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 [27]

14 v. 15

LOUIS DEJOY, POSTMASTER

16 GENERAL OF THE UNITED

STATES POSTAL SERVICE, ET

17 AL., 18 Defendants. 19 20 Plaintiff Shayne Wallace (“Plaintiff”) brought an 21 action against Defendant Louis DeJoy, the Postmaster 22 General of the United States Postal Service 23 (“Defendant”), alleging racial discrimination, gender 24 discrimination, retaliation, harassment, disability 25 discrimination, and failure to accommodate. The Court 26 granted [25] Defendant’s first Motion to Dismiss with 27 leave to amend, and Plaintiff filed a Second Amended 28 1 Complaint [26]. Plaintiff now brings this Action

2 against Defendant, alleging gender discrimination,

3 retaliation, harassment, disability discrimination, and 4 failure to accommodate. Currently before the Court is 5 Defendant’s Motion to Dismiss Plaintiff’s Second Amended 6 Complaint [27]. 7 Having reviewed all papers submitted pertaining to 8 this Motion, the Court NOW FINDS AND RULES AS FOLLOWS: 9 the Court GRANTS Defendant’s Motion. 10 I. BACKGROUND 11 A. Factual Background 12 Defendant hired Plaintiff to be a city carrier 13 assistant in 2015. Second Amended Complaint (“SAC”) 14 ¶ 9, ECF No. 26. Prior to September 19, 2019, Plaintiff 15 filed at least seven Equal Employment Opportunity 16 complaints (“EEO complaints”) against her supervisor and 17 Defendant. Id. ¶ 13. Plaintiff alleges that her 18 supervisor became aware of the EEO complaints and as a 19 result, intentionally and purposely retaliated and 20 harassed Plaintiff. Id. 21 Plaintiff references a now time-barred incident 22 occurring in 2019, and states that subsequent to this 23 incident, she “was again subjected to harassment, 24 retaliation, and discrimination by Defendant.” Id. 25 ¶¶ 11-12. 26 Plaintiff contends that on or about December 18, 27 2019, Plaintiff received a fourteen-day suspension for 28 missing two weeks of work between November 30, 2019, to 1 December 15, 2019. Id. ¶ 14. She argues that she

2 provided Defendant with the appropriate medical

3 documentation placing her off work, and through the 4 negotiated grievance process, Defendant agreed to 5 rescind the suspension. Id. 6 Subsequently, Plaintiff allegedly received another 7 fourteen-day suspension on or about March 21, 2020, for 8 missing work from January 17, 2020, through March 9, 9 2020. Id. ¶ 15. Plaintiff once again claims she 10 provided Defendant with the required medical 11 documentation excusing her from work, but Plaintiff’s 12 supervisor still issued the suspension. Id. 13 On or about June 15, 2020, Plaintiff’s supervisor 14 issued a “Notice of Removal” to Plaintiff for allegedly 15 missing work during April 2020. Id. ¶ 16. But 16 Plaintiff asserts she “provided Defendant with the 17 necessary paperwork/documentation for her excused 18 absences from work.” Id. 19 Plaintiff also states that during this time, 20 Plaintiff was pregnant, which Defendant was aware of. 21 Id. ¶ 17. Further, on or about July 7, 2020, Defendant 22 allegedly “continued to harass and create a hostile work 23 environment towards Plaintiff, by and through 24 [Plaintiff’s supervisor] and other supervisors.” Id. 25 ¶ 18. 26 Subsequently, Defendant “again retaliated against 27 Plaintiff.” Id. ¶ 20. Specifically, Defendant was 28 allegedly aware of Plaintiff’s pregnancy and had 1 previously acquiesced to Plaintiff wearing a different

