McCarthy v. Brennan

Filing 25

ORDER by Magistrate Judge Jacqueline Scott Corley granting 15 Motion to Dismiss.(ahm, COURT STAFF) (Filed on 3/14/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KIAN R. MCCARTHY,

Case No. 15-cv-03308-JSC

Plaintiff,

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v.
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United States District Court
Northern District of California

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ORDER GRANTING MOTION TO
DISMISS COMPLAINT
MEGAN J. BRENNAN,

Re: Dkt. No. 15

Defendant.

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Plaintiff Kian McCarthy (“Plaintiff”), proceeding pro se, brings this action pursuant to

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Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act

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(“ADA”), and the Rehabilitation Act of 1973 (“Rehabilitation Act”) against his former employer,

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the United States Postal Service (“Post Office”), through Postmaster General Megan J. Brennan

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(“Defendant”). (Dkt. No. 1.) Plaintiff alleges that Defendant’s actions—specifically, instructing

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Plaintiff to attend a Fitness for Duty Examination (“Fitness Exam”) and later terminating his

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employment by issuing him a Notice of Removal (“Removal Notice”)—were adverse employment

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actions constituting race, gender, age, and disability discrimination in violation of Title VII;

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disparate treatment disability discrimination and failure to accommodate in violation of the ADA

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and the Rehabilitation Act; and retaliation for protected activity. (Dkt. No. 1 at 1-5.)
Now pending before the Court is Defendant’s motion to dismiss. (Dkt. No. 15.) After
carefully considering the parties’ pleadings, and having had the benefit of oral argument on March
10, 2016, the Court GRANTS Defendant’s motion, with leave to amend.

BACKGROUND

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The following background is based on the allegations of the Complaint and the documents

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attached thereto, which include Plaintiff’s description of his claims and a portion of the

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administrative record of Plaintiff’s EEOC claims.1

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I.

Plaintiff worked for Defendant for approximately 24 years. (Dkt. No. 1 at 11.) At the time

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Factual Background

of the incidents at issue in this case, Plaintiff worked as a letter carrier in Sausalito, California.
(Id. at 28.) Plaintiff is a Caucasian male and was 56 years old at the time of the alleged adverse
employment actions. (Id. at 29.)

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United States District Court
Northern District of California

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The events alleged in the Complaint date back to 1998. That year, a Post Office
psychiatrist conducted a Fitness Exam of Plaintiff. (Id. at 20.) In a report to Defendant’s Medical
Unit (“1998 Fitness Exam report”), the staff psychiatrist diagnosed Plaintiff with obsessivecompulsive personality disorder and avoidant personality disorder and stated his belief that

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Plaintiff’s condition was untreatable, permanent, and unlikely to improve with treatment or time.

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(Id. at 20-21.)

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During his employment over the years that followed, Plaintiff filed multiple union

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grievances and EEO complaints and sent letters to his Post Office supervisors and management.

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(Id. at 17.) One EEO complaint resulted in mediation in 2005, after which Plaintiff’s Supervisor,

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Jackie Suarez, told Plaintiff’s EEO Representative, Mark Mindrup, “I’m going to get Kian

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McCarthy because he files too many [EEO complaints].” (Id. at 9, 27.) Five years later, in May

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The Court can always consider documents attached to a complaint on a motion to dismiss. See
Fed. R. Civ. P. 10; Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426, 429-30 (9th
Cir. 1978). Moreover, in the context of employment discrimination cases in particular, courts may
judicially notice the administrative record of a plaintiff’s claims before the EEOC. See, e.g., Hsu
v. Donohoe, No. 5:13-cv-02253-PSG, 2014 WL 1153912, at *2 (N.D. Cal. Mar. 20, 2014). In
doing so, the Court only notices the existence of the administrative record and does not credit the
truth of any fact recounted or matter asserted in the documents. See In re Bare Escentuals, Inc.
Sec. Litig., 745 F. Supp. 2d 1052, 1070 (N.D. Cal. 2010). Additionally, Plaintiff’s opposition
consists largely of new factual allegations. (See Dkt. No. 22.) Although the Court does not
consider these facts in deciding whether the Complaint states a claim, they are relevant to
Plaintiff’s ability to successfully amend. See Broam v. Bogan, 320 F.3d 1023, 1026 (9th Cir.
2003) (citation omitted); Monzon v. S. Wine & Spirits of Cal., 834 F. Supp. 2d 934, 943 (N.D. Cal.
2011). Thus, the Court considers the facts newly alleged in Plaintiff’s opposition solely to
determine whether to grant leave to amend.
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2010, Defendant issued Plaintiff a Letter of Warning and a Seven-Day No-Time-Off Suspension

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following complaints of Plaintiff’s dangerous and reckless driving on the job. (Id. at 29.)
Plaintiff filed another grievance in the summer of 2010 alleging that Supervisor Suarez

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United States District Court
Northern District of California

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denied him a leave slip and verbally abused him. (Id.) In response, Supervisor Suarez expressed
concern to an HR Manager that Plaintiff’s behavior was becoming desperate, delusional,
irrational, paranoid, and worse than had been reported in the 1998 Fitness Exam report. (Id.)
Accordingly, in August 2010, Supervisor Suarez requested that Plaintiff attend another Fitness
Exam because Plaintiff had reported to work with “globs of cream” on his face, cotton sticking out
of his ears, and blood stains on himself and in his work vehicle; delivered mail “in a rage”; had
experienced two road rage incidents in the Post Office parking lot; and had been the subject of
local residents’ complaints to police. (Id. at 28-29.) Defendant issued Plaintiff a letter instructing
him to attend a Fitness Exam on September 13, 2010. (Id. at 29.) In the 2010 Fitness Exam report
that followed, the Post Office psychiatrist concluded that Plaintiff had chronic clinical depression

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and anxiety and significant interpersonal relation problems but that he was mentally fit for

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employment with Defendant as a letter carrier. (Id. at 11.) The doctor made a number of

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treatment recommendations for Plaintiff, including months of weekly mental health care, and

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recommended workplace support and accommodation for that private mental health treatment.

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(Id. at 11.) Post Office supervisors read the report. (Id. at 14.)
On December 8, 2010, Defendant—specifically, Supervisor Suarez—issued Plaintiff the

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Removal Notice. (Id. at 2, 4, 29, 31.) The Removal Notice cited unsatisfactory performance and

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improper conduct, including continuous usage of unauthorized overtime, two instances where

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Plaintiff drove his work vehicle at high speeds, and police complaints about Plaintiff’s dangerous

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and reckless driving. (Id. at 29.) Defendant did not put Plaintiff on a 14-day suspension
consistent with its typical disciplinary procedure before issuing the Removal Notice. (Id. at 9.)
II.

