Ellis v. San Francisco State University

Filing 13

ORDER by Judge Thelton E. Henderson granting in part and denying in part 10 Motion to Dismiss. (tehlc1, COURT STAFF) (Filed on 7/7/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LINDA ELLIS,
Plaintiff,

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v.

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SAN FRANCISCO STATE
UNIVERSITY,

Case No. 15-cv-02273-TEH
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION TO DISMISS

Defendant.
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This matter is before the Court on Defendant San Francisco State University’s

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United States District Court
Northern District of California

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motion to dismiss the Complaint. After carefully considering the arguments of the parties

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in the papers submitted, the Court finds this matter suitable for resolution without oral

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argument pursuant to Civil Local Rule 7-1(b), and hereby GRANTS IN PART and

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DENIES IN PART Defendant’s motion, for the reasons set forth below.

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BACKGROUND
For the purposes of this motion to dismiss, the Court treats the following factual

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allegations as true. Plaintiff Linda Ellis was hired by San Francisco State University as a

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professor of Museum Studies in 1987. Compl. ¶ 6. In June of 2010, Plaintiff was

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diagnosed with a brain tumor, which developed from exposure to radiation from the

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Chernobyl disaster while she was working at an archeological dig in Romania in 1986. Id.

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¶ 12. The tumor was removed the same month that it was discovered, in June of 2010. Id.

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¶ 13.

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In May of 2014, Plaintiff received a letter from Defendant’s Director of Faculty &

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Staff Relations Bryan Kauffman (“Kauffman”), placing her on temporary suspension

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pending a Fitness for Duty Independent Medical Examination. Id. ¶ 30. Kauffman’s letter

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stated that the suspension was “due to the disruption of programs and/or operations of the

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University,” but did not otherwise set forth the basis or justification for the exam. Id. ¶ 31.

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The same day, Plaintiff received a second letter from Kauffman, purporting to

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provide her with evidence supporting the need for an examination. Id. ¶ 33. Through her

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independent research, Plaintiff discovered that the doctor who was scheduled to perform

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the examination was a psychologist, and therefore that the examination would be a

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psychological examination. Id. ¶ 40. Plaintiff responded to Defendant’s letters by

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challenging the factual assertions therein, by stating the evidence did not justify the

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psychological examination that Defendant demanded, and by refusing to attend the

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examination. Id. ¶¶ 44, 49, 53.

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Director Kauffman responded to Plaintiff’s refusal by threatening disciplinary
action. Id. ¶ 48. Kauffman stated that, in spite of Plaintiff’s challenges to Defendant’s

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United States District Court
Northern District of California

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justification, Plaintiff was “still required to attend the evaluation,” and that she had “been

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provided all the information that is required of the University.” Id. ¶ 50. Defendant

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rescheduled the examination two times. Id. ¶¶ 47, 58.

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Plaintiff never attended a medical examination as demanded by Defendant. Id.

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¶¶ 51, 61. In August of 2014, the University Provost sent Plaintiff a Notice of Dismissal,

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stating that her failure to submit to a medical examination “as determined necessary by San

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Francisco State University” was a “failure to perform the normal and reasonable duties of

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the position,” justifying the termination of her employment. Id. ¶ 62. Plaintiff’s

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termination became final on December 2, 2014. Id. ¶ 63.

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After filing claims with the United States Equal Employment Opportunity

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Commission and the California Department of Fair Employment and Housing, Plaintiff

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initiated this lawsuit, alleging that her termination for refusing to submit to a medical

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examination violated the Americans with Disabilities Act (“ADA”) and California’s Fair

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Employment and Housing Act (“FEHA”). Id. ¶¶ 64-108.

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LEGAL STANDARD
Rule 12(b)(6) requires a court to dismiss a complaint when a plaintiff’s allegations
fail “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To
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survive a motion to dismiss under Rule 12(b)(6), a complaint must include “enough facts

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to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 570 (2007). Plausibility does not equate to probability, but it requires “more

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than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citation omitted). “A claim has facial plausibility when the plaintiff

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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.” Id.
In ruling on a motion to dismiss, a court must “accept all material allegations of fact

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as true and construe the complaint in a light most favorable to the non-moving party.”
Vasquez v. Los Angeles Cnty., 487 F.3d 1246, 1249 (9th Cir. 2007). Courts are not,

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Northern District of California

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however, “bound to accept as true a legal conclusion couched as a factual allegation.”

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Iqbal, 556 U.S. at 678. “Dismissal can be based on the lack of a cognizable legal theory or

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the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v.

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Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). A court considering a motion to

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dismiss is limited to the facts alleged in the pleadings; the presentation of “matters outside

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the pleadings” converts the motion to dismiss into a motion for summary judgment, unless

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the matters are excluded by the court. Fed. R. Civ. P. 12(d).

