McCarthy v. Brennan

Filing 53

ORDER by Magistrate Judge Jacqueline Scott Corley denying 44 Motion to Dismiss. (ahm, COURT STAFF) (Filed on 1/27/2017)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 KIAN R. MCCARTHY, 7 Plaintiff, 8 ORDER RE: MOTION TO DISMISS SECOND AMENDED COMPLAINT v. 9 MEGAN J. BRENNAN, 10 Re: Dkt. No. 44 Defendant. 11 United States District Court Northern District of California Case No.15-cv-03308-JSC 12 Plaintiff Kian McCarthy, who worked as a letter carrier for 24 years, brings this action 13 14 against his former employer, the United States Postal Service, arising from the termination of his 15 employment.1 The Second Amended Complaint (“SAC”) alleges causes of action for disability 16 discrimination, retaliation, failure to accommodate a disability and engage in the interactive 17 process, and impermissible disclosure of confidential medical records, all under the Rehabilitation 18 Act. (Dkt. No. 42 at 9-14.2) Now pending before the Court is Defendant’s motion to dismiss the 19 SAC. (Dkt. No. 44.) After considering the parties’ submissions, and having had the benefit of 20 oral argument on January 26, 2017, the Court DENIES Defendant’s motion. BACKGROUND 21 22 I. The Court discussed the factual background of this case in a previous order and 23 24 Complaint Allegations incorporates that discussion here. (See Dkt. No. 25 at 2-4.) However, as this is the first iteration 25 26 1 Plaintiff initiated this action pro se, but is now represented by counsel. 27 2 28 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents. 1 of the pleadings that Plaintiff has filed with the benefit of counsel and the substance of the claims 2 has changed at least in part, the Court reiterates the factual allegations here. 3 Plaintiff suffers from Asperger’s disorder, a medical condition and mental disability classified as an “autism spectrum disorder,” which causes communication deficits, inappropriate 5 responses in conversations, misreading nonverbal interactions, sensitivity to change, and intense 6 focus on inappropriate items, among other things. (Dkt. No. 42 ¶ 16.) Medical professionals have 7 also noted that Plaintiff “may suffer” from a variety of other mental disabilities related to his 8 autism, including Obsessive Compulsive Disorder, Avoidant Personality Disorder, Depression, 9 and General Anxiety Disorder. (Id. ¶ 17.) His condition “ha[s] waxed and waned over the years” 10 but his symptoms “are most pronounced in stressful or confrontational situations, like workplace 11 United States District Court Northern District of California 4 interactions with supervisors or co-workers. (Id.) “To the untrained eye,” Plaintiff’s mental 12 disability can appear “to reflect disinterest, confusion, or distrust” and manifests itself in social 13 discomfort and unusual behavior. (Id.) 14 Plaintiff began working as a letter carrier for the Post Office in 1986. (Id. ¶ 14.) He 15 worked out of the Sausalito branch office until he was terminated in January 2011. (Id. ¶ 15.) 16 Throughout his career, Plaintiff served as shop steward for the letter carrier’s union and received 17 compliments and commendations from customers and residents for his work. (Id.) From 2001 18 until his termination, Plaintiff’s supervisor at the Sausalito branch was Myra “Jackie” Suarez. (Id. 19 ¶ 19.) Ms. Suarez “repeatedly demonstrated discriminatory animus towards persons with mental 20 disabilities.” (Id.) The Post Office knew about Suarez’s animus and did nothing to stop it. (Id.) 21 In April 1998, the Post Office sent Plaintiff to a Fitness for Duty Examination. (Id. ¶ 20.) 22 The examining physician, Dr. Stephen Raffle, concluded that Plaintiff did not “represent[ ] a 23 safety hazard to himself or others” but was “unfit” for duty. (Id. ¶ 20.) Dr. Raffle believed that 24 Plaintiff had trouble completing his job tasks in a timely manner because “he is so preoccupied 25 with the details of the job” and his “perfectionism interferes with task completion.” (Id. ¶ 34.) He 26 also diagnosed Plaintiff with Obsessive Compulsive Disorder, noting that people who suffer from 27 that disorder “have a great deal of difficulty constructively taking criticism because of their need 28 for orderliness, parsimony and perfectionism often paralyses [sic] them in their actions.” (Id.) Dr. 2 1 Raffle’s unfit-for-duty determination was overturned after two other reviewers disagreed with it. 2 (Id.) Dr. Raffle’s Fitness for Duty Exam report contained highly sensitive, personal, and 3 confidential information about Plaintiff’s medical history and mental health status. (Id. ¶ 21.) 