Procedural History
Six days later, on December 14, 2010, Plaintiff filed a formal complaint with the EEOC

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claiming that Defendant discriminated against him on the bases of race, gender, age, and disability
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and in reprisal for prior protected EEO activity when they issued the 2010 Fitness Exam order and

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the Removal Notice.2 (Id. at 4, 29.) An administrative law judge denied Plaintiff’s claim in July

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2013, and the EEOC affirmed in April 2015. (Id. at 29-34.) Plaintiff then filed a request for

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reconsideration.3 (Id. at 7-9.)
Plaintiff filed this action on July 16, 2015. (Dkt. No. 1.) The Complaint challenges two

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adverse employment actions included in Plaintiff’s 2010 EEO Complaint: the 2010 Fitness Exam
order and the Removal Notice. (Id. at 2, 4.) Plaintiff alleged claims for relief for race, gender,
age, and disability discrimination as well as reprisal for engaging in prior EEO activity. (Id. at 2.)
Defendant’s motion to dismiss followed. (Dkt. No. 15.)

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LEGAL STANDARD
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A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

United States District Court
Northern District of California

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550 U.S. 544, 570 (2007). A facial plausibility standard is not a “probability requirement” but

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mandates “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). For purposes of ruling

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on a Rule 12(b)(6) motion, the court “accept[s] factual allegations in the complaint as true and

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construe[s] the pleadings in the light most favorable to the non-moving party.” Manzarek v. St.

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Paul Fire & Mar. Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). “[D]ismissal may be based on

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either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a

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cognizable legal theory.” Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir.

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2008) (internal quotation marks and citations omitted); see also Neitzke v. Williams, 490 U.S. 319,

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326 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue

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of law”).
Even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), under

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which a party is required to make only “a short and plain statement of the claim showing that the
pleader is entitled to relief,” a “pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555). “[C]onclusory allegations of law and unwarranted inferences are

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The union also filed a grievance; an arbitrator upheld the Removal Notice. (Id. at 29.)
Neither the Complaint nor the attached documents indicate whether the EEOC ruled on
Plaintiff’s request for reconsideration.
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insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.

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2004); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“[A]llegations in a complaint

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or counterclaim may not simply recite the elements of a cause of action, but must contain

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sufficient allegations of underlying facts to give fair notice and to enable the opposing party to

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United States District Court
Northern District of California

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defend itself effectively”), cert. denied, 132 S. Ct. 2101 (2012). The court must be able to “draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 663. “Determining whether a complaint states a plausible claim for relief . . . [is] a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Id. at 663-64.
Pro se pleadings are generally liberally construed and held to a less stringent standard. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). In Hebbe v. Pliler, 627 F.3d 338 (9th Cir. 2010), the
Ninth Circuit held that courts must still liberally construe pro se filings post-Iqbal, noting that

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“[w]hile the standard is higher, our obligation remains, where the petitioner is pro se, particularly

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in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of

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any doubt.” Id. at 342 (internal quotation marks and citations omitted). Nevertheless, the Court

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may not “supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of

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Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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If a court grants a Rule 12(b)(6) motion, it “should grant leave to amend even if no request

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to amend the pleading was made, unless it determines that the pleading could not possibly be

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cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en

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banc) (internal quotation marks and citations omitted).
DISCUSSION

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Defendant moves to dismiss the lion’s share of Plaintiff’s claims for various reasons.
A. Title VII Claims
The elements of a Title VII discrimination claim are that the plaintiff: (1) belongs to a
protected class, (2) performed his job satisfactorily, (3) suffered an adverse employment action,

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and (4) the employer treated him differently because of his membership in the protected class.
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Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006) (citation omitted);
see also Brown v. FPI Mgmt., Inc., No. C-11-0514-YGR, 2012 WL 629182, at *3 (N.D. Cal. Feb.

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27, 2012) (citations omitted). The fourth element—that the plaintiff was subjected to adverse

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employment action because of his membership in a protected class—can be alleged either through

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direct evidence of discrimination, such as a supervisor’s derogatory comment about his race or

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gender, see, e.g., E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1050 (9th Cir. 2009), or through

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Northern District of California

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circumstantial evidence, which may include allegations that similarly situated individuals outside
the plaintiff’s protected class were treated more favorably or that other circumstances surrounding
the at-issue employment action give rise to an inference of discrimination, see Surrell v. Cal.
Water Serv. Co., 518 F.3d 1097, 1105-06 (9th Cir. 2008); Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d
1151, 1156 (9th Cir. 2010). “While an employment discrimination plaintiff need not plead a
prima facie case of discrimination to survive a motion to dismiss,” courts generally “take each
element in turn in determining whether [a plaintiff] has stated a plausible claim for relief.” Brown,
2012 WL 629182, at *3 (citation omitted).

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1. Plaintiff Fails to Adequately Allege Race Discrimination

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Plaintiff’s first claim, alleging race discrimination, fails to state a claim.4 While the

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allegations are somewhat unclear, it appears that Plaintiff alleges that Defendant discriminated on

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the basis of race when it issued the Fitness Exam order and the Removal Notice.

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Plaintiff has plausibly alleged the first element: while the Complaint itself does not identify

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Plaintiff’s race, the attached documents indicate that he is Caucasian.5 (Dkt. No. 1 at 29.) As a

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Caucasian, Plaintiff belongs to a protected class. See Aragon v. Republic Silver State Disposal,

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Inc., 292 F.3d 654, 659 (9th Cir. 2002), as amended (July 18, 2002) (holding that the plaintiff,

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despite being white, was a member of a protected class for purposes of his race discrimination

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claim because “[i]t is well-established that Title VII applies to any racial group, whether minority

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or majority”) (citation omitted); see also Hilber v. Int’l Lining Tech., No. C 12-00003 LB, 2012
WL 3542421, at *4 (N.D. Cal. July 24, 2012).
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Defendant mentions in a footnote that “[i]t does not appear that [P]laintiff pursued a race
discrimination theory in his EEOC appeal, as it was not one of his contentions of error on appeal.”
(Dkt. No. 15 at 5 n.1 (citing Dkt. No. 1 at 30).) Neither party submitted Plaintiff’s EEOC appeal
to the Court, but the EEOC appeal decision suggests that Plaintiff appealed the summary judgment
decision in its entirety, as to all of his claims. (See Dkt. No. 1 at 29.) In any event, Defendant
appears to concede that the Court should address Plaintiff’s race discrimination claim.
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In his opposition, Plaintiff alleges that he “has fair skin and is of Irish heritage.” (Dkt. No. 22 at
11.) However, as discussed above, the Court does not consider facts alleged for the first time in
the opposition in determining a claim’s sufficiency. See Broam, 320 F.3d at 1026.
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As to the second element, Plaintiff does not affirmatively allege that he performed his job

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adequately, which is how courts often deem this element satisfied. See, e.g., Sheppard v. David

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Evans & Assoc., 694 F.3d 1045, 1050 (9th Cir. 2012); Brown, 2012 WL 629182, at *4. Nor does

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he allege facts in support of satisfactory performance, such as good performance reviews. Cf.

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Sheppard, 694 F.3d at 1050 (finding that the plaintiff plausibly alleged the second element where
she alleged that her performance was “satisfactory or better” and that “she received consistently
good performance reviews”); Brown, 2012 WL 629182, at *4 (finding that the plaintiff plausibly
alleged the second element where she alleged that she performed her job satisfactorily, received
positive performance reviews, and was asked to help train other employees). However, drawing

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United States District Court
Northern District of California

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all inferences in Plaintiff’s favor, the administrative record plausibly suggests that Plaintiff was
capable of performing his job adequately. For instance, in the 2010 Fitness Exam report—dated
three months before his termination—Plaintiff reported that he had 24 years of acceptable work
performance, and the psychiatrist concluded that Plaintiff was mentally fit for employment as a

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letter carrier for Defendant. (Dkt. No. 1 at 11.) On the other hand, the administrative record also

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suggests that Plaintiff’s job performance was not satisfactory, which led to the Fitness Exam order

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and ultimately to Plaintiff’s termination. (Id. at 28-29.) However, construing the Complaint and

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the documents attached thereto in the light most favorable to Plaintiff as required, the Court

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concludes that Plaintiff has satisfied the second element. Additionally, Plaintiff’s opposition

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alleges—albeit in regards to his disparate treatment disability discrimination claim—that he could

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perform his essential job functions with or without an accommodation. (Dkt. No. 22 at 8.) While

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the Court does not consider facts alleged for the first time in the opposition, see Broam v. Bogan,

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320 F.3d 1023, 1026 (9th Cir. 2003) (citation omitted), if Plaintiff amends his Complaint, he

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should include an affirmative allegation that he performed his job adequately and some supporting
factual allegation to further bolster element two, even though this element is met from the
administrative record’s facts alone.
Plaintiff has also satisfied the third element. Plaintiff alleges two adverse employment

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actions in the Complaint: (1) the Fitness Exam order6 and (2) the Removal Notice. (Dkt. No. 1 at

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The Complaint leaves a question as to what employment actions Plaintiff challenges. On the one
hand, he lists both the Fitness Exam order and Removal Notice as discriminatory actions. (Dkt.
No. 1 at 4.) On the other hand, he explains that he “decided for purposes of this action to not place
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1-5.) An adverse employment action generally is one that “materially affect[s] the compensation,

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terms, conditions, or privileges of . . . employment.” Chuang v. Univ. of Cal. Davis, 225 F.3d

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1115, 1126 (9th Cir. 2000). While courts must define adverse employment actions “broadly[,]”

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Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000), “[n]ot every employment decision

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amounts to an adverse employment action[,]” Strother v. S. Cal. Permanente Med. Grp., 79 F.3d
859, 869 (9th Cir. 1996) (footnote omitted). Here, Plaintiff does not allege facts showing that the
Fitness Exam order materially affected his compensation or the terms, conditions, or privileges of
his employment, so it does not constitute an adverse employment action. See, e.g., McFadden v.
El Centro, No. 13CV1580 JM DHB, 2014 WL 3002364, at *3 (S.D. Cal. July 2, 2014) (holding

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United States District Court
Northern District of California

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that requiring the plaintiff to submit to a fitness exam, without more, was not an actionable
adverse employment action); Bellusa v. Bd. of Educ. of the Oakland Unified Sch. Dist., No. C-132930 JSC, 2013 WL 6443374, at *8 (N.D. Cal. Dec. 9, 2013) (noting that the plaintiff must allege
more to show that even repeated fitness exam orders were adverse employment actions, but

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finding an adverse employment action based on other conduct). At least one court in the Ninth

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Circuit has concluded that a fitness exam order can constitute an adverse employment action. See

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Day v. United Parcel Serv., Inc., 829 F. Supp. 2d 969, 976-77 (D. Or. 2011). But there, the court

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determined that the fitness exam order in conjunction with a requirement that the plaintiff obtain

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medical certification was the adverse action, and the analysis emphasized that the certification

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requirement, not the fitness exam, was the real problem because it effectively rendered the

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plaintiff unable to work for a period of time. Id. There are no such allegations here. The Court

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therefore follows McFadden and the other courts in concluding that, absent other allegations that it

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affected terms of Plaintiff’s employment, the Fitness Exam order is not an actionable adverse

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employment action.
On the other hand, Defendant does not dispute, and the Court concludes, that the Removal
Notice constitutes an adverse employment action as it effected Plaintiff’s termination and
emphasis on” the Fitness Exam order and alleges that “[t]he main reason I am filing this action
against the U.S. Postal Service at this time . . . is due to . . . the fact that I was issued a Notice of
Removal from the U.S. Postal Service on December 8, 2010 and thus was fired from my job[.]”
(Dkt. No. 1 at 4.) In his opposition Plaintiff states that he “does not want to abandon [the] issue of
[the Fitness Exam][.]” (Dkt. No. 22 at 9.) The Court liberally construes the Complaint to
challenge the Fitness Exam order. However, as discussed herein, the Fitness Exam order does not
constitute an actionable adverse employment action as a matter of law.
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therefore materially affected—indeed, eliminated—his employment. See Brooks v. City of San

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Mateo, 229 F.3d 917, 928 (9th Cir. 2000) (termination constitutes an adverse employment action);

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Rux v. Starbucks Corp., No. 2:05CV02299MCEEFB, 2007 WL 1470134, at *7 (E.D. Cal. May 18,

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2007) (“Plaintiff’s termination constitutes [an] adverse employment action”). Thus, Plaintiff has

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plausibly alleged the third element only with respect to the Removal Notice.
But Plaintiff’s race discrimination claim fails to allege the fourth element—that Defendant

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Northern District of California

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issued the Removal Notice because of his race.7 The Complaint and documents attached thereto
are devoid of factual allegations of direct evidence of race discrimination, such as an allegation
that a supervisor made a derogatory comment about Plaintiff’s race. See, e.g., Boeing Co., 577
F.3d at 1050. Nor does the Complaint allege facts constituting circumstantial evidence sufficient
to raise a plausible inference of race discrimination. See Surrell, 518 F.3d at 1105-06; Hawn, 615
F.3d at 1156.

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First, Plaintiff has not alleged any facts that Defendant did not terminate other, non-

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Caucasian letter carriers who engaged in conduct similar to his own—such as a similarly situated

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non-Caucasian employee who was not terminated after being cited for unsatisfactory performance

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and improper conduct, including continuous usage of unauthorized overtime and two instances of

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driving a work vehicle at high speeds. See Vasquez v. Cnty. of L.A., 349 F.3d 634, 641 (9th Cir.

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2003), as amended (Jan. 2, 2004) (“[I]ndividuals are similarly situated when they have similar

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jobs and display similar conduct”) (footnote omitted); Lin v. Potter, No. C-10-03757-LB, 2011

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WL 1522382, at *12 (N.D. Cal. Apr. 21, 2011) (finding that the plaintiff failed to meet the fourth

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element where she failed to allege that the employee who received a promotion instead of her was

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similarly situated regarding eligibility for promotion and failed to allege that he was a different

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race than her). While Plaintiff argued in his reconsideration request that the EEOC should infer
disparate treatment because Defendant omitted the 14-day suspension prior to terminating Plaintiff
whereas “hundreds of other Postal employees were required to receive 14-day suspensions as the
required disciplinary step before they were fired” (Dkt. No. 1 at 9), the reconsideration request

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does not state that those other employees were non-Caucasian, that they held jobs similar to
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Because the Fitness Exam order, as alleged, does not constitute an adverse employment action,
this analysis of element four focuses only on the Removal Notice.
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Plaintiff’s, or that they engaged in conduct similar to Plaintiff’s.8 See Vasquez, 349 F.3d at 641.

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Put another way, there are no facts alleged that render this conclusory allegation of race

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discrimination plausible.
Second, the Complaint and attached documents do not allege other facts that give rise to an

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inference of race discrimination. For example, there are no allegations that Plaintiff’s supervisor
or other decision-makers on the Removal Notice ever mentioned Plaintiff’s race, or any other facts
that demonstrate intent to discriminate.
Because Plaintiff has failed to allege facts sufficient to plausibly state a race discrimination
claim, the Court GRANTS Defendant’s motion to dismiss this claim, with leave to amend. See
Lopez, 203 F.3d at 1127.

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2. Plaintiff Fails to Adequately Allege Gender Discrimination

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Northern District of California

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Plaintiff’s claim for gender discrimination also fails to state a claim. (Dkt. No. 1 at 1-2.)
Again, the Complaint is not a model of clarity, but it appears that Plaintiff alleges that the same

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two employment actions alleged in the race discrimination claim also constitute gender

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discrimination, and the analysis is similar.

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Plaintiff has satisfied the first element. Although the Complaint itself does not identify

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Plaintiff’s gender, the attached documents indicate that he is male. (Dkt. No. 1 at 29.) He

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therefore belongs to a class that Title VII protects against gender discrimination. Newport News

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Shipbuilding & Dry Dock Co. v. E.E.O.C., 462 U.S. 669, 682 (1983). As to the second and third

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elements, the analysis is identical to the race claim analysis: drawing all inferences in Plaintiff’s

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favor, the Complaint sufficiently alleges that he performed his job adequately, but it would

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behoove Plaintiff to affirmatively allege as much in any amended pleading. And he satisfies the

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third element because the Removal Notice—but not the Fitness Exam order—constitutes an
adverse employment action.
However, the gender discrimination claim falls flat when it comes to the fourth element:

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alleging facts that raise a plausible inference that Defendant issued the Removal Notice because of
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Plaintiff’s gender. Like the race discrimination claim, the Complaint and attached documents lack

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Furthermore, the reconsideration request discusses only disability discrimination, not race
discrimination.
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factual allegations of either direct evidence of gender discrimination, see, e.g., Godwin v. Hunt

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Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998), as amended (Aug. 11, 1998), or circumstantial

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evidence from which the Court could reasonably infer discrimination, see, e.g., Vasquez, 349 F.3d

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at 641.
Because Plaintiff therefore fails to state a claim for gender discrimination, the Court

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GRANTS Defendant’s motion to dismiss the claim, with leave to amend. See Lopez, 203 F.3d at
1127.
B. Plaintiff Fails to Adequately Allege Age Discrimination9
Plaintiff’s form employment discrimination claim states that he brings the entire action
pursuant to Title VII, including his age discrimination claim. (Id. at 1.) But Title VII does not
protect against age discrimination. See Nnachi v. City of S.F., No. C 10-00714 MEJ, 2010 WL

United States District Court
Northern District of California

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3398545, at *4 (N.D. Cal. Aug. 27, 2010), aff’d sub nom. Nnachi v. City & Cnty. of S.F., 467 F.

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App’x 644 (9th Cir. 2012). However, construing Plaintiff’s pro se complaint liberally as required,

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see Erickson, 551 U.S. at 94; Hebbe, 627 F.3d at 342, the Court analyzes the age discrimination

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claim as a claim under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C.

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§ 633a.

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The ADEA provides that all personnel decisions affecting federal employees who are at

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least 40 years of age shall be made free from discrimination based on age. Gross v. FBL Fin.

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Servs., Inc., 557 U.S. 167, 176 (2009). To state a claim for age discrimination under the ADEA, a

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plaintiff must establish that (1) he was at least forty years old, (2) performing his job satisfactorily,

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(3) discharged, and (4) either replaced by a substantially younger employee with equal or inferior

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qualifications or discharged under circumstances giving rise to an inference of age discrimination.

