1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 WILLIAM MONK, Case No. 22-cv-03403-RMI

9 Plaintiff,

ORDER RE: MOTION TO DISMISS

10 v. Re: Dkt. No. 25 11 LOUIS DEJOY, 12 Defendant.

13 14 Now pending before the court is Defendant’s Motion to Dismiss (dkt. 25). Plaintiff has 15 responded (dkt. 29), Defendant has replied (dkt. 30), and the Parties appeared for oral argument on 16 April 4, 2023 (dkt. 31). For the reasons stated herein, Defendant’s motion is granted. 17 BACKGROUND 18 The following is a recitation of the pertinent allegations from Plaintiff’s Complaint. 19 Plaintiff was first employed by the United States Postal Service (“USPS”) in November 2014; 20 sometime thereafter, he applied to be re-hired at the Post Office in Arcata, California, and he 21 began working there on May 29, 2015. See Compl. (dkt. 1) at 3. He alleges that he informed the 22 USPS from the outset that he suffers from Type 1 diabetes, and that he would need 23 accommodations. Id. In October of 2015, Plaintiff alleges that he “was pressured to skip his lunch 24 break during an eleven-hour shift” – in response, he provided the USPS with a note from his 25 doctor (Nathan Copple) “about the medical necessity of taking breaks to manage his diabetes.” Id. 26 On a number of occasions in 2016 and 2017, Plaintiff was reportedly not permitted breaks or 27 leaves of absence related to his illness. Id. at 3, 5-6. During this period, Plaintiff alleges (without 1 false beliefs about it” – such that “other employees would mock [Plaintiff] with impunity . . . [to 2 the point that] a shared consensus appeared to develop in the office where all employees except 3 [Plaintiff] believed that they knew more about [Plaintiff’s] disability than either [Plaintiff] or [his] 4 physician.” Id. at 5-6. 5 Between 2017 and 2020, Plaintiff reportedly informed his managers that delays or denials 6 related to his breaks were impacting his efforts to manage his diabetes. Id. at 6-7. In early June of 7 2018, Plaintiff requested an accommodation through the District Reasonable Accommodation 8 Committee (“DRAC”). Id. at 7. On June 12, 2018, Plaintiff spoke with DRAC representative 9 Daphne Smallwood who reportedly told him that “he would henceforth be allowed to use the 10 common breakroom to inject insult, and that his other concerns would also be addressed.” Id. 11 Plaintiff alleges that his accommodations went into effect on August 6, 2018. Id. at 7, 8. 12 Plaintiff also alleges that the USPS retaliated against him for requesting formal disability 13 accommodations immediately after the commencement of the interactive process when, in 2018, 14 when one of his supervisors initiated two interviews with Plaintiff and accused him of filing for 15 unauthorized overtime – he adds that his union steward “later showed that these false accusations 16 resulted from the management’s falsifying of timeclock entries.” Id. at 7-8. The day after his 17 accommodations became effective, he received a letter warning him about his failure to take his 18 lunch break at the appropriate time – which, he contends referred to one of the two incidents 19 related to the accusations of him filing for unauthorized overtime. Id. at 8. Plaintiff further alleges 20 that a manager who publicly humiliated him for taking breaks “sometimes physically blocked him 21 from leaving his workstation to medically manage his disability.” Id. In short, Plaintiff states that 22 after his accommodations were approved, his managers nevertheless continued to frustrate or deny 23 his breaks, resulting in episodes of hypoglycemia and other complications. Id. at 8-9. 24 Plaintiff contends that, as a result of these and other refusals to honor his disability 25 accommodations, a new interactive meeting became necessary, after which DRAC issued a new 26 accommodation letter in October of 2018 that included a new accommodation which provided for 27 “as much notice as possible” for any changes of schedule. Id. at 9. Notwithstanding the vagueness 1 “continued to refuse to giving (sic) [him] the two hours of notice of changes to his break times, 2 travel times or duties (including assignment to afternoon dispatch) that [Plaintiff] had asked for 3 repeatedly.” Id. at 90. The Complaint does not make it clear why the “as much notice as possible” 4 language of the second DRAC accommodation must be interpreted as “two hours.” 