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DISCUSSION
Plaintiff brings claims under the ADA and FEHA. As discussed below, Plaintiff’s

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ADA claims are barred by Defendant’s sovereign immunity, but Plaintiff has shown that

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an amended Complaint could properly state substantially similar claims under the

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Rehabilitation Act. Moreover, Plaintiff’s ADA and FEHA allegations state plausible

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claims under a cognizable legal theory, so these claims will not be dismissed on this

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ground.

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I.

Plaintiff’s ADA Claims are Barred by California’s Sovereign Immunity
Defendant argues that Plaintiff’s ADA claims are barred by California’s sovereign

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immunity. Mot. at 4 (Docket No. 10) (citing Bd. of Trs. of Univ. of Ala. v. Garrett, 531

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U.S. 356, 374 (2001)). Plaintiff concedes that these claims are barred as currently alleged.

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Opp’n at 2 (Docket No. 11). However, Plaintiff argues that Defendant accepted federal

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funds under the Rehabilitation Act, and thereby waived its sovereign immunity for claims

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brought under that statute. Id. at 3 (citing Douglas v. Cal. Dept. of Youth Auth., 271 F.3d

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812, 819-21 (9th Cir. 2001) (“hold[ing] that by accepting federal Rehabilitation Act funds,

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California has waived its sovereign immunity under the Rehabilitation Act.”)). Plaintiff
also argues that the Rehabilitation Act explicitly incorporates the “standards” of the ADA

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United States District Court
Northern District of California

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on which she bases her claims. Opp’n at 3 (citing 29 U.S.C. § 794(d)).

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In its reply, Defendant argues that the Court should not grant leave to amend right

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now, because there is a split of authority regarding the extent of the Rehabilitation Act’s

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incorporation of the ADA due to the fact that the Rehabilitation Act only refers to the

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“standards” of the ADA. Reply at 9 n.4 (Docket No. 12). Defendant’s argument is

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unpersuasive. “The court should freely give leave when justice so requires.” Fed. R. Civ.

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P. 15(a)(2). The cases cited by Defendant differ on whether certain of the ADA’s

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procedural limitations also apply under the Rehabilitation Act. Compare Flynn v.

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Distinctive Home Care, Inc., No. 5:13-CV-0936-RP, 2015 WL 1004404, at *3-5 (W.D.

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Tex. Mar. 3, 2015) (holding that the ADA’s bar on claims by independent contractors

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applied to Rehabilitation Act claims), with Adams v. District of Columbia, 740 F. Supp. 2d

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173, 181-83 (D.D.C. 2010) (holding that the ADA’s exhaustion requirement did not apply

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to Rehabilitation Act claims). However, Defendant provides no authority questioning

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whether the Rehabilitation Act incorporated the substantive prohibitions of the ADA, as

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opposed to the procedural limitations discussed in the cases cited above. To the contrary,

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Defendant’s cases suggest that substantive prohibitions were the least that Congress

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intended to incorporate. E.g., Fleming v. Yuma Regional Med. Ctr., 587 F.3d 938, 943

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(9th Cir. 2009) (“When Congress said that the Rehabilitation Act should use the
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“standards” applicable to employment discrimination claims brought under Title I, we

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think Congress meant for us to refer to Title I for guidance in determining whether the

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Rehabilitation Act was violated, but we do not think that Congress meant to restrict the

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coverage of the Rehabilitation Act.”); Adams, 740 F. Supp. 2d at 182. It is the substantive

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prohibitions that Plaintiff argues are incorporated here, and Defendant does not argue that

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any of the ADA’s procedural limitations apply to bar Plaintiff’s Rehabilitation Act claims.

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The Court agrees that Plaintiff’s ADA claims are barred as currently alleged, but

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Plaintiff has demonstrated that amendment of these claims is appropriate, because they

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may properly be alleged under the Rehabilitation Act. Plaintiff’s ADA claims are
therefore DISMISSED, but Plaintiff is permitted to file an amended Complaint under the

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United States District Court
Northern District of California

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Rehabilitation Act.

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II.

Plaintiff has Otherwise Stated ADA and FEHA Claims
Defendant also argues that all of Plaintiff’s claims fail because she has not alleged

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facts for which there is a cognizable legal theory that would entitle her to relief. Mot. at 4-

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5. Defendant’s argument fails.
Under the ADA, “[an employer] shall not require a medical examination . . . unless

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such examination or inquiry is shown to be job-related and consistent with business

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necessity.” 42 U.S.C. § 12112(d)(4). “[T]he business necessity standard ‘is quite high,

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and is not to be confused with mere expediency.’” Brownfield v. City of Yakima, 612 F.3d

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1140, 1146 (9th Cir. 2010) (quoting Cripe v. City of San Jose, 261 F.3d 877, 890 (9th Cir.