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Diaz v. Eagle Produce, Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008).
Here, the Complaint satisfies the first three elements. As to element one, the

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24
9

25
26
27
28

At oral argument Defendant’s counsel acknowledged that Defendant did not move to dismiss
Plaintiff’s age discrimination claim. However, a court may dismiss a claim sua sponte under Rule
12(b)(6), and may do so “without notice where the claimant cannot possibly win relief.” Omar v.
Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (citations omitted); Foley v. U.S., No. C
06-7481 CW, 2007 WL 2429414, at *5 (N.D. Cal. Aug. 23, 2007) (sua sponte dismissing claim
with leave to amend where the plaintiff “failed to allege any facts concerning the [defendant]
District Court”) (citations omitted).
11

1

administrative record indicates that Plaintiff was 56 years old at the time of the alleged adverse

2

employment actions. (Dkt. No. 1 at 29.) The second and third elements are satisfied for the

3

reasons discussed above in the context of Plaintiff’s race discrimination claim. However, Plaintiff

4

has failed to allege any facts that raise an inference of age discrimination. As such, the Court sua

5
6
7
8

sponte dismisses the claim with leave to amend. See Omar v. Sea-Land Serv., Inc., 813 F.2d 986,
991 (9th Cir. 1987) (citations omitted); Foley v. U.S., No. C 06-7481 CW, 2007 WL 2429414, at
*5 (N.D. Cal. Aug. 23, 2007) (citations omitted).
C. Disability Discrimination
Next, Plaintiff alleges that Defendant discriminated against him on the basis of his

9
10

United States District Court
Northern District of California

11
12

disability in violation of Title VII, the ADA, and the Rehabilitation Act. (Dkt. No. 1 at 2-5.)
Though the Complaint does not enumerate separate claims for relief, it appears that Plaintiff
brings two separate disability claims: disparate treatment and failure to accommodate. (Id.) As an
initial matter, federal employees must bring disability discrimination claims exclusively through

13

Rehabilitation Act, Section 501, 29 U.S.C. § 791, which incorporates the ADA’s prohibition

14

against such discrimination, 42 U.S.C. § 12111, and applies the ADA’s legal standards. 29 U.S.C.

15

§ 791; see Boyd v. U.S. Postal Serv., 752 F.2d 410, 413-14 (9th Cir. 1985); see also Davis v. Team

16

Elec. Co., 520 F.3d 1080, 1093 (9th Cir. 2008) (noting that Title VII does not proscribe disability

17

discrimination); Vinson v. Thomas, 288 F.3d 1145, 1152 n.7 (9th Cir. 2002) (holding that there is

18

no significant difference in the analysis of rights and obligations under the ADA and the

19

Rehabilitation Act); Fleming v. Yuma Reg’l Med. Ctr., 587 F.3d 938, 939 (9th Cir. 2009) (noting

20

that when reviewing the sufficiency of disability discrimination claims under the Rehabilitation

21

Act, courts incorporate the ADA’s standards).10 The Court therefore dismisses Plaintiff’s

22
23

disability discrimination claims to the extent he brings them under Title VII and the ADA, and
analyzes the claims only under the Rehabilitation Act.
1.

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25
26
27
28

10

Plaintiff Fails to Adequately Allege Disparate Treatment

In his opposition Plaintiff requests leave to amend the Complaint, but requests that the Court
consider all of his disability claims under both the Rehabilitation Act and the ADA. (Dkt. No. 22
at 8.) Plaintiff appears to misunderstand that the Court must dismiss his ADA claims because the
Rehabilitation Act is his exclusive remedy as a federal employee claiming disability
discrimination. See Boyd v. U.S. Postal Serv., 752 F.2d 410, 413-14 (9th Cir. 1985). Although
Plaintiff cannot bring an ADA claim, the Rehabilitation Act incorporates the ADA’s prohibition
against disability discrimination. See id.
12

1

Plaintiff’s disparate treatment claim fails to state a claim. Plaintiff alleges that Defendant

2

“discriminated against [him] on the basis of [his] mental disability by taking disciplinary action

3

against [him] and firing [him], [even though Defendant’s m]anagement knew well before they

4

fired [him] that [he] had a mental disability[.]” (Dkt. No. 1 at 4.)

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6
7
8
9
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United States District Court
Northern District of California

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12

To state a disparate treatment claim under the Rehabilitation Act, a plaintiff must plead
facts sufficient to plausibly allege that he (1) suffers from a disability, (2) is otherwise qualified
for employment, and (3) suffered discrimination because of his disability. Walton v. U.S.
Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007) (citations omitted); Humphrey v. Mem’l Hosp.
Ass’n, 239 F.3d 1128, 1133 (9th Cir. 2001). Under the Rehabilitation Act, a plaintiff has a
disability if he “has a physical or mental impairment which for such individual constitutes or
results in a substantial impediment to employment[,]” and “can benefit in terms of an employment
outcome from vocational services[.]” 29 U.S.C. § 705(20). With respect to element two, “[a]n
otherwise qualified individual, within the meaning of the Rehabilitation Act, is one who can

13

perform the essential functions of the position with or without reasonable accommodation.” 29

14

C.F.R. § 1613.702(f). A plaintiff can meet the third element—that he was discriminated against

15

“by reason of” his disability—by alleging facts sufficient to plausibly establish that his disability

16

was a “motivating factor” in an adverse employment action. Simmons v. Navajo Cnty., 609 F.3d

17

1011, 1021 (9th Cir. 2010) (citation omitted).

18

Here, Plaintiff has not sufficiently pleaded the first element. Plaintiff has alleged enough

19

facts for the Court to conclude that he may qualify as disabled based on his various mental health

20

diagnoses, including obsessive-compulsive and avoidant personality disorders, Asperger’s

21

Syndrome, chronic clinical depression and anxiety, and significant interpersonal relation problems

22
23
24

(Dkt. No. 1 at 5, 8, 11), and has even alleged that Defendant knew of at least some of these
diagnoses (see, e.g., id. at 5, 8, 11, 18), but he has failed to specify which condition was
purportedly the basis of a discriminatory adverse employment action. The Complaint thus fails to
comply with pleading standards. See McKenna v. Permanente Med. Grp., Inc., 894 F. Supp. 2d

25
1258, 1278 (E.D. Cal. 2012) (finding that the complaint failed to state a claim for disability
26
27

discrimination in part because the claims were “vague as to [the] alleged disability and fail[ed] to
identify it precisely”); Lacayo v. Donahoe, No. 14-CV-04077-JSC, 2015 WL 993448, at *1 (N.D.

28
13

1

Cal. Mar. 4, 2015) (concluding claim was insufficiently pleaded where the plaintiff failed to

2

specify which condition she purported to be the basis of any discriminatory employment action,

3

even though she had alleged facts sufficient to conclude that she qualified as disabled based on her

4

mental health diagnoses).

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6
7
8

As for the second element, the Complaint does not allege that Plaintiff was an “otherwise
qualified individual” able to “perform the essential functions of the position with or without
reasonable accommodation.” 29 C.F.R. § 1613.702(f). However, for the reasons discussed above
regarding the second element of Plaintiff’s race and gender discrimination claims, the Court
concludes that Plaintiff has sufficiently alleged that he is otherwise qualified for employment.

