Ting v. Adams & Associates, Inc.

Filing 16

ORDER signed by District Judge Troy L. Nunley on 10/3/17 GRANTING Defendant's Motion to Dismiss (ECF No. 6 ) as to all claims with leave to amend within 30 days of the date of this Order. (Becknal, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AZARIA TING, 12 13 14 No. 2:16-cv-01309-TLN-KJN Plaintiff, v. ADAMS & ASSOCIATES, INC., 15 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Defendant. 16 17 This matter is before the Court pursuant to Defendant Adams & Associates, Inc.’s 18 (“Defendant”) Motion to Dismiss. (ECF No. 6.) Plaintiff Azaria Ting (“Plaintiff”) opposes the 19 motion. (ECF No. 11.) Defendant has filed a reply. (ECF No. 12.) For the reasons discussed 20 below, the Court hereby GRANTS Defendant’s Motion to Dismiss (ECF No. 6). 21 I. FACTUAL AND PROCEDURAL BACKGROUND 22 Plaintiff alleges she was hired in 2012 as a Residential Advisor for Sacramento Job Corps 23 Center (“SJCC”). (ECF No. 1 ¶ 9.) Plaintiff states she is “an African-American woman who had 24 been diagnosed with a medical condition,” who “represented other Resident Advisors as a 25 member of the CFT [California Federation of Teachers Union].” (ECF No. 1 ¶¶ 36, 47, & 48.) 26 In February 2014, Defendant became the managing corporation of SJCC. (ECF No. 1 ¶ 27 3.) Plaintiff alleges Defendant stated it would reorganize several job duties for positions, reduce 28 the number of Residential Advisors, and create a Residential Coordinator role. (ECF No. 1 ¶ 12.) 1 1 Plaintiff alleges Defendant interviewed her for a Residential Advisor position for 2 “approximately five minutes,” “in a large room full of tables, in the midst of other interviews 3 taking place.” (ECF No. 1 ¶ 13.) Plaintiff alleges that during her interview she “disclosed she 4 had taken time off work in the past due to a back injury she sustained in a car accident,” “to 5 observe Ramadan,” and “to mourn a death in the family.” (ECF No. 1 ¶¶ 16–17.) Plaintiff 6 alleges she had a positive interview but she received a rejection letter in March 2014 stating she 7 would not be rehired as a Residential Advisor.” (ECF No. 1 ¶¶ 14–15.) Plaintiff alleges 8 “employees with equal or lesser experience were being hired for similar Advisor positions.” 9 (ECF No. 1 ¶ 19.) Plaintiff alleges Defendant used her “prior excused absences as a pretense to 10 11 avoid rehiring her.” (ECF No. 1 ¶ 18.) Plaintiff alleges claims for violations of the Americans with Disabilities Act (42 U.S.C. § 12 12112) (“ADA”) and Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 13 U.S.C. § 2000e et seq., (“Title VII”), including: (i) race and color discrimination in violation of 14 Title VII § 2000e-2; (ii) retaliation; (iii) failure to hire in violation of public policy; (iv) failure to 15 accommodate in violation of the ADA § 12112; and (v) failure to engage in the interactive 16 process in violation of the ADA § 12112; and (vi) disability discrimination in violation of the 17 ADA § 12112. (ECF No. 1 at 4–10.) Defendant moves to dismiss for failure to state a claim 18 pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 6 at 2 & 7.) 19 II. STANDARD OF LAW 20 A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 21 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 350 F.3d 729, 732 (9th Cir. 22 2001). Federal Rule of Civil Procedure 8(a) requires that a pleading contain “a short and plain 23 statement of the claim showing that the pleader is entitled to relief.” On a motion to dismiss, the 24 factual allegations of the complaint are assumed to be true. Cruz v. Beto, 405 U.S. 319, 322 25 (1972). A court is bound to give plaintiff the benefit of every reasonable inference to be drawn 26 from the well-pleaded allegations of the complaint. Retail Clerks Int’l Ass’n v. Schermerhorn, 27 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege “‘specific facts’ beyond those necessary 28 to state his claim and the grounds showing entitlement to relief.” Bell Atlantic v. Twombly, 550 2 1 U.S. 544, 570 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2009)). “A claim 2 has facial plausibility when the pleaded factual content allows the court to draw the reasonable 3 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 4 662, 678–79 (citing Twombly, 550 U.S. at 556). 