5 In any event, on April 2, 2019, DRAC issued a third accommodation letter that included 6 provisions for predictable break times, shift lengths, advance notice of schedule changes, and an 7 area for Plaintiff to safely inject his medications. Id. at 9-10. On April 23, 2019, a DRAC 8 representative (Lincoln Lau) informed Plaintiff that the most recent accommodation letter (from 9 April 2, 2019) was no longer active because Plaintiff’s physician had ostensibly not provided a 10 medical rationale for the link between Plaintiff’s diabetes and the need for a predictable and 11 consistent schedule, also because the accommodation was incompatible with the “unpredictable 12 nature of mail volume,” and because of the “amount of time needed to complete mail processing 13 tasks.” Id. at 12. During this period, managers continued to perpetuate “a culture of harassment at 14 work by publicly gossiping” about him which “gave tacit permission for other employees to do the 15 same.” Id. Plaintiff alleges that these events matured into bullying such that on one occasion – 16 December 13, 2019 – he found himself shoved and elbowed by a colleague. Id. at 12. This caused 17 Plaintiff to exclaim loudly, “please stop shoving me and elbowing me,” which caused a 18 commotion in the workplace. Id. at 12-13. The result of this unfortunate encounter was that 19 management retaliated against him by having him escorted out of the workplace and “attempting 20 to place him on a fourteen-day suspension, and threating to fire him,” but that his punishment was 21 later reduced to a three-day suspension. Id. at 12-13. 22 In March of 2020, and on the basis of a note from his doctor, Plaintiff stopped going to 23 work because his immune system was reportedly compromised due to his diabetes and he believed 24 that he occupied a high risk of hospitalization or death if he were to contract COVID-19. Id. at 14. 25 “[A]fter exhausting his paid leave options, [Plaintiff] remained on unpaid leave for the remainder 26 of the pandemic” because the USPS was never able to accommodate his request for other work to 27 be found for him to do “at home or in a lower-risk environment than his usual place of work.” Id. 1 DRAC representative Lincoln Lau; during and after that meeting, Plaintiff and his legal counsel 2 asked for an updated letter detailing Plaintiff’s “currently authorized reasonable accommodations 3 of disability.” Id. at 15. Plaintiff never received the “updated” letter he sought, which he claimed 4 to need “in order to be psychologically prepared to return to work.” Id. at 21. To be clear, the 5 Complaint acknowledges that the “USPS agreed to grant [Plaintiff] accommodations [for] his 6 disabilities on multiple occasions,” but that the “USPS’s refusal to provide [Plaintiff] with an 7 updated written document outlining his [already] agreed disability accommodations . . . 8 constituted retaliation against [him] for his protected activity of requesting and attempting to 9 exercise disability accommodations.” Id. at 25. Plaintiff’s “continued absence from work during 10 2021 prompted Postmaster Steeves to send two letters, dated June 15, 2021[,] and June 30, 2021 11 [which] warned [Plaintiff] that the USPS considered him AWOL and threatened that unless [he] 12 returned to work immediately, or provided justification for his continued absences, he would be 13 terminated, removed for cause, or subject to other disciplinary actions.” Id. at 16. Plaintiff alleges 14 that his continued absence was rooted in the USPS’s failure to give him the updated letter he 15 sought, and that he “would have returned to work if he had received [the] letter.” Id. 16 While Plaintiff’s Complaint alleges that he was terminated on some unspecified date in 17 July of 2021 (see id. at 25), the Final Agency Decision attached as an exhibit to the Complaint 18 indicates that Plaintiff’s employment was in fact terminated on August 5, 2021. See Compl., Exh. 19 B (dkt. 1-2) at 4. There is no indication, in the Complaint, or elsewhere in the record, that Plaintiff 20 ever returned to the Arcata Post Office between March of 2020 and the date of his ultimate 21 termination in early August of 2021. To the contrary, Plaintiff confirms the fact that he never 22 returned to work during that period, and that COVID-19 was not necessarily the reason (or at least, 23 not the only reason). See Pl.’s Opp. (dkt. 29) at 2 (stating that Plaintiff “was in a state where 24 attendance at work was very challenging to him due to the history of on-the-job disability 25 discrimination and his perception that he would have no defense against additional discrimination 26 if he did return to work.”). Following his termination on August 5, 2021, Plaintiff filed suit in this 27 court on June 9, 2022, pleading three causes of action: harassment based on disability and/or 1 and retaliation for the protected activity of requesting reasonable accommodations of disability (id. 2 at 25-27). 3 LEGAL STANDARDS 4 The currently-pending motion to dismiss (dkt. 25), filed under Fed. R. Civ. P. 12(b)(6), 5 challenges the sufficiency of the allegations set forth in the FAC. In reviewing the sufficiency of a 6 complaint, before the presentation of any evidence either by affidavit or admissions, the court’s 7 task is limited – the issue is not whether a plaintiff will ultimately prevail, instead the issue is 8 whether a plaintiff is even entitled to offer evidence to support the claims. See Scheuer v. Rhodes, 9 416 U.S. 232, 236 (1974); see also Gilligan v. Jamco Development Corp., 108 F.3d 246, 249 (9th 10 Cir. 1997). Dismissal is proper when an operative complaint either fails to advance “a cognizable 11 legal theory,” or fails to allege “sufficient facts alleged under a cognizable legal theory.” Balistreri 12 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990); see also Graehling v. Village of 13 Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995). 