1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9

LINDA KAY LINNE,

10 Case No. 22-cv-04981-RS Plaintiff, 11 v. ORDER GRANTING MOTION TO 12 DISMISS AMENDED COMPLAINT

ALAMEDA HEALTH SYSTEM,

13 Defendant. 14

15 I. INTRODUCTION 16 Following a previous order granting the motion to dismiss, pro se Plaintiff Linda Kay 17 Linne filed an Amended Complaint reasserting her claims of discrimination and retaliation against 18 former employer Defendant Alameda Health System, pursuant to the Americans with Disabilities 19 Act and ADA Amendments Act of 2008 (together, “ADA”). Defendant again moves to dismiss. 20 Under Civil Local Rule 7-1(b), Defendant’s motion is suitable for disposition without oral 21 argument. For the reasons that follow, the motion to dismiss is granted with prejudice. 22 II. LEGAL STANDARD 23 A complaint must contain “a short and plain statement of the claim showing that the 24 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While “detailed factual allegations” are not 25 required, a complaint must have sufficient factual allegations to state a claim that is “plausible on 26 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. v. Twombly, 550 U.S. 544, 27 555, 570 (2007)). Accordingly, dismissal under Rule 12(b)(6) may be based on either the “lack of 1 theory.” See Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (internal 2 quotation marks and citation omitted). 3 When evaluating such a motion, courts generally “accept all factual allegations in the 4 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” 5 Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). “Threadbare recitals of the elements of a 6 cause of action, supported by mere conclusory statements, do not suffice,” however. Iqbal, 556 7 U.S. at 678. Indeed, courts are “not required to accept as true ‘allegations that are merely 8 conclusory, unwarranted deductions of fact, or unreasonable inferences.’” World Health & Educ. 9 Found. v. Carolina Cas. Ins. Co., 612 F. Supp. 2d 1089, 1093 (N.D. Cal. 2009) (citation omitted). 10 III. DISCUSSION 11 Plaintiff, a respiratory therapist, was employed with Defendant until she was terminated 12 for noncompliance with Defendant’s COVID policy—a decision which Plaintiff alleges was 13 discrimination and retaliation in violation of the ADA. Plaintiff’s Amended Complaint, however, 14 advances substantially unchanged facts and legal theories from her first Complaint, and ultimately 15 suffers from the same deficiencies outlined in the previous Order Granting the Motion to Dismiss. 16 Under the ADA, the term “disability” is defined as “(A) a physical or mental impairment 17 that substantially limits one or more major life activities of such individual; (B) a record of such 18 an impairment; or (C) being regarded as having such an impairment (as described in paragraph 19 (3)).” 42 U.S.C. § 12102(1). Whether any of these three prongs is satisfied is a threshold inquiry 20 that determines whether Plaintiff falls under the scope of the ADA at all, and necessarily 21 antecedent to other questions or analyses.1 Here, they are not: the Amended Complaint still fails to 22 make sufficient allegations to show that Plaintiff is, or was recorded or regarded as, a disabled 23 person within the meaning of the ADA and that she was terminated because of a disability within 24 the meaning of the ADA. 25

26 1 This includes, for instance, the inquiry of whether an individualized assessment was conducted 27 to determine whether Plaintiff posed a direct threat. 1 With respect to Plaintiff’s appeal to the “regarded as” prong of the disability definition, as 2 previously explained, employees cannot bring claims for being regarded as having an impairment 3 that is “transitory and minor,” defined as “an impairment with an actual or expected duration of 6 4 months or less.” 42 U.S.C. § 12102(3)(B). On this basis, courts “generally agree that a COVID-19 5 infection is not a disability,” because it is “generally transitory.” Lundstrom v. Contra Costa 6 Health Services, 2022 WL 17330842 at *5 (N.D. Cal. Nov. 29, 2022) (citing cases). 7 Plaintiff attacks Lundstrom as exhibiting “tortured reasoning and pretzel logic,” but 8 otherwise offers no analysis of the legal reasoning therein. Instead, Plaintiff makes reference to the 9 out-of-circuit opinion in Feds for Med. Freedom v. Biden, 63 F.4th 366 (5th Cir. 2023)—which 10 held that the Civil Service Reform Act of 1978 did not strip courts of jurisdiction to review pre- 11 enforcement challenges to the executive orders mandating vaccines for federal employees, and 12 nowhere discusses the ADA—and Laird v. Tatum, a wholly irrelevant case concerning military 13 surveillance of civilians, to lament that “the America once extolled as the voice of liberty heard 14 around the world no longer is cast in the image which Jefferson and Madison designed, but more 15 in the Russian image.” 408 U.S. 1, 28–29 (1972) (Douglas, J., dissenting). Yet Plaintiff’s mere 16 disagreement with legal precedent no more vitiates it than her disagreement with Defendant’s 17 COVID precautions nullifies those policies.2 18 As Plaintiff acknowledges, the “transitory and minor” standard applies to the alleged 19 impairment claimed to be a disability. See Dkt. 17 at 8 (“It is important to point out that whether 20 COVID-19 is transitory and minor is different from whether the threat of termination was 21 transitory and minor (which was definitely not transitory and/or minor) . . . .”). In other words, 22 because COVID-19 is an impairment that is considered transitory, even being regarded as having, 23 or potentially contracting, COVID-19 is being regarded as having an impairment that is 24

