Koch v. California Water Service Company

Filing 38

ORDER ADOPTING 34 Findings and Recommendations to Grant Defendant's Motion to Dismiss With Prejudice signed by District Judge Kirk E. Sherriff on 3/6/2025. CASE CLOSED. (Deputy Clerk JPX)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PHILIP A. KOCH,

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Plaintiff,
v.
CALIFORNIA WATER SERVICE
COMPANY,

Case No. 1:22-cv-01333-KES-CDB
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO GRANT
DEFENDANT’S MOTION TO DISMISS WITH
PREJUDICE
(Docs. 34-36)

Defendant.

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On October 19, 2022, plaintiff Philip A. Koch initiated this action with the filing of a

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complaint. Doc. 1. On January 10, 2023, defendant California Water Service Company moved

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to dismiss the action. Doc. 9. After being granted leave to file a late opposition, Doc. 15,

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plaintiff opposed the motion on February 23, 2023, Doc. 16. Defendant replied on March 3,

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2023. Doc. 17. On August 7, 2024, the motion was referred to the assigned magistrate judge for

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preparation of findings and recommendations. Doc. 32.

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On November 12, 2024, the assigned magistrate judge issued findings and

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recommendations to grant the motion and to dismiss this action with prejudice. Doc. 34

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(“F&R”). The assigned magistrate judge determined that plaintiff had failed to plausibly allege

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facts to state a claim of disability discrimination under the ADA. Id. at 21. Specifically, the

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assigned magistrate judge found that plaintiff had not plausibly alleged that defendant

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misclassified him as disabled or regarded him as having a disability, id. at 13, that plaintiff was

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not a qualified individual within the meaning of the ADA, id. at 16-17, and that plaintiff failed to

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allege defendant improperly terminated him for engaging in a protected activity, id. at 17-18.

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Further, the magistrate judge found that plaintiff’s complaint failed to state a claim of retaliation

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under the ADA. Id. at 18-19. The magistrate judge concluded by noting that any remaining state

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law claims should be dismissed if all plaintiff’s asserted federal claims are dismissed, as the

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findings and recommendations recommended, and discussed whether plaintiff had sufficiently

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exhausted his administrative remedies prior to bringing his claims. Id. at 19-21.

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On November 25, 2024, plaintiff filed objections to the findings and recommendations.

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Doc. 35 (“Pl.’s Objs.”). On December 6, 2024, defendant responded to plaintiff’s objections.

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Doc. 36.

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Pursuant to 28 U.S.C. § 636(b)(1), the Court conducted a de novo review of this case.

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Having carefully reviewed the file, the Court concludes that the findings and recommendations

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are supported by the record and by proper analysis and that plaintiff’s objections do not

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undermine such analysis.

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In his objections, plaintiff first asserts that the magistrate judge erred by not considering

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his claims under the ADA which do not require that plaintiff have a disability or be

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mischaracterized as having a disability.1 See Pl.’s Objs. 1-2, 6. Plaintiff is correct that “[c]laims

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of improper disability-related inquiries or medical examinations, improper disclosure of

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confidential medical information, or retaliation may be brought by any applicant or employee, not

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just individuals with disabilities.” 29 C.F.R. pt. 1630 App. n.1 (EEOC Interpretive Guidance on

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Title I of the ADA) (citing Cossette v. Minnesota Power & Light, 188 F.3d 964, 969–70 (8th Cir.

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1999); then citing Fredenburg v. Contra Costa County Dep't of Health Servs., 172 F.3d 1176,

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Plaintiff does not argue that the magistrate judge erred in concluding that plaintiff failed to state
a claim for disability discrimination under the ADA. See generally Pl.’s Objs; see also Pl.’s Objs.
6 (“For these reasons, the plaintiff requests the court to decide that all the claims discussed above,
which are not based upon a claim of disability, are allowed to proceed.”) (emphasis added).
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1182 (9th Cir. 1999); then citing Griffin v. Steeltek, Inc., 160 F.3d 591, 594 (10th Cir. 1998)).

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However, plaintiff has not plausibly pleaded any such claim.

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Courts have routinely dismissed claims like the ones plaintiff attempts to bring—namely

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that employer COVID-19 policies, especially those implemented during the height of the

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pandemic, constitute prohibited disability-related inquiries or medical examinations. See, e.g.,

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Monegas v. City and County of San Francisco Dept. of Public Health, Case No. 22-cv-04633-

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JSW, 2023 WL 5671933, at *3 (N.D. Cal. Sept. 1, 2023); see also Chancey v. BASF Corp., No.

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3:22-cv-34, 2022 WL 18438375, at *3-4 (S.D. Tex. Dec. 29, 2022), aff’d, No. 23-40032, 2023

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WL 6598065 (5th Cir. 2023). Similar to the plaintiff in Monegas, plaintiff here alleges that, in

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implementing a policy requiring employees to submit to COVID-19 testing, to report their

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vaccination status, to wear masks, to social distance, and to report their temperature at the start of

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their shift, defendant subjected plaintiff to unlawful disability-related inquiries and medical

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examinations under the ADA. See Monegas, 2023 WL 5671933, at *1.

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In Monegas, the court held that inquiring whether an employee was vaccinated could not

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constitute a disability-related inquiry given that the court had held that being unvaccinated or

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being perceived as potentially having COVID-19 does not qualify as a disability under the ADA.

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Id. at *3 (emphasis in original). Moreover, it held that employer-mandated COVID-19-related

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health surveys did not constitute a prohibited inquiry given the EEOC’s guidance that employer-

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required COVID-19 testing complies with applicable ADA standards, especially at the peak of

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the pandemic. Id.

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The court further held that an employer policy requiring employees “to get the COVID-19

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vaccine, to wear masks, and to isolate when positive do not qualify as medical examinations

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under the ADA.” Id. The court also noted that, even if these requirements could be considered

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medical examinations, again, the EEOC “expressly advised that COVID-19 medical examinations

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would always meet the applicable ADA standard if they were administered in 2021 or the first

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half of 2022,” during the height of the pandemic. Id.

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Similarly, the court in Chancey held that similar policies and practices related to COVID19—including social distancing, taking COVID-19 tests, and masking—did not meet the
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definitions of disability-related inquiries or medical examinations. 2022 WL 18438375, at *3-4.

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The Fifth Circuit affirmed dismissal of the claims, noting also that the plaintiff did not plausibly

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plead that he had been subjected to any such examinations or inquiries given plaintiff’s allegation

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that defendant never conducted “an individualized assessment” of him and that plaintiff had

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refused to comply with the employer’s COVID-19 policies. 2023 WL 6598065, at *2.

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As noted, plaintiff alleges nearly the same facts as the plaintiff in Monegas and similar

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facts to those of Chancey. As in those cases, plaintiff’s complaint concerns the period in 2021

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and the first half of 2022, during the height of the pandemic. Moreover, here, as in Chancey,

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plaintiff confirms defendant “never performed an individual assessment” of him and that plaintiff

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refused to comply with defendant’s COVID-19 policies mandating vaccination, wearing a mask,

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and consenting to have his temperature taken. For the same reasons as the Monega and Chancey

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courts held that those plaintiffs did not state a claim under the ADA regarding unlawful disability-

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related inquiries and examinations, plaintiff here also has failed to state such a claim.

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Next, plaintiff argues that the magistrate judge improperly concluded that his retaliation

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claim should be dismissed, despite finding that plaintiff properly alleged he engaged in protected

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activity and that plaintiff suffered an adverse employment action due to such activity. Pl.’s Objs.

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2. He contends that the magistrate judge erroneously concluded that plaintiff needed to object to

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defendant’s COVID-19 policies before they were implemented to assert a retaliation claim. Id.

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There are several issues with plaintiff’s arguments. First, the magistrate judge did not find

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that plaintiff properly alleged an adverse employment action based on his engaging in a protected

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activity. See F&R 17-19 (“The Court finds that Plaintiff has failed to allege improper termination

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for protected activity.”). Rather, the magistrate judge correctly found that plaintiff “was not

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terminated for objecting to Defendant’s COVID-19 policy” but for “refusing to comply with it,”

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which courts consistently hold is not actionable under the ADA. Id. at 17-19 (citing West v. Scott

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Lab'ys, Inc., No. 22-CV-07649-CRB, 2023 WL 2632210, at *6 (N.D. Cal. Mar. 24, 2023), aff’d,

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No. 23-15502, 2023 WL 6172009 (9th Cir. 2023)); see also, e.g., Lundstrom v. Contra Costa

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Health Servs., No. 22-CV-06227-CRB, 2022 WL 17330842, at *6 n.7 (N.D. Cal. Nov. 29, 2022),

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aff'd, No. 22-16946, 2023 WL 6140588 (9th Cir. 2023) (finding that opposing COVID-19
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policies was not a protected activity given plaintiff had not plausibly alleged her employer’s

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COVID-19 policies violated the ADA or that plaintiff’s unwillingness to abide by them was a

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request for accommodation given plaintiff was not disabled).