14 In evaluating such motions, courts must: (1) construe the operative complaint in the light 15 most favorable to the plaintiff; (2) accept all well-pleaded factual allegations as true; and (3) 16 determine whether plaintiff can prove any set of facts to support a claim that would merit relief. 17 See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-338 (9th Cir. 1996). However, courts are not 18 required “to accept as true allegations that are merely conclusory, unwarranted deductions of fact, 19 or unreasonable inferences.” In re Gilead Sciences Securities Litig., 536 F.3d 1049, 1055 (9th Cir. 20 2008) (citation omitted). Courts “need not assume the truth of legal conclusions cast in the form of 21 factual allegations,” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643, n. 2 (9th Cir. 1986), and 22 therefore courts must not “assume that the [plaintiff] can prove facts that [he or she] has not 23 alleged or that the defendants have violated . . . laws in ways that have not been alleged.” See 24 Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 25 U.S. 519, 526 (1983). 26 To survive dismissal under these standards, while complaints do not necessarily need to be 27 hyper-detailed, they do need to contain enough relevant factual allegations such as to establish the 1 conclusions, and a formulaic recitation of the elements of a cause of action . . .” Bell Atl. Corp. v. 2 Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). “Nor does a complaint suffice if it 3 tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 4 662, 678 (2009) (quoting Bell Atl. Corp., 550 U.S. at 557). Under these standards, courts follow a 5 “two-prong approach” for addressing a motion to dismiss: (1) first, the tenet that a court must 6 accept as true all of the allegations contained in a complaint does not apply to legal conclusions, 7 threadbare recitals of the elements of a cause of action, or conclusory statements; and, (2) only a 8 complaint that states a plausible claim for relief survives a motion to dismiss. Plausibility is a 9 context-specific task that requires the reviewing court to draw on its judicial experience and 10 common sense; however, where the well-pleaded facts do not permit the court to infer more than 11 the mere possibility of misconduct, the complaint may have alleged, but it has failed to “show,” 12 “that the pleader is entitled to relief” as required by Fed. Rule Civ. Proc. 8(a)(2). See generally 13 Iqbal, 556 U.S. at 678-79. 14 In light of these principles, a court considering a motion to dismiss can choose to begin by 15 identifying allegations that, because they are no more than conclusions, are not entitled to the 16 assumption of truth. Id. at 679. While legal conclusions can provide the framework of a complaint, 17 they must be supported by well-pleaded factual allegations. Id. When a complaint does in fact 18 contain well-pleaded and factual allegations, courts will assume their veracity and then determine 19 whether they plausibly give rise to an entitlement to relief. Id. In short, for a complaint to survive a 20 motion to dismiss, the non-conclusory factual content, and reasonable inferences from that 21 content, must plausibly suggest a claim entitling the plaintiff to relief. See Moss v. United States 22 Secret Serv., 572 F.3d 962, 970 (9th Cir. 2009). 23 As to the nature of dismissals, leave to amend should be granted unless it becomes clear 24 that amendment would be futile because further amendments cannot remedy the defects in the 25 complaint. See Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008) (“Dismissal 26 without leave to amend is proper if it is clear that the complaint could not be saved by 27 amendment.”); see also Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th 1 Chemical Co., 358 F.3d 661, 673 (9th Cir. 2004) (“[D]enial of leave to amend is appropriate if the 2 amendment would be futile.”) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). 3 DISCUSSION 4 In his first claim – harassment based on disability and/or protected activity – Plaintiff 5 contends that he suffered: taunts accusing him of being stupid, lazy, dishonest, and slow; 6 homophobic slurs; the termination of a subset of his agreed-upon accommodations based on 7 purportedly false claims that his supporting medical documentation was inadequate and lacked 8 justification; and, the USPS’s refusal to provide the updated letter outlining his agreed-upon 9 disability accommodations. See Compl. (dkt. 1) at 19-20. Defendant moves for dismissal of this 10 claim on two grounds: first, that harassment claims are not actionable under the Rehabilitation Act 11 (29 U.S. § 791); and second, that Plaintiff has failed to exhaust his administrative remedies. See 12 Def.’s Mot. (dkt. 25) at 5-7. 