I. INTRODUCTION

18 Plaintiff Manuel Guevara, proceeding pro se, brings suit against Defendant the 19 Ritz-Carlton Hotel Company, LLC (“Ritz-Carlton”) for alleged violations of the 20 Americans with Disabilities Act (“ADA”). (See Am. Compl. (“FAC”), ECF No. 23.) 21 Ritz-Carlton now moves to dismiss this action for failure to state a claim under 22 Federal Rule of Civil Procedure (“Rule”) 12(b)(6). (Mot. Dismiss (“Motion” or 23 “Mot.”), ECF No. 26.) The Motion is fully briefed. (Opp’n, ECF Nos. 32, 331; Reply, 24 ECF No. 36.) For the following reasons, the Court GRANTS Ritz-Carlton’s Motion.2 25

26 1 On June 7, 2022, one day after Guevara’s deadline to oppose Ritz-Carlton’s Motion, Guevara filed a (1) Request for Leave to Respond Out of Time and Response to Defendant’s Motion to Dismiss 27 and its Memorandum of Points and Authorities, (Req. for Leave to Respond, ECF No. 32), and 28 (2) Brief in Support to its Response to Defendant’s Motion to Dismiss, (Br. ISO Resp., ECF No. 33) (together, “Opposition” or “Opp’n”). The Court granted Guevara’s request to file an opposition. Case 2:21-cv-09792-ODW-MAR Document 40 Filed 11/10/22 Page 2 of 8 Page ID #:437

1 II. BACKGROUND 2 Ritz-Carlton operates a hotel in Los Angeles, California. (FAC ¶ 9.) From 3 approximately June 4, 2012, to March 5, 2021, Guevara worked for Ritz-Carlton as a 4 bell stand attendant. (Id. ¶ 13.) 5 Guevara alleges that, beginning in May 2020, Ritz-Carlton incorrectly regarded 6 Guevara “as disabled with a contagious disease” and impaired immune and respiratory 7 systems. (Id. ¶¶ 33, 44.) Guevara further alleges that, as a result, Ritz-Carlton 8 imposed unwanted “accommodations” on Guevara that were “specifically 9 implemented for the purpose of mitigating [Guevara’s perceived disability].” 10 (Id. ¶ 34.) These alleged accommodations included requiring Guevara to wear a mask 11 and submit to temperature checks. (Aff. ISO FAC (“Guevara Aff.”) ¶ 9, ECF No. 22.) 12 At the same time, Guevara alleges that the accommodations that Ritz-Carlton 13 imposed on him were Ritz-Carlton’s policies for preventing the spread of COVID-19. 14 (See FAC ¶¶ 53 (referring to Ritz-Carlton’s “COVID-19 mitigation measures 15 (‘accommodations’)”), 73 (referring to Ritz-Carlton’s “accommodations (‘Covid 16 policies and procedures’)”).) Moreover, Guevara submits documents with the 17 Amended Complaint that state that these policies applied to all Ritz-Carlton 18 employees. (See, e.g., Guevara Aff., Ex. A 14 of 313 (“All employees, contractors and 19 vendors are required to participate in a . . . temperature check prior to entering the 20 building.”), 15 of 31 (“The hotel will provide employees with a facemask which you 21 are required to wear while at work . . . .”).) Thus, Guevara alleges that by requiring 22 him to comply with COVID-19 policies and procedures, Ritz-Carlton imposed 23 unwanted and discriminatory accommodations on him. (See generally FAC; Guevara 24 Aff.) 25

26 (Min. Order, ECF No. 34.) Guevara makes arguments in opposition to the Motion in both his request and brief. (See generally Opp’n.) 27 2 Having carefully considered the papers filed in connection with the Motion, the Court deemed the 28 matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 3 When citing Guevara’s exhibits, the Court cites the pagination found in the CM/ECF header.

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1 Guevara alleges that, when he objected to the “accommodations,” Ritz–Carlton 2 retaliated against Guevara, ultimately terminating Guevara’s employment. (FAC 3 ¶¶ 18, 21, 69, 74.) 4 On December 17, 2021, Guevara filed the Complaint, (Compl., ECF No. 1), 5 which Ritz-Carlton moved to dismiss, (Mot. Dismiss Compl., ECF No. 15). 6 Following an extension from the Court to file an amended pleading, Guevara filed the 7 Amended Complaint, in which he asserts two causes of action pursuant to Title I of 8 the ADA: (1) disability discrimination; and (2) retaliation.4 (Min. Order, ECF No. 21; 9 FAC ¶¶ 41–84.) Ritz-Carlton now moves to dismiss Guevara’s Amended Complaint. 10 (Mot.) 11 III. LEGAL STANDARD 12 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 13 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 14 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To 15 survive a dismissal motion, a complaint need only satisfy “the minimal notice 16 pleading requirements of Rule 8(a)(2)”—“a short and plain statement of the claim.” 17 Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be 18 enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. 19 Twombly, 550 U.S. 544, 555 (2007). Pursuant to this standard, the complaint must 20 “contain sufficient factual matter, accepted as true, to state a claim to relief that is 21 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation 22 marks omitted). 23 The determination of whether a complaint satisfies the plausibility standard is a 24 “context-specific task that requires the reviewing court to draw on its judicial 25 experience and common sense.” Id. at 679. A court is generally limited to the 26

