1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TIMOTHY B. JOHNSON, Case No. 22-cv-00512-DMR

8 Plaintiff,

ORDER ON MOTION TO DISMISS

9 v. FIRST AMENDED COMPLAINT

10 PETE BUTTIGIEG, SECRETARY OF Re: Dkt. No. 21

TRANSPORTATION,

11 Defendant. 12 13 Plaintiff Timothy B. Johnson filed a first amended complaint (“FAC”) against Pete 14 Buttigieg, Secretary of Transportation, United States Department of Transportation (“DOT”) 15 alleging claims for employment discrimination, harassment, and retaliation under federal law. 16 Defendant now moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss certain 17 claims. [Docket No. 21.] The court held a hearing on December 8, 2022. For the following 18 reasons, the motion is granted. 19 I. BACKGROUND 20 A. Allegations in the FAC 21 Johnson is an African American man with Type-2 Diabetes Mellitus, which he alleges is a 22 disability under federal regulations. He worked as an Air Traffic Manager (“ATM”) at the 23 Livermore Air Traffic Control Tower and was employed by the Federal Aviation Administration 24 (“FAA”), an agency of the DOT. [Docket No. 20 (FAC) ¶¶ 5, 16, 17.] Starting in March 2020, 25 Johnson began working under the “FAA-approved emergency telework agreement.” He alleges 26 that as a diabetic, he faced a higher risk of experiencing serious complications from COVID-19 27 and that his diabetes “fell under the CDC definition as a ‘High Risk Category[.]’” Id. at ¶ 18. 1 persons, have higher rates of hospitalization or death from COVID-19 than among non-Hispanic 2 white persons,” and that “African-American adults are sixty percent . . . more likely than Non- 3 Hispanic white adults to be diagnosed with diabetes . . .” Id. at ¶ 21. 4 On June 9, 2020, the FAA discontinued telework duties for ATMs in his district. As a 5 result, Johnson was required to return to work even though his disability placed him “most-at-risk 6 of contracting COVID-19.” Id. at ¶ 19. On June 10, 2020, Johnson submitted a written request to 7 continue teleworking as an accommodation on the ground that he faced a higher risk of 8 experiencing serious illness if he contracted COVID-19 than others without diabetes. His request 9 for this accommodation was denied. Id. at ¶ 20, 21. Johnson alleges that DOT representatives 10 “failed to follow the reasonable accommodation procedures set forth by [DOT’s] policies and 11 failed to provide reasonable accommodation or engage in a good faith interactive process to see if 12 reasonable accommodations could be attained.” Instead, he alleges, they “offered only token 13 alternative accommodations” of partial remote work or an alternative hour schedule which still 14 required Johnson to work in person at the Livermore Air Traffic Control Tower. Id. at ¶¶ 23, 24. 15 Given Johnson’s disability and “the disproportionate effects of COVID-19” on African 16 Americans, Johnson alleges that these “token accommodations were unreasonable” because they 17 placed him at serious risk of contracting COVID-19. Id. at ¶ 24. Additionally, even though 18 Johnson’s supervisor claimed that he was required to be present at work to perform his job duties, 19 id. at ¶ 28, Johnson alleges that ATMs did not need to be present and on location for many tasks 20 and that his duties had been successfully performed remotely from March 2020 through June 21 2020. Id. at ¶¶ 29-34. 22 Due to the denial of his request for accommodation, Johnson alleges that he was “forced to 23 return to the Livermore Tower to resume in-person work and risk serious illness,” which left him 24 “with no choice but to seek early retirement.” His early retirement, which he alleges was a 25 “discriminatory constructive termination” based on disability and race, was effective on June 30, 26 2021. Id. at ¶¶ 26, 27. Johnson further alleges that he was forced to use all of his accrued sick and 27 holiday leave until it was exhausted, and that “[o]ther employees who remained on telework duty 1 requested “Weather and Safety Leave,” which had been made available to others, including 2 employees in “mission critical” positions and “individuals categorized by the CDC as high-risk 3 individuals,” but that Defendant denied this request. Id. at ¶ 35. 4 B. Procedural History 5 Johnson filed the complaint on January 26, 2022, bringing one claim under the 6 Rehabilitation Act, three claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), four 7 claims under 42 U.S.C. § 1981, five claims under California’s Fair Employment and Housing Act 8 (“FEHA”), and one claim under the California Labor Code. Defendant moved pursuant to Rule 9 12(b)(1) to dismiss the Section 1981 and state law claims. He also moved pursuant to Rule 10 12(b)(6) to dismiss the Title VII claims as insufficiently pleaded. Defendant did not challenge 11 Johnson’s Rehabilitation Act claim. On August 11, 2022, the court granted the motion. The court 12 dismissed the Title VII claims with leave to amend and dismissed the Section 1981 claims with 13 leave to amend to plead those claims under Title VII and/or the Rehabilitation Act. Johnson’s 14 state law claims were dismissed with prejudice, and he was ordered to file an amended complaint 15 by September 1, 2022 and to “plead his best case.” [Docket No. 19 (Minute Order).] 16 Johnson timely filed the FAC, which asserts the following claims for relief: 1) disability 17 discrimination in violation of the Rehabilitation Act; 2) retaliation in violation of the 18 Rehabilitation Act; 3) constructive discharge in violation of the Rehabilitation Act; 4) hostile work 19 environment based on race in violation of Title VII; 5) race discrimination (disparate treatment) in 20 violation of Title VII; 6) race discrimination in violation of Title VII; 7) retaliatory hostile work 21 environment in violation of Title VII; and 8) constructive discharge in violation of Title VII. 22 Defendant now moves pursuant to Rule 12(b)(6) to partially dismiss the first claim and 23 moves to dismiss claims two through eight in their entirety.1 24