13 Both the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973 14 prohibit discrimination against an otherwise qualified individual based on his or her disability. See 15 Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004). The Rehabilitation Act is 16 the predecessor of the ADA and applies to federal employees. See Pena v. United States Postal 17 Serv., No. 18-cv-03923-JCS, 2019 U.S. Dist. LEXIS 24521, at *15-16 (N.D. Cal. Feb. 14, 2019). 18 The ADA’s “standards of substantive liability are incorporated in the Rehabilitation Act,” (see 19 Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007)); furthermore, Title VII 20 precedent is generally called upon to interpret ADA claims. See Garity v. APWU Nat’l Labor 21 Org., 828 F.3d 848, 859 (9th Cir. 2016) (collecting cases). Claims for disparate treatment and 22 refusal to make a reasonable accommodation are both actionable under the Rehabilitation Act. See 23 Pena, 2019 U.S. Dist. LEXIS 24521, at *15-16; see also Vinson v. Thomas, 288 F.3d 1145, 1154 24 (9th Cir. 2002)). Persons alleging employment discrimination under the Rehabilitation Act are, of 25 course, subject to the same administrative exhaustion requirements as those applicable in the Title 26 VII remedial scheme. See Vinieratos v. U.S. Dep’t of Air Force ex rel. Aldridge, 939 F.2d 762, 27 773 (9th Cir. 1991). 1 claims under the Rehabilitation Act or Americans with Disabilities Act,1 some district courts have 2 recognized such a claim based on analogous Title VII analysis. See Elton v. McDonough, No. 3 1:19-cv-01723-, 2021 U.S. Dist. LEXIS 106442, at *22 (E.D. Cal. June 7, 2021) (collecting 4 cases). The undersigned finds those authorities to be persuasive and sees no reason to deviate from 5 that approach. Accordingly, for present purposes, the undersigned will assume, without deciding, 6 that such a claim could theoretically be brought under the Rehabilitation Act. 7 In this regard, an employer would be liable “for conduct giving rise to a hostile 8 environment where the employee proves (1) that he was subjected to verbal or physical conduct of 9 a harassing nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently 10 severe or pervasive to alter the conditions of the victim’s employment and create an abusive 11 working environment.” Silveria v. McDonough, No. 20-17457, 2022 U.S. App. LEXIS 1631, at 12 *1-*2 (citing Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1206 (9th Cir. 2016)). 13 Courts determine whether an environment is sufficiently hostile or abusive by looking at all the 14 circumstances, including the frequency of the discriminatory conduct; its severity; whether it is 15 physically threatening or humiliating, or a mere offensive utterance; and, whether it unreasonably 16 interferes with an employee’s work performance. See Kortan v. Cal. Youth Auth., 217 F.3d 1104, 17 1109-10 (9th Cir. 2000). The conduct must be sufficiently extreme as to amount to a change in the 18 terms and conditions of employment. Arizona ex rel. Horne, 816 F.3d at 1206; see also Harris v. 19 Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (describing a hostile work environment as a workplace 20 permeated with discriminatory intimidation, ridicule, and insult). 21 Here, while Plaintiff has complained of taunts, slurs, the termination of some of his agreed- 22 upon accommodations (based on a difference of opinion about medical documentation), and about 23 the USPS’s refusal to provide the updated letter he requested – only the taunts and slurs can be 24 construed as constituting “verbal or physical conduct of a harassing nature” as contemplated by 25 the authorities set forth above. The alleged termination of the subset of his accommodations based 26

27 1 See e.g., Silveria v. McDonough, No. 20-17457, 2022 U.S. App. LEXIS 1631, at *2 n.1 (9th Cir. Jan. 20, 1 on a difference of opinion about medical justification, and the alleged refusal to provide the 2 updated letter (to which he has shown no entitlement, as discussed below) are neither severe, nor 3 threatening, nor objectively humiliating, nor can they be construed to constitute even merely 4 offensive utterances. Accordingly, the present analysis should only focus on the alleged taunts, 5 slurs, and other similar conduct of a harassing nature. 6 More importantly, it should also be noted that “[i]n order to bring a claim under the 7 Rehabilitation Act, a federal employee must exhaust available administrative remedies.” See 8 Cherosky v. Henderson, 330 F.3d 1243, 1245 (9th Cir. 2003). In this regard, federal regulations 9 require that those “aggrieved persons who believe they have been discriminated against on the 10 basis of . . . handicap must consult [an EEOC] Counselor prior to filing a complaint in order to try 11 to informally resolve the matter.” Cherosky, 330 F.3d at 1245 (citing 29 C.F.R. § 1614.105(a)). 12 That consultation must occur “within 45 days of the date of the matter alleged to be discriminatory 13 or, in the case of personnel action, within 45 days of the effective date of the action.” See id. at § 14 1614.105(a)(1). “Failure to comply with that regulation is ‘fatal to a federal employee’s 15 discrimination claim.’” Cherosky, 330 F.3d at 1245 (quoting Lyons v. England, 307 F.3d 1092, 16 1105 (9th Cir. 2002)). Lastly, it should be noted that, in National Railway Passenger Corp. v. 17 Morgan, 536 U.S. 101, 122-27 (2002), the Supreme court clarified the notion that claims of this 18 sort, when based on discrete acts, are only timely where the acts occurred within the 45-day 19 limitations period; and, that claims based on a hostile environment theory are only timely where at 20 least one act occurred during the limitations period. Accordingly, the primary issue at hand is 21 whether or not Plaintiff’s claims have been properly exhausted through a timely consultation. 22 While Plaintiff’s Complaint does not allege when he contacted an EEO counselor to 23 initiate the required informal counseling about the alleged harassment at bar, the Final Agency 24 Decision (included as an attachment to the Complaint) indicates that Plaintiff initiated the informal 25 counseling on August 26, 2021. See Compl., Exh. B (Dkt. 1-2) at 3 (“The record revealed the 26 complainant requested pre-complaint counseling in the instant case on August 26, 2021.”). Thus, 27 the required informal counseling occurred substantially beyond the expiration of the 45-day 1 occurred between 2017 and early 2020). In fact, Plaintiff’s Complaint, and, his other papers, make 2 clear that he was never even present at his workplace after March of 2020. Plaintiff has not 3 articulated any reason for failing to timely initiate the required EEOC counseling; indeed, the 4 attachments to his Complaint make it clear that: (1) “the EEO poster is appropriately displayed at 5 his former facility”; and, (2) because “[he] has engaged in prior EEO activity [he] is deemed to 6 have constructive knowledge of the EEO complaint process and the applicable time periods for 7 filing claims.” See id. at 4. 8 This 45-day requirement is considered, in the context of Rule 12(b)(6) analysis, as a 9 condition precedent to suit; thus, like a statute of limitations, it is “subject to waiver, estoppel, and 10 equitable tolling,” or in the alternative, it can be “fatal to a federal employee’s discrimination 11 claim in federal court.” Kraus v. Presidio Tr. Facilities Div./Residential Mgmt. Branch, 572 F.3d 12 1039, 1043-44 (9th Cir. 2009). Here, because Plaintiff has not argued that waiver, estoppel, or 13 equitable tolling applies to excuse his failure to comply with § 1614.105, the question as to 14 whether Claim-1 has been exhausted solely depends on whether or not he initiated contact with a 15 Counselor within 45 days of the date of each matter alleged to be discriminatory. See 29 C.F.R. § 16 1614.105(a)(1). During oral argument, Plaintiff’s counsel merely noted that his termination 17 (August 5, 2021) took place within the 45-day window; however, for the reasons explained above, 18 that argument is unavailing because Plaintiff’s allegations of harassment (the allegations of taunts, 19 slurs, and other harassing conduct) transpired many months outside the relevant 45-day window 20 for the required EEOC counseling. Because those complaints cannot be raised for the first time in 21 a federal complaint absent proper exhaustion of the agency’s EEO process, and because this defect 22 cannot be cured by amendment, Claim-1 is DISMISSED without leave to amend. 23 In his second claim – denial of reasonable accommodations of disability – Plaintiff does 24 not actually state a case about a denial of reasonable accommodations; instead, he merely repeats 25 his discontentment with the USPS’s refusal to provide him with the updated letter he requested. 26 See Compl. (dkt. 1) at 23-24, ¶¶ 80-88; see also Pl.’s Opp. (dkt. 29) at 6-7 (same). 27 To state a claim for failure to accommodate a disability, Plaintiff must show that: (1) he is 1 See Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir.1999). A “reasonable 2 accommodation” is defined as “modifications or adjustments to the work environment, or to the 3 manner or circumstances under which the position held or desired is customarily performed, that 4 enable a qualified individual with a disability to perform the essential functions of that position.” 5 29 C.F.R. § 1630.2(o)(1)(ii). In other words, “[r]easonable accommodations are mechanisms to 6 remove barriers and provide assistance to disabled individuals so that they can perform the 7 ‘essential functions’ of employment positions.” Cripe v. City of San Jose, 261 F.3d 877, 889 (9th 8 Cir. 2001). However, employers are not required to make such accommodations, including 9 granting a leave of absence, if doing so would pose an undue hardship. See Humphrey v. Mem’l 10 Hosps. Ass’n, 239 F.3d 1128, 1136 n.14 (9th Cir. 2001). Working at home might be considered a 11 reasonable accommodation under circumstances where the essential functions of the position can 12 be performed at home and a work-at-home arrangement would not cause an undue hardship for the 13 employer. See id. at 1138 n.16. At the pleading stage, a plaintiff must, at a minimum, “describe the 14 requested accommodation and allege when and to whom it was made.” See Abdul-Haqq v. Kaiser 15 Found. Hosps., No. C 14-4140 PJH, 2015 U.S. Dist. LEXIS 8768, at *7-8 (N.D. Cal. Jan. 23, 16 2015). Further, a plaintiff must also identify how a requested accommodation would have enabled 17 him to perform the essential functions of his job. See Tazma Diwali Anaya v. Marin Cnty. Sheriff, 18 No. 13-cv-04090-WHO, 2014 U.S. Dist. LEXIS 164264, at *31-33 (N.D. Cal. Nov. 24, 2014). 