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Second, the magistrate judge analyzed plaintiff’s retaliation under two theories: (1) that

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the alleged retaliation was implementing a COVID-19 policy and (2) that the alleged retaliation

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was terminating his employment. F&R at 18-19. As to the first theory, the magistrate judge

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correctly found that it was unreasonable to infer that defendant enacted the COVID-19 policy in

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retaliation for plaintiff’s criticism of the policy, as defendant implemented the policy before

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plaintiff made any objection to it. Id. at 18. As to the second theory, the magistrate judge found

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that “it is also unreasonable to infer that there was a causal connection between Plaintiff’s

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criticism of Defendant’s COVID-19 policy and his termination” because of the finding that

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plaintiff was not terminated for stating objections to the policy, but rather, for his refusal to

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comply with its terms. Id. at 18-19 (citing Together Emps. v. Mass Gen. Brigham Inc., 573 F.

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Supp. 3d 412, 444-45 (D. Mass. Nov. 10, 2021), aff’d, 32 F.4th 82 (1st Cir. 2022); then citing

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Lundstrom, 2022 WL 17330842, at *7).

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Next, plaintiff asserts that the magistrate judge should have taken into account the

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EEOC’s “latest” guidance for implementing COVID-19 policies, that defendant “never produced

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evidence that Koch had a medical condition that posed a direct threat to health or safety,” and that

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the magistrate judge “should be aware that [it is] not credible to assume plaintiff has a bona fide

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deadly contagious medical condition simply because he does not wear a mask or take

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experimental treatments for a condition he has never been diagnosed with.” Pl.’s Objs. 4.

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However, as noted above, the magistrate judge appropriately considered the relevant EEOC

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guidance in effect at the time relevant to this action. Moreover, the magistrate judge correctly

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analyzed defendant’s “direct threat” affirmative defense. The magistrate judge did not assume

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that plaintiff had a “deadly contagious medical condition” in analyzing plaintiff’s claims; rather,

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the magistrate judge correctly noted that “[p]laintiff does not allege that [d]efendant ever

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classified him as having a COVID-19 inflection that was severe enough to substantially limit one

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of his major life activities,” but rather, “classified him as refusing to follow the COVID-19 policy

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that applied to all employees.” F&R 11-12.
Next, plaintiff alleges that the magistrate judge erred in failing to address plaintiff’s claim

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that defendant’s COVID-19 policy “is illegal.” Pl.’s Objs. 5. Specifically, plaintiff claims that

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defendant “had no legal duty nor authority to impose its [COVID-19 policy] . . . not only because

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it [violates] the ADA, but also [because] the legislature has not made any new laws requiring

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‘Covid treatments,’ the public health law policy remains the same, there is no new legislative

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authority defendant has pointed to which authorizes any employer to demand non-job-related

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medical treatments and inquiries as a new condition of employment.” Id. First, as noted,

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defendant did not subject plaintiff to disability-related inquiries or examinations. Second,

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defendant need not point to a law giving it the authority to implement a policy in its business.2

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Plaintiff alleged that defendant’s COVID-19 policy violated the ADA, but as noted above, it did

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not.3

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Moreover, defendant correctly notes that section 3205(c) of the California Code of Regulations
required “employers to establish, implement, and maintain an effect Injury and Illness Prevention
Program” regarding COVID-19. Doc. 17 at 7.

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Given the finding that plaintiff’s complaint should be dismissed with prejudice for failure to
state a claim, the Court need not address plaintiff’s arguments regarding exhaustion of his
administrative remedies.
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Accordingly,

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1. The findings and recommendations issued November 12, 2024, Doc. 34, are

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ADOPTED IN FULL;

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2. Defendant’s motion to dismiss, Doc. 9, is GRANTED;

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3. This case is DISMISSED with prejudice; and

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4. The Clerk of the Court is directed to close this case.

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IT IS SO ORDERED.
Dated:

March 6, 2025
UNITED STATES DISTRICT JUDGE

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