25 1 Defendant notes the FAC’s allegations that Johnson timely filed charges of discrimination with the Equal Employment Opportunity Commission and “complied with all administrative 26 prerequisites to bring this lawsuit,” FAC ¶¶ 13, 14, and argues that these are “fact-less conclusion[s].” Mot. 3. On reply, Defendant clarifies that he did not move to dismiss the FAC 27 based on failure to exhaust administrative remedies but reserves the right to assert that defense.

II. LEGAL STANDARD

1 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in 2 the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). 3 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all 4 of the factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) 5 (citation omitted), and may dismiss a claim “only where there is no cognizable legal theory” or 6 there is an absence of “sufficient factual matter to state a facially plausible claim to relief.” 7 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing 8 Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 9 2001)) (quotation marks omitted). A claim has facial plausibility when a plaintiff “pleads factual 10 content that allows the court to draw the reasonable inference that the defendant is liable for the 11 misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged 12 must demonstrate “more than labels and conclusions, and a formulaic recitation of the elements of 13 a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007) (citing 14 Papasan v. Allain, 478 U.S. 265, 286 (1986)); see Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 15 2001), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 16 2002). 17

III. DISCUSSION

18 The court will address the claims in the order they appear in Defendant’s motion. 19 A. Disability Discrimination under the Rehabilitation Act 20 Claim one is for “disability discrimination” under Section 501 of the Rehabilitation Act, 29 21 U.S.C. § 791, which provides the exclusive remedy for federal employees alleging disability 22 discrimination. See Johnston v. Horne, 875 F.2d 1415, 1420 (9th Cir.1989), overruled on other 23 grounds by Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (1990).2 Defendant moves for partial 24 dismissal on the ground that Johnson does not specify whether he alleges discrimination based on 25