5 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 6 factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 7 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an 8 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 9 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 10 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 11 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 12 statements, do not suffice.”). Additionally, it is inappropriate to assume that the plaintiff “can 13 prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that 14 have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of 15 Carpenters, 459 U.S. 519, 526 (1983). 16 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 17 facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting 18 Twombly, 550 U.S. at 570). While the plausibility requirement is not akin to a probability 19 requirement, it demands more than “a sheer possibility that a defendant has acted unlawfully.” 20 Id. at 678. This plausibility inquiry is “a context-specific task that requires the reviewing court to 21 draw on its judicial experience and common sense.” Id. at 679. 22 In deciding a motion to dismiss, the court may consider only the complaint, any exhibits 23 thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. 24 See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. 25 Consumers Union of United States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998). 26 If a complaint fails to state a plausible claim, “[a] district court should grant leave to 27 amend even if no request to amend the pleading was made, unless it determines that the pleading 28 could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 3 1 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 484, 497 (9th Cir. 1995)); see 2 also Gardner v. Marino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in 3 denying leave to amend when amendment would be futile). Although a court should freely give 4 leave to amend when justice so requires under Federal Rule of Civil Procedure 15(a)(2), “the 5 court’s discretion to deny such leave is ‘particularly broad’ where the plaintiff has previously 6 amended its complaint[.]” Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 7 (9th Cir. 2013) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004). 8 III. 9 Defendant argues Plaintiff fails to allege facts sufficient to support any of her claims. 10 11 12 ANALYSIS (ECF No. 6 at 7.) The Court will discuss each of Plaintiff’s claims in turn. A. Race and Color Discrimination in Violation of 42 U.S.C. § 2000e–2 Plaintiff alleges Defendant discriminated against her by refusing to rehire Plaintiff due to 13 her race. (ECF No. 1 ¶ 38.) Defendant moves to dismiss, arguing Plaintiff’s pleadings are 14 conclusory and “boilerplate.” (ECF No. 6 at 9.) Plaintiff states generally all her claims are 15 sufficiently pleaded and the facts alleged “are sufficient to support all of the causes of action.” 16 (ECF No. 11 at 4–6.) 17 Title VII forbids an employer from discriminating based on an “individual’s race, color, 18 religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a). A plaintiff in a disparate treatment 19 case must show by either direct or circumstantial evidence that “the motive to discriminate was 20 one of the employer’s motives.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2523 21 (2013); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004). A plaintiff may 22 establish a case for disparate treatment by showing she: (1) was a member of a protected class; (2) 23 was qualified for the position and performing the jobs satisfactorily; (3) experienced an adverse 24 employment action; and (4) that “similarly situated individuals outside [the] protected class were 25 treated more favorably, or other circumstances surrounding the adverse employment action give 26 rise to an inference of discrimination.” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th 27 Cir. 2010) (quoting Peterson v. Hewlett–Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)). 