Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 1 of 21 Page ID #:144 'O' 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CV 21-08885-RSWL-SK x 12 SHAYNE WALLACE, ORDER re: MOTION TO 13 Plaintiff,

DISMISS, MOTION TO STRIKE

14 v. [21], AND REQUEST FOR

JUDICIAL NOTICE [21-1]

15

LOUIS DEJOY, POSTMASTER

16 GENERAL OF THE UNITED

STATES POSTAL SERVICE, ET

17 AL., 18 Defendants. 19 20 Plaintiff Shayne Wallace (“Plaintiff”) brought the 21 instant Action against Defendant Louis DeJoy, the 22 Postmaster General of the United States Postal Service 23 (“Defendant”), alleging racial discrimination, gender 24 discrimination, retaliation, harassment, disability 25 discrimination, and failure to accommodate. Currently 26 before the Court is Plaintiff’s Motion to Dismiss, 27 Motion to Strike [21] (“Motion”), and Request for 28 1 Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 2 of 21 Page ID #:145

1 Judicial Notice [21-1].

2 Having reviewed all papers submitted pertaining to

3 this Motion, the Court NOW FINDS AND RULES AS FOLLOWS: 4 the Court GRANTS Defendant’s Motion to Dismiss with 5 leave to amend, DENIES Defendant’s Motion to Strike, and 6 GRANTS Defendant’s Request for Judicial Notice. 7 I. BACKGROUND 8 A. Factual Background 9 Defendant hired Plaintiff to be a city carrier 10 assistant in 2015. First Amended Complaint (“FAC”) ¶ 9, 11 ECF No. 19.1 Prior to September 19, 2019, Plaintiff 12 filed at least seven Equal Employment Opportunity 13 complaints (“EEO complaints”) against her supervisor and 14 Defendant. Id. ¶ 13. Plaintiff alleges that her 15 supervisor became aware of the EEO complaints and as a 16 result, intentionally and purposely retaliated and 17 harassed Plaintiff. Id. 18 Plaintiff references a now time-barred incident 19 occurring in 2019, and states that subsequent to this 20 incident, she “was again subjected to harassment, 21 retaliation, and discrimination by Defendant.” Id. 22 ¶ 12. 23 Plaintiff also asserts that “[d]uring this time 24 period,” she suffered from a “medical

25 1 It is unclear why there are two First Amended Complaint 26 entries on the docket [18 and 19]. The Court reviewed both filings and refers to the second filing as the FAC throughout 27 this Order. 28 2 Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 3 of 21 Page ID #:146

1 condition/disability” that included “panic attacks,

2 stress, and other symptoms,” and was placed on medical

3 leave. Id. ¶ 14. Defendant required Plaintiff to 4 submit medical leave documentation directly to her 5 supervisor. Id. Plaintiff alleges she submitted 6 medical leave documentation and that her supervisor 7 stopped accepting the documentation, wrote her up, 8 suspended her, attempted to terminate her, and forced 9 her to return from medical leave against her provider’s 10 orders. Id. 11 Next, Plaintiff states that on several occasions, 12 she requested Defendant reassign her to a different 13 facility so she could avoid her supervisor, but 14 Defendant failed to act. Id. ¶ 15. Plaintiff 15 eventually requested a civil restraining order against 16 her supervisor from the Los Angeles Superior Court. Id. 17 Plaintiff now alleges that she exhausted 18 administrative remedies for her current claims but did 19 not provide the date that she initiated Equal Employment 20 Opportunity Commission (“EEOC”) contact, nor the dates 21 of the alleged misconduct. Id. ¶ 8. Defendant contends 22 that Plaintiff initiated contact with the EEOC on July 23 7, 2020, so her allegations regarding incidents that 24 occurred prior to May 23, 2020, are time-barred. Mot. 25 6:22-23, ECF No. 21 (citing Decl. of Haley 2:3-4, ECF 26 No. 21-2). 27 B. Procedural Background 28 Plaintiff filed her FAC [19] on July 29, 2022. 3 Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 4 of 21 Page ID #:147