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United States District Court
Northern District of California

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12

That said, in any amended complaint Plaintiff should include an affirmative allegation that he is
otherwise qualified, including factual allegations about the essential functions of the letter carrier
position and his ability to perform those functions with or without reasonable accommodation, see
29 C.F.R. § 1613.702(f), in order to move the allegation beyond a formulaic recitation of the

13

element. See Haro v. Therm-X of Cal., Inc., No. 15-cv-02123-JCS, 2015 WL 5121251, at *4

14

(N.D. Cal. Aug. 28, 2015).

15

Plaintiff has also plausibly alleged element three: that he was subject to adverse

16

employment action because of his disability. Although the Complaint itself does not expressly

17

allege disparate treatment disability discrimination, the allegations raise a plausible inference that

18

Plaintiff’s mental health disabilities were a motivating factor in his termination. Several facts

19

stand out. First, in her August 2010 letter to HR describing Plaintiff’s recent behavior, Supervisor

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Suarez wrote that “[t]he Doctor also states that he believes [Plaintiff]’s condition is untreatable

21

and that his condition his [sic] permanent, and there is little likelihood that his condition will

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improve with treatment or time[,]” referring to the 1998 Fitness Exam report. (Dkt. No. 1 at 18.)
Second, the September 2010 Fitness Exam report stated that Plaintiff was mentally fit for
employment as a letter carrier but that Defendant’s “workplace support and accommodation for
his re-initiating and maintaining private Mental Health care [was] critical. He should be

25
encouraged and required to get help for his clinical problems now becoming more evident in the
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workplace[,]” and Supervisor Suarez issued the Removal Notice less than three months later
without first placing Plaintiff on a 14-day suspension. (Id. at 9, 11, 31.) Supervisor Suarez’s

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14

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reliance on the 1998 Fitness Exam report on Plaintiff’s mental health as a basis for requesting the

2

2010 Fitness Exam order, coupled with the fact that she issued the Removal Notice on the heels of

3

the updated report concluding that Plaintiff was mentally fit and without following standard

4

disciplinary procedure, permits the inference that discriminatory animus motivated Supervisor

5
6
7
8

Suarez’s decision. See Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1117 (9th Cir. 2011)
(noting that “an employer’s deviation from established policy or practice” that disadvantages a
plaintiff may show pretext for discrimination); Mishler v. Care Ctr. Inc., No. CV 08-00568-MO,
2008 WL 4224832, at *2 (D. Or. Sept. 10, 2008) (concluding that the factual allegations were
sufficient to infer discriminatory motive where the plaintiff alleged that the defendant perceived

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10

United States District Court
Northern District of California

11

her as being disabled based on an incident where she was unable to care for herself and terminated
her two days after that incident). Based on these allegations, the Court concludes that Plaintiff has
plausibly alleged the third element.11

12

However, as discussed above, Plaintiff’s Complaint still fails to comply with pleading

13

standards because he has not clearly alleged which disabling condition was purportedly the basis

14

of his termination. McKenna, 894 F. Supp. 2d at 1278. The Court therefore GRANTS

15

Defendant’s motion to dismiss the disparate treatment disability discrimination claim. In any

16

amended complaint, Plaintiff needs to clearly identify the condition that serves as the claim’s

17

basis.

18

2.

Plaintiff Fails to Adequately Allege Failure to Accommodate

19

Plaintiff also fails to sufficiently allege that Defendant discriminated against him by failing

20

to accommodate his disability. (Dkt. No. 1 at 4-5.) To state a prima facie case for failure to

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accommodate, a plaintiff must allege that (1) he is disabled, (2) he is a qualified individual, and (3)

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27
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In his opposition Plaintiff alleges that two months before his termination, he submitted an
overtime request to Supervisor Suarez, who said “you’re crazy.” (Dkt. No. 22 at 18.) Based on
the timing of the comment and Supervisor Suarez’s knowledge of Plaintiff’s mental disabilities
(see Dkt. No. 1 at 4-5), this allegation further supports an inference of disparate treatment
disability discrimination. See Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1038 (9th
Cir. 2005) (“Where a decisionmaker makes a discriminatory remark against a member of the
plaintiff’s class, a reasonable factfinder may conclude that discriminatory animus played a role in
the challenged decision.”) (citation omitted); Mishler, 2008 WL 4224832, at *2. Although the
Court does not consider facts alleged for the first time in the opposition, this fact weighs in favor
of granting leave to amend. Broam, 320 F.3d at 1026.
15

1

a reasonable accommodation is possible. Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041,

2

1045 (9th Cir. 1999) (citations omitted); Buckingham v. U.S., 998 F.2d 735, 739-40 (9th Cir.

3

1993).

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5
6
7
8

First, as discussed in the disparate treatment claim context, Plaintiff has not clearly
identified the disability upon which he bases his discrimination claim, which renders the claim
insufficiently pleaded. See McKenna, 894 F. Supp. 2d at 1278. Moreover, “[t]he employer’s
knowledge of the . . . mental limitations resulting from the employee’s disability is a prerequisite
to the employer’s duty to make reasonable accommodations.” Foster v. City of Oakland, No. C08-01944-EDL, 2008 WL 3286968, at *2 (N.D. Cal. Aug. 5, 2008) (citations omitted). Thus, in

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United States District Court
Northern District of California

11
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any amended complaint Plaintiff must also allege facts that plausibly establish that Defendant was
aware of whatever particular disability underlies his claim. Second, also discussed above, the
Court concludes that Plaintiff has sufficiently alleged that he is otherwise qualified for
employment, but Plaintiff should affirmatively allege that he is qualified to perform the essential

13

functions of the letter carrier position with or without reasonable accommodation and expressly

14

allege facts that support such an inference. See Haro, 2015 WL 5121251, at *4.

