Mahoney v. Donahoe et al

Filing 20

ORDER by Judge Maria-Elena James granting in part and denying in part 8 Motion to Dismiss (cdnS, COURT STAFF) (Filed on 7/22/2011)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SHIRLEY MAHONEY,

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Plaintiff,

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v.
PATRICK DONAHOE, Postmaster
General, United States Postal Service,

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Defendant.

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No. C 11-00177 MEJ
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION TO DISMISS AND MOTION
TO STRIKE
(Docket No. 8)

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I. INTRODUCTION

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Plaintiff Shirley Mahoney (“Plaintiff”) alleges that Defendant Patrick Donahoe,

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Postmaster General, United States Postal Service (“Defendant”), violated Title VII by

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discriminating against her because of her race, sex, disability and age. Now before the Court is

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Defendant’s Motion to Dismiss and Motion to Strike. Dkt. No. 8. The Court finds this matter

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suitable for disposition without a hearing and VACATES the August 4, 2011 hearing. Civil

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Local Rule 7-1(b). Having carefully reviewed the parties’ papers, considered their arguments

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and the relevant legal authority, the Court hereby GRANTS IN PART and DENIES IN PART

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Defendant’s motion.

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II. BACKGROUND
The following background is taken from Plaintiff’s First Amended Complaint (“FAC”).

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Dkt. No. 7. Plaintiff was a Distribution Clerk in the Oakland, California Postal Service Plant.

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FAC ¶ 6. She is an African-American woman, born on November 16, 1948. Id. Plaintiff brings

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this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e, et seq. FAC ¶¶

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1, 2. She alleges that “Defendant’s conduct was discriminatory with respect to the following:

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race, Age, Disability and sex.” Id. ¶ 3.

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Plaintiff alleges that she sustained an on-the-job injury to her back and neck, and was

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diagnosed with “Low Back Disc Herniation and Aggravated Cervical Disc Displacement.” Id. ¶

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7. As a result of her disability, she was characterized as a “Limited Duty/Lighty [sic] Duty”

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employee requiring reasonable accommodation by Defendant. Id. ¶ 8.

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In 1999, Plaintiff contacted Eleanor Lethridge, Defendant’s Injury Comp. Specialist, to

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request an accommodation. Id. ¶ 10. She was subsequently assigned to a modified Clerk’s

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position in Operations Support, where she worked until November 14, 2008. Id. Plaintiff

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alleges that she was not paid equal wages for the position because she took over the position

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from a supervisor, trained two supervisory level employees during her time in the position, and

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“deserved premium pay,” yet Defendant hid her “real duties,” failing to list any higher level

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tasks and “made an appearance of Plaintiff only doing clerical duties.” Id. ¶¶ 22, 24, 25.

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On November 14, 2008, Plaintiff received a letter from the Plant Manager, Rick Blancas,

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directing her to report back to the mail processing unit, where she had sustained her injuries. Id.

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¶ 11. Plaintiff alleges that she requested a position that would accommodate her disability, but

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the agency never responded to her request. Id.

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After her transfer, Plaintiff states that she received a directive declaring her a “full duty

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employee,” provided with a list of jobs, and told to either apply for one or be assigned to one of

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them. Id. ¶ 13. Plaintiff alleges that all of the jobs required heavy lifting, prolonged standing,

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bending, stooping, and reaching, which all exceeded her limitations. Id. She states that she

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never received a response to her request for an accommodation. Id.

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Plaintiff alleges that she received two additional requests to apply for jobs outside her

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limitations, at which point she realized that Defendant would not provide an accommodation for

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her. Id. ¶ 15. As a result, she became “stressed out and nervous,” “lost half of the hair on her

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head,” and “was given no alternative but to retire.” Id.