25 2 As Defendant notes, Plaintiff spends four pages of the Opposition—nearly a third of her entire 26 brief—providing improper citations to external websites that criticize the efficacy of the COVID- 19 vaccine. Though Plaintiff is entitled to her beliefs regarding the vaccine, they are not enough to 27 insulate her from the persuasive legal precedent of this district. 1 transitory—and therefore falls outside the scope of the definition of disability under 42 U.S.C. 2 §12102(1)(C). See 42 U.S.C. §12102(3)(B). That the consequence for failing to comply with 3 Defendant’s COVID policies (i.e., termination) are less transitory has no bearing on this legal 4 analysis. 5 Plaintiff’s passing reference to the “record of” prong fares no better. Although she avers 6 that Defendant misclassified her as disabled, a notation that Plaintiff is “unvaccinated” does not 7 indicate that Defendant recorded Plaintiff as having a disability. See West v. Scott Lab'ys, Inc., No. 8 22-CV-07649-CRB, 2023 WL 2632210, at *4 (N.D. Cal. Mar. 24, 2023) (dismissing claim that 9 Defendant misclassified Plaintiff “as having or being ‘vulnerable’ to contracting COVID-19” as 10 “[t]here simply is nothing to suggest that [Defendant] ever classified [Plaintiff] as having an 11 impairment that substantially limited one or more major life activities”) (citations omitted); see 12 also 29 C.F.R. § 1630.2(k)(2) (“An individual will be considered to have a record of a disability if 13 the individual has a history of an impairment that substantially limited one or more major life 14 activities when compared to most people in the general population, or was misclassified as having 15 had such an impairment.”) (emphasis added). 16 Across both prongs of disability, moreover, it bears repeating that there is nothing inherent 17 in a policy equally instituting COVID protections to employees that is naturally harassing. 18 Plaintiff’s averments that she “received repeated emails addressed to her email address at work” 19 do not, in fact, “clearly demonstrate[] that she was hassled, coerced and discriminated against.” 20 Dkt. 17 at 3. 21 With respect to Plaintiff’s retaliation claim, it was previously explained that protected 22 activity generally either challenges a violation of the ADA, or requests a remedy authorized by it. 23 See Lundstrom, 2022 WL 17330842, at *6 (citing 42 U.S.C. § 12203(a)). Plaintiff has neither 24 described a situation concerning a disability as defined under the ADA, nor alleged facts to show 25 that Defendant’s communications with and termination of Plaintiff were anything other than its 26 enforcement of a policy, in place before Plaintiff opposed it, that applied equally to all employees. 27 Contrary to her conclusory arguments, Plaintiff’s noncompliance is not protected activity related 1 to a disability, and Defendant had legitimate, non-retaliatory reasons for maintaining 2 || consequences for noncompliance. See, e.g., O'Hailpin v. Hawaiian Airlines, Inc., 583 F. Supp. 3d 3 1294, 1312 (D. Haw. 2022). Plaintiff has thus not stated a claim for retaliation under the ADA. 4 Finally, Plaintiff's gestures to other legal concepts, like Defendant’s duty of care and 5 || medical privacy, do not advance her claims under the ADA. As Plaintiff fails to allege that she 6 || was recorded or regarded as having a disability within the meaning of the ADA, her ADA 7 discrimination and retaliation claims must be dismissed. 8 IV. CONCLUSION 9 Plaintiff's Amended Complaint falls short even of the relaxed standard applied to 10 || pleadings filed by pro se litigants. Because at this point it is clear the deficiency is one of legal 11 theory and not with the factual allegations, further leave to amend will not be given. The case is 12 || therefore dismissed with prejudice, and the Clerk is directed to close the file.

14 15 || ITISSO ORDERED. 16

|| Dated: April 28, 2023

Z 18

RICHARD SEEBORG

19 Chief United States District Judge 20 21 22 23 24 25 26 27 28 ORDER GRANTING MOTION TO DISMISS CASE No. 22-cv-04981-RS