Lopez-Albinana

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

RICHARD LOPEZ-ALBINANA, Case No. 20-cv-07581-VC

Plaintiff,

ORDER GRANTING IN PART AND

v. DENYING IN PART MOTION TO

DISMISS

ALEJANDRO MAYORKAS,

Re: Dkt. No. 54 Defendant.

The motion to dismiss is granted in part and denied in part.1 Lopez-Albinana does not challenge the motion to dismiss his hostile work environment claim, so that claim is dismissed. Lopez-Albinana does, however, plausibly state a claim of disability discrimination. To bring a discrimination claim under 29 U.S.C. § 791, he must plausibly allege that disability discrimination was the but-for cause of his termination. Section 791 incorporates the substantive standards of the ADA. See 29 U.S.C. § 791(f). And the ADA requires but-for causation. See Murray v. Mayo Clinic, 934 F.3d 1101, 1107 (9th Cir. 2019). That standard applies regardless of the causal connection pleaded in the complaint. A plaintiff cannot plead himself out of application of the proper legal standard at the motion-to-dismiss stage. The complaint plausibly alleges that each of the six areas identified in Lopez-Albinana’s performance improvement plan…