2 uniform. Id. But, Plaintiff contends, “subsequent to

3 Plaintiff filing and participating in the EEOC process, 4 Defendant further retaliated against Plaintiff.” Id. 5 Plaintiff does not specify what these allegedly 6 retaliatory actions were. 7 Plaintiff states that throughout this time, she 8 suffered from panic attacks, adjustment disorders with 9 anxiety, and emotional distress due to the actions and 10 conduct of her supervisor, among others. Id. ¶ 21. 11 From approximately December 2019 to September 2020, 12 Plaintiff provided medical documentation to Defendant 13 “identifying her disabilities and request for 14 accommodations, which included but were not limited to: 15 time off from work and a possible transfer to another 16 USPS facility.” Id. ¶ 21. Plaintiff further claims 17 that Defendant did not engage in a good faith 18 interactive process to determine what Plaintiff’s 19 disabilities were and how Defendant could assist in 20 providing a reasonable accommodation to Plaintiff. Id. 21 Defendant required Plaintiff to submit medical 22 leave documentation directly to her supervisor. Id. 23 ¶ 23. Plaintiff alleges she submitted medical leave 24 documentation and that her supervisor stopped accepting 25 the documentation, wrote her up, suspended her, 26 attempted to terminate her, and forced her to return 27 from medical leave against her provider’s orders. Id. 28 Next, Plaintiff states that on several occasions, 1 she requested Defendant reassign her to a different

2 facility so she could avoid her supervisor, but

3 Defendant failed to act. Id. ¶ 24. 4 Plaintiff alleges that she exhausted administrative 5 remedies “for Agency Case No. 4F-900-024720.” Id. ¶ 8. 6 She also alleges that in or around September 2020, 7 Plaintiff, Defendant, and Plaintiff’s supervisors 8 “engaged in the EEOC grievance process in which 9 Plaintiff complained and opposed the unlawful conduct of 10 Defendant and its supervisors.” Id. ¶¶ 19. 11 B. Procedural Background 12 Plaintiff filed her original complaint [1] on 13 November 10, 2021, and her first amended complaint 14 (“FAC”) [18] on July 29, 2022. Defendant moved to 15 dismiss [21] Plaintiff’s FAC on August 12, 2022, and the 16 Court dismissed [25] the FAC with leave to amend on 17 October 24, 2022. Plaintiff filed a Second Amended 18 Complaint [26] on November 20, 2022, and Defendant moved 19 to dismiss [27] on December 5, 2022. Plaintiff opposed 20 [28] on January 3, 2023, and Defendant replied [29] on 21 January 10, 2023. 22 II. DISCUSSION 23 A. Legal Standard 24 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) 25 allows a party to move for dismissal of one or more 26 claims if the pleading fails to state a claim upon which 27 relief can be granted. A complaint must “contain 28 sufficient factual matter, accepted as true, to state a 1 claim to relief that is plausible on its face.”

2 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation

3 omitted). Dismissal is warranted for a “lack of a 4 cognizable legal theory or the absence of sufficient 5 facts alleged under a cognizable legal theory.” 6 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 7 (9th Cir. 1988) (citation omitted). 8 In ruling on a 12(b)(6) motion, a court may 9 generally consider only allegations contained in the 10 pleadings, exhibits attached to the complaint, and 11 matters properly subject to judicial notice. Swartz v. 12 KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007); see also 13 White v. Mayflower Transit, LLC, 481 F. Supp. 2d 1105, 14 1107 (C.D. Cal 2007), aff’d sub nom. White v. Mayflower 15 Transit, L.L.C., 543 F.3d 581 (9th Cir. 2008). (“unless 16 a court converts a Rule 12(b)(6) motion into a motion 17 for summary judgment, a court cannot consider material 18 outside of the complaint (e.g., facts presented in 19 briefs, affidavits, or discovery materials”). A court 20 must presume all factual allegations of the complaint to 21 be true and draw all reasonable inferences in favor of 22 the non-moving party. Klarfeld v. United States, 944 23 F.2d 583, 585 (9th Cir. 1991). “[T]he issue is not 24 whether a plaintiff will ultimately prevail but whether 25 the claimant is entitled to offer evidence to support 26 the claims.” Jackson v. Birmingham Bd. of Educ., 544 27 U.S. 167, 184 (2005) (quoting Scheuer v. Rhodes, 416 28 U.S. 232, 236 (1974)). While a complaint need not 1 contain detailed factual allegations, a plaintiff must

