifford v. Atchison, Topeka & Santa Fe Ry. Co., 685 F.2s 1149, 1156 n.3 (9th Cir. 22 1982). Opp’n 4. In Gifford, the Ninth Circuit held that for purposes of a Title VII retaliation 23 claim, there is no distinction “between the filing of a[n EEO] charge which is clearly protected, 24 and threatening to file a charge.” 685 F.2d at 1156 n.3 (internal citation omitted). However, the 25 plaintiff in Gifford threatened to file, and after her termination did file, an EEO charge asserting 26 sex discrimination. Id. at 1151, 1156. Here, notwithstanding Plaintiff’s threats to file an EEO 27 charge, Plaintiff does not allege that he ever opposed any conduct that fell within the protection of 1 including in his eventual EEO complaint. Plaintiff also asserts that he repeatedly complained 2 about “harassment and intimidation” to management, and that his complaints followed stress 3 leave. Accordingly, he argues, he “opposed harassing and discriminatory treatment that he 4 experienced because of his disability.” Opp’n 5. Yet Title VII does not encompass disability 5 discrimination, and moreover, there is nothing in the SAC that suggests that Plaintiff ever 6 complained of harassment and intimidation based on his disability; to the contrary, in his EEO 7 complaint, he asserted that his supervisors’ actions were motivated by his complaints about his 8 vehicle. See EEO Complaint. 9 As noted, in order to establish protected activity under Title VII’s anti-retaliation 10 provision, Plaintiff must allege that he opposed conduct that he “reasonably perceive[d] as 11 discrimination under [Title VII]” or that he participated in an investigation or proceeding 12 regarding discrimination that is “reasonably perceived as discrimination prohibited by Title VII.” 13 Learned, 860 F.2d at 932 (emphasis removed). None of the activities Plaintiff identifies are based 14 on his opposition to discrimination or harassment on account of race, color, religion, sex, or 15 national origin, and Plaintiff’s eventual EEO complaint did not reference discrimination based on 16 any category protected by Title VII. See id. (“The mere fact that an employee is participating in 17 an investigation or proceeding involving charges of some sort of discrimination . . . does not 18 automatically trigger the protection afforded under [42 U.S.C. § 2000e-3]; the underlying 19 discrimination must be reasonably perceived as discrimination prohibited by Title VII.”). 20 Accordingly, he has failed to allege a Title VII retaliation claim. See id. (affirming summary 21 judgment on Title VII retaliation claim where plaintiff did not allege discrimination prohibited by 22 Title VII or that he opposed such discrimination). As Plaintiff has already been given one 23 opportunity to amend his complaint to state such a claim, the court dismisses the Title VII 24 retaliation claim with prejudice. 25 C. FMLA Retaliation 26 Finally, Defendant asks the court to dismiss Plaintiff’s new claim for FMLA retaliation 27 because the court did not grant him leave to add any new claims to the SAC. Specifically, in 1 attempt to fix his ADA and sex discrimination claims. . .” Nov. 4, 2019 Order at 7. She also 2 states that to the extent the court construes the inclusion of the FMLA retaliation claim in the SAC 3 as a request to add a new claim, she opposes such a request on the basis of delay, futility, and the 4 fact that Plaintiff has already amended his complaint. Mot. 8. 5 As noted, after Defendant filed her motion to dismiss, Plaintiff filed a motion pursuant to 6 Rule 15(a) for leave to add the FMLA retaliation claim to the SAC, which Defendant opposes. 7 [Docket Nos. 42, 48.] Given the pending motion to amend, the court will analyze the claim under 8 Rule 15(a). 9 Under Federal Rule of Civil Procedure 15(a), leave to amend should be granted as a matter 10 of course, at least until the defendant files a responsive pleading. Fed. R. Civ. P. 15(a)(1). After 11 that point, Rule 15(a) provides generally that leave to amend the pleadings before trial should be 12 given “freely . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This policy is to be applied 13 with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 14 2003) (quotation omitted). In the absence of an “apparent” reason, such as undue delay, bad faith 15 or dilatory motive, prejudice to the opposing party, futility of the amendments, or repeated failure 16 to cure deficiencies in the complaint by prior amendment, it is an abuse of discretion for a district 17 court to refuse to grant leave to amend a complaint. Foman v. Davis, 371 U.S. 178, 182 (1962); 18 Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999). These factors do 19 not “merit equal weight,” and “it is the consideration of prejudice to the opposing party that carries 20 the greatest weight.” Eminence Capital, 316 F.3d at 1052. “Granting leave to amend does not 21 necessarily mean that the underlying allegations ultimately have merit.” FlatWorld Interactives 22 LLC v. Apple Inc., 12-CV-01956-WHO, 2013 WL 6406437, at *3 (N.D. Cal. Dec. 6, 2013). 23 “Rather, ‘[a]bsent prejudice, or a strong showing of any of the remaining [ ] factors, there exists a 24 presumption under Rule 15(a) in favor of granting leave to amend.’” Id. (quoting Eminence 25 Capital, 316 F.3d at 1052). 26 Plaintiff’s FMLA retaliation claim is based on the following allegations: Goodman’s order 27 to Plaintiff to continue using an unsafe vehicle caused Plaintiff “severe stress.” Plaintiff consulted 1 him take stress leave from January 19-29, 2016.” SAC ¶¶ 50-51. Plaintiff alleges that he was 2 qualified for FMLA leave at the time he went on stress leave and thus “took FMLA-protected 3 leave.” Plaintiff notified Defendant of the leave and provided his doctor’s note, and Defendant 4 “engaged in a campaign of harassment and retaliation because Plaintiff took FMLA-protected 5 leave,” including “stalking Plaintiff while Plaintiff tried to deliver mail,” issuing a Notice of 6 Warning, investigating and interviewing Plaintiff, suspending, and terminating Plaintiff. Id. at ¶ 7 53. 8 Defendant argues that the court should deny Plaintiff leave to add the FMLA retaliation 9 claim because it is futile. Specifically, Defendant asserts that Plaintiff has not adequately alleged 10 the elements of such a claim and that the claim is time-barred. 11 The FMLA makes it unlawful for any covered employer to “interfere with, restrain, or 12 deny the exercise of or the attempt to exercise” an eligible employee’s right to protected FMLA 13 leave. 29 U.S.C. § 2615(a). The FMLA creates “two interrelated substantive rights”: (1) the 14 “right to use a certain amount of leave for protected reasons,” and (2) the “right to return to his or 15 her job or an equivalent job after using protected leave.” Bachelder v. Am. W. Airlines, 259 F.3d 16 1112, 122 (9th Cir. 2001) (citation omitted). An employer may violate the latter right if it 17 “interfere[s] with, restrain[s] den[ies] an employee’s exercise or attempt to exercise those rights . . 18 . or retaliate[s] or discriminate[s] against an employee . . . for participating in FMLA proceedings 19 or inquiries.” Bonzani v. Shinseki, No. CIV S–11–0007 EFB, 2011 WL 4479758, at *6 (E.D. Cal. 20 Sept. 26, 2011). 21 For an employee to state a claim for FMLA retaliation, FMLA leave must be at issue. The 22 FMLA provides that “an eligible employee shall be entitled to a total of 12 work-weeks of leave 23 during any 12–month period . . . [b]ecause of a serious health condition that makes the employee 24 unable to perform the functions of the position of such employee.” 26 U.S.C. § 2612(a)(1). A 25 serious health condition is “an illness, injury, impairment, or physical or mental condition that 26 involves (A) in patient care in a hospital, hospice, or residential medical care facility; or (B) 27 continuing treatment by a heath care provider.” 29 U.S.C. § 2611(11). 1 analyzed as an interference claim under section 2651(a)(1).” Rivera v. FedEx Corp., No. C 12- 2 1098 PJH, 2013 WL 6672401, at *6 (N.D. Cal. Dec. 18, 2013 (citing Bachelder, 259 F.3d at 3 1124); see also Xin Liu v. Amway Corp., 347 F.3d 1125, 1133 n.7 (9th Cir. 2003) (“§ 2615(a)(2) 4 applies only to employees who oppose employer practices made unlawful by FMLA, whereas, § 5 2615(a)(1) applies to employees who simply take FMLA leave and as a consequence are subjected 6 to unlawful actions by the employer.”). To state a claim for interference, a plaintiff must allege 7 the following: (1) he is an eligible employee; (2) his employer is covered under the FMLA; (3) he 8 was entitled to take leave; (4) he gave notice of his intention to take leave; and (5) the defendant 9 denied him the benefits to which he was entitled under the FMLA. Sanders v. Newport, 657 F.3d 10 772, 778 (9th Cir. 2011). An action under FMLA must be brought “not later than 2 years after the 11 date of the last event constituting the alleged violation for which the action is brought.” 