15

As for the third element, a “reasonable accommodation” may include “job restructuring,

16

part-time or modified work schedules, reassignment to a vacant position, acquisition or

17

modification of equipment or devices, appropriate adjustment or modifications of examinations,

18

training materials or policies, the provision of qualified readers or interpreters, and other similar

19

accommodations for individuals with disabilities.” 42 U.S.C. § 12111(8). The plaintiff must also

20

allege enough facts to make a facial showing that a reasonable accommodation is possible. See

21

Garity v. Donahoe, No. 2-11-cv-01805-MMD-CWH, 2013 WL 321577, at *2 (D. Nev. Jan. 25,

22
23
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2013) (citing Buckingham, 998 F.2d at 739-40).
Here, the Complaint alleges only in a conclusory manner that Defendant failed to provide
him with a reasonable accommodation despite being aware of his mental disabilities. But the
documents attached to the Complaint plausibly suggest that a particular accommodation was

25
sought and would have been possible: the 2010 Fitness Exam report recommends that Plaintiff be
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27

encouraged and required to obtain professional mental health care, and states that “USPS
workplace support and accommodation for [Plaintiff’s] re-initiating and maintaining private

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16

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Mental Health care is critical.” (Dkt. No. 1 at 11.) Whether this specific accommodation is

2

reasonable is a question of fact. See Ludovico v. Kaiser Permanente, 57 F. Supp. 3d 1176, 1201

3

(N.D. Cal. 2014) (collecting cases). As such, the Court concludes that Plaintiff has alleged facts

4

sufficient to plausibly allege element three, and does not consider whether the alleged

5
6
7
8

accommodation is reasonable at this stage of the litigation.
Defendant contends that Plaintiff’s claim fails in part because the Complaint does not
allege that Plaintiff actually requested an accommodation. (Dkt. No. 15 at 8.) And indeed, there
is authority holding that to state a failure to accommodate claim, a plaintiff must allege facts
showing that he sought a reasonable accommodation from the employer and it was denied. See

9
10

Davis v. Safeway, Inc., No. C–95–2759–VRW, 1996 WL 266128, at *6 (N.D. Cal. May 14, 1996)
(“An employer’s obligation to accommodate an employee’s disability is [ ] not triggered until a

United States District Court
Northern District of California

11

request for accommodation is made”) (citation omitted); Nort v. Brown, No. 14cv1663-LAB

12

(KSC), 2015 WL 5155195, at *10 (S.D. Cal. Sept. 1, 2015) (dismissing the plaintiff’s claim where

13

it could not “be said based on the facts alleged that plaintiff made defendants aware of a ‘specific

14

reasonable’ and ‘necessary’ accommodation that they failed to provide”). But employees are not

15

required to request an accommodation in every situation; awareness of the need for an

16

accommodation may be enough. See Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir.

17

2000), overruled on other grounds & vacated sub nom. U.S. Airways, Inc. v. Barnett, 535 U.S.

18

391 (2002). Indeed, “[a]n employer should initiate the reasonable accommodation interactive

19

process without being asked if the employer: (1) knows that the employee has a disability, (2)

20

knows, or has reason to know, that the employee is experiencing workplace problems because of

21

the disability, and (3) knows, or has reason to know, that the disability prevents the employee from

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24
25
26
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requesting a reasonable accommodation.” Id. (internal quotation marks and citation omitted).
Here, the Complaint adequately alleges that Defendant knew Plaintiff suffered from disabilities
and had reason to know those disabilities were causing problems at work. (See, e.g., Dkt. No. 1 at
11, 16-18.) Whether Defendant had reason to know that Plaintiff’s disabilities prevented him
from requesting an accommodation is unclear; but drawing all inferences in Plaintiff’s favor, the
allegations regarding his diagnoses of avoidant personality disorder and significant interpersonal
relation problems suggest that Defendant may have had reason to know that Plaintiff would have

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17

1

difficulty communicating his need for an accommodation. The allegations are therefore sufficient

2

to reasonably infer that Defendant was aware of the need for an accommodation, although it may

3

turn out not to be the case at a later stage of litigation.
In short, the Complaint does not clearly identify the disability upon which Plaintiff bases

4
5
6
7

the failure to accommodate claim, and thus the Court GRANTS the motion to dismiss this claim as
insufficiently pleaded, with leave to amend. See Lopez, 203 F.3d at 1127.
D. Plaintiff Fails to Adequately Allege Retaliation
Plaintiff’s final claim alleges that Defendant retaliated against him for engaging in

8
protected activity. (Dkt. No. 1 at 2, 4.) The claim is insufficiently pleaded. To state a claim for
9
10

United States District Court
Northern District of California

11
12

retaliation, a plaintiff must allege that (1) he engaged in a protected activity, (2) his employer
subjected him to a materially adverse employment action, and (3) a causal link exists between the
protected activity and the adverse action. Westendorf v. W. Coast Contractors of Nev., Inc., 712
F.3d 417, 421 (9th Cir. 2013) (citations omitted).

13

As to the first element, Plaintiff alleges that he engaged in protected activity prior to his

14

termination. “There is no doubt that filing grievances and pursuing constitutional and statutory

15

remedies are protected activities.” McFadden, 2014 WL 1365661, at *2; see also Freitag v.

16

Ayers, 468 F.3d 528, 541 (9th Cir. 2006) (noting that an employee engages in protected activity

17

when he opposes an employment practice that either violates Title VII or that the employee

18

reasonably believes violates that statute) (citations omitted). While Plaintiff’s allegation that he

19

engaged in protected EEO activity (Dkt. No. 1 at 4) is conclusory on its own, Supervisor Suarez’s

20

statement in her letter to HR regarding Plaintiff’s prior EEO complaints supports it. (Id. at 17.)

21

What is more, the pleadings show that Plaintiff filed at least one union grievance during July or

22

August 2010 (see Dkt. No. 1. at 17).12 But although Plaintiff has alleged that he engaged in prior

23
12

24
25
26
27
28

Plaintiff alleges for the first time in his opposition that he also filed complaints with the EEOC
in May, July, and September 2010. (Dkt. No. 22 at 17.) Plaintiff should include these allegations
in any amended complaint to clarify his retaliation claim. Plaintiff also newly alleges in his
opposition that he believes Supervisor Suarez retaliated against him for reporting her to the Office
of the Inspector General in 2007 for unethical conduct. (Dkt. No. 22 at 18.) Even if this report
qualified as protected activity, it occurred more than two years prior to the alleged adverse
employment actions and therefore this fails to allege sufficient proximity to plausibly allege a
causal link. See Manatt v. Bank of Am., N.A., 339 F.3d 792, 802 (9th Cir. 2003) (nine months is
too long to give rise to plausible inference of causation) (citation omitted); Heyer v. Governing Bd.
of Mt. Diablo Unified Sch. Dist., 521 F. App’x 599, 601 (9th Cir. 2013). The same is true of the
18

1

protected activity in the form of EEO claims and union grievances, he fails to identify the

2

statute(s) under which he brought those claims or the nature of those claims. This is problematic

3

because a plaintiff may bring a retaliation claim only under the statute under which he alleged the

4

protected activity—that is, a Title VII retaliation claim can only allege reprisal for engaging in

5
6
7
8

prior protected activity reporting race, religion, gender, and national origin discrimination; an
ADEA retaliation claim can only allege reprisal for engaging in prior protected activity reporting
age discrimination; and so on.13 See Passantino v. Johnson & Johnson Consumer Prods., Inc.,
212 F.3d 493, 506 (9th Cir. 2000) (noting that a plaintiff may establish the first element of a prima
facie retaliation claim under Title VII by showing that she engaged in activity protected under

9
10

United States District Court
Northern District of California

11
12

Title VII). The Complaint identifies Title VII as the statutory basis for the claim, but it is a form
complaint. (See Dkt. No. 1 at 2.) Thus, the Court advised Plaintiff at oral argument that in any
amended complaint he should identify which statute(s) he brings his claim under and the nature of
the underlying protected activity, that is, what type of discrimination he reported to the EEO and

13

his union. Because the Complaint fails to do so as written, and instead refers only generally to

14

prior EEO activity, it does not comply with Rule 8(a)’s requirements that a complaint include a

15

short and plain statement of the claim, and instead it leaves Defendant and the Court guessing as

16

to the true basis of the claim.