4 Summarizing the report, the Post Office’s Associate Medical Director recommended that Plaintiff 5 “seek treatment from a psychiatrist prior to returning to work” and “do a job that does not require 6 postal vehicle driving or deadlines.” (Id. ¶ 24.) The Post Office did not provide such 7 accommodation; instead, in September 1998 the Post Office notified Plaintiff of his termination 8 from employment. (Id.) In response, Plaintiff requested a second Fitness for Duty Exam. (Id.) 9 Dr. Roger Freed conducted the exam in October 1998 and found Plaintiff fit for duty. (Id.) The Post Office then conducted a third Fitness for Duty Exam, which would be binding; in March 11 United States District Court Northern District of California 10 1999 Dr. Kenneth Gottlieb found Plaintiff fit for duty. (Id.) 12 The Post Office made Dr. Raffle’s 1998 Fitness for Duty Exam report available to postal 13 supervisors, including Ms. Suarez. (Id. ¶ 21.) In a November 2007 letter to the Letter Carriers’ 14 Union and the Postmaster, Ms. Suarez complained about Plaintiff, noting that he “files frivolous, 15 unmerited grievances”; does not perform his letter carrier duties or follow proper procedures; and 16 exhibits strange behavior. (Id. ¶ 21.) Ms. Suarez noted that she “ran across medical files on 17 [Plaintiff] and his behavior is giving me great concern” especially after a murder at another Post 18 Office station, and expressed concern for her and others’ safety. (Id.) Despite knowing about Ms. 19 Suarez’s unauthorized access to Plaintiff’s medical records, the Post Office took no corrective 20 action against her. (Id. ¶ 22.) 21 In the spring of 2010 Ms. Suarez held a pep talk with Post Office employees at the 22 Sausalito branch to encourage them not to overrun their overtime budget. (Id. ¶ 25.) She 23 congratulated other employees for timely deliveries but singled out Plaintiff for humiliation, 24 stating in front of the group, “I won’t name any names but I will since he’s standing right here, 25 [Plaintiff], and I’ll deal with the fool later[.]” (Id.) 26 On May 6, 2010 Ms. Suarez issued Plaintiff a letter of warning for unsafe driving and 27 suspended him for 14 days for unauthorized overtime. (Id. ¶ 26.) On May 20, 2010 Plaintiff 28 wrote a letter to the Post Office’s San Francisco District Manager complaining about the incident 3 1 in which Ms. Suarez called him a fool in front of other employees. (Id. ¶ 27.) In June 2010, 2 Plaintiff attended an EEO mediation session with Sausalito postal managers. (Id. ¶ 28.) The Post 3 Office refused to rescind his 14-day suspension but agreed to counsel other postal employees 4 about making fun of Plaintiff. (Id.) 5 In July 2010 Plaintiff became ill with kidney stones. (Id. ¶ 29.) Ms. Suarez accused him of faking his pain and would not let him leave work early to see a doctor. (Id.) Plaintiff ended up 7 on off-work duty for treatment and recovery of kidney stones for several weeks. (Id.) While he 8 was out, Ms. Suarez drafted a letter to the Post Office’s human resources manager, addressing 9 Plaintiff’s poor performance but noting that “what worries me are not the grievances, EEOs, and 10 Letters he sends out to the Post Master General . . . but the fact that he really believes what he’s 11 United States District Court Northern District of California 6 saying.” (Id. ¶ 30.) Ms. Suarez’s letter continues that Plaintiff’s “[b]ehavior is becoming more 12 desperate and delusional; he is irrational and more paranoid” and notes that there was “something 13 . . . not quite right” about him. (Id.) She expresses fear about working with Plaintiff. (Id. ¶ 31.) 