28 Plaintiff alleges she is an African-American woman, Defendant knew this and refused to 4 1 rehire her into a Residential Advisor position, but hired others with equal or less experience into 2 similar Advisor positions. (ECF No. 1 ¶¶ 19, 36, 37.) Plaintiff’s allegation Defendant acted 3 because of her membership in a protected class is a recitation of an element. See Iqbal, 556 U.S. 4 at 678. Plaintiff has not alleged facts to support a reasonable inference Defendant acted because 5 of her race or color. See Ravel v. Hewlett-Packard Enter., Inc., 228 F. Supp. 3d 1086, 1099 (E.D. 6 Cal. 2017) (finding the plaintiff did not allege facts rising to a plausible inference of age 7 discrimination, such as being replaced by a younger employee, overhearing negative comments 8 about age, or her age being point of discussion); cf. McGinest, 360 F.3d at 1122 (finding the 9 African American plaintiff stated a case for failure to promote by showing the employer 10 11 transferred a white manager into a position rather than promoting any of the interviewees). Plaintiff has not alleged facts sufficient to support the fourth element of her discrimination 12 claim, so the Court need not analyze the other elements. Accordingly, the Court GRANTS 13 Defendant’s motion to dismiss Plaintiff’s claim for discrimination based on race and color. 14 15 B. Disability Discrimination in Violation of 42 U.S.C. § 12112 Plaintiff states Defendant discriminated against her by refusing to hire due to her medical 16 condition. (ECF No. 1 ¶ 29.) Defendant moves to dismiss, arguing Plaintiff’s pleadings are 17 conclusory and “boilerplate.” (ECF No. 6 at 9.) Plaintiff states the facts alleged “are sufficient to 18 support all of the causes of action.” (ECF No. 11 at 4–6.) 19 The ADA prohibits an employer from discriminating against a qualified individual with a 20 disability “because of the disability.” Ravel, 228 F. Supp. 3d at 1092 (citing Nunes, 164 F.3d at 21 1246) (quoting 42 U.S.C. § 12112(a))). To state a claim for disability discrimination under the 22 ADA, a “plaintiff must allege facts that plausibly show: ‘(1) [she] is a disabled person within the 23 meaning of the [ADA]; (2) [she] is a qualified individual with a disability; and (3) [she] suffered 24 an adverse employment action because of [her] disability.’” Id. (quoting Hutton v. Elf Atochem 25 N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001). 26 Plaintiff alleges she suffered from a medical condition of back pain, that she was able to 27 perform the job’s essential functions, and Defendant “knew Plaintiff suffered from back pain” but 28 discriminated against her. (ECF No. 1 ¶¶ 25, 26, 28.) Plaintiff also alleges Defendant used her 5 1 prior absences as a “pretense to avoid rehiring her” and instead “employees with equal or lesser 2 experience were being hired for similar Advisor positions.” (ECF No. 1 ¶¶ 18–19.) 3 An ADA plaintiff alleging disparate treatment must allege facts showing she was treated 4 less favorably than other similarly situated individuals. Ravel, 228 F. Supp. 3d at 1095. Plaintiff 5 has not alleged she was treated differently than similarly situated individuals. She has not alleged 6 similarly situated employees who did not suffer from medical conditions were treated more 7 favorably. Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 800 (N.D. Cal. 2015). An ADA plaintiff may demonstrate pretext by alleging facts “showing that the employer’s 8 9 proffered explanation is unworthy of credence because it is internally inconsistent or otherwise 10 not believable.” Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112–13 (9th Cir. 2011). 11 Plaintiff states Defendant used her prior absences as a “pretense to avoid rehiring her,” but does 12 not allege facts sufficient to support a reasonable inference Defendant acted because of her 13 medical condition. See Achal, 114 F. Supp. 3d at 797–98 (finding reasonable inference of pretext 14 where the plaintiff alleged the defendant claimed it fired him for causing his own disability, but 15 the defendant did not investigate the matter and there was no question as to the plaintiff’s job 16 performance during his employment, even after he returned from medical leave). 17 Plaintiff has not alleged facts sufficient to support the third element of her disability 18 discrimination claim, so the Court need not analyze the other elements. Accordingly, the Court 19 GRANTS Defendant’s motion to dismiss Plaintiff’s claim for disability discrimination. 