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Plaintiff filed an EEO complaint dated September 15, 2009, in which she alleged ongoing

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discrimination from 1999 to the date of the complaint. Rutter Decl. Ex. A, Dkt. No. 9. The

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Postal Service accepted part of the complaint and dismissed part of the complaint for

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investigation. Id. Ex. B. Specifically, the Postal Service accepted Plaintiff’s claims that she had

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been denied higher level pay since April 21, 2009, and that on June 4, 2009, she received a letter

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saying that she would be reassigned to a residual position and was forced to bid on a position she

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could not medically perform. Id. Ex. B at 2. The Postal Service denied Plaintiff’s claims that

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she was denied higher level pay from 1999 to April 20, 2009, and that from 1999 to January

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2009, she was not paid overtime, holiday pay or night differential and was never issued a blue

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supervisor badge nor had her name placed in the official telephone book. Id. Those claims were

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dismissed for being untimely under 29 C.F.R. § 1614.105(a)(1), because Plaintiff did not initiate

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contact with an EEO counselor until June 5, 2009, more than 45 days after the dates of the

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alleged discriminatory acts. Id. at 3.

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The Postal Service informed Plaintiff that she did “not have the right to appeal this

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decision at this time,” citing 29 C.F.R., Part 1614.107, but told her that she had “the right to

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submit a statement for the record providing your position of this dismissal.” Id. at 5. The Postal

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Service further stated, “If you disagree with the Postal Service’s reasons for dismissing this

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issue, you may raise your objections with the Administrative Judge in the event that you request

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a hearing on your complaint or the issue will be decided in the Postal Service’s final agency

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decision on the complaint in the event you do not request a hearing.” Id. Finally, the Postal

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Service said, “If you are dissatisfied with the Postal Service’s final agency decision where there

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has been no hearing, or with the Postal Service’s final action on the decision of an

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Administrative Judge following a hearing, you have certain appeals rights.” Id. at 6. The Postal

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Service explained that Plaintiff could then appeal to the Office of Federal Operations (“OFO”),

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Equal Employment Opportunity Commission. Id.

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Plaintiff submitted a statement in which she disagreed with the partial acceptance and

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partial dismissal of her claims. Id. Ex. C. The Postal Service responded to Plaintiff,

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acknowledging receipt of her statement but informing her that its decision remained unchanged.

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Id. Ex. D. The Postal Service reminded Plaintiff that she could raise her objections with the

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administrative judge if she requested a hearing, or else the issues would be decided in the Postal

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Service’s final agency decision. Id. On or around May 11, 2010, the administrative judge issued

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a decision without a hearing in favor of the agency, concluding that Plaintiff had “failed to

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demonstrate that the Agency unlawfully discriminated against her.” Id. Ex. E at 11. In the

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decision, the administrative judge denied Plaintiff’s request to reinstate the partially dismissed

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issues, finding that the partial dismissal was appropriate. Id. at 2 n.1.
On May 21, 2010, the agency issued a notice of final action implementing the

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administrative judge’s decision and notifying Plaintiff that she could appeal to the OFO or file an

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action in district court. Id. Ex. F. Plaintiff appealed to the OFO, which affirmed the agency’s

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action in a decision dated October 19, 2010. Id. Ex. G. The OFO held that “a preponderance of

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the record evidence does not establish that unlawful discrimination occurred.” Id. at 4. The

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OFO stated that Plaintiff had not challenged on appeal the partial dismissal of her claims. Id. at

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4 n.2.
Plaintiff filed a complaint in district court on January 12, 2011. Dkt. No. 1. Plaintiff

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filed her FAC on May 26, 2011. Dkt. No. 7. Defendant filed the present motion to dismiss on

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June 27, 2011. Dkt. No. 8. Plaintiff filed her opposition on July 14, 2011, Dkt. No. 15, and

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Defendant filed a reply on July 21, 2011, Dkt. No. 19.
III. ISSUES TO BE DECIDED

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In his motion, Defendant raises the following issues:

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Whether all claims for disability discrimination alleged under Title VII in the FAC

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should be dismissed with prejudice because disability is not a protected class under Title

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VII.

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dismissed with prejudice because age is not a protected class under Title VII.

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Whether all claims for age discrimination alleged under Title VII in the FAC should be

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Whether the following allegations in the FAC should be stricken as immaterial or

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impertinent: from paragraph 3, the words “Age” and “Disability”; and, in paragraphs 26,

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27-43, 48-61, 62-75;

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Whether all claims in the FAC pertaining to events from 1999 should be dismissed with

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prejudice because plaintiff failed to exhaust remedies by abandoning those claims during

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her administrative appeal.

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IV. DISCUSSION

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A.

Legal Standard
A court may dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) when it

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does not contain enough facts to state a claim to relief that is plausible on its face. See Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the

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plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

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“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a

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sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557.)

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“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual

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allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

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requires more than labels and conclusions, and a formulaic recitation of the elements of a cause

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of action will not do. Factual allegations must be enough to raise a right to relief above the

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speculative level.” Twombly, 550 U.S. at 555 (internal citations and parentheticals omitted).
In considering a motion to dismiss, a court must accept all of the plaintiff’s allegations as

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true and construe them in the light most favorable to the plaintiff. See id. at 550; Erickson v.

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Pardus, 551 U.S. 89, 93-94 (2007); Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th

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Cir. 2007).
If the court dismisses the complaint, it should grant leave to amend even if no request to

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amend is made “unless it determines that the pleading could not possibly be cured by the

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allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Cook,

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Perkiss and Liehe, Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.

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1990)).

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B.

Application to the Case at Bar

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1.

Plaintiff’s Disability Discrimination Claim

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Plaintiff alleges disability discrimination under Title VII. See FAC ¶¶ 1-3. However,

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“Title VII protects persons on the basis of ‘race, color, religion, sex, or national origin,’ it does

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not protect persons on the basis of disability.” Dotson v. County of Kern, 2011 WL 902142, at

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*6 (E.D. Cal. Mar. 15, 2011) (citing 42 U.S.C. §§ 2000e-2(a)(1), (m); subsequent citations

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omitted). Instead, Plaintiff’s “exclusive remedy for discrimination in employment by the Postal

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Service on the basis of handicap” lies under section 501 of the Rehabilitation Act of 1973, 29

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U.S.C. § 791 (the “Rehabilitation Act”). Boyd v. United States Postal Serv., 752 F.2d 410, 413

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(9th Cir. 1985).

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Here, Plaintiff has pled her disability discrimination claims under Title VII; she has not

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pled the Rehabilitation Act.1 However, in her opposition, Plaintiff asserts that, “The error can be

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corrected by amendment. By inserting the rehabilitation act in place of Title VII, the pleading

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materials will become pertinent to the rehabilitation act.” Pl.’s Opp’n at 7:24-26, Dkt. No. 15.

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As such, Plaintiff apparently concedes that her disability discrimination claims are improper

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under Title VII. Accordingly, her disability discrimination claims pled under Title VII are

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DISMISSED WITH PREJUDICE, and the following allegations are STRICKEN from the FAC:

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from paragraph 3, the word “Disability”; and, in their entirety, paragraphs 26, 27-43, 48-61, and

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62-75. However, because Plaintiff’s pleading could be cured by the allegation of other facts, the

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Court shall permit Plaintiff to file a second amended complaint to plead her disability

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discrimination claims under the Rehabilitation Act.

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2.

Plaintiff’s Age Discrimination Claim

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Plaintiff also alleges age discrimination under Title VII. See FAC ¶¶ 1-3. But just like

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disability, “age . . . is not actionable under Title VII.” Lelaind v. City & County of San

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Francisco, 576 F. Supp. 2d 1079, 1089 (N.D. Cal. 2008). In fact, “Congress rejected proposals

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to address age discrimination in the Civil Rights Act of 1964.” Smith v. City of Jackson, 544

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U.S. 228, 253 (2005). Instead, as this Court has recognized, the Age Discrimination in

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Employment Act (the “ADEA”) “is the exclusive remedy for age discrimination claims.”

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Nnachi v. City & County of San Francisco, 2010 WL 3398545, at *6 (N.D. Cal. Aug. 27, 2010);

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Plaintiff mentions the “ADA,” presumably referring to the Americans with
Disabilities Act, in the FAC at ¶ 40 and at page 14, but does not plead jurisdiction under the
ADA. In any event, a federal employee has no remedy for employment discrimination under the
ADA and must instead proceed under the Rehabilitation Act. See Boyd, 752 F.2d at 413; Jordan
v. Evans, 404 F. Supp. 2d 28, 30 (D.D.C. 2005).
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see also Ahlmeyer v. Nevada Sys. of Higher Educ., 555 F.3d 1051, 1057 n.5 (9th Cir. 2009)

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(“Every circuit to consider the issue has concluded similarly that the ADEA is the exclusive

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remedy for age discrimination claims by federal employees.”).
Here, Plaintiff has pled age discrimination only under Title VII. She has not pled a claim

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under the ADEA.2 Therefore, her Title VII age discrimination claim is DISMISSED.
Moreover, in his motion to dismiss, Defendant argues that there are no factual allegations

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in the FAC supporting any age discrimination claim. Def.’s Mot. at 7:14-15. In her opposition,

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Plaintiff states only that she “does not oppose dismissal to age discrimination.” Pl.’s Opp’n at

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7:21. As Plaintiff does not dispute that the factual allegations in the FAC fail to state an age

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discrimination claim and, in contrast to her disability discrimination claim, she does not request

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leave to amend the FAC with respect to her age discrimination claim, Plaintiff’s pleading could

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not possibly be cured by the allegation of other facts and the age discrimination claim is

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dismissed WITH PREJUDICE.

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3.

Plaintiff’s Claims of Discrimination from 1999 to April 20, 2009

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Plaintiff alleges that she was discriminated against from December 1999 to October

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2009. See FAC ¶¶ 22, 75. Defendant moves to dismiss the pre-April 21, 2009 claims on the

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ground

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that Plaintiff abandoned them in her appeal to the OFO and therefore did not exhaust her

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administrative remedies as to those claims. Def.’s Mot. at 7:26-10:16. However, in his reply,

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Defendant withdraws this portion of his motion: “Based on the information contained in

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plaintiff’s opposition and on defendant’s further investigation, defendant no longer contends that

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plaintiff abandoned the pre-April 21, 2009, claims, and withdraws that portion of the Motion to

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dismiss those claims. Accordingly, the Court DENIES this portion of Defendant’s motion.
V. CONCLUSION

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For the foregoing reasons, the Court (1) DISMISSES WITH PREJUDICE the Title VII

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disability discrimination claims in the FAC; (2) DISMISSES WITH PREJUDICE the Title VII

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age discrimination claims in the FAC; and (3) STRIKES from the FAC the following

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Plaintiff mentions the ADEA in FAC ¶ 40 but does not plead jurisdiction under it.
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allegations: from paragraph 3, the words “Age” and “Disability”; and, in their entirety,

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paragraphs 26, 27-43, 48-61, 62-75. The Court GRANTS Plaintiff the opportunity to file a

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second amended complaint to allege disability discrimination under the Rehabilitation Act.

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Defendant’s motion with respect to Plaintiff’s Claims of Discrimination from 1999 to April 20,

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2009 is DENIED.

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Plaintiff shall file any second amended complaint within 21 days from the date of this

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Order. Defendant shall then file any responsive pleading within 14 days from the date Plaintiff

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files her amended complaint. If Plaintiff does not file a second amended complaint, Defendant

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shall instead file an answer to the FAC.

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IT IS SO ORDERED.

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DATED: July 22, 2011

___________________________________________
HONORABLE MARIA-ELENA JAMES
UNITED STATES CHIEF MAGISTRATE JUDGE

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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SHIRLEY MAHONEY,

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Plaintiff,

Case Number: CV11-00177 MEJ
CERTIFICATE OF SERVICE
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v.
PAT DONAHOE POSTMASTER GENERAL
et al,

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Defendant.
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/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on July 22, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Shirley Mahoney
1 Elysian Place
Oakland, CA 94605
Dated: July 22, 2011
Richard W. Wieking, Clerk
By: Brenda Tolbert, Deputy Clerk

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