4 Although Guevara titled the second cause of action “Interference/Retaliation under the ADA-AA,” 27 (see FAC, Count II), Guevara clarified in the Opposition that the second cause of action is for 28 retaliation alone, (see Req. for Leave to Respond 1–2 (explaining that, “[e]ven though[] the word ‘interference’ is used in the title of the count, it is in fact solely for retaliation”)).

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1 pleadings and “must construe all factual allegations set forth in the complaint . . . as 2 true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles, 3 250 F.3d 668, 688 (9th Cir. 2001) (internal quotation marks omitted). However, a 4 court need not blindly accept “allegations that are merely conclusory, unwarranted 5 deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 6 266 F.3d 979, 988 (9th Cir. 2001). Ultimately, there must be sufficient factual 7 allegations “to give fair notice and to enable the opposing party to defend itself 8 effectively,” and the “allegations that are taken as true must plausibly suggest an 9 entitlement to relief, such that it is not unfair to require the opposing party to be 10 subjected to the expense of discovery and continued litigation.” Starr v. Baca, 11 652 F.3d 1202, 1216 (9th Cir. 2011). 12 Although pro se pleadings are to be construed liberally, plaintiffs are “not 13 excused from knowing the most basic pleading requirements.” Am. Ass’n of 14 Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107 (9th Cir. 2000); see Hebbe 15 v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (construing pro se inmate’s civil rights 16 complaint liberally). A court may not “supply essential elements of the claim that 17 were not initially pled.” Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). A 18 liberal reading cannot cure the absence of such facts. Ivey v. Bd. of Regents of Univ. 19 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 20 IV. EVIDENTIARY MATTERS 21 In the Amended Complaint, Guevara incorporates by reference a 22 concurrently-filed Affidavit in Support of Complaint and attached exhibits. (FAC 23 ¶¶ 40–41, 68; Guevara Aff.) When ruling on a Rule 12(b)(6) motion, “[a] court 24 may . . . consider certain materials—documents attached to the complaint, documents 25 incorporated by reference in the complaint, or matters of judicial notice—without 26 converting [a] motion to dismiss into a motion for summary judgment.” See United 27 States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Here, Ritz-Carlton agrees that the 28 Court may consider the materials that Guevara incorporates by reference into the

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1 Amended Complaint. (See Mot. 6.) Accordingly, in resolving Ritz-Carlton’s Motion, 2 the Court considers the affidavit and attached exhibits that Guevara submits with the 3 Amended Complaint. 4 Separately, a month later, Guevara filed a “Notice” stating that he “filed an 5 incorrect exhibit . . . and is sending the correct [exhibit].” (Notice, ECF No. 27.) 6 However, Guevara did not identify the underlying filing to which the Notice relates. 7 (See id.) Accordingly, the Court STRIKES Guevara’s Notice and does not consider it 8 here. 9 Finally, Ritz-Carlton asks the Court to take judicial notice of several 10 documents, including letters from the Equal Employment Opportunity Commission 11 (“EEOC”) and the California Department of Fair Employment & Housing (“DFEH”), 12 the DFEH complaint intake form, and documents filed in other cases. (Req. Judicial 13 Notice (“RJN”), ECF No. 26-2; Suppl. Req. Judicial Notice (“Suppl. RJN”), ECF 14 No. 37.) Because the Court need not rely on these documents to resolve 15 Ritz-Carlton’s Motion, the Court DENIES Ritz-Carlton’s requests for judicial notice. 16 V. DISCUSSION 17 Title I of the ADA prohibits an employer from “discriminat[ing] against a 18 qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). As a threshold 19 matter, to bring an action under Title I of the ADA in court, a plaintiff must first 20 exhaust their administrative remedies. 42 U.S.C. § 12117(a) (incorporating 21 exhaustion requirement from Title VII of the Civil Rights Act of 1964); Zimmerman 22 v. Oregon Dep’t of Just., 170 F.3d 1169, 1172 (9th Cir. 1999) (“Title I [of the ADA] 23 requires an employee first to file a charge with the EEOC in a timely manner.”). To 24 do so, an aggrieved individual must file a claim with the EEOC within 180 days of the 25 alleged unlawful employment action, or within 300 days if the individual first files a 26 claim with an authorized state agency. Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 27 1846 (2019) (analyzing exhaustion requirement under Title VII of the Civil Rights Act 28 of 1964). This exhaustion requirement is a “mandatory claim-processing rule,” and “a