26 2 The FAC alleges that Defendant’s conduct also violates section 504 of the Rehabilitation Act, 29 U.S.C. § 794, FAC ¶ 57, but “no private cause of action exists for a federal employee against a 27 federal employer under § 794.” Johnston, 875 F.2d at 1418. Accordingly, to the extent the FAC 1 disparate treatment and/or a failure to accommodate. To the extent Johnson alleges disability 2 discrimination pursuant to a theory of disparate treatment, Defendant moves to dismiss the claim 3 as insufficiently pleaded. Mot. 5. Defendant does not seek dismissal of the failure to 4 accommodate claim. See id. at 5-6. 5 In response, Johnson argues that Defendant did not move to dismiss his original claim for 6 disability discrimination under the Rehabilitation Act and contends that the court has already held 7 that the claim “survived the Defendant’s motion [to dismiss the complaint] without change.” 8 According to Johnson, Defendant is attempting to “litigate an issue that had already been 9 resolved.” Opp’n 8. Not so. Defendant did not move to dismiss Johnson’s Rehabilitation Act 10 claim as alleged in the original complaint and the court did not rule on the sufficiency of any claim 11 under that statute. Nothing in the court’s ruling on the motion to dismiss precludes Defendant 12 from challenging this or any other claim in the FAC. 13 Johnson next argues that “there is no reason why [he] cannot allege both” a claim for 14 disparate treatment and a claim for failure to accommodate and asserts that “the FAC contains 15 facts sufficient to seek relief under both theories.” Opp’n 8-9. 16 In order to state a disability discrimination claim based on disparate treatment under the 17 Rehabilitation Act, a plaintiff must allege that “(1) she is a person with a disability, (2) who is 18 otherwise qualified for employment, and (3) suffered discrimination because of her disability.” 19 Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007). For purposes of the 20 Rehabilitation Act, “disability” is defined as “(A) a physical or mental impairment that 21 substantially limits one or more of the major life activities of such individual, (B) a record of such 22 an impairment, or (C) being regarded as having such an impairment.” Id. (citing 42 U.S.C. § 23 12102(2)). A qualified individual is “an individual with a disability who, with or without 24 reasonable accommodation, can perform the essential functions of the employment position that 25 such individual holds or desires.” Bates v. United Parcel Serv., 511 F.3d 974, 989 (9th Cir. 2007) 26 (emphasis removed) (quoting 42 U.S.C. § 12111(8)); see Walton, 492 F.3d at 1005 (noting that 27 “the standards of substantive liability” from the Americans with Disabilities Act are incorporated 1 Here, Defendant does not dispute that the FAC adequately alleges that Johnson is a person 2 with a disability and that he is qualified to perform the essential functions of his job with or 3 without accommodation. See FAC ¶¶ 16, 40. At issue is the third element, which requires 4 Johnson to establish that Defendant discriminated against him because of his disability. Johnson 5 alleges that he “suffered the adverse employment actions of unlawful harassment, discrimination, 6 failure to accommodate, failure to investigate, remedy, and/or prevent discrimination, failure to 7 reinstate and/or return to work, and constructive termination,” and that his disability, “real and 8 perceived, were motivating reasons and/or factors in the decisions to subject” him to these actions. 9 FAC ¶¶ 55, 56. These allegations are entirely conclusory; the FAC is devoid of anything to 10 support a reasonable inference that Johnson’s disability itself was a factor in Defendant’s actions. 11 Other paragraphs in the FAC cited by Johnson merely repeat the conclusory allegations that 12 Defendant took certain actions “[b]ecause of [Johnson’s] disability” and that his disability 13 “substantially motivated” his “constructive termination.” See, e.g., FAC ¶¶ 25, 41. These 14 statements are insufficient to plausibly allege that Defendant discriminated against Johnson 15 because of his disability. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. Accordingly, the 16 FAC fails to state a disability discrimination claim based on disparate treatment under the 17 Rehabilitation Act. 18 B. Retaliation under the Rehabilitation Act 19 Claim two is for retaliation. Courts apply the same standard when analyzing retaliation 20 claims under the Rehabilitation Act and Title VII. Scott v. Mabus, 618 F. App’x 897, 901 (9th 21 Cir. 2015) (citing Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879 887 (9th Cir. 2004)). To 22 state a retaliation claim, Johnson must allege that he 1) engaged in a protected activity, 2) 23 Defendant subjected him to an adverse employment action, and 3) there is a causal link between 24 the protected activity and the adverse employment action. Brown v. Brennan, No. 19-CV-05797- 25 JSC, 2021 WL 1164765, at *2 (N.D. Cal. Mar. 26, 2021) (quoting Manatt v. Bank of Am., NA, 339 26 F.3d 792, 800 (9th Cir. 2003)). 27 The FAC alleges that Johnson “engaged in protected activity by making numerous 1 workplace despite federal mandates declaring COVID-19 as a pandemic” and informing 2 Defendant that he has diabetes and is at higher risk of serious complications from COVID-19. 3 However, “on June 9, 2020, Defendant required [Johnson] to return to work despite his disability 4 and the ongoing COVID-19 pandemic.” FAC ¶ 64. It further alleges that Johnson believed that 5 the requirement that he return to work “was in violation of his protected status as a person with a 6 disability and was unlawful” and that starting on June 10, 2020, he sent emails and 7 correspondence to his supervisors requesting an accommodation for his disability but received no 8 response. Id. at ¶ 65. Johnson further alleges that Defendant’s failure to process his request for an 9 accommodation violated the Rehabilitation act and that he filed an EEO complaint on that ground. 10 “As a result of [Johnson’s] complaints,” Defendant constructively terminated his employment. Id. 11 at ¶ 66. 12 Defendant argues that the FAC fails to state a retaliation claim because it does not 13 adequately allege any of the three elements of the claim. Mot. 6. As to the first one, Johnson 14 argues that he engaged in protected activity by making “multiple requests to seek reasonable 15 accommodation and [refusing] to return to work.” Opp’n 10. Johnson has adequately pleaded the 16 first element. See, e.g., Coons, 383 F.3d at 887 (holding that plaintiff “was engaged in a protected 17 activity [under the Rehabilitation Act] when he requested that the IRS make reasonable 18 accommodations for his alleged disability.”). 19 With respect to the second element, which requires Plaintiff to plead an adverse action 20 taken by Defendant against him, Johnson points to allegations that he was forced to use his 21 accrued sick and holiday leave until it was exhausted in order to stay at home and that he was 22 eventually constructively discharged because he refused to resume in-person work. Id. (citing 23 FAC ¶¶ 26, 27, 37, 42). This, too, is adequately pleaded. 24 Johnson’s brief does not specifically address the third element, which requires him to 25 allege facts supporting a causal link between the protected activity and the adverse action. 26 Instead, he identifies the allegations that he has diabetes, is in a “High Risk Category” due to the 27 heightened risk COVID-19 poses to individuals with diabetes and worked remotely under an 1 the hearing, Johnson’s retaliation claim is that he asked for the accommodation of remote work in 2 order to avoid returning in-person given his disability and the risks associated with contracting 3 COVID-19, and Defendant denied it in retaliation for making the request. This resulted in 4 Johnson having to use his accrued leave in order to stay home and eventually forced him to retire. 5 Johnson does not allege facts from which the court can plausibly infer that there was a causal link 6 between Johnson’s requests for an accommodation of his disability and the adverse actions. In 7 other words, the FAC does not adequately allege that Defendant took actions against Johnson in 8 retaliation for his engaging in the protected activity of requesting accommodation. See Coons, 9 383 F.3d at 887-88 (affirming grant of summary judgment on Rehabilitation Act retaliation claim 10 for failure to “make out a prima facie case of retaliation” where plaintiff did not establish a causal 11 connection between request for accommodations and subsequent demotion). Accordingly, 12 Defendant’s motion to dismiss the Rehabilitation Act retaliation claim is granted. 13 C. Hostile Work Environment 14 Claim four is for hostile work environment based on race in violation of Title VII. Claim 15 seven is for retaliatory hostile work environment in violation of Title VII. 16 In order to state a claim for hostile work environment based on race, Johnson must allege 17 that (1) he “was subjected to verbal or physical conduct because of [his] race, (2) the conduct was 18 unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the conditions of [his] 19 employment and create an abusive work environment.” Manatt, 339 F.3d at 798 (cleaned up). 20 The Ninth Circuit recognizes that a “hostile work environment may be the basis for a retaliation 21 claim under Title VII” since “[h]arassment . . . is the paradigm of ‘adverse treatment that is based 22 on retaliatory motive and is reasonably likely to deter the charging party or others from engaging 23 in protected activity.’” Ray v. Henderson, 217 F.3d 1234, 1244-45 (9th Cir. 2000) (quoting EEOC 24 Compliance Manual ¶ 8008). Under either theory, “[h]arassment is actionable only if it is 25 ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an 26 abusive working environment.’” Id. at 1245 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 27 21 (1993)). “To determine whether an environment is sufficiently hostile, [courts] look to the 1 whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it 2 unreasonably interferes with an employee’s work performance.” Ray, 217 F.3d at 1245 (quotation 3 and citation omitted). “A hostile work environment claim relies on a series of separate acts that 4 collectively are so severe and offensive that they alter the conditions of [a] plaintiff’s 5 employment.” Williams v. Modly, 796 F. App’x 378, 380–81 (9th Cir. 2020). 6 With respect to Johnson’s claim for a racially hostile work environment, the FAC alleges 7 that Defendant’s “delay in making its decision to reject [Johnson’s] requests for accommodation, 8 created a hostile work environment” because “[o]n a daily basis, [Johnson] was required to take a 9 life-threatening risk simply by reporting to work . . .” FAC ¶ 87. It further alleges that as of 10 January 1, 2021, there were 17 ATMs working in his district, and that only 23% of the ATMs 11 were African American. Thus, Johnson “was in the minority.” Id. at ¶ 84. 12 As to the retaliatory hostile work environment claim, the FAC alleges that starting on June 13 10, 2020, Johnson sent multiple requests for an accommodation for his disability but received no 14 response. Defendant’s refusal to provide Johnson with an accommodation, which resulted in 15 Johnson making a “daily decision” about whether to take a life-threatening risk by reporting to 16 work, “was a continuous and pervasive form of discriminatory and retaliatory treatment” that was 17 “sufficiently severe and pervasive to alter the conditions of” his employment and created an 18 abusive working environment. Id. at ¶ 114. 19 Defendant moves to dismiss these claims on the grounds that the FAC does not allege that 20 Johnson was subjected to verbal or physical conduct because of his race or in retaliation for 21 protected activity, and that the FAC does not allege conduct that was sufficiently severe or 22 pervasive. Mot. 7-8. Johnson does not identify any conduct, much less “severe or pervasive” 23 conduct by Defendant based on either his race or the fact that he engaged in protected activity. 24 Instead, he emphasizes Defendant’s “delay in deciding to reject” his request for an 25 accommodation given “the consequence it forced on” him. Opp’n 11. According to Johnson, “the 26 gravity of the daily decision” and the risk he faced in going back to in-person work was “repetitive 27 and pervasive” and “a continuous and pervasive form of discriminatory and retaliatory treatment.” 1 create a “hostile work environment” because an employee must deal with the day-to-day 2 consequences of not being accommodated. 3 Johnson does not allege any facts supporting a reasonable inference that Defendant delayed 4 in responding to his request for an accommodation or eventually denied him an accommodation 5 because of his race. Accordingly, the FAC fails to state a claim for hostile work environment 6 based on race. As to the retaliatory hostile work environment claim, the FAC does not allege that 7 Defendant’s delay in responding to his request for an accommodation or the denial itself was 8 based on his engagement in activity protected under Title VII (as opposed to the Rehabilitation 9 Act). See Williams, 796 F. App’x at 381 (discussing hostile work environment claim in the 10 context of the Rehabilitation Act). Accordingly, the FAC fails to state a claim for retaliatory 11 hostile work environment. 12 D. Constructive Discharge 13 Claim three is for constructive discharge based on Johnson’s disability under the 14 Rehabilitation Act. Claim eight is for constructive discharge based on his race under Title VII. 15 “Under the constructive discharge doctrine, an employee’s reasonable decision to resign 16 because of unendurable working conditions is assimilated to a formal discharge for remedial 17 purposes. The inquiry is objective: Did working conditions become so intolerable that a 18 reasonable person in the employee’s position would have felt compelled to resign?” Poland v. 19 Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007) (quoting Penn. State Police v. Suders, 542 U.S. 129, 20 141 (2004)). The Ninth Circuit has described this standard as setting a high bar. Poland, 494 F.3d 21 at 1184. “[C]onstructive discharge occurs when the working conditions deteriorate, as a result of 22 discrimination, to the point that they become sufficiently extraordinary and egregious to overcome 23 the normal motivation of a competent, diligent, and reasonable employee to remain on the job to 24 earn a livelihood and to serve his or her employer.” Id. (quoting Brooks v. City of San Mateo, 229 25 F.3d 917, 930 (9th Cir. 2000)). “[C]ourts which have considered the question are reluctant to 26 predicate a finding of constructive discharge solely on the fact of employment discrimination. 27 Instead, they look for aggravating factors, such as a continuous pattern of discriminatory 1 Here, the FAC alleges that Defendant “created discriminatory and intolerable working 2 conditions for [Johnson] based upon his disability and race.” FAC ¶ 72. Johnson clarified in his 3 opposition and at the hearing that these claims are based on Defendant’s requirement that he return 4 to in-person work and the resulting daily decision about whether to take a “life-threatening risk” 5 by coming to the workplace. Opp’n 13. See FAC ¶¶ 76, 77, 119, 122, 123. The FAC alleges that 6 “[b]eing required to make a life-or-death decision everyday just to report to work was so 7 intolerable that any reasonable person in [his] position would have felt the same and felt 8 compelled to resign and effectuate a constructive discharge.” FAC ¶¶ 76, 122. As discussed 9 above, Johnson has not stated a hostile work environment claim under any theory. “Where a 10 plaintiff fails to demonstrate the severe or pervasive harassment necessary to support a hostile 11 work environment claim, it will be impossible for her to meet the higher standard of constructive 12 discharge . . . ” Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000). The sole basis 13 for Johnson’s constructive discharge claim is the denial of his request for accommodation in the 14 form of remote work. The FAC alleges no “aggravating factors” accompanying that denial. 15 Compare Johns v. Brennan, 761 F. App’x 742, 745-46 (9th Cir. 2019) (reversing grant of 16 summary judgment on constructive discharge claim based on disability discrimination and failure 17 to engage in interactive process under the Rehabilitation Act; plaintiff presented evidence that 18 agency asked plaintiff to resign rather than grant FMLA leave; denied FMLA leave before 19 plaintiff had even submitted an application for the same; terminated plaintiff for being unavailable 20 to work following car accident, and following reinstatement and subsequent injury, failed to 21 respond to plaintiff for five months after she began inquiring about returning to work with a 22 reasonable accommodation, among other actions). At the hearing, Plaintiff’s counsel was unable 23 to identify any authority supporting a constructive discharge claim based solely on the denial of a 24 requested accommodation. Accordingly, Johnson’s constructive discharge claims are dismissed.3 25 3 At the hearing, Plaintiff’s counsel acknowledged that if the court dismisses the constructive 26 discharge claim, Plaintiff will be unable to recover the remedy of backpay in connection with his Rehabilitation Act claim for failure to accommodate. See, e.g., Satterwhite, 744 F.2d at 1381 n.1 27 (“An employee who quits cannot secure backpay unless his employer constructively discharged E. Race Discrimination 1 Claim five is for race discrimination based on disparate treatment in violation of Title VII. 2 Claim six is for race discrimination in violation of Title VII. 3 To state a claim for employment discrimination based on race, a plaintiff must allege that 4 (1) they are a member of a protected class, (2) they were performing their job in a satisfactory 5 manner, (3) they suffered an adverse employment action, and (4) they were treated differently than 6 similarly situated persons outside the protected class. McDonnell Douglas Corp. v. Green, 411 7