20 C. Retaliation Plaintiff alleges Defendant retaliated against her “by refusing to hire her on account of 21 22 such protected activities as being an African-American … with a medical condition,” and 23 “because she represented other Resident Advisors as a member of the CFT.” (ECF No. 1 at ¶¶ 24 47–48.) Defendant argues Plaintiff fails to allege facts showing she engaged in a protected 25 activity or Defendant’s decision not to rehire her was connected to protected activity based on her 26 race, color, or medical condition, and her claim related to union activity is preempted. (ECF No. 27 6 at 10–12.) 28 /// 6 1 2 i. Retaliation Based on Plaintiff’s Race or Medical Condition Defendant argues, to the extent Plaintiff’s retaliation claim is not preempted, it fails 3 because Plaintiff alleges no facts showing she engaged in a protected activity or Defendant’s 4 decision not to rehire her was motivated by any protected activity related to her race, color, or 5 medical condition. (ECF No. 6 at 11.) Plaintiff states the facts alleged “are sufficient to support 6 all of the causes of action.” (ECF No. 11 at 5–6.) 7 Title VII and the ADA forbid an employer from retaliating against an employee because 8 she opposed a practice they make unlawful, or because she “made a charge, testified, assisted, or 9 participated in any manner in an investigation, proceeding, or hearing under [their provisions].” 10 42 U.S.C. § 2000e–3(a); 42 U.S.C. § 12203(a). To state a claim for retaliation under either, a 11 plaintiff must show: “(1) involvement in a protected activity, (2) an adverse employment action 12 and (3) a causal link between the two.” Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879, 13 887 (9th Cir. 2004) (quoting Brown v. City of Tucson, 336 F.3d 1181, 1187 (9th Cir. 2003)); 14 Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003), opinion 15 amended on denial of reh’g, No. 00-35999, 2003 WL 21027351 (9th Cir. May 8, 2003). 16 Plaintiff’s statement that she is an African-American woman with a medical condition, 17 does not allege that she engaged in any protected activity, such as opposing practices forbidden 18 by Title VII or the ADA, making a charge, testifying, assisting, or participating in a related 19 investigation, proceeding, or hearing. Plaintiff has not provided any citation to authority for her 20 proposition that being a member of a protected class is a protected activity. 21 22 23 ii. Retaliation Based on Plaintiff’s Union Membership or Activity a. Neither Title VII Nor the ADA Protects Union Membership Title VII forbids discrimination by employers based on an individual’s race, color, 24 religion, sex, or national origin. 42 U.S.C. § 2000e–2. The ADA forbids employment 25 discrimination against qualified individuals based on disability. 42 U.S.C. § 12112. Both forbid 26 retaliation based on opposing an employment practice made unlawful by their respective 27 provisions or by participating in an investigation or proceeding under each chapter. 42 U.S.C. § 28 2000e–3(a); 42 U.S.C. § 12203(a). Neither provision speaks to union membership. Plaintiff has 7 1 not cited authority for her proposition that being a member of a union or being a representative of 2 other members of her union is a protected activity under either Title VII or the ADA. 3 4 b. National Labor Relations Act (“NLRA”) Preemption Defendant argues Plaintiff’s claim for retaliation based on Plaintiff’s union membership or 5 activity, if proven, would constitute a violation of either Section 7 or 8 of the NLRA, and be 6 subject to the jurisdiction of the National Labor Relations Board rather than the federal courts. 7 (ECF No. 6 at 11–12) (citing San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244–45 8 (1959)). As discussed above, however, Plaintiff brings her claims pursuant to Title VII and the 9 ADA, and neither on its face protects union membership or being a representative of other union 10 members. Without additional factual allegations or legal authority from Plaintiff showing being a 11 member of a union or being a representative of other union members is a protected activity under 12 either Title VII or the ADA, the Court cannot assess whether preemption applies. 