14 She also references Dr. Raffle’s 1998 report concluding that Plaintiff was unfit for duty. She 15 complains that the report is “too old to use,” and quotes the report itself nearly verbatim, stating 16 that the report concluded that Plaintiff’s “condition is untreatable and that his condition [is] 17 permanent, and there is little likelihood that his condition will improve with treatment or time.” 18 (Id. ¶ 31.) Again, the Post Office did not address Ms. Suarez’s access to the 1998 Fitness for Duty 19 Exam report. (Id.) 20 The next month, Ms. Suarez wrote a handwritten note to the Post Office’s human resources 21 manager stating that she “found the paperwork” on Plaintiff and “can’t figure out how after all of 22 this he kept a job.” (Id. ¶ 32.) She references Dr. Raffle’s 1998 report, noting that the physician 23 “states that [Plaintiff] is not a danger to anyone” but Dr. Raffle “needs to come to Sausalito and 24 work with [Plaintiff] like we have to.” (Id.) Days after Ms. Suarez wrote that note, the Post 25 Office ordered Plaintiff to attend another Fitness for Duty Exam, which he did the next month 26 with Dr. William Bresnick. (Id. ¶ 35.) 27 28 All of the four Fitness or Duty Exam reports about Plaintiff indicated that he would have trouble interacting with supervisors, completing tasks in a timely manner, and identifying his own 4 1 disabling condition or asking for help and assistance because of his disabilities. (Id. ¶ 43.) 2 Plaintiff’s physician opined that the Post Office could have used Dr. Bresnick’s assessment as a 3 guide to “successfully manage” Plaintiff and “[h]ad they followed his recommendations, . . . 4 [Plaintiff’s] supervisors could have changed their approach to benefit all[,]” Plaintiff could have 5 improved his work performance and communication with his supervisors. (Id.) The Post Office 6 did not offer Plaintiff a reasonable accommodation or offer to discuss potential accommodations 7 with him, and instead ridiculed him and treated him as a threat. (Id.) For example, Ms. Suarez continued to make comments evidencing her discriminatory 8 9 animus. (Id. ¶ 40.) She responded to the effect of “you’re crazy” when Plaintiff requested overtime. (Id.) Several weeks later, Ms. Suarez suspended Plaintiff and placed him on 11 United States District Court Northern District of California 10 administrative leave for unsafe driving. (Id.) In early December 2010 Ms. Suarez submitted a 12 request to terminate Plaintiff’s employment. (Id. ¶ 41.) One week later she issued a notice of 13 removal terminating his employment effective January 7, 2011 due to unsafe driving and 14 unauthorized use of overtime. (Id. ¶¶ 41-42; see also id. at 19.) 15 II. EEO Activity3 On September 14, 2010 Plaintiff requested an appointment for counseling and filed an 16 17 Information for Pre-Complaint Counseling alleging discrimination on the basis of race, sex, age, 18 physical disability, and retaliation for prior EEO activity arising out of the July 2010 incident 19 when Ms. Suarez refused to allow Plaintiff to leave work early when his kidney stones were 20 causes him intense pain, and the September 2010 written notice instructing him to attend his 21 22 23 24 25 26 27 28 3 The following background is based on the exhibits attached to the declarations of Jennifer Jarvie and Jason Erlich, which are part of the administrative record of Plaintiff’s EEO complaints. (See Dkt. Nos. 45, 50-1.) The Court can consider materials outside the pleading for the purposes of resolving a 12(b)(1) dispute, as the Court does here. See Americopters, LLC v. Fed. Aviation Admin., 441 F.3d 726, 732 n.4 (9th Cir. 2006). Further, as for the 12(b)(6) analysis, in the context of employment discrimination cases 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 those documents. See In re Bare Escentuals, Inc. Sec. Litig., 745 F. Supp. 2d 1052, 1070 (N.D. Cal. 2010). 5 1 fourth Fitness for Duty Exam. (Dkt. No 45 ¶ 4; Dkt. No. 45-1 at 2.) Later the same month, 2 Plaintiff requested another appointment for counseling and filed a second Information for Pre- 3 Complaint counseling, again alleging discrimination on the basis of race, sex, age, physical 4 disability, and retaliation for prior EEO activity, this time arising out of the same two incidents. 5 (Dkt. No. 45 ¶ 5; Dkt. No. 45-2.) The written counseling request also alleged that “Postal 6 management . . . subjected [Plaintiff] to discrimination and harassment and a hostile work 7 environment[.]” