Brown v. Jewell et al

Filing 33

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 2/28/17 ORDERING that request for judicial notice 20 is granted and RECOMMENDING that motion to dismiss 19 be granted without leave to amend and this action be closed. F&R referred to District Judge Morrison C. England, Jr.. Objections to F&R due within fourteen days. (Kaminski, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARILEE BROWN, 12 13 14 15 No. 2:16-cv-0637 MCE CKD PS Plaintiff, v. ORDER AND SALLY JEWELL, FINDINGS AND RECOMMENDATIONS Defendant. 16 17 Pending before the court is defendant’s motion to dismiss. This matter was submitted on 18 the briefs. ECF No. 31; E.D. Cal. L.R. 230(g). Upon review of the documents in support and 19 opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS: 20 In this action, plaintiff alleges retaliation arising out of her employment and subsequent 21 removal from her law enforcement position as a United States Fish and Wildlife Service 22 (“USFWS”) criminal investigator. In the complaint, plaintiff alleges one omnibus cause of action 23 for retaliation, whistleblowing, discrimination on the basis of sex, perceived disability and age. 24 The allegations in the complaint, however, relate only to plaintiff’s claim that defendants engaged 25 in retaliation against plaintiff for her protected EEO activities. 26 In 2005, plaintiff sustained a back injury, for which she filed a worker’s compensation 27 claim. Plaintiff again injured her back in 2009. Although plaintiff was released to full duty by 28 her treating physician, plaintiff was placed on activity restrictions by the physician. Plaintiff was 1 1 thereafter removed from her position due to physical inability to perform the essential functions 2 of her position, effective June 27, 2012. In support of the removal, the agency relied on a fitness- 3 for-duty report completed on April 11, 2011 by a reviewing physician from the Department of 4 Health and Human Services’ Federal Occupational Health Services. Plaintiff’s removal was 5 upheld by the Merit Systems Protection Board (“MSPB”). Defendant moves to dismiss under Federal Rule of Civil Procedure 12(b)(6).1 Plaintiff 6 7 has filed an opposition comprising 407 pages, including exhibits. The exhibits submitted by 8 plaintiff have not been considered by the court in ruling on the motion to dismiss as they are not 9 referred to in the complaint and are not subject to judicial notice.2 10 In considering a motion to dismiss for failure to state a claim upon which relief can be 11 granted, the court must accept as true the allegations of the complaint in question, Erickson v. 12 Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the pleading in the light most favorable to the 13 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 14 In order to avoid dismissal for failure to state a claim a complaint must contain more than 15 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 16 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 19 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 22 at 678. Plaintiff’s claim for retaliation has three elements. Plaintiff must allege that she engaged 23 24 in protected activity, that she suffered an adverse action, and that there is a causal link between 25 1 26 27 28 Defendant submits two MSPB decisions as background context for the motion to dismiss and requests that the court take judicial notice of these documents. The MSPB decisions are properly subject to judicial notice and defendant’s request will therefore be granted. 2 The court has considered plaintiff’s exhibits insofar as they are relevant to the determination of whether leave to amend should be granted. 2 1 the protected activity and the adverse action. See T.B. ex rel Brenneise v. San Diego Unified 2 School Dist., 806 F.3d 451, 473 (9th Cir. 2015) (retaliation standard under Title VII of the Civil 3 Rights Act of 1964); see also Poland v. Chertoff, 494 F.3d 1174, 1180 (9th Cir. 2007) (retaliation 4 claim brought under Age Discrimination in Employment Act); Coons v. U.S. Dep’t Treasury, 383 5 F.3d 879 (9th Cir. 2004) (Rehabilitation Act). Defendant moves to dismiss plaintiff’s retaliation 6 claim on the ground that she fails to allege any facts demonstrating causation. Assuming 7 arguendo that plaintiff has sufficiently pled the first two elements, defendant is correct that 8 plaintiff fails to allege plausible facts supporting an inference of causation. Plaintiff’s claim for 9 retaliation is predicated on her involvement with EEOC proceedings dating back to 1996 which 10 involved her sister and her own employment discrimination claim which plaintiff settled in 2008. 11 The adverse action about which plaintiff complains is the fitness for duty examination conducted 12 in 2011, and her subsequent termination in June 2012 as medically unqualified for her position 13 after plaintiff refused other positions that were offered to her as an accommodation. The lapse in 14 time between the alleged protected activity and the adverse action is simply too long to give rise 15 to an inference of causation. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th 16 Cir. 2002) (18-month lapse too long to give rise to inference of causation). 17 In opposition, plaintiff now asserts that she filed an EEO claim in January 2012 and 18 contends this was the protected activity giving rise to the alleged retaliation. However, the fitness 19 for duty examination, upon which plaintiff’s termination was based, was conducted in 2011. An 20 alleged adverse action which predates the alleged protected activity cannot serve as the basis for a 21 retaliation claim. In addition, plaintiff’s conclusory allegation that at least seven managers and 22 supervisors conspired over two decades to retaliate against plaintiff, without more, is implausible 23 on its face. The motion to dismiss should be granted. 24 Plaintiff’s opposition, while prolix, does not suggest that amendment would be anything 25 other than futile. Plaintiff raises a myriad of other vague, amorphous and conclusory claims in 26 her opposition relating to alleged discriminatory actions based on perceived disability, age and 27 gender. Plaintiff fails to demonstrate in her opposition how she can allege, within the strictures of 28 Federal Rule of Civil Procedure 11, the elements necessary to establish any of these claims. 3 1 Because it appears amendment would be futile, the motion to dismiss should be granted with 2 prejudice. 3 4 Accordingly, IT IS HEREBY ORDERED that defendant’s request for judicial notice (ECF No. 20) is granted; and 5 IT IS HEREBY RECOMMENDED that: 6 1. Defendant’s motion to dismiss (ECF No. 19) be granted without leave to amend; and 7 2. This action be closed. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 10 after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 13 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 14 Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 Dated: February 28, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 16 17 18 19 4 brown0637.57 20 21 22 23 24 25 26 27 28 4

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