NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 18 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TATYANA EVGENIEVNA No. 19-16395

DREVALEVA,

D.C. No. 3:18-cv-03748-WHA Plaintiff-Appellant,

v. MEMORANDUM*

DEPARTMENT OF VETERANS

AFFAIRS; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding

Submitted November 9, 2020**

Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.

Tatyana Evgenievna Drevaleva appeals pro se from the district court’s

judgment dismissing her employment action alleging federal and state law claims.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Cervantes

v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th Cir. 2011). We may

affirm on any basis supported by the record. Thompson v. Paul, 547 F.3d 1055,

1058-59 (9th Cir. 2008). We affirm in part, reverse in part, and remand.

The district court properly dismissed Drevaleva’s claim that she was

discriminated against in violation of the Americans with Disabilities Act (“ADA”)

because the federal government is excluded from the coverage of the ADA. See 42

U.S.C. § 12111(5)(B) (stating that “[t]he term ‘employer’ does not include the

United States [or] a corporation wholly owned by the government of the United

States”).

Dismissal of Drevaleva’s Age Discrimination in Employment Act

(“ADEA”) claim was proper because Drevaleva failed to allege facts sufficient to

show that Drevaleva was discriminated against on the basis of her age. See

Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1050 (9th Cir. 2012) (setting

forth requirements for stating an ADEA claim).

The district court properly dismissed Drevaleva’s constitutional and state

law claims because federal employees are limited to using federal employment

laws to redress employment discrimination. See White v. Gen. Servs. Admin., 652

F.2d 913, 916-17 (9th Cir. 1981) (Title VII provides the exclusive judicial remedy

for claims of discrimination in federal employment); see also Ahlmeyer v. Nev. Sys.

2 19-16395 of Higher Educ., 555 F.3d 1051, 1054 (9th Cir. 2009) (the ADEA provides the

exclusive remedy for age discrimination); Vinieratos v. U.S., Dep’t of Air Force,

939 F.2d 762, 773 (9th Cir. 1991) (Title VII provides the exclusive channel

through which Rehabilitation Act claims may be heard in federal court).

The district court dismissed Drevaleva’s Title VII claim because Drevaleva

failed to allege facts sufficient to establish a prima facie case of sex discrimination

on the basis of her fertility issues. However, Federal Rule of Civil Procedure 8(a),

not the McDonnell Douglas framework, provides the appropriate pleading standard

for reviewing a Rule 12(b)(6) motion in an employment discrimination action. See

Austin v. Univ. of Or., 925 F.3d 1133, 1136-37 (9th Cir. 2019) (citing Swierkiewicz

v. Sorema N.A., 534 U.S. 506, 511 (2002)). Drevaleva alleged that her supervisors

fraudulently concealed available leave options when she requested time off to

travel to Russia to continue her in vitro fertilization procedures in Russia, imposed

additional requirements on her application for leave without pay that were

inconsistent with the agency’s policies, and failed to provide a full explanation of

the reason for her leave to the medical staff responsible for approving the leave

request. At this early stage in the proceedings, these allegations are sufficient to

warrant proceeding to summary judgment. See Buckey v. County of Los Angeles,

968 F.2d 791, 794 (9th Cir. 1992) (review on a motion to dismiss is based on the

contents of the complaint, and factual allegations are taken as true); see also Costa

3 19-16395 v. Desert Palace, Inc., 299 F.3d 838, 855 (9th Cir. 2002) (the McDonnell Douglas

framework is a legal proof structure that is only relevant at the summary judgment

stage of a discrimination action). We therefore reverse the district court’s

dismissal of Drevaleva’s sex discrimination claim and remand for further

proceedings on this claim.

The district court dismissed Drevaleva’s Rehabilitation Act claim based on

the finding that an affidavit submitted by defendant Dunkelberger demonstrated

that Drevaleva’s requested accommodation for her alleged impairment in

reproductive functioning was denied for the legitimate reason of Drevaleva’s

failure to follow the proper procedure for requesting leave. However, Drevaleva

alleged that she was denied leave for her alleged disability and terminated even

though she made a proper request that was approved by her supervisor. Liberally

construed, these allegations, in conjunction with those discussed above with

respect to Drevaleva’s Title VII claim, are sufficient to warrant proceeding to

summary judgment. See Buckey, 968 F.2d at 794. We therefore reverse the

district court’s dismissal of Drevaleva’s Rehabilitation Act claim and remand for

further proceedings on this claim.

The district court did not abuse its discretion by denying Drevaleva’s first

post-judgment Federal Rule of Civil Procedure 60(b) motion because Drevaleva

failed to demonstrate any basis for such relief. See Sch. Dist. No. 1J, Multnomah

4 19-16395 Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262, 1263 (9th Cir. 1993) (setting forth

standard of review and grounds for reconsideration under Rule 60).

The district court properly concluded that it lacked jurisdiction to entertain

Drevaleva’s second Rule 60(b) motion to vacate, which was filed after the notice

of appeal became effective, thereby depriving the district court of its jurisdiction.

See Fed. R. App. P. 4(a)(4)(B)(ii) (notice of appeal becomes effective when the

order disposing of the last remaining tolling motion is entered); see also Williams

v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004) (vacating for lack of jurisdiction an

order denying a Rule 60(b) motion where the motion was filed after the notice of

appeal and movant did not follow the procedure for seeking a remand of the case

back to district court).

The district court did not abuse its discretion in denying Drevaleva’s motion

to appoint counsel. See Bradshaw v. Zoological Soc. of San Diego, 662 F.2d 1301,

1318 (9th Cir. 1981) (setting forth standard of review and the three factors relevant

to the exercise of the district court’s discretion).

We do not consider matters not specifically and distinctly raised in the

opening brief, or arguments and allegations raised for the first time on appeal. See

Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

In sum, we reverse the dismissal of Drevaleva’s sex discrimination claim

and failure-to accommodate claim, and remand for further proceedings as to these

5 19-16395 claims only. We affirm the dismissal of all other claims. In light of our

disposition, the district court should reconsider whether the appointment of counsel

is warranted.

All remaining pending motions and requests are denied.

The parties shall bear their own costs on appeal.

AFFIRMED in part; REVERSED in part; and REMANDED.

6 19-16395