29 U.S.C. 12 § 2617(c)(1). 13 As discussed at the hearing, the SAC does not sufficiently allege an FMLA interference 14 claim. Although the SAC alleges that Plaintiff was “qualified for” FMLA leave at the time he 15 went on stress leave, SAC ¶ 51, it does not allege that Plaintiff’s employer is covered under the 16 FMLA or that he was an eligible employee at the time of his leave. Importantly, the SAC does not 17 allege facts sufficient to support the inference that he suffered from a “serious health condition” 18 that qualified for FMLA leave. As noted, a serious health condition is “an illness, injury, 19 impairment, or physical or mental condition that involves (A) in patient care in a hospital, hospice, 20 or residential medical care facility; or (B) continuing treatment by a heath care provider.” 29 21 U.S.C. § 2611(11). For the FMLA to cover outpatient treatment, the condition at issue must 22 involve either a period of incapacity of at least 3 consecutive days and treatment two or more 23 times by a provider, or a chronic serious health condition that results in a period of 24 incapacity. Marchisheck v. San Mateo Cty., 199 F.3d 1068, 1074 (9th Cir. 1999) (citations 25 omitted). “Incapacity” is defined as “inability to work, attend school or perform other regular 26 daily activities due to the serious health condition, treatment therefor, or recovery therefrom.” Id. 27 (citation omitted). 1 FMLA leave. The FMLA requires that an employee’s notice to his employer be “sufficient to 2 make the employer aware that the employee needs FMLA qualifying leave.” 29 C.F.R. § 3 825.302(c). “The critical question is whether the information imparted to the employer is 4 sufficient to reasonably apprise it of the employee’s request to take time off for a serious health 5 condition.” Lacayo v. Donahoe, No. 14-cv-04077-JSC, 2015 WL 3866070, at *7 (N.D. Cal. June 6 22, 2015) (quotation omitted). Here, Plaintiff alleges that “Defendant knew Plaintiff exercised his 7 right to take leave protected by the FMLA because Plaintiff notified Defendant of the leave and 8 provided Defendant with his doctor’s note regarding the leave.” SAC ¶ 52. This is insufficient to 9 allege that Defendant was on notice that Plaintiff was entitled to and sought FMLA qualifying 10 leave, because it provides no detail about when Plaintiff notified Defendant of his need to take 11 stress leave, what he told Defendant about the leave, when he provided Defendant with his 12 doctor’s note regarding the leave, and what the doctor’s note said. 13 Finally, as to the fifth element of an FMLA interference claim, Plaintiff must allege that 14 his taking of FMLA-protected leave constituted a negative factor in the decision to terminate 15 him. Bachelder, 259 F.3d at 1125. Here, the SAC includes the allegation that “Defendant 16 willfully terminated Plaintiff based in whole or in part on the fact that Plaintiff took FMLA- 17 protected leave.” SAC ¶ 55. This allegation is entirely conclusory. In order to allege this 18 element, Plaintiff must allege facts supporting his claim that his leave played a part in his 19 termination. 20 Leave to amend may be denied “where the amendment would be futile.” Gardner v. 21 Martino, 563 F.3d 981, 990 (9th Cir. 2009). Although the court has already granted Plaintiff leave 22 to amend his claims, the court’s previous order did not address an FMLA interference claim and 23 the court cannot say that amendment would be futile. Accordingly, the court will grant Plaintiff 24 one final opportunity to amend the complaint to state an FMLA interference claim.1 Any third 25 amended complaint is due within 14 days of the date of this order. Plaintiff is not granted leave to 26 27 1 As the court finds that Plaintiff has failed to state a claim for FMLA interference, it need not 1 assert any claims other than a FMLA claim in the third amended complaint. 2 || IV. CONCLUSION 3 For the foregoing reasons, Defendant’s motion to dismiss is granted. Plaintiffs sex 4 discrimination, disability discrimination, and Title VII retaliation claims are dismissed with 5 || prejudice. Plaintiff's motion to allege an FMLA interference claim is granted. Any third amended complaint is due within 14 days of the date of this order. 6 P y KS DISTRIG> 7 SS SO A) IT IS SO ORDERED. oy sO OR 9 || Dated: March 13, 2020 Z2/INi1r iS - 10 L> a4u. > Z. opti ff Ryay, Bye\ □□ 11 QU □ Sthee hy pny TC □□ 4d ] □□ □□ } ES © = 13 DISTRIC® 15 16 it 4 18 19 20 21 22 23 24 25 26 27 28