1 Defendant filed the instant Motion [21] on August 12,

2 2022. Plaintiff opposed [22] the Motion on August 19,

3 2022. Defendant replied [23] on August 30, 2022. 4 II. DISCUSSION 5 A. Legal Standard 6 1. Motion to Dismiss 7 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) 8 allows a party to move for dismissal of one or more 9 claims if the pleading fails to state a claim upon which 10 relief can be granted. A complaint must “contain 11 sufficient factual matter, accepted as true, to state a 12 claim to relief that is plausible on its face.” 13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation 14 omitted). Dismissal is warranted for a “lack of a 15 cognizable legal theory or the absence of sufficient 16 facts alleged under a cognizable legal theory.” 17 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 18 (9th Cir. 1988) (citation omitted). 19 In ruling on a 12(b)(6) motion, a court may 20 generally consider only allegations contained in the 21 pleadings, exhibits attached to the complaint, and 22 matters properly subject to judicial notice. Swartz v. 23 KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007); see also 24 White v. Mayflower Transit, LLC, 481 F. Supp. 2d 1105, 25 1107 (C.D. Cal 2007), aff’d sub nom. White v. Mayflower 26 Transit, L.L.C., 543 F.3d 581 (9th Cir. 2008). (“unless 27 a court converts a Rule 12(b)(6) motion into a motion 28 for summary judgment, a court cannot consider material 4 Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 5 of 21 Page ID #:148

1 outside of the complaint (e.g., facts presented in

2 briefs, affidavits, or discovery materials”).

3 A court must presume all factual allegations of 4 the complaint to be true and draw all reasonable 5 inferences in favor of the non-moving party. Klarfeld 6 v. United States, 944 F.2d 583, 585 (9th Cir. 1991). 7 “[T]he issue is not whether a plaintiff will ultimately 8 prevail but whether the claimant is entitled to offer 9 evidence to support the claims.” Jackson v. Birmingham 10 Bd. of Educ., 544 U.S. 167, 184 (2005) (quoting Scheuer 11 v. Rhodes, 416 U.S. 232, 236 (1974)). While a complaint 12 need not contain detailed factual allegations, a 13 plaintiff must provide more than “labels and 14 conclusions” or “a formulaic recitation of the elements 15 of a cause of action.” Bell Atl. Corp. v. Twombly, 550 16 U.S. 544, 555 (2007). However, “a well-pleaded 17 complaint may proceed even if it strikes a savvy judge 18 that actual proof of those facts is improbable, and 19 ‘that a recovery is very remote and unlikely.’” Id. at 20 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 21 (1974)). 22 2. Motion to Strike 23 Under Federal Rule of Procedure 12(f), the Court 24 may, by motion or sua sponte, strike “an insufficient 25 defense or any redundant, immaterial, impertinent or 26 scandalous matter” from the pleadings. The purpose of 27 12(f) is “to avoid the expenditure of time and money 28 that must arise from litigating spurious issues by 5 Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 6 of 21 Page ID #:149

1 dispensing with those issues prior to trial.”

2 Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973

3 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 4 F.2d 1524, 1527 (9th Cir. 1993)). “Immaterial” matters 5 have no bearing on the controversy. See Fantasy, 6 984 F.2d at 1527. “Motions to strike are generally 7 disfavored.” Leghorn v. Wells Fargo Bank, N.A., 950 F. 8 Supp. 2d 1093, 1122 (N.D. Cal. 2013) (citation omitted); 9 see also Sapiro v. Encompass Ins., 221 F.R.D. 513, 518 10 (N.D. Cal. 2004) (“Courts have long disfavored Rule 11 12(f) motions, granting them only when necessary to 12 discourage parties from making completely tendentious or 13 spurious allegations.”). “If there is any doubt as to 14 whether the allegations might be an issue in the action, 15 courts will deny the motion.” In re 2TheMart.com, Inc. 16 Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000). 17 The grounds for a motion to strike must appear on 18 the face of the pleading under attack or from matters 19 which the court may judicially notice. SEC v. Sands, 20 902 F. Supp. 1149, 1165 (C.D. Cal. 1995). In addition, 21 the Court must view the pleadings in the light most 22 favorable to the pleading party. In re 2TheMart.com, 23 Inc. Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 24 2000). As a result, motions to strike are infrequently 25 granted. Freeman v. ABC Legal Servs., Inc., 877 F. 26 Supp. 2d 919, 923 (N.D. Cal. 2012). “[C]ourts 27 frequently require the moving party to demonstrate 28 prejudice before granting the requested relief, and 6 Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 7 of 21 Page ID #:150

1 ultimately whether to grant a motion to strike falls on

2 the sound discretion of the district court.” Cook v.

3 Cnty. of Los Angeles, No. CV 19-2417 JVS (KLSx), 2021 WL 4 1502704, at *2 (C.D. Cal. Mar. 31, 2021) (internal 5 quotation marks and citation omitted). 6 If a claim is stricken, leave to amend should be 7 freely given when doing so would not prejudice the 8 opposing party. Vogel v. Huntington Oaks Del. Partners, 9 LLC, 291 F.R.D. 438, 440 (C.D. Cal. 2013) (citing Wyshak 10 v. City Nat’l Bank, 607 F.2d 824, 826 (9th Cir. 1979)). 11 B. Analysis 12 1. Judicial Notice 13 Defendant requests the Court take judicial notice 14 of the EEO Alternative Dispute Resolution Specialist 15 Inquiry Report and the Letter of Acceptance for 16 Investigation for Agency Case Number 4F-900-0247-20. 17 See Def.’s Req. for Judicial Notice, ECF No. 21-1; Decl. 18 of Marissa Haley, Exs. 1 and 2, ECF No. 21-2. Plaintiff 19 asserts that Defendant’s Request for Judicial Notice “is 20 an incomplete and partial representation of Plaintiff’s 21 EEO Complaint,” but fails to specify how it is partial 22 or incomplete. Pl.’s Opp’n to Mot. (“Opp’n.”) 2:23-26. 23 Plaintiff also provides an EEO Complaint dated October 24 14, 2020, a Notice of Right to File Individual Complaint 25 for Case Number 4F-900-0247-20, and an EEO Alternative 26 Dispute Resolution Specialist’s Inquiry Report for Case 27 Number 4F-900-0247-20 (collectively, the “EEOC Charge”). 28 See Decl. of Christopher Ellison (“Decl. of Ellison”), 7 Case 2°-21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 8 of 21 Page ID#:151

1] Exs. D and EK, ECF No. 22-2. 2 A court may take judicial notice of “a fact that is 3 | not subject to reasonable dispute because it: (1) is 4] generally known within the court’s territorial 5 | jurisdiction; or (2) can be accurately and readily 6 | determined from sources whose accuracy cannot reasonably 7 | be questioned.” Fed. R. Evid. 201(b). Courts may also 8 | take judicial notice of administrative bodies’ records 9f and reports. Anderson v. Holder, 673 F.3d 1089, 1094 10 J n.1 (9th Cir. 2012). “This includes EEOC charges.” 11] Griggs v. Sacramento City Unified Sch. Dist., No. 2:20- 12 | CV-0O724-KJM-JDP, 2021 WL 1614405, at *1 (E.D. Cal. Apr. 13 4 26, 2021); accord Lacayo v. Donahoe, No. 14-CV-04077- 14] JSC, 2015 WL 993448, at *9 (N.D. Cal. Mar. 4, 2015) 15 | (holding that in employment discrimination cases, “it is 16 J well established that courts may consider the 17 | administrative record of a plaintiff’s claims before the 18 | EEOC as judicially noticeable matters of public 19 | record”); see also Dornell v. City of San Mateo, 19 F. 20 | Supp. 3d 900, 904 n.3 (N.D. Cal. 2013) (finding judicial 21 7 notice appropriate for EEOC charges as “public records 22 | whose accuracy is not in dispute”); Hellmann-Blumberg v. 23] Univ. of Pac., No. 2:12-CV-00286-GEB, 2013 WL 1326469, 24] at *1 (E.D. Cal. Mar. 29, 2013) (granting judicial 25 | notice of an EEOC right to sue letter and EEOC charge as 26] “public records subject to judicial notice”). 27 The Court takes judicial notice of the parties’ 28 | proffered documents because they constitute EEOC

Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 9 of 21 Page ID #:152

1 records, reports, and documentation and therefore are

2 judicially noticeable matters of public record. Thus,

3 for the current Motion, the Court may consider the EEOC 4 documents. See Swartz v. KPMG LLP, 476 F.3d at 763 (a 5 court may consider matters properly subject to judicial 6 notice when ruling on a 12(b)(6) motion); Hellman- 7 Blumberg, 2013 WL 1326469, at *4 (considering a 8 plaintiff’s factual statements and her EEOC Charge). 9 2. Motion to Dismiss 10 Defendant asserts that Plaintiff’s claims are 11 untimely and asks the Court to instruct Plaintiff to 12 provide dates of the alleged misconduct in the event 13 that the Court dismisses Plaintiff’s claims with leave 14 to amend. See generally Def.’s Mot. to Dismiss 15 (“Mot.”), ECF No. 21. Plaintiff counters that she has 16 only included untimely information to provide context, 17 but fails to specify which allegations are to be used 18 solely for context. See generally Opp’n. For the 19 foregoing reasons, the Court declines to determine 20 whether each of Plaintiff’s allegations are timely, and 21 instead DISMISSES Plaintiff’s claims with leave to amend 22 for failure to state a claim upon which relief can be 23 granted. 24 Plaintiff’s claims arise under Title VII and the 25 Rehabilitation Act. Title VII prohibits employment 26 practices that discriminate on the basis of race, color, 27 religion, sex, or national origin. 42 U.S.C. § 200e-16. 28 The Rehabilitation Act adopted the rights, remedies, and 9 Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 10 of 21 Page ID #:153

1 procedures of Title VII and made them applicable to

2 disabled persons. See 29 U.S.C. §794(a)(1).

3 Accordingly, the same EEOC regulations apply to claims 4 under Title VII and the Rehabilitation Act. 29 C.F.R. 5 § 1614.103(a). 6 Before filing Title VII and Rehabilitation Act 7 complaints in federal court, federal employees must 8 exhaust administrative remedies by consulting an EEO 9 counselor within forty-five days of the allegedly 10 unlawful conduct. See 29 C.F.R. § 1614.105(a); 11 Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 12 2001); Cherosky v. Henderson, 330 F.3d 1243, 1245 13 (9th Cir. 2003). “Failure to comply with this 14 regulation is ‘fatal’ to . . . a claim.” Cherosky, 15 330 F.3d at 1245 (quoting Lyons v. England, 307 F.3d 16 1092, 1105 (9th Cir. 2002)). 17 The Court can only assess claims that (1) were 18 alleged in the EEOC Charge and accepted for 19 investigation, (2) are reasonably related to the 20 allegations in the EEOC Charge, or (3) fall within an 21 investigation that can reasonably be expected to grow 22 out of the charges. Sommatino, 255 F.3d at 708 (9th 23 Cir. 2001). 24 Here, Plaintiff did not exhaust administrative 25 remedies for several allegations in her Complaint. See 26 FAC ¶¶ 11-12; Opp’n. 6:3-4. In fact, Plaintiff already 27 filed a claim pertaining to those allegations, and the 28 Honorable Dean D. Pregerson of the United States 10 Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 11 of 21 Page ID #:154

1 District Court for the Central District of California

2 dismissed the claim with prejudice for lack of subject

3 matter jurisdiction due to failure to exhaust 4 administrative remedies.2 See Decl. of Ellison, Ex. A, 5 ECF No. 22-2. Plaintiff still pled those incidents in 6 this Action, though she later conceded that “some of the 7 alleged harassing conduct occurred outside of the 8 statutory time period.” FAC ¶¶ 10-13; Opp’n. 6:3-4. 9 Accordingly, these prior incidents are not actionable, 10 and the Court’s discussion centers on her remaining 11 allegations. 12 Plaintiff exhausted her administrative remedies 13 with respect to only four discrete events that the EEOC 14 accepted for investigation. Decl. of Ellison, Ex. E, at 15 00011.3 Plaintiff’s allegations that are not clearly