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2001)). The question is whether “the employer is faced with ‘significant evidence that

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could cause a reasonable person to inquire as to whether an employee is still capable of

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performing his job.’” Brownfield, 612 F.3d at 1146 (quoting Sullivan v. River Valley Sch.

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Dist., 197 F.3d 804, 811 (6th Cir. 1999)). “[T]his test is objective,” and “[t]he employer

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bears the burden of demonstrating business necessity.” Brownfield, 612 F.3d at 1146.

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The ADA also prohibits retaliation in the form of “discriminat[ion] against any

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individual because such individual has opposed any act or practice made unlawful by this

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chapter.” 42 U.S.C. 12203(a).

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The FEHA states a very similar rule regarding medical examinations. “It is an

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unlawful employment practice . . . for any employer or employment agency to require any

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medical or psychological examination of an employee.” Cal. Gov. Code § 12940, (f)(1).

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However, “an employer . . . may require any examinations or inquiries that it can show to

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be job related and consistent with business necessity.” Id. § 12940(f)(2).
Here, Plaintiff alleged that Defendant sent her a letter requiring her to attend a

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“Fitness for Duty Independent Medical Examination.” Compl. ¶ 30. She alleged that

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United States District Court
Northern District of California

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Defendant also sent her another letter that purported to provide her with the evidence

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supporting the need for an examination. Id. ¶ 33. However, she alleged that she refused to

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attend the examination because Defendant did not sufficiently justify its need. Id. ¶¶ 49,

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53. She alleged that the Director of Faculty & Staff Relations responded that she was “still

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required to attend the evaluation,” and that she had “been provided with all of the

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information that is required of the University.” Id. ¶ 50. She alleged that Defendant

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thereafter terminated her for refusing to submit to the examination. Id. ¶ 62. These

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allegations state plausible claims under the ADA and FEHA provisions discussed above.

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In challenging the allegations, Defendant first argues that the Court should consider

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the substance of the letter it sent Plaintiff, because the evidence in that letter is sufficient to

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justify its demand for a medical examination. Mot. at 3 n.1. However, the evidence in that

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letter is a matter outside the pleadings, and the Court cannot consider it without converting

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this motion into a motion for summary judgment. Fed. R. Civ. P. 12(d). The Court

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therefore excludes Defendant’s evidence in this letter from its consideration of

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Defendant’s motion to dismiss.

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Defendant next argues that the law does not entitle Plaintiff to refuse to submit to a

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lawfully demanded medical examination. Mot. at 5. Although she does not say so

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explicitly, Plaintiff appears to agree that Defendant could terminate her for her failure to
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submit to a lawfully demanded examination. See Opp’n at 5. As Plaintiff points out,

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however, this argument begs the question of whether Defendant’s demand for an

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examination was lawful.
Plaintiff’s allegations plausibly state a claim that the demand was not lawful.

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Plaintiff alleged that she refused to attend a medical examination because Defendant did

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not adequately show that the demand was supported by a business necessity, or that the

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examination would be job-related. It is plausible that an employer would demand that an

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employee submit to a medical evaluation when such an examination is not legally justified

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– such an improper examination could be demanded for “mere expediency” if the
employer is having a personnel dispute, or, less generously, out of personal animosity

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Northern District of California

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toward the employee. Recognizing that the demand must be justified is not to say that an

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employee can keep refusing to submit to an examination so long as she is not subjectively

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persuaded that it is necessary. It is only to recognize that an employer’s demand must be

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objectively reasonable, and Plaintiff has plausibly alleged that it was not reasonable in this

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case.
Whether or not Defendant’s demand was justified is ultimately a question of fact,

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the resolution of which will turn on the weight of the evidence. Such questions are not

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properly resolved by a motion to dismiss, especially where, as here, the defendant has the

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burden of showing that the demand was lawful.
In short, if Defendant shows that the demand for a medical examination was job-

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related and consistent with a business necessity, then it was lawful for it to terminate

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Plaintiff’s employment after she refused to attend the examination. On the other hand, if

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Defendant does not show that the examination was job-related and consistent with a

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business necessity, then Plaintiff was entitled to refuse to attend it, and it was unlawful for

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Defendant to terminate her employment. Plaintiff plausibly alleged the latter, and the

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Court will not reject her allegations by weighing the evidence on a motion to dismiss.

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CONCLUSION
For the reasons set forth above, Defendant’s motion to dismiss Plaintiff’s ADA

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claims is GRANTED without prejudice to these claims being realleged under the

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Rehabilitation Act. Plaintiff shall file an amended Complaint no later than two weeks

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from the entry of this order. Failure to amend the Complaint by that time will result in the

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dismissal of these claims with prejudice. Defendant’s motion is otherwise DENIED.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: 07/07/15

_____________________________________
THELTON E. HENDERSON
United States District Judge

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