U.S. 792, 802 (1973).

8 The FAC alleges that Defendant discriminated against Johnson “by forcing his resignation 9 on the basis of his race.” FAC ¶ 94. It also alleges that Johnson’s race “was the determining 10 factor and/or motivating factor in Defendant’s adverse employment action[s],” including requiring 11 Johnson to return to work during the pandemic “while other employees in ‘mission critical’ 12 positions, including controllers, were allowed to telework,” and denying Johnson’s request for 13 Weather and Safety Leave as a form of accommodation. Id. at ¶¶ 102, 103. 14 Defendant moves to dismiss these claims because the FAC does not plead that any 15 similarly situated individual outside of Johnson’s protected class was treated more favorably than 16 Johnson. Mot. 10. Specifically, the FAC alleges that unspecified “other employees” were 17 permitted to telework and/or take Weather and Safety Leave but does not allege the race of those 18 individuals or that they were similarly situated to Johnson. See Vasquez v. Cnty. of Los Angeles, 19 349 F.3d 634, 641 (9th Cir. 2003), as amended (Jan. 2, 2004) (“individuals are similarly situated 20 when they have similar jobs and display similar conduct.”). 21 In response, Johnson notes the FAC’s allegations that he was an ATM and held a “mission 22 critical” position, and that “there were more ATMs that were of a different race than there were 23 African-Americans like” Johnson. Opp’n 14 (citing FAC ¶¶ 15, 22). He further notes that other 24 individuals in mission critical positions and individuals categorized as “high-risk individuals” 25 were treated more favorably than he because they were allowed to continue working remotely. Id. 26 (citing FAC ¶ 35). However, the FAC does not allege the race of any such individuals or the 27 positions they held, facts from which the court could potentially infer that they are similarly 1 situated persons who are outside of Johnson’s protected class. Indeed, the FAC does not identify a 2 || single non-African-American comparator who was treated more favorably and permitted to work 3 remotely full-time. Accordingly, it does not state claims for race discrimination. 4 OK OR OK OR 5 Rule 15(a) provides generally that leave to amend the pleadings before trial should be 6 || given “freely ... when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This policy is to be applied 7 with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 8 || 2003) (quotation omitted). In the absence of an “apparent” reason, such as undue delay, bad faith 9 or dilatory motive, prejudice to the opposing party, futility of the amendments, or repeated failure 10 || tocure deficiencies in the complaint by prior amendment, it is an abuse of discretion for a district 11 court to refuse to grant leave to amend a complaint. Foman v. Davis, 371 U.S. 178, 182 (1962); a 12 Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999).

13 Johnson requests leave to amend the FAC if the court concludes that any of his claims are

14 || deficient. Opp’n 2, 14-15. The court has already given him one opportunity to amend. Despite 15 || the court’s instruction to “plead his best case,” the FAC does not adequately plead any claims a 16 other than the failure to accommodate claim under the Rehabilitation Act. At the hearing,

= 17 || Johnson’s counsel could not identify any additional facts that he could plead to support Johnson’s

18 || deficient claims. Accordingly, the court dismisses all of the claims in the FAC with prejudice, 19 except the failure to accommodate claim. 20 || IV. CONCLUSION 21 For the foregoing reasons, Defendant’s motion to dismiss the FAC is granted. The sole 22 || remaining claim is Johnson’s failure to accommodate claim under the Rehabilitation Act. 23 ES DISTRIC aS LO 24 IT IS SO ORDERED. ON

A □

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