16 2 Plaintiff received a Notice of Right to File her formal 17 EEO complaint on December 19, 2019, and had to file her complaint within fifteen days after receipt of the Notice. See Decl. of 18 Ellison, Ex. A at 3-4. Plaintiff proceeded to untimely file her EEO complaint on January 11, 2020. See id. And where “a 19 complainant fails to file a timely formal complaint, the complainant has failed to exhaust her administrative remedies.” 20 See Leorna v. U.S. Dep’t of State, 105 F.3d 548 (9th Cir. 1997). 21 Judge Pregerson therefore dismissed Plaintiff’s claims. See Decl. of Ellison, Ex. A. 22 3 The first discrimination claim stated that “management issued [Plaintiff] a Notice of Removal for Failure to Maintain 23 Regular Attendance” on June 15, 2020. Decl. of Ellison, Ex. E, 24 at 00011. Next, Plaintiff alleged that on July 7, 2020, Plaintiff’s “supervisor continued to harass her . . . based on 25 the supervisor’s personal agenda.” Id. Third, “management sent [Plaintiff] home for wearing . . . inappropriate uniform and 26 footwear” from September 15, 2020, through September 17, 2020. Id. Lastly, Plaintiff contended that “management failed to 27 accommodate her medical condition and physical disability” on an 28 unspecified date. Id. 11 Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 12 of 21 Page ID #:155

1 time-barred will only be deemed timely if they fall

2 within these four discrete events, relate to the events,

3 or are reasonably likely to be discovered in an 4 investigation of these events. Regardless of whether 5 Plaintiff’s allegations fall within, relate to, or would 6 be discovered in an investigation of these events, she 7 still has not pled plausible claims for relief. The 8 Court therefore declines to address whether Plaintiff 9 has exhausted her administrative remedies with respect 10 to her current allegations. The Court addresses 11 Plaintiff’s claims in turn. 12 a. Title VII Claims 13 i. Claims One and Two: Racial and Gender 14 Discrimination 15 To establish a prima facie disparate treatment 16 case, plaintiffs must offer evidence “(1) that they 17 [belong to] a protected class; (2) that they were 18 qualified for their positions and perform[ed] their jobs 19 satisfactorily; (3) that they experienced adverse 20 employment actions; and (4) that ‘similarly situated 21 individuals outside [their] protected class were treated 22 more favorably, or other circumstances surrounding the 23 adverse employment action give rise to an inference of 24 discrimination.’” Hawn v. Exec. Jet Mgmt., Inc., 25 615 F.3d 1151, 1156 (9th Cir. 2010) (quoting Peterson v. 26 Hewlett–Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)). 27 Each “adverse employment action[]” must be adequately 28 supported by “specific factual support.” Mohsin v. 12 Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 13 of 21 Page ID #:156

1 California Dep’t of Water Res., 52 F. Supp. 3d 1006,

2 1013-14 (E.D. Cal. 2014). A plaintiff can use either

3 direct or circumstantial evidence of discriminatory 4 intent to satisfy their prima facie burden. Godwin, 5 150 F.3d 1217, 1220 (9th Cir. 1998). 6 Importantly, a plaintiff is not required to plead a 7 prima facie case of discrimination to survive a motion 8 to dismiss. Sheppard v. David Evans & Assoc., 694 F.3d 9 1045, 1050 n.2 (9th Cir. 2012). Instead, courts look to 10 the elements of the prima facie case to decide, in light 11 of judicial experience and common sense, whether the 12 challenged complaint contains sufficient factual matter, 13 accepted as true, to state a claim for relief that is 14 plausible on its face. See id. 15 Here, the Court finds Plaintiff’s allegations are 16 insufficient to establish plausible discrimination 17 claims because her only possibly timely allegations lack 18 specific factual support. Plaintiff states that after 19 September 2019, she was subjected to “harassment, 20 retaliation and discrimination by Defendant.” Id. ¶ 13. 21 She also alleges that after her supervisor became aware 22 of the EEO complaints she filed prior to September 19, 23 2019, her supervisor became “more aggressive, harassing, 24 hostile, and retaliatory towards Plaintiff.” Id. But 25 Plaintiff “must plead factual content that allows the 26 [C]ourt to draw a reasonable inference that the 27 [D]efendant is liable for the misconduct alleged.” 28 Mohsin, 52 F. Supp. 3d at 1013-14; see also Iqbal, 13 Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 14 of 21 Page ID #:157