17

As to the second element, “[a]n adverse employment action is any action reasonably likely

18

to deter employees from engaging in protected activity.” Pardi, 389 F.3d at 850 (citation

19

omitted). The “definition includes actions materially affecting compensation, terms, conditions, or

20

privileges of employment[,]” Little v. Windermere Relocation, Inc., 301 F.3d 958, 970 (9th Cir.

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22
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alleged EEOC mediation in 2005. (Dkt. No. 1 at 27.)
13
Although courts consider retaliation claims under each particular statute they are brought under,
the standard is the same for retaliation claims under Title VII, the ADEA, and the Rehabilitation
Act. See Hashimoto v. Dalton, 118 F.3d 671, 675 (9th Cir. 1997) (“The ADEA anti-retaliation
provision is parallel to the anti-retaliation provision contained in Title VII, and [ ] cases
interpreting the latter provision are frequently relied upon in interpreting the former”) (internal
quotation marks and citation omitted); Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 850 n.5 (9th
Cir. 2004) (courts analyze Title VII retaliation claims under same framework as ADA retaliation
claims) (citation omitted) and Coons v. Sec’y of the U.S. Dept. of Treasury, 383 F.3d 879, 884 (9th
Cir. 2004) (“The standards used to determine whether an act of discrimination violated the
Rehabilitation Act are the same standards applied under the Americans with Disabilities Act”)
(citations omitted).
19

1

2002) (citations, quotation marks, and internal alterations omitted), and “of course, termination of

2

employment is an adverse employment action[.]” Id.; Adetuyi v. City & Cnty. of S.F., 63 F. Supp.

3

3d 1073, 1085 (N.D. Cal. 2014). Thus, Plaintiff adequately alleges that Defendant subjected him

4

to an adverse employment action: when it issued the Removal Notice that ended his employment.

5
6
7
8
9
10

As to element three, Plaintiff has alleged facts that give rise to a plausible inference that
Defendant terminated him because of his prior protected activity—i.e., causation. Causation may
be established by direct evidence or “inferred from circumstantial evidence, such as the
employer’s knowledge that the plaintiff engaged in protected activities and the proximity in time
between the protected action and the allegedly retaliatory employment decision.” Yartzoff v.
Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987) (citation omitted); Manatt v. Bank of Am., N.A., 339
F.3d 792, 802 (9th Cir. 2003) (citation omitted). Causation will be inferred from timing alone

United States District Court
Northern District of California

11

only if the proximity is “very close[,]” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74

12

(2001) (per curiam), such that the “adverse employment action follows on the heels of protected

13

activity.” Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1065 (9th Cir. 2002) (citations omitted).

14

Courts have held that a three-month gap is short enough to give rise to a plausible inference of

15

causation at the pleading stage, see, e.g., Gordon v. Hughes, No. 2:13-cv-01072-JAD-GWF, 2015

16

WL 1549141, at *2 (D. Nev. Apr. 8, 2015), but a nine-month gap is too long. See,

17

e.g., Manatt, 339 F.3d at 802; Heyer v. Governing Bd. of Mt. Diablo Unified Sch. Dist., 521 F.

18

App’x 599, 601 (9th Cir. 2013).

19

Here, the Complaint alleges that Defendant issued the Removal Notice just five months

20

after Plaintiff filed a union grievance and less than four months after Supervisor Suarez expressed

21

concern to HR about Plaintiff’s union grievances, EEO activity, and letters to management. (Dkt.

22
23
24

No. 1 at 2, 17.) This proximity gives rise to a plausible inference of causation. See Manatt, 339
F.3d at 802; Heyer, 521 F. App’x at 601.
In short, because Plaintiff has not identified the statute under which he brings the
retaliation claim or the tenor of the alleged prior protected activity, the Court dismisses the

25
retaliation claim with leave to amend. If Plaintiff clarifies these things, he likely will be able to
26
27

state a claim for retaliation. At a minimum, Plaintiff should incorporate the factual allegations
from his opposition regarding the EEO complaints he filed in 2010, including the timing and the

28
20

1

type of discrimination alleged, in any amended complaint.

2

CONCLUSION

3
4
5
6
7
8

To summarize, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s race and
gender discrimination, disparate treatment disability discrimination, failure to accommodate, and
retaliation claims with leave to amend. The Court also dismisses Plaintiff’s age discrimination
claim with leave to amend. The Court has concerns as to whether Plaintiff will be able to state a
claim for race, age, and gender discrimination, but believes he will be able to state a claim for
disability discrimination provided he is able to specify the disability or perceived disability upon
which his claims are based.

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10

United States District Court
Northern District of California

11
12

Plaintiff shall file his amended complaint within 30 days.
The Court encourages Plaintiff to seek free assistance from the Northern District’s Pro Se
Help Desk, United States Courthouse, San Francisco, 450 Golden Gate Avenue, 15th Floor, Room
2796, San Francisco, CA 94102 or the Help Desk at the Oakland Federal Courthouse, 1301 Clay

13

Street, 4th Floor, Room 470S, Oakland, CA 94612. Plaintiff can make an appointment in person

14

or by calling 415-782-8982.

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16
17

IT IS SO ORDERED.
Dated: March 14, 2016

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19
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

KIAN R. MCCARTHY,

Case No. 15-cv-03308-JSC

Plaintiff,
8
v.

CERTIFICATE OF SERVICE

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10

MEGAN J. BRENNAN,
Defendant.

United States District Court
Northern District of California

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12
13
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17

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 March 14, 2016, 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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Kian R. McCarthy
279 Yerba Buena Avenue
San Francisco, CA 94127

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Dated: March 14, 2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Ada Means, Deputy Clerk to the
Honorable JACQUELINE SCOTT CORLEY
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