13 Because Plaintiff has not alleged facts sufficient to support the first element of her 14 retaliation claim, the Court need not analyze the other elements. Accordingly, the Court 15 GRANTS Defendant’s motion to dismiss Plaintiff’s claim for retaliation. 16 17 D. Failure to Hire in Violation of Public Policy Plaintiff alleges Defendant failed to hire her in violation of public policy because of 18 “Plaintiff’s protected characteristics, including her union membership.” (ECF No. 1 ¶¶ 56, 60) 19 (citing 42 U.S.C. § 2000e–2(a)). Defendant argues Plaintiff fails to allege facts to show failure to 20 hire based on race, and any claim related to union membership is preempted. (ECF No. 6 at 12.) 21 Title VII makes it an unlawful employment practice for an employer to refuse to hire an 22 individual because of her race or color. 42 U.S.C. § 2000e–2(a). To state a claim for failure to 23 hire based on disparate treatment, a plaintiff must show (1) she belongs to a protected class; (2) 24 she applied for and was qualified for the position she was denied; (3) she was rejected despite her 25 qualifications; and (4) the employer filled the position with an employee not of the plaintiff’s 26 class, or continued to consider other applicants whose qualifications were comparable to the 27 plaintiff’s after rejecting the plaintiff. Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 28 1027, 1037 (9th Cir. 2005). 8 1 Plaintiff has not alleged Defendant filled any positions with employees who were not 2 members of the same protected class as Plaintiff. Plaintiff has not alleged Defendant continued to 3 consider other applicants whose qualifications were comparable to Plaintiff’s after rejecting 4 Plaintiff. Plaintiff has not alleged facts sufficient to support the fourth element of a claim for 5 failure to hire based on race or color, so the Court need not analyze the other three elements. 6 As discussed above, Plaintiff has not alleged sufficient facts, nor provided legal authority, 7 to show she is entitled to protection under Title VII for being a union member. Plaintiff does not 8 meet the first element of a claim for failure to hire based on union membership, so the Court need 9 not analyze the other three elements. 10 11 12 Accordingly, the Court GRANTS Defendant’s motion to dismiss as to Plaintiff’s claim for failure to hire in violation of public policy based on her race, color, and union membership. E. Failure to Accommodate in Violation of 42 U.S.C. § 12112 13 Plaintiff alleges Defendant was aware of, and failed to accommodate, her medical 14 condition when Defendant “unreasonably refused to hire her.” (ECF No. 1 ¶¶ 69–70.) Defendant 15 argues Plaintiff does not allege sufficient facts to support this claim, such as whether and how 16 Plaintiff could perform essential job functions, what accommodations were necessary, whether 17 she requested any accommodation, or that Defendant failed to accommodate her. (ECF No. 6 at 18 13.) Plaintiff states the facts alleged are sufficient. (ECF No. 11 at 5–6.) 19 The ADA makes it an unlawful employment practice for an employer to fail to provide 20 reasonable accommodation for the known physical or mental limitations of an otherwise qualified 21 applicant or employee with a disability. 42 U.S.C. § 12112. To state a claim for failure to 22 accommodate under the ADA, a plaintiff must allege facts that show: (1) she is disabled within 23 the meaning of the ADA; (2) she is a qualified individual able to perform the essential functions 24 of the job with reasonable accommodation; and (3) she suffered an adverse employment action 25 because of the disability. Allen v. Pac. Bell, 348 F.3d 1113, 1114 (9th Cir. 2003) (citing Nunes v. 26 Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999)). 27 28 A plaintiff must “provide at least some factual allegations in support of each element of her ADA claim, thereby allowing the court to draw the reasonable inference that [the defendant] 9 1 is liable under that statute.” Steiner v. Verizon Wireless, No. 2:13-CV-1457-JAM-KJN, 2014 WL 2 202741, at *5 (E.D. Cal. Jan. 17, 2014). 