1 556 U.S. at 678 (“A pleading that offers ‘labels and

2 conclusions’” or “‘naked assertion[s]’ devoid of

3 ‘further factual enhancement’” fails to state a claim) 4 (quoting Twombly, 550 U.S. at 555-57). And here, 5 Plaintiff’s conclusory contentions are inadequate to 6 state a claim upon which relief can be granted under 7 Rule 12(b)(6). See Mohsin, 52 F. Supp. 3d at 1013-14 8 (finding bare allegations of defendant “retaliating” and 9 “refusing to provide” reasonable accommodations 10 insufficient to state a claim). 11 ii. Claim Three: Retaliation 12 To establish a prima facie retaliation claim, 13 federal employees must show (1) they engaged in 14 protected activity; (2) their employer subjected them to 15 an adverse employment action; (3) and a causal link 16 exists between the protected activity and the adverse 17 action. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 18 2000). The EEOC interprets adverse employment action as 19 any adverse treatment based on a retaliatory motive 20 reasonably likely to deter the party or others from 21 engaging in protected activity; accordingly, the Ninth 22 Circuit defines adverse employment action broadly. Id. 23 at 1240, 1243. 24 Here, Plaintiff has not pled a plausible Title VII 25 retaliation claim. Plaintiff alleges that after her 26 supervisor learned of Plaintiff’s EEO complaints, she 27 became “more aggressive, harassing, hostile, and 28 retaliatory towards Plaintiff” and “intentionally and 14 Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 15 of 21 Page ID #:158

1 purposely retaliated and harassed Plaintiff due to the

2 filing” of the EEO complaints without specifying what

3 actions constitute retaliation. FAC ¶ 13. Just as with 4 Plaintiff’s discriminations claims, here, Plaintiff’s 5 assertions are unsupported by specific facts and 6 therefore do not state a plausible claim. See Mohsin, 7 52 F. Supp. 3d at 1013-14 (finding the plaintiff did not 8 plead a plausible claim where she asserted only that 9 defendant was “retaliating” against her without 10 providing factual support). 11 iii. Claim Four: Harassment 12 To establish a prima facie Title VII claim for 13 harassment resulting in a hostile work environment, 14 federal employees must allege that (1) they were 15 subjected to verbal or physical conduct of a racial or 16 sexual nature because of their identity in a protected 17 category, (2) the conduct was unwelcome, and (3) the 18 conduct was sufficiently severe or pervasive to alter 19 the conditions of employment. Manatt v. Bank of Am., 20 NA, 339 F.3d 792, 798 (9th Cir. 2003); Vasquez v. Cnty. 21 of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003), as 22 amended (Jan. 2, 2004). 23 Plaintiff has not alleged a plausible harassment 24 claim. Once again, Plaintiff’s only potentially timely 25 allegations are conclusory and without factual support. 26 Indeed, Plaintiff makes the same bare allegations of 27 harassment, discrimination, aggression, hostility, and 28 retaliation without identifying specific facts. FAC 15 Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 16 of 21 Page ID #:159

1 ¶¶ 12-13. Thus, Plaintiff’s allegations do not amount

2 to a plausible harassment claim.

