1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DONALD AUTEN, No. 1:20-cv-00329-NONE-EPG (PS) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS,

RECOMMENDING GRANTING

12 v. DEFENDANT’S MOTION TO DISMISS AND

GRANTING LEAVE TO AMEND

13 COUNTY OF CALAVERAS, (ECF No. 19) 14 Defendant. 15 16 Plaintiff Donald Auten (“Plaintiff”), proceeding pro se and in forma pauperis, filed the 17 complaint commencing this action under the Americans with Disabilities Act on August 28, 2019, 18 and a First Amended Complaint (“FAC”) on December 2, 2019. (ECF Nos. 1 & 6). On March 18, 19 2020, Defendant County of Calaveras (“Defendant”) filed a motion to dismiss or for a more 20 definite statement (the “Motion”). (ECF No. 19). The assigned district judge referred the Motion 21 to the undersigned on November 30, 2020. (ECF No. 27). For the reasons that follow, the Court 22 recommends granting the Motion, dismissing the FAC, and granting leave to file a second 23 amended complaint. 24 I. SUMMARY OF ALLEGATIONS 25 A. Allegations in First Amended Complaint 26 The FAC alleges as follows: 27 On June 8, 2014, Plaintiff, while working for Defendant, sustained a TBI. (The Court 28 assumes TBI means traumatic brain injury.) Plaintiff began receiving medical treatment soon 1 after sustaining the injury. On July 16, 2014, Plaintiff was “release[d] from all work duties until 2 released by medical specialists and neurology evaluation per Dr. Alexis Dasig.” (ECF No. 6 at 7). 3 On June 16, 2015, “work status change from restrictions to no restrictions per Dr. Sheilds, 4 Company Doctor at Job Care with prior knowledge of requests. . . . They changed course that day 5 without my involvement and with disregard to my treatment and condition, also stopping all 6 ben[e]fits.” (Id. at 8). On June 17, 2015, Plaintiff had a meeting with Kate Husk at human 7 resources. Husk told Plaintiff he had to return to work or receive disciplinary action. That same 8 day, Plaintiff returned to work but was sent home by acting foreman Tom Wilson “with a letter 9 stating his concerns with me on the job site.” 10 On December 30, 2015, Dr. Mohamed placed Plaintiff on medical leave and stated that 11 Plaintiff “was out of work until neurology evaluation was conducted.” (Id. at 7). Plaintiff or 12 medical professionals on his behalf asked Defendant to fund his medical treatment, but Defendant 13 did not do so. On July 21, 2016, Defendant notified Plaintiff that it intended to terminate his 14 employment and on August 8, 2016, terminated his employment. 15 In total, Plaintiff lists 29 incidents where he saw medical professionals, requested to see 16 medical professionals, had requests made by medical professionals, or filed complaints. (Id. at 7- 17 9). 18 Plaintiff alleges that Defendant “discriminated against me by not allowing me the proper 19 medical attention and reasonable accommodations which could have established an interactive 20 process to return to work or been deemed disabled.” (Id.). 21 Plaintiff attached a form complaint he presented to the Equal Employment Opportunities 22 Commission (“EEOC”). It alleged he was discriminated based on his disability. Plaintiff also 23 attached the EEOC’s right-to-sue letter, which was dated June 13, 2019. (Id. at 10-11). 24 The FAC uses a form complaint for employment discrimination. 25 B. Additional Factual Allegations in Plaintiff’s Argument Opposing Motion to 26 Dismiss 27 Plaintiff’s opposition to the Motion contains various explanations of the factual 28 allegations in his FAC, including the following: 1 On June 16, 2015, Dr. Shields at JobCare decided Plaintiff should be sent back to work 2 without restrictions. He contacted Defendant to discuss his concerns and was told to return to 3 work the following day. On June 17, 2015, Plaintiff spoke with Husk, who told Plaintiff he 4 needed to return to work or he would receive disciplinary actions. Plaintiff returned at 10:00 am 5 but struggled to stay focused. Wilson, the foreman, sent Plaintiff home with a letter that stated 6 “that him and the other foreman of the day Ray Satkamo both felt that it was an unsafe work 7 environment for me to be on the job site.” (ECF No. 25 at 4). 8 Plaintiff saw Dr. Nicolle Napier-Ionascu, a qualified medical examiner, for a 9 psychological evaluation on August 26, 2015. Dr. Napier-Ionascu diagnosed Plaintiff with 10 various psychiatric ailments and found that Plaintiff’s “condition was not permanent and 11 stationary” and requested that he receive 20 weekly therapy sessions. Dr. Napier-Ionascu stated 12 she would re-evaluate Plaintiff in six months “at which time Vocational Rehabilitation could be 13 addressed.” (Id. at 5-6). 14 II. SUMMARY OF ARGUMENTS 15 Defendant moves to dismiss this action on several bases. First, Defendant argues that 16 Plaintiff’s claim for failure to engage in the interactive process fails because there is no 17 independent cause of action for failure to engage. (ECF No. 19-1 at 3-4). Second, Defendant 18 argues that Plaintiff’s factual allegations are too threadbare and conclusory, and that they do not 19 track the elements for disability discrimination and retaliation. (Id. at 4-7). Finally, Defendant 20 argues that Plaintiff did not exhaust his administrative remedies with respect to his retaliation 21 claim within 180 days. (Id. at 7-8). In the alternative, Defendant moves for an order requiring 22 Plaintiff to provide a more definite statement under Federal Rule of Civil Procedure 12(e). (Id. at 23 8-9). 24 Plaintiff’s opposition (ECF No. 25) disputes a number of the factual contentions 25 Defendant made in its motion to dismiss. Plaintiff does not make any legal arguments. 26 III. LEGAL STANDARDS 27 In considering a motion to dismiss, the Court must accept all allegations of material fact in 28 the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007); Hosp. Bldg. Co. v. Rex 1 Hosp. Trustees, 425 U.S. 738, 740 (1976). The Court must also construe the alleged facts in the 2 light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on 3 other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Barnett v. Centoni, 31 F.3d 813, 4 816 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff’s 5 favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro se pleadings “must 6 be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 7 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally 8 construed after Ashcroft v. Iqbal, 556 U.S. 662 (2009)). “While the Court cannot accept 9 new facts alleged in opposition papers, a plaintiff’s briefing may always be used to clarify 10 allegations in a complaint.” Yordy v. Astrue, No. 1:09-CV-03028-NJV, 2010 WL 653099, at *2 11 (N.D. Cal. Feb. 22, 2010) (citing Pegram v. Herdrich, 530 U.S. 211, 230 (2000)). 12 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the 13 complaint. See Iqbal, 556 U.S. at 679. “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a 14 short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to 15 ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Bell 16 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. 17 Gibson, 355 U.S. 41, 47 (1957)). “The issue is not whether a plaintiff will ultimately prevail but 18 whether the claimant is entitled to offer evidence to support the claims.” Scheuer, 416 U.S. at 19 236 (1974). 20 The first step in testing the sufficiency of the complaint is to identify any conclusory 21 allegations. Iqbal, 556 U.S. at 679. “Threadbare recitals of the elements of a cause of action, 22 supported by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. 23 at 555). “[A] plaintiff’s obligation to provide the grounds of his entitlement to relief requires 24 more than labels and conclusions, and a formulaic recitation of the elements of a cause of action 25 will not do.” Twombly, 550 U.S. at 555 (citations and quotation marks omitted). 26 After assuming the veracity of all well-pleaded factual allegations, the second step is for 27 the court to determine whether the complaint pleads “a claim to relief that is plausible on its 28 face.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556) (rejecting the traditional 12(b)(6) 1 standard set forth in Conley, 355 U.S. at 45-46). A claim is facially plausible when the plaintiff 2 “pleads factual content that allows the court to draw the reasonable inference that the defendant is 3 liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). The standard 4 for plausibility is not akin to a “probability requirement,” but it requires “more than a sheer 5 possibility that a defendant has acted unlawfully.” Id. 6 IV. DISCUSSION 7 A. Employment Discrimination 8 To establish a prima facie case under the Americans with Disabilities Act (“ADA”), a 9 plaintiff must first demonstrate that: “(1) he is disabled within the meaning of the ADA; (2) he is 10 a qualified individual able to perform the essential functions of the job with reasonable 11 accommodation; and (3) he suffered an adverse employment action because of his 12 disability.” Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012). 13 Under the ADA, “[t]he term ‘disability’ means, with respect to an individual (A) a physical or 14 mental impairment that substantially limits one or more of the major life activities of such 15 individual; (B) a record of such an impairment; or (C) being regarded as having such an 16 impairment.” Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 563 (1999) (quoting 42 U.S.C. § 17 12102(1)). 18 There is a two-step inquiry to determine whether an individual is qualified:

19 We first determine whether the individual satisfies the prerequisites of the job; more specifically, whether “the individual satisfies the requisite skill, experience, 20 education and other job-related requirements of the employment position such 21 individual holds or desires.” At step two, we determine whether, “with or without reasonable accommodation,” the individual is able to “perform the essential 22 functions of such position.” 23 Anthony v. Trax Int’l Corp., 955 F.3d 1123, 1127–28 (9th Cir. 2020) (quoting 29 C.F.R. § 24 1630.2(m)). 25 Defendant argues that Plaintiff has not alleged he is able to perform the essential functions 26 of his job with or without a reasonable accommodation. The Court agrees. 27 Plaintiff has not alleged that with reasonable accommodations, he could perform the 28 functions of his job. In fact, Plaintiff has alleged that the last time he went to work, he was unable 1 to perform his job safely. Plaintiff makes no specific allegations that he could perform his job if 2 he were given other reasonable accommodations. For instance, Plaintiff does not allege that an 3 additional unpaid leave of absence would permit him to return to his previous job or that he could 4 perform the essential functions of his position. 5 The closest allegation in the FAC is that Defendant “could have established an interactive 6 process to return to work or been deemed disabled,” (ECF No. 6 at 7), which is conclusory and 7 also appears to allege that he was disabled and not a qualified individual. 8 Therefore, Plaintiff has not alleged he is a qualified individual. 9 B. Failure to Engage in Interactive Process 10 Defendant argues that it is not liable for failing to engage in the interactive process 11 because “[t]here is no independent cause of action under the ADA for failure to engage in an 12 interactive process.” (ECF No. 19-1 at 3). The Ninth Circuit has discussed the ADA’s 13 requirement to engage in the interactive process: [A]n employer has a mandatory obligation to engage in an interactive process 14 with employees in order to identify and implement appropriate reasonable 15 accommodations, which can include reassignment. . . . Importantly, however, an employer is obligated to engage in the interactive process only if the individual is 16 otherwise qualified. 17 Anthony v. Trax Int’l Corp., 955 F.3d 1123, 1134 (9th Cir. 2020) (cleaned up). 18 As discussed above, Plaintiff has not alleged he is a qualified individual. Therefore, 19 Plaintiff has failed to state a claim that Defendant failed to engage in the interactive process. 20 C. Failure to Accommodate 21 “To establish a prima facie case for failure to accommodate under the ADA, [Plaintiff] 22 must show that (1) [Plaintiff] is disabled within the meaning of the ADA; (2) [Plaintiff] is a 23 qualified individual able to perform the essential functions of the job with reasonable 24 accommodation; and (3) [Plaintiff] suffered an adverse employment action because of [his] 25 disability.” Samper, 675 F.3d at 1237 (internal quotation marks and citation omitted). 26 As before, Plaintiff has not alleged that he is a qualified individual. Thus, Plaintiff has 27 failed to state a claim for failure to accommodate. 28 /// 1 D. Retaliation 2 “To establish a prima facie case of retaliation under the ADA, an employee must show 3 that: (1) he or she engaged in a protected activity; (2) suffered an adverse employment action; and 4 (3) there was a causal link between the two.” Garity v. APWU Nat’l Labor Org., 828 F.3d 848, 5 863 n. 16 (9th Cir. 2016). “Pursuing one’s rights under the ADA constitutes a protected activity.” 6 Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 850 (9th Cir. 2004). 7 Plaintiff alleges that he took leave due to his injury and that he was fired. However, he 8 does not allege that he was fired because he took leave or for engaging in any other protected 9 activity. Therefore, Plaintiff fails to state a claim for retaliation. 10 Defendant also moved to dismiss Plaintiff’s retaliation claim on the basis of exhaustion, 11 arguing that Plaintiff did not check the box on his EEOC charge for retaliation and his factual 12 allegations concern a failure to engage in the interactive process. (ECF No. 19-1 at 8). 13 An employee alleging disability discrimination under the ADA must exhaust his 14 administrative remedies before filing suit because Title I of the ADA incorporates the exhaustion 15 requirement of Title VII and thus requires a plaintiff to file a charge with the EEOC before 16 asserting a claim in court. See Abdul-Haqq v. Kaiser Found. Hosps., 669 F. App’x 462, 463 (9th 17 Cir. 2016) (unpublished) (citing Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th 18 Cir. 2002) (setting forth factors exhaustion requirement for Title VII claims); see also 42 U.S.C. § 19 12117(a) (extending Title VII exhaustion requirement to ADA)). 20 The Ninth Circuit has discussed when a charge is exhausted:

21 The district court must examine both the EEOC charge and the EEOC investigation to determine if claims are exhausted. See EEOC v. Farmer Bros. 22 Co., 31 F.3d 891, 899 (9th Cir.1994). “The EEOC charge must be construed ‘with 23 the utmost liberality.’ ” Deppe v. United Airlines, 217 F.3d 1262, 1267 (9th Cir.2000) (quoting Farmer Bros., 31 F.3d 891 at 899). Exhausted claims include 24 those actually investigated as well as those which “would have been within the scope of a ‘reasonably thorough investigation.’ ” Farmer Bros., 31 F.3d at 899 n. 25 5 (citing and quoting Gibbs v. Pierce County Law Enforcement Support, 785 F.2d 1396, 1400 (9th Cir.1986)). This includes “new acts occurring during the 26 pendency of the charge before the EEOC.” Oubichon v. North American Rockwell 27 Corp., 482 F.2d 569, 571 (9th Cir.1973); see also Couveau v. American Airlines, Inc., 218 F.3d 1078, 1082 (9th Cir.2000) (applying principles in analogous FEHA 28 context). 1 Stephenson v. United Airlines, Inc., 9 F. App’x 760, 761–62 (9th Cir. 2001) (unpublished). 2 This is a fact-dependent determination:

3 In determining whether a plaintiff has exhausted allegations that she did not specify in her administrative charge, it is appropriate to consider such factors as 4 the alleged basis of the discrimination, dates of discriminatory acts specified within the charge, perpetrators of discrimination named in the charge, and any 5 locations at which discrimination is alleged to have occurred. In addition, the 6 court should consider plaintiff’s civil claims to be reasonably related to allegations in the charge to the extent that those claims are consistent with the 7 plaintiff’s original theory of the case. 8 B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002), as amended (Feb. 20, 2002). 9 See also Studymire v. Bright Horizons Children’s Center, Inc. No. CV-09-1122 PHX DGC, 2010 10 WL 653459 (D. Ariz. Feb. 22, 2010) (after extensive review of Ninth Circuit law, finding 11 plaintiff had not exhausted retaliation claim when she did not check the box for retaliation or 12 mention retaliation in her EEOC charge); Scutt v. Carbonaro CPAs n Mngmt Grp, No. CV 20- 13 00362 JMS-RT, 2020 WL 5880715, at *6 -8 (D. Haw. Oct. 2, 2020) (similar and granting leave to 14 amend). 15 Plaintiff attached his EEOC charge and right-to-sue letter to his complaint. (ECF No. 6 at 16 10-11). The charge form permits Plaintiff to check boxes indicating what the “discrimination 17 [was] based on,” and Plaintiff checked the box only for disability. (Id. at 10). Plaintiff did not 18 check the box for retaliation. (Id.). His particular allegations state, in relevant part: On June 8, 2014, I was injured on the job. After I was injured on the job I was 19 placed on leave. I attempted to return to work with restrictions from my doctor, 20 but Respondent refused to engage in the interactive process and refused to allow me to return to work. On August 8, 2016, I was constructively discharged. 21 I believe that I have been discriminated against based on my disability in violation 22 of the Americans with Disabilities Act of 1990, as amended. 23 (Id.). 24 It appears that Plaintiff’s retaliation charge was not exhausted because he did not check 25 the box for retaliation and his factual allegations do not reference any retaliation. However, it is 26 possible that Plaintiff may be able to allege facts indicating that his EEOC charge was sufficient 27 for a retaliation claim. Therefore, the Court will recommend granting to amend with respect to 28 this claim. See Scutt, 2020 WL 5880715, at *6-8. 1 E. Leave to Amend 2 The Court recommends granting Plaintiff leave to amend. It is possible that Plaintiff can 3 make allegations sufficient to state a claim, and this is the first time the Court has given legal 4 standards to Plaintiff. Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“[A] pro se 5 litigant is entitled to notice of the complaint’s deficiencies and an opportunity to amend prior to 6 dismissal of the action.”). The Court notes that in Plaintiff’s motion to dismiss briefing, he states 7 a doctor told him that his condition was not permanent, indicating that Plaintiff may be able to 8 allege facts that would permit him to state a claim. (ECF No. 25 at 6). 9 The Court provides Plaintiff with the following additional legal standards concerning 10 complaints: A complaint is required to contain “a short and plain statement of the claim showing 11 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 12 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 14 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient 15 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 16 (quoting Twombly, 550 U.S. at 570). While a plaintiff’s allegations are taken as true, courts “are 17 not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 18 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a plaintiff’s 19 legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 20 V. FINDINGS AND RECOMMENDATIONS 21 Based on the foregoing, IT IS HEREBY RECOMMENDED THAT 22 1. Defendant’s motion to dismiss be GRANTED; and 23 2. Plaintiff’s First Amended Complaint be dismissed, with leave to amend within 30 24 days. 25 These findings and recommendations will be submitted to the United States district judge 26 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-one 27 (21) days after being served with these findings and recommendations, either party may file 28 written objections with the Court. The document should be captioned “Objections to Magistrate 1 | Judge’s Findings and Recommendations.” 2 The parties are advised that failure to file objections within the specified time may result 3 | in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 4 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 IT IS SO ORDERED. 7 Dated: _ December 4, 2020 [spe ey □□ 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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