19 Plaintiff has not satisfied these standards; and, for the reasons stated below, it appears that 20 granting him leave to amend would be futile. 21 At the outset, the court will note that Plaintiff’s Complaint does not establish him as a 22 “qualified individual” – and, in order to bring a claim pursuant to the Rehabilitation Act, it is 23 necessary to allege that, with or without reasonable accommodation, one can perform the essential 24 functions of the employment position that such individual holds or desires. See Bates v. UPS, 511 25 F.3d 974, 989 (9th Cir. 2007) (quoting 42 U.S.C. § 12111(8)). The “essential functions” of a job 26 are defined as its fundamental duties, including its marginal functions. Id. In Plaintiff’s case, 27 reporting for duty at the post office is the most fundamental function that a USPS employee must 1 where an employee can effectively perform all work-related duties at home, an employee ‘who 2 does not come to work cannot perform any of his job functions, essential or otherwise.’” Samper 3 v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1239 (9th Cir. 2012) (quoting EEOC v. 4 Yellow Freight Sys., 253 F.3d 943, 948 (7th Cir. 2001)); see also EEOC v. Ford Motor Co., 782 5 F.3d 753, 761 (6th Cir. 2015) (same); see also Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 6 1122-24 (10th Cir. 2004) (same); see also Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209, 213 (4th Cir. 7 1994) (same). It should also not go without mention that, “for good reason: ‘most jobs require the 8 kind of teamwork, personal interaction, and supervision that simply cannot be had in a home 9 office situation.’” Ford Motor Co., 782 F.3d at 761 (quoting Rauen v. U.S. Tobacco Mfg. L.P., 319 10 F.3d 891, 896 (7th Cir. 2003)); see also Pegram v. Brennan, No. 19-cv-02528-JSC, 2021 U.S. 11 Dist. LEXIS 241795, at *27 (N.D. Cal. Dec. 17, 2021) (explaining that attendance is an essential 12 function of being a USPS employee). 13 By his own admission, for a 17-month period (between early March of 2020, and his 14 termination on August 5, 2021) Plaintiff failed to report for duty at his place of employment. As 15 Defendant points out, “[t]his period includes four months after the May 4, 2021 meeting where 16 USPS agreed to provide the reasonable accommodations that Plaintiff sought [and, therefore,] 17 Plaintiff’s failure to appear for work during this period demonstrated that Plaintiff was unable to 18 perform the essential functions of his position even after USPS offered accommodations, which 19 accordingly absolved USPS of the need to provide any further accommodation.” See Def.’s Mot. 20 (dkt. 25) at 9. 21 “Both before and since the passage of the ADA, a majority of circuits have endorsed the 22 proposition that in those jobs where performance requires attendance at the job, irregular 23 attendance compromises essential job functions. Attendance may be necessary for a variety of 24 reasons. Sometimes, it is required simply because the employee must work as ‘part of a team.’” 25 Samper, 675 F.3d at 1237-38 (citing Hypes v. First Commerce Corp., 134 F.3d 721, 727 (5th Cir. 26 1998). As the Samper court noted, other types of employment require face-to-face interaction with 27 clients and other employees. Id. at 1237 (citing Nowak v. St. Rita High Sch., 142 F.3d 999 (7th 1 customer service agent); Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209 (4th Cir. 1994) (teacher)). Other 2 jobs may require the employee to work with certain items, equipment, or materials that are on-site, 3 or to otherwise perform functions that simply cannot be performed off-site. Samper, 675 F.3d at 4 1237-38 (citing Yellow Freight Sys., Inc., 253 F.3d 943 (7th Cir. 2001) (en banc) (dockworker); 5 Jovanovic v. In-Sink-Erator, 201 F.3d 894 (7th Cir. 2000) (tool and die maker); Waggoner v. Olin 6 Corp., 169 F.3d 481, 481-82 (7th Cir. 1999) (production worker); Corder v. Lucent Techs., Inc., 7 162 F.3d 924 (7th Cir. 1998) (telephone customer support); Halperin v. Abacus Tech. Corp., 128 8 F.3d 191 (4th Cir. 1997) (computer consultant); Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 9 755 (5th Cir. 1996) (mechanic); Jackson v. Veterans Admin., 22 F.3d 277 (11th Cir. 1994) 10 (housekeeper); Carr v. Reno, 23 F.3d 525, 306 U.S. App. D.C. 217 (D.C. Cir. 1994) (coding clerk 11 under the Rehabilitation Act); Law v. U.S. Postal Serv., 852 F.2d 1278 (Fed. Cir. 1988) (mail 12 handler under the Rehabilitation Act). In short, in a job like Plaintiff’s – one that required on-site 13 and in-person work – “performance is predicated on [] attendance; [and] reliable, dependable 14 performance requires reliable and dependable attendance.” Samper, 675 F.3d at 1241. As was the 15 case in Samper, Plaintiff’s failure to show up for work (following the expiration of his allotment 16 of authorized paid and unpaid leave) rendered him otherwise unqualified for the position he 17 occupied. In and of itself, this must result in the dismissal of his reasonable accommodation claim. 