3 b. Rehabilitation Act Claims 4 i. Claim Five: Failure to Accommodate 5 Disability 6 In determining whether an employee has stated a 7 claim for failure to accommodate under the 8 Rehabilitation Act, courts look to the “substantive 9 standards of liability under the ADA.” Blanchard v. 10 LaHood, 2010 WL 11508016, at *5 (C.D. Cal. Mar. 8, 11 2010), aff’d, 461 F. App’x 542 (9th Cir. 2011). A prima 12 facie case of failure to accommodate under the 13 Rehabilitation Act requires a plaintiff to establish 14 that: (1) she was disabled within the meaning of the 15 ADA; (2) the employer had notice of her disability; 16 (3) she is otherwise qualified to perform the essential 17 functions of her job; and (4) despite its knowledge of 18 her disability, the employer did not offer reasonable 19 accommodations. See id. If “an employee requests 20 accommodation[,] . . . the employer must engage in an 21 interactive process to find a reasonable accommodation.” 22 Id. 23 Plaintiff has not alleged a plausible failure to 24 accommodate claim. The ADA defines disability as “a 25 physical or mental impairment that substantially limits 26 one or more major life activities of [an] individual.” 27 29 C.F.R. § 1630.2; 42 U.S.C. § 12102(1)(A). “Major 28 life activities” include “working.” 42 U.S.C. 16 Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 17 of 21 Page ID #:160

1 § 12102(1)(B). Plaintiff alleges she suffered “panic

2 attacks, stress, and other symptoms” and that her

3 medical provider placed her “on medical leave.” FAC 4 ¶ 14. She also asserts that her supervisor “caused 5 [her] the panic attacks and stress.” Id. Moreover, it 6 appears the accommodations she requested were additional 7 medical leave and reassignment to a different facility 8 to “avoid and prevent the unlawful actions of her 9 supervisor.” Id. ¶¶ 14-15. 10 But Plaintiff does not plead that her “panic 11 attacks, stress, and other symptoms” substantially limit 12 her major life activities. Instead, she makes 13 conclusory statements lacking factual support. Indeed, 14 she contends that “[a]s a result of [her] disability, 15 [she] was unable to perform the essential functions of 16 her job position without reasonable accommodation” 17 without specifying facts to support this claim. Id. 18 ¶ 44. And to the extent that she is insinuating that 19 she is prevented from working under her supervisor but 20 could work in another facility under a different 21 supervisor, she still fails to show substantial 22 impairment. See Potter v. Xerox Corp., 1 F. App’x 34, 23 35 (2d Cir. 2001) (holding that an employee who was 24 prevented from working under his supervisor due to his 25 depression, anxiety, and panic attacks was not 26 substantially impaired in his ability to engage in major 27 life activity of working and thus was not “disabled.”). 28 Thus, Plaintiff has not stated a plausible claim for 17 Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 18 of 21 Page ID #:161

1 failure to accommodate.

2 ii. Claim Six: Disability Discrimination

3 The Rehabilitation Act provides that “no otherwise 4 qualified individual with a disability in the United 5 States . . . shall, solely by reason of her or his 6 disability, be excluded from the participation in, be 7 denied the benefits of, or be subjected to 8 discrimination under any program or activity receiving 9 Federal financial assistance.” 29 U.S.C. § 794(a). To 10 establish discrimination on the basis of disability, a 11 plaintiff must show that (1) she is disabled under the 12 Act; (2) she is otherwise qualified; and (3) she 13 suffered an adverse employment action because of her 14 disability. See Snead v. Metro Prop. & Cas. Ins., 15 237 F.3d 1080, 1087 (9th Cir. 2001). 16 Plaintiff fails to establish that she suffered an 17 adverse employment action due to her alleged disability. 18 Plaintiff states that she was “was subject to adverse 19 employment actions and treated less favorably than those 20 similarly situated employees who were not part of 21 [P]laintiff’s protected class.” FAC ¶ 50. But 22 Plaintiff fails to provide facts supporting her 23 statement and has not shown that any adverse employment 24 actions she may have experienced occurred due to her 25 alleged disability. Plaintiff instead asserts that she 26 was subject to harassment and retaliation due to her 27 EEOC complaints. Id. ¶ 13. She also states that she 28 was “subjected to harassment, retaliation and 18 Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 19o0f21 Page ID #:162