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1 court must enforce [it] if a party properly raises it.” See id. at 1849–51 (internal 2 quotation marks and alterations omitted). 3 Here, Ritz-Carlton argues that Guevara’s claims “must be dismissed because he 4 does not plausibly allege that he timely exhausted his administrative remedies.” 5 (Mot. 6.) Because Guevara alleges that he was terminated by Ritz-Carlton on 6 March 5, 2021, (FAC ¶¶ 13, 74), he was required to file a claim with the EEOC or an 7 authorized state agency by December 30, 2021, to timely exhaust his administrative 8 remedies, see 42 U.S.C. § 12117(a); see also Fort Bend Cnty., 139 S. Ct. at 1846. 9 The Amended Complaint contains no allegations regarding when Guevara 10 allegedly filed a claim to exhaust his administrative remedies. (See generally FAC; 11 Guevara Aff.) Rather, the Amended Complaint contains only the bare allegations that 12 Guevara “filed a charge of Discrimination against the Defendant with [DFEH]” and 13 “exhausted the administrative remedies available to him.” (FAC ¶¶ 5–6.) These 14 conclusory allegations are insufficient to demonstrate that Guevara timely exhausted 15 his administrative remedies and, thus, fail to satisfy the minimum pleading 16 requirements of Rule 8. See Twombly, 550 U.S. at 555; see also Sanders-Hollis v. 17 Health & Hum. Servs. Agency, No. 2:19-cv-00092-KJM-DB, 2020 WL 3642563, 18 at *1 (E.D. Cal. July 6, 2020) (finding allegation that plaintiff “received Right to Sue 19 letters . . . and has thus exhausted all necessary administrative remedies” insufficient). 20 Furthermore, although Guevara alleges that he received a Right to Sue letter 21 from DFEH, that allegation is contradicted by the documents that Guevara submits 22 with the Amended Complaint. (See FAC ¶ 5; Guevara Aff., Ex. A 7–9 of 31.) 23 Guevara alleges that “on or about April 1, 2022, the DFEH issued [him] a Right to 24 Sue against Defendant with regards to this matter.” (FAC ¶ 5.) Guevara further 25 alleges that the Right to Sue letter is “attached as Exhibit A-1.” (Id.) However, the 26 document to which Guevara refers states on its face that “[t]his document does not 27 constitute proof of filing of a Right to Sue form with the DFEH,” (Guevara Aff., 28 Ex. A 9 of 31), and directs the filer to “[c]omplete the submission process within

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1 30 days to initiate DFEH review,” (id. at 7 of 31). The Court is “not required to 2 accept as true conclusory allegations which are contradicted by documents referred to 3 in the complaint.” Sprewell, 266 F.3d at 990 (quoting Steckman v. Hart Brewing, Inc., 4 143 F.3d 1293, 1295–96 (9th Cir. 1998)). Thus, because Guevara’s allegation that he 5 received a Right to Sue letter from DFEH is directly contradicted by the document 6 that he alleges is that letter, the Court does not accept Guevara’s allegation as true. 7 In light of Guevara’s conclusory allegations and the presence of contradictory 8 documents, the Court finds that Guevara fails to plausibly allege that he timely 9 exhausted his administrative remedies before bringing this action. Accordingly, the 10 Court GRANTS Ritz-Carlton’s Motion with leave to amend to correct this 11 deficiency.5 12 VI. CONCLUSION 13 For the reasons discussed above, the Court GRANTS Ritz-Carlton’s Motion to 14 Dismiss, (ECF No. 26), with leave to amend the Amended Complaint. If Guevara 15 chooses to file a Second Amended Complaint, he must do so within twenty-one (21) 16 days of the date of this Order, in which case Ritz-Carlton shall answer or otherwise 17 respond no later than fourteen (14) days from the date the Second Amended 18 Complaint is filed. If Guevara chooses not to amend, his claims shall be deemed 19 dismissed with prejudice and the case shall be closed. 20 Guevara is advised that the Federal Pro Se Clinic offers free guidance to 21 individuals representing themselves in federal civil actions. The Los Angeles Clinic 22 operates only by appointment, which may be made by calling (213) 385-2977, 23 Ext. 270 or by visiting http://prose.cacd.uscourts.gov/los-angeles. Clinic staff can 24 respond to many questions with a telephonic appointment or by email. In-person 25 appointments may be available at the Roybal Federal Building and Courthouse, 26 255 East Temple Street, Suite 170, Los Angeles, California 90012. The Court 27 5 Because Guevara’s allegations are insufficient to satisfy the threshold issue of exhaustion, the 28 Court does not reach Ritz-Carlton’s other arguments as to why the Court should dismiss Guevara’s claims. (See Mot. 10–19.)

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1 || encourages Guevara to visit the Clinic or otherwise consult with an attorney prior to 2 || filing a Second Amended Complaint. 4 IT IS SO ORDERED. 6 November 10, 2022 □□ 7 ‘ = Géed 9 OTIS D. WRIGHT, II 0 UNITED STATES DISTRICT JUDGE

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