3 Plaintiff alleges Defendant failed to accommodate her by failing to hire her (ECF No. 1 ¶ 4 70), but Plaintiff does not allege facts showing how she was limited by her condition or able to 5 perform the essential job functions, how Defendant knew she required accommodation, whether 6 she requested accommodation, and whether Defendant denied the request. Steiner, 2014 WL 7 202741 at *5 (granting the defendant’s motion to dismiss the plaintiff’s ADA claim for failure to 8 accommodate where the plaintiff alleged her employment was terminated because of her 9 disability but did not plead facts to support each required element, such as whether, when, and 10 11 what accommodations she needed and requested, and whether and why the requests were denied). Plaintiff has not alleged facts sufficient to show, or for the Court to draw a reasonable 12 inference, that Defendant knew Plaintiff had physical limitation, that she was to perform the 13 essential functions of the job with reasonable accommodation, or that Defendant failed to 14 accommodate her. Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s 15 claim for failure to accommodate. 16 17 18 F. Failure to Engage in the Interactive Process in Violation of 42 U.S.C. § 12112 Plaintiff alleges Defendant was “aware of Plaintiff’s medical condition involving her back 19 pain but failed to engage in a timely, good-faith, interactive process with her to determine 20 effective reasonable accommodations for her to fill her previous position as Resident Advisor.” 21 (ECF No. 1 ¶ 79.) Defendant argues Plaintiff does not allege sufficient facts to support her claim, 22 such as whether “she made a request for accommodation, or that [Defendant] knew she needed an 23 accommodation.” (ECF No. 6 at 14.) 24 “Once an employer becomes aware of the need for accommodation, that employer has a 25 mandatory obligation under the ADA to engage in an interactive process with the employee to 26 identify and implement appropriate reasonable accommodations.” Humphrey v. Mem’l Hosps. 27 Ass’n., 239 F.3d 1128, 1137 (9th Cir. 2001) (citing Barnett v. U.S. Air, 228 F.3d 1105, 1114 (9th 28 Cir. 2000)). “The interactive process requires communication and good-faith exploration of 10 1 possible accommodations between employers and individual employees, and neither side can 2 delay or obstruct the process.” Id. (citing Barnett, 228 F.3d at 1114–15). 3 Plaintiff states she informed Defendant during her interview that she had taken time off in 4 the past due to a back injury after a car accident. (ECF No. 1 ¶ 16.) Plaintiff, however, has not 5 alleged she requested accommodation. Plaintiff has not alleged facts sufficient to support a 6 plausible inference Defendant was aware Plaintiff needed an accommodation. Cf. Joseph v. 7 Target Corp., No. 2:12-CV-01962-KJM, 2015 WL 351444, at *14 (E.D. Cal. Jan. 23, 2015) 8 (finding the defendant had a duty to engage in the interactive process because it knew the plaintiff 9 had been on medical leave for some months following a heart attack, knew he still experienced 10 symptoms such as memory loss, and knew he was challenged by the issues in performing his job); 11 cf. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089–90 (9th Cir. 2002) (finding a job 12 applicant triggered the interactive process by informing the employer he was hearing impaired 13 and stating in his interview he would have done better with a sign language interpreter and the 14 employer failed to suggest any accommodation). Accordingly, the Court GRANTS Defendant’s 15 motion to dismiss as to Plaintiff’s claim for failure to engage in the interactive process. 16 IV. LEAVE TO AMEND 17 “A district court should grant leave to amend even if no request to amend the pleading 18 was made, unless it determines that the pleading could not possibly be cured by the allegation of 19 other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff has not previously 20 amended its complaint and the Court cannot say that the pleading could not possibly be cured by 21 the allegation of other facts. Accordingly, the Court GRANTS Plaintiff leave to amend the 22 complaint within 30 days of the date of this Order. 23 V. 24 For the foregoing reasons, Defendant’s Motion to Dismiss (ECF No. 6) is hereby 25 GRANTED as to all claims with leave to amend within 30 days of the date of this Order. 26 27 CONCLUSION IT IS SO ORDERED. Dated: October 3, 2017 28 11 Troy L. Nunley United States District Judge

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