1] discrimination by Defendant,” but does not claim 2 | Defendant’s conduct was motivated by discriminatory 3 | intent related to her alleged disability. Id. @ 12. 4] Finally, Plaintiff contends that “Defendant refused to 5 | provide [reasonable] accommodation[s],” but this 6 | assertion does not show that Defendant denied 7 | accommodations due to animus toward Plaintiff’s alleged 8 | disability. Therefore, Plaintiff has failed to state a 9 | plausible claim for relief on her disability 10 | discrimination claim. 11 3. Leave to Amend 12 “Where a motion to dismiss is granted, a district 13 | court must decide whether to grant leave to amend.” 14 | Winebarger v. Pennsylvania Higher Educ. Assistance 15] Agency, 411 F. Supp. 3d 1070, 1082 (C.D. Cal. 2019). 16] “The court should give leave [to amend] freely when 17 | justice so requires.” Fed. R. Civ. P. 15(a) (2). In the 18 | Ninth Circuit, “Rule 15’s policy of favoring amendments 19 Jf to pleadings should be applied with ‘extreme 20 | liberality.’” United States v. Webb, 655 F.2d 977, 979 21] (9th Cir. 1981). Against this extremely liberal 22 | standard, the Court may consider “the presence of any of 23 | four factors: bad faith, undue delay, prejudice to the 24 | opposing party, and/or futility.” Owens v. Kaiser 25 | Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 269 2001). 27 Here, leave to amend Plaintiff’s claims should be 28 | granted because Plaintiff can cure her claims by 19

Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 20 of 21 Page ID #:163

1 pleading specific facts supporting her claims. There is

2 no evidence of bad faith or undue delay by Plaintiff,

3 nor potential prejudice to Defendant by allowing 4 amendment. The Court therefore GRANTS Defendant’s 5 Motion to Dismiss Plaintiff’s claims with leave to 6 amend. 7 4. Motion to Strike 8 Under Rule 12(f), a court may strike “immaterial” 9 matter that has no bearing on the controversy. See 10 Fantasy, 984 F.2d at 1527. However, “[i]f there is any 11 doubt as to whether the allegations might be an issue in 12 the action, courts will deny the motion.” 2TheMart.com, 13 114 F. Supp. 2d at 965. 14 Here, Defendant requested the Court strike 15 allegations of the September 2019 incidents as time- 16 barred and Defendant’s failure to accommodate 17 Plaintiff’s reassignment requests for not appearing in 18 the EEO investigation. Mot. 6:25-7:8; see also FAC 19 ¶¶ 11-12, 15. However, prior acts can constitute 20 background evidence or “circumstances [that] give rise 21 to an inference of discrimination” for disparate 22 treatment claims.4 See Nat’l R.R. Passenger Corp. v. 23 4 The Court currently declines to assess whether the time- 24 barred 2019 incidents serve as background for her potentially timely allegations because these allegations are nonetheless 25 insufficient to state a plausible claim. See generally Compl. 26 Regardless, Defendant argues that Plaintiff has not clearly shown that any of her claims are timely. See generally Mot. While the 27 EEOC has accepted some of Plaintiff’s claims for investigation, the undated allegations in her Complaint make it difficult to 28 discern whether her claims fall within or reasonably relate to 20 Case 2:21-cv-08885-RSWL-SK Document 25 Filed 10/24/22 Page 21 of 21 Page ID #:164

1 Morgan, 536 U.S. 101, 113 (2002); McDonnell Douglas

2 Corp. v. Green, 411 U.S. 792, 802 (1973). The Court

3 should not determine that there is “no doubt” as to 4 whether either will impact the amended Action. 5 Therefore, the Court DENIES the motion to strike. 6 III. CONCLUSION 7 Based on the foregoing, the Court GRANTS 8 Defendant’s Motion to Dismiss Claim with leave to amend, 9 DENIES Defendant’s Motion to Strike, and GRANTS 10 Defendant’s Request for Judicial Notice. Plaintiff may 11 file an amended complaint by no later than November 20, 12 2022. 13 14 IT IS SO ORDERED. 15 16 DATED: October 24, 2022 ________/S_/ _R_O_N_A_LD_ _S._W_. _L_EW_________

HONORABLE RONALD S.W. LEW

17 Senior U.S. District Judge 18 19 20 21 22 23 24 25 26 her EEO complaint. The Court therefore advises Plaintiff to 27 include specific factual information, including the dates of the 28 purported incidents, in her Second Amended Complaint. 21