2 provide more than “labels and conclusions” or “a

3 formulaic recitation of the elements of a cause of 4 action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 5 (2007). However, “a well-pleaded complaint may proceed 6 even if it strikes a savvy judge that actual proof of 7 those facts is improbable, and ‘that a recovery is very 8 remote and unlikely.’” Id. at 556 (quoting Scheuer v. 9 Rhodes, 416 U.S. 232, 236 (1974)). 10 B. Discussion 11 Plaintiff has only exhausted her administrative 12 remedies for Agency Case No. 4F-900-0247-20. As 13 discussed in the Court’s last Order, before filing Title 14 VII and Rehabilitation Act complaints in federal court, 15 federal employees must exhaust administrative remedies 16 by consulting an EEO counselor within forty-five days of 17 the allegedly unlawful conduct. See 29 C.F.R. 18 § 1614.105(a); Sommatino v. United States, 255 F.3d 704, 19 708 (9th Cir. 2001); Cherosky v. Henderson, 330 F.3d 20 1243, 1245 (9th Cir. 2003). “Failure to comply with 21 this regulation is ‘fatal’ to . . . a claim.” Cherosky, 22 330 F.3d at 1245 (quoting Lyons v. England, 307 F.3d 23 1092, 1105 (9th Cir. 2002)). 24 The Court can only assess claims that (1) were 25 alleged in the EEOC Charge and accepted for 26 investigation, (2) are reasonably related to the 27 allegations in the EEOC Charge, or (3) fall within an 28 investigation that can reasonably be expected to grow 1 out of the charges. Sommatino, 255 F.3d at 708

2 (9th Cir. 2001).

3 Here, the EEOC only accepted four discrete events 4 for investigation: when Plaintiff was (1) issued a 5 Notice of Removal for Failure to Maintain Regular 6 Attendance/Unacceptable Conduct/AWOL on June 15, 2020; 7 (2) allegedly harassed by her supervisor on July 7, 8 2020; (3) sent home for wearing inappropriate footwear 9 and uniform on September 15, 2020, through September 17, 10 2020; and (4) not granted reasonable accommodations. 11 Decl. of Ellison, Ex. E, at 00011, ECF No. 28-1. 12 Plaintiff’s allegations that are not clearly time-barred 13 will only be deemed timely if they fall within these 14 four discrete events, relate to the events, or are 15 reasonably likely to be discovered in an investigation 16 of these events. See Sommatino, 255 F.3d at 708. 17 As discussed in the Court’s last Order, the Court 18 will only consider information that is timely pled or 19 reasonably related to timely pled information. 20 1. Title VII Claims 21 a. Claim One: Gender Discrimination 22 To establish a prima facie disparate treatment 23 case, plaintiffs must offer evidence (1) that they 24 belong to a protected class; (2) that they were 25 qualified for their positions and perform[ed] their jobs 26 satisfactorily; (3) that they experienced adverse 27 employment actions; and (4) that similarly situated 28 individuals outside their protected class were treated 1 more favorably, or other circumstances surrounding the

