Contreras v. National Guard Bureau et al

Filing 102

ORDER signed by District Judge Kimberly J. Mueller on 9/24/18 DISMISSING Contreras' FMLA and ADA claims without leave to amend, as is her Rehabilitation Act claim, insofar as it arises from any alleged hearing impairment and insofar as it includes a disparate treatment claim. Defendant shall file an answer within 21 days. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GRACIELA M. CONTRERAS,

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No. 2:14-CV-01282 KJM-KJN

Plaintiff,

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v.

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ORDER

MARK T. ESPER, SECRETARY OF THE
UNITED STATES ARMY,

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Defendant.

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Plaintiff Graciela C. Contreras, a former federal civilian employee, sues Secretary

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of the Army, Mark Esper, for disability discrimination. Defendant moves to dismiss. Plaintiff

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opposes. For the following reasons the motion is GRANTED in part.1

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I.

Family and Medical Leave Act & Americans with Disabilities Act Claims
Defendant argues the court’s prior order precludes Contreras from bringing a claim

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under the Family and Medical Leave Act (FMLA), and that in any event, the court lacks

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jurisdiction to hear such a claim. Mot., ECF No. 96 at 9-11. Defendant also contends the court

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lacks jurisdiction to hear Contreras’s Americans with Disabilities Act (ADA) claim. Id. at 11. As

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she conceded in her opposition and confirmed at hearing, Contreras agrees that the court lacks

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To streamline resolution of certain motions in cases where the parties have counsel, the court
has adopted a shortened form of order.
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jurisdiction to hear these claims and abandons them. See Opp’n, ECF No. 97 at 2. The FMLA

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and ADA claims are therefore DISMISSED without leave to amend.

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II.

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Rehabilitation Act Claim
Disability discrimination under the Rehabilitation Act of 1973, 29 U.S.C. § 791,

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et seq., can take the form of disparate treatment, alleged denial of equal jobs or benefits because

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of the employee’s disability, or failure to reasonably accommodate a disability. Walton v. U.S.

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Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007) (noting Rehabilitation Act incorporates ADA

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standards of substantive liability); Whelan v. Potter, No. CIV S-09-3606 KJM, 2012 WL

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3535869, at *11 (E.D. Cal. Aug. 15, 2012).

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Contreras’s operative complaint alleges she suffers from a mental impairment. See

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Second Am. Compl. (SAC), ECF No. 94 ¶¶ 14, 17, 36, 41, 44 (alleging “mental disabilities”

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causing loss of enjoyment of life, anxiety, insomnia and difficulty breathing and moving); id. Ex.

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3, ECF No. 94-4 at 2 (physician’s letter identifying Contreras as suffering from recurrent major

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depression and bipolar disorder); SAC Ex. 4, ECF No. 94-5 at 2 (physician’s letter referring to

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Contreras’s major depression); SAC Ex. 6, ECF No. 94-7 at 2 (letter from defendant’s employee

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referring to Contreras’s requested accommodation for post-traumatic stress disorder). Although

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her earlier complaints also alleged discrimination based on a hearing impairment, Contreras

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conceded at hearing that her operative complaint does not allege a hearing impairment at all, let

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alone discrimination based on a hearing impairment. She further confirmed she does not seek

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leave to amend her complaint to add such a claim. Accordingly, Contreras’s Rehabilitation Act

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claim, insofar as that claim is based on a hearing impairment, is DISMISSED without leave to

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amend.

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Defendant also argues Contreras’s operative complaint has not sufficiently alleged

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disability discrimination by way of a disparate treatment claim and notes it is unclear whether

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Contreras intends to bring such a claim. Mot. at 14. “‘Liability in a disparate treatment case

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depends on whether the protected trait motivated the employer’ to treat disabled employees less

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favorably than non-disabled employees.” Whelan, 2012 WL 3535869, at *11 (quoting Raytheon

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Co. v. Hernandez, 540 U.S. 44, 52 (2003)). Contreras has not alleged she was treated
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unfavorably because of her disability. See SAC ¶ 58 (alleging only “other qualified individuals

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with disabilities receive benefits that [Contreras] requested” but omitting allegations that she was

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denied such requests based on her disability). At hearing, Contreras suggested she is not pursuing

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a disparate treatment claim, noting that the heart of her suit is her reasonable accommodation

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claim. The court gathers Contreras does not seek leave to amend her complaint to allege

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disparate treatment.

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Finally, defendant initially moved to dismiss Contreras’s failure to accommodate

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claim, Mot. at 11-13, but has withdrawn his motion in favor of bringing “an early motion for

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summary judgment,” Reply at 3-4. At hearing, defendant’s counsel confirmed this position and

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noted defendant also withdraws his argument that Contreras has not sufficiently alleged a

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qualifying mental impairment. Accordingly, the court need not reach either argument here.

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III.

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CONCLUSION
As explained above, Contreras’s FMLA and ADA claims are DISMISSED

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without leave to amend, as is her Rehabilitation Act claim, insofar as it arises from any alleged

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hearing impairment and insofar as it includes a disparate treatment claim. Defendant shall file an

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answer within 21 days.

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IT IS SO ORDERED.
DATED: September 24, 2018.

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UNITED STATES DISTRICT JUDGE

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