18 Quite apart from rendering himself unqualified for his position by failing to report to work 19 for months after the expiration of his allotment of authorized leave, Plaintiff’s Complaint does not 20 actually allege that the USPS refused to provide any reasonable accommodation. Instead, the 21 Complaint alleges that Plaintiff requested “updated written documentation” of previously-granted 22 and already-memorialized accommodations at a meeting on May 4, 2021, and the gist of this claim 23 is focused on the USPS’s failure to produce the updated written documentation that Plaintiff 24 demanded. See Compl. (dkt. 1) at 22-24. However, as Defendant points out (see Def.’s Mot. (dkt. 25 25) at 10) Plaintiff has provided no authority (nor has the court found any) to support the 26 contention that delay, or refusal, in providing such updated written documentation of an agreed- 27 upon accommodation, itself, constitutes a failure to provide a reasonable accommodation. See 1 employer’s actual failure to provide the accommodation, and because the Complaint alleges quite 2 the opposite – Plaintiff has failed to state a claim for relief on this account as well. 3 Then there is also the fact that Plaintiff has not exhausted the required administrative 4 remedy. As stated above, Plaintiff was required to initiate informal EEO counseling within 45 5 days of the allegedly offending behavior in order to bring this claim. See Cherosky, 330 F.3d at 6 1245 (citing 29 C.F.R. § 1614.105(a)(1)); see also Lyons, 307 F.3d at 1105. Because the 45-day 7 period for events occurring on May 4, 2021 expired on June 18, 2021, and because the Complaint 8 does not allege that Plaintiff initiated the required informal counseling by that date – even if 9 Plaintiff had stated a cognizable claim for relief (which is not the case), the claim would have been 10 barred for failure to exhaust administrative remedies anyway. For these reasons, and because it is 11 clear that these defects cannot be cured by amendment, Claim-2 is DISMISSED with prejudice. 12 In his third claim Plaintiff pleads a claim of retaliation for having requested a reasonable 13 accommodation of disability. See Compl. (Dkt. 1) at 25-27. Therein, he essentially only alleges 14 that: (1) he suffers from diabetes; (2) that the USPS agreed to grant him accommodations on 15 multiple occasions, “including at his meeting with [DRAC] Representative Lincoln Lau [] on May 16 4, 2021; and, that his only gripe is that “USPS’s refusal to provide [him] with an updated written 17 document outlining his agreed disability accommodations . . . constituted retaliation against [him] 18 for his protected activity of requesting and attempting to exercise disability accommodations.” See 19 id. at ¶ 93. According to Plaintiff, the USPS’s refusal to memorialize the agreed-upon 20 accommodations in the form of an “updated written document” constituted “retaliation” because it 21 “had the intended effect of placing [him] in a state of reasonable apprehension relating to going to 22 work, causing [him] to suffer severe emotional harm in the form of intense apprehension, rising to 23 the level of severe terror, regarding the likely treatment he would receive from co-workers if he 24 attempted to return to work without the written documentation of his disability accommodations.” 25 See id. at ¶ 95. Plaintiff concludes by asserting that the USPS’s failure (at the meeting on May 4, 26 2021) to provide the “updated written document” he had requested, “is the direct cause of the 27 termination of [his] employment [on August 5, 2021.]” See id. at ¶ 97. 1 protected activity; (2) that he suffered a materially adverse employment action; and, (3) that there 2 exists a causal connection between the protected activity and the adverse employment action. See 3 Pardi v. Kaiser Found. Hosp., 389 F.3d 840, 849 (9th Cir. 2004) (ADA case); see also Fleming v. 4 Yuma Reg’l Med. Ctr., 587 F.3d 938, 939 (9th Cir. 2009); see also Campbell v. Brennan, No. 15- 5 cv-03582-JSC, 2018 U.S. Dist. LEXIS 14944, at *25-26 (N.D. Cal. Jan. 30, 2018) (Rehabilitation 6 Act case) (citing T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 473 (9th 7 Cir. 2015) (adopting Title VII’s framework for ADA retaliation claims)). The “standard for the 8 ‘causal link’ is but-for causation.” See T.B. ex rel. Brenneise, 806 F.3d at 473. 9 Far from establishing but-for causation, as to the link between his request for 10 accommodations (which he claims was granted) and his subsequent termination on August 5, 2021 11 (following his protracted period away from his workplace without leave), Plaintiff has made two 12 assertions: first, that the USPS’s failure to provide him the updated letter he wanted was 13 “retaliatory” to begin with; and, second, that the failure to provide the letter was “the direct cause” 14 of the termination of his employment. These assertions are exactly the type of “conclusory, 15 unwarranted deductions of fact or unreasonable inferences” that the court must disregard in 16 analyzing a motion to dismiss under Rule 12(b)(6). See, e.g., Daniels-Hall v. Nat’l Educ. Ass’n, 17 629 F.3d 992, 998 (9th Cir. 2010); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 18 1031 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 19 Plaintiff’s third claim, therefore, must be dismissed for two reasons. First, as described 20 above, Plaintiff failed to exhaust the required administrative remedy. Plaintiff contends that he 21 was denied the updated written documentation he wanted at a meeting with Lincoln Lau on May 22 4, 2021. He was therefore required to initiate the informal EEO counseling related to the USPS’s 23 May 4, 2021, refusal to give him the updated letter he wanted no later than June 19, 2021 (45 days 24 later). As mentioned above, Plaintiff initiated the informal counseling on August 26, 2021. See 25 Compl., Exh. B (Dkt. 1-2) at 3 (“The record revealed the complainant requested pre-complaint 26 counseling in the instant case on August 26, 2021.”). To the extent that Plaintiff contends that the 27 USPS’s failure to provide him this updated written letter between May 4, 2021, and his 1 “retaliation” (see id. at ¶ 93), the court will disregard that assertion because it too is an 2 unwarranted deduction (see Sprewell, 266 F.3d at 988.). The denial of which Plaintiff complains 3 (if such can reasonably be assumed to be retaliatory at all) was a discreet event that happened on 4 May 4, 2021, when Plaintiff requested the letter and did not receive it. Plaintiff cannot be said to 5 have exhausted the administrative remedy for this claim either – which is similarly fatal to his 6 ability to pleat it in this court in the first instance. Thus, because Plaintiff failed to timely pursue 7 his administrative remedy “within 45 days of the date of the matter alleged to be [retaliatory]” (see 8 29 C.F.R. § 1614.105(a)(1)), his “[f]ailure to comply with that regulation [must be deemed] ‘fatal 9 to [his] [retaliation] claim.’” Cherosky, 330 F.3d at 1245 (quoting Lyons v. England, 307 F.3d at 10 1105). 11 Furthermore, once stripped of its conclusory content, its unwarranted deductions, and its 12 unreasonable inferences, Claim-3 neither pleads any cognizable retaliatory act nor any causal 13 nexus to his termination. For the court to deem the USPS’s failure to provide Plaintiff with the 14 updated letter he wanted, there must be some authority entitling him to such a letter. There is not. 15 All that Plaintiff has provided was to assert during oral argument – once again, in conclusory 16 fashion – that the purposes of the Rehabilitation Act would be frustrated by giving employees 17 verbal descriptions of their agreed upon disability accommodations. Even assuming that such an 18 assertion is correct – that would merely constitute a legislative oversight by Congress rather than 19 an affirmative act of retaliation by a blameless employer who is under no duty to conjure up a 20 more prudential version of a statute or to impose upon itself statutory duties that do not exist. 21 Thus, the failure to provide the updated letter – when no duty existed to provide one – cannot be 22 reasonably interpreted as a retaliatory act at all. Second, even if one were able to interpret the 23 refusal to provide that updated letter as some form of retaliation, Plaintiff has failed to plead any 24 causal link between the alleged protected activity and the alleged adverse action. Even assuming 25 that Plaintiff’s termination was the actionable adverse action, Claim-3 would still fail for two 26 reasons. First, as mentioned above, the court cannot accept Plaintiff’s unwarranted deduction to 27 the effect that the refusal to give him his updated letter memorializing his agreed upon 1 because he claims that he feared returning to work without it. Second, as noted by Defendant, “any 2 supposed causal connection was broken by the postmaster letters in June 2021 warning Plaintiff 3 that he would be considered AWOL after not showing up to work for over a year.” See Def.’s 4 || Mot. (dkt. 25) at 11 (citing Compl. | 56; and Ghirmai v. Nw. Airlines, Inc., 131 F. App’x 609, 611 5 (9th Cir. 2005) (retaliation claim must be dismissed where “intervening events” “break the causal 6 connection”)). Thus, for these reasons, and because it is clear that granting leave to amend would 7 be futile, Claim-3 is DISMISSED without leave to amend. 8 CONCLUSION 9 For the reasons stated herein, Defendant’s request (see dkt. 25 at 2) for an order dismissing 10 || Plaintiff's Complaint (dkt. 1) in its entirety with prejudice is GRANTED. A separate judgment 11 shall issue. 12 IT IS SO ORDERED. 5 13 || Dated: April 10, 2023 14 Ml Z 15

ROBERT M. ILLMAN

= 16 United States Magistrate Judge

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