2 adverse employment action give rise to an inference of

3 discrimination. Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 4 1151, 1156 (9th Cir. 2010). Each “adverse employment 5 action[]” must be adequately supported by “specific 6 factual support.” Mohsin v. California Dep’t of Water 7 Res., 52 F. Supp. 3d 1006, 1013-14 (E.D. Cal. 2014). A 8 plaintiff can use either direct or circumstantial 9 evidence of discriminatory intent to satisfy their prima 10 facie burden. Godwin, 150 F.3d 1217, 1220 (9th Cir. 11 1998). 12 Importantly, a plaintiff is not required to plead a 13 prima facie case of discrimination to survive a motion 14 to dismiss. Sheppard v. David Evans & Assoc., 694 F.3d 15 1045, 1050 n.2 (9th Cir. 2012). Instead, courts look to 16 the elements of the prima facie case to decide, in light 17 of judicial experience and common sense, whether the 18 challenged complaint contains sufficient factual matter, 19 accepted as true, to state a claim for relief that is 20 plausible on its face. See id. 21 Plaintiff again fails to provide specific support 22 for her claim that she was discriminated against due to 23 her gender. See generally SAC. Indeed, Plaintiff lists 24 several dates where she was absent from work, provided 25 medical leave documentation, and her supervisor did not 26 promptly excuse her absence, ultimately leading to 27 Plaintiff being suspended from work and receiving a 28 notice of removal. Id. ¶¶ 14—16. Plaintiff contends 1 that Defendant, through Plaintiff’s supervisors,

2 “continued to harass and create a hostile work

3 environment toward Plaintiff.” Id. ¶ 17. But Plaintiff 4 does not explain what actions precisely constitute 5 discrimination and does not claim that she was suspended 6 from work due to Defendant’s gender-related 7 discriminatory motive. 8 Plaintiff now states that Defendant was aware she 9 was pregnant and had previously acquiesced to Plaintiff 10 wearing a different uniform due to her pregnancy. Id. 11 ¶¶ 17, 20. Yet Plaintiff does not argue that she was 12 discriminated against due to her pregnancy and she does 13 not offer any evidence or even argue that her 14 attendance-related suspensions and notice of removal 15 were issued based on her gender. Accordingly, 16 Plaintiff’s claim for gender discrimination fails. See 17 Austin v. City of Oakland, No. 17-CV-03284 YGR, 2018 WL 18 485969, at *3 (N.D. Cal. Jan. 18, 2018) (“Plaintiff 19 alleges several contentious incidents involving his 20 coworkers and supervisors and asserts that these 21 incidents constitute gender discrimination. . . . Such 22 conclusory assertions are insufficient to raise a 23 plausible inference that Austin was treated differently 24 because of his membership in the protected class.”) 25 b. Claim Two: Retaliation 26 To establish a prima facie retaliation claim, 27 federal employees must show (1) they engaged in 28 protected activity; (2) their employer subjected them to 1 an adverse employment action; (3) and a causal link

2 exists between the protected activity and the adverse

3 action. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 4 2000). The EEOC interprets adverse employment action as 5 any adverse treatment based on a retaliatory motive 6 reasonably likely to deter the party or others from 7 engaging in protected activity; accordingly, the Ninth 8 Circuit defines adverse employment action broadly. Id. 9 at 1240, 1243. 10 Plaintiff contends that she engaged in protected 11 activity, such as filing EEO complaints and opposing 12 unlawful practices. SAC ¶ 7. Plaintiff also raises 13 time-barred incidents once again. Beyond those, 14 Plaintiff argues that her supervisor issuing Plaintiff 15 notices of removal was “harassing, discriminatory[,] and 16 retaliatory due to Plaintiff’s disability/medical 17 condition and gender.” Id. ¶ 17. This conclusory 18 statement does not show that Defendant issued the 19 notices due to Plaintiff’s participation in protected 20 activity, namely filing EEO complaints and opposing 21 unlawful practices. Plaintiff also states that after 22 she “engaged in the EEOC grievance process,” Defendant 23 “again retaliated against Plaintiff,” but does not 24 specify what actions were retaliatory. Id. ¶¶ 19-20. 25 Plaintiff fails to support her retaliation claim with 26 specific facts, and thus her claim fails. See Mohsin, 27 52 F. Supp. 3d at 1013-14 (finding the plaintiff did not 28 plead a plausible claim where she asserted only that 1 defendant was “retaliating” against her without

2 providing appropriate factual support).

3 c. Claim Three: Harassment 4 To establish a prima facie Title VII claim for 5 harassment resulting in a hostile work environment, 6 federal employees must allege that (1) they were 7 subjected to verbal or physical conduct of a racial or 8 sexual nature because of their identity in a protected 9 category, (2) the conduct was unwelcome, and (3) the 10 conduct was sufficiently severe or pervasive to alter 11 the conditions of employment. Manatt v. Bank of Am., 12 NA, 339 F.3d 792, 798 (9th Cir. 2003); Vasquez v. Cnty. 13 of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003), as 14 amended (Jan. 2, 2004). 15 Plaintiff has not alleged a plausible harassment 16 claim. Once again, Plaintiff’s only potentially timely 17 allegations are conclusory and without factual support. 18 Indeed, Plaintiff makes the same bare allegations of 19 harassment, discrimination, aggression, hostility, and 20 retaliation without identifying specific facts. SAC 21 ¶¶ 12, 22. Thus, Plaintiff’s allegations do not amount 22 to a plausible harassment claim. 23 2. Rehabilitation Act Claims 24 a. Claim Four: Disability Discrimination, 25 Failure to Accommodate 26 In determining whether an employee has stated a 27 claim for failure to accommodate under the 28 Rehabilitation Act, courts look to the “substantive 1 standards of liability under the ADA.” Blanchard v.

2 LaHood, 2010 WL 11508016, at *5 (C.D. Cal. Mar. 8,

3 2010), aff’d, 461 F. App’x 542 (9th Cir. 2011). A prima 4 facie case of failure to accommodate under the 5 Rehabilitation Act requires a plaintiff to establish 6 that: (1) she was disabled within the meaning of the 7 ADA; (2) the employer had notice of her disability; 8 (3) she is otherwise qualified to perform the essential 9 functions of her job; and (4) despite its knowledge of 10 her disability, the employer did not offer reasonable 11 accommodations. See id. If “an employee requests 12 accommodation[,] . . . the employer must engage in an 13 interactive process to find a reasonable accommodation.” 14 Id. 15 Plaintiff has not alleged a plausible failure to 16 accommodate claim. The ADA defines disability as “a 17 physical or mental impairment that substantially limits 18 one or more major life activities of [an] individual.” 19 29 C.F.R. § 1630.2; 42 U.S.C. § 12102(1)(A). “Major 20 life activities” include “working.” 42 U.S.C. 21 § 12102(1)(B). Plaintiff alleges she suffered “panic 22 attacks, stress, and other symptoms” and that her 23 medical provider placed her “on medical leave.” SAC 24 ¶¶ 21, 23. She also asserts that her supervisor “caused 25 [her] the panic attacks and stress.” Id. ¶ 23. 26 Moreover, it appears the accommodations she requested 27 were time off from work and a possible transfer to 28 another facility. Id. ¶ 21. 1 But Plaintiff does not plead that her “panic

2 attacks, stress, and other symptoms” substantially limit

3 her major life activities. Instead, she makes 4 conclusory statements lacking factual support. Indeed, 5 she contends that “[a]s a result of [her] disability, 6 [she] was unable to perform the essential functions of 7 her job position without reasonable accommodation” 8 without specifying facts to support this claim. Id. 9 ¶ 46. And to the extent that she is insinuating that 10 she is prevented from working under her supervisor but 11 could work in another facility under a different 12 supervisor, she still fails to show substantial 13 impairment. See Potter v. Xerox Corp., 1 F. App’x 34, 14 35 (2d Cir. 2001) (holding that an employee who was 15 prevented from working under his supervisor due to his 16 depression, anxiety, and panic attacks was not 17 substantially impaired in his ability to engage in major 18 life activity of working and thus was not “disabled.”). 19 Thus, Plaintiff has not stated a plausible claim for 20 failure to accommodate. 21 b. Claim Five: Disability Discrimination, 22 Disparate Treatment 23 The Rehabilitation Act provides that “no otherwise 24 qualified individual with a disability in the United 25 States . . . shall, solely by reason of her or his 26 disability, be excluded from the participation in, be 27 denied the benefits of, or be subjected to 28 discrimination under any program or activity receiving 1 Federal financial assistance.” 29 U.S.C. § 794(a). To

2 establish discrimination on the basis of disability, a

3 plaintiff must show that (1) she is disabled under the 4 Act; (2) she is otherwise qualified; and (3) she 5 suffered an adverse employment action because of her 6 disability. See Snead v. Metro Prop. & Cas. Ins., 7 237 F.3d 1080, 1087 (9th Cir. 2001). 8 Plaintiff fails to establish that she suffered an 9 adverse employment action due to her alleged disability. 10 Plaintiff states that she was “was subject to adverse 11 employment actions and treated less favorably than those 12 similarly situated employees who were not part of 13 [P]laintiff’s protected class.” SAC ¶ 53. She also 14 claims that she was “retaliated against” due to her 15 “disability/medical condition.” Id. ¶ 17. But 16 Plaintiff fails to provide facts supporting her 17 statements and has not shown that any adverse employment 18 actions she may have experienced occurred due to her 19 alleged disability. Plaintiff instead asserts that she 20 was subject to harassment and retaliation due to her EEO 21 complaints. Id. ¶ 20. Finally, Plaintiff contends that 22 “Defendant refused to provide [reasonable] 23 accommodation[s],” but this assertion does not show that 24 Defendant denied accommodations due to animus toward 25 Plaintiff’s alleged disability. Id. ¶ 47. Therefore, 26 Plaintiff has failed to state a plausible claim for 27 relief on her disability discrimination claim. 28 /// 1 3. Leave to Amend 2 “Where a motion to dismiss is granted, a district

3 court must decide whether to grant leave to amend.” 4 Winebarger v. Pennsylvania Higher Educ. Assistance 5 Agency, 411 F. Supp. 3d 1070, 1082 (C.D. Cal. 2019). 6 “The court should give leave [to amend] freely when 7 justice so requires.” Fed. R. Civ. P. 15(a)(2). In the 8 Ninth Circuit, “Rule 15’s policy of favoring amendments 9 to pleadings should be applied with ‘extreme 10 liberality.’” United States v. Webb, 655 F.2d 977, 979 11 (9th Cir. 1981). Against this extremely liberal 12 standard, the Court may consider “the presence of any of 13 four factors: bad faith, undue delay, prejudice to the 14 opposing party, and/or futility.” Owens v. Kaiser 15 Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 16 2001). Although a district court should freely give 17 leave to amend when justice so requires under Rule 18 15(a)(2), “the court’s discretion to deny such leave is 19 ‘particularly broad’ where the plaintiff has previously 20 amended its complaint[.]” Ecological Rights Found. v. 21 Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) 22 (quoting Miller v. Yokohama Tire Corp., 358 F.3d 616, 23 622 (9th Cir. 2004)) 24 Here the Court denies leave to amend. Plaintiff 25 has had three opportunities to adequately plead her 26 claims and has consistently failed to do so. See 27 Ecological Rights Found., 713 F.3d at 520. Therefore, 28 Plaintiff has shown that amendment is futile, and leave 1 to amend is DENIED. 2 III. CONCLUSION 3 Based on the foregoing, the Court GRANTS 4 Defendant’s Motion to Dismiss without leave to amend. 5 IT IS SO ORDERED. 6 7 8 DATED: April 13, 2023 _ _ _ _ _ _ _ /S_/ _R_O_N_A_LD_ _S_.W_._ L_EW__________

HONORABLE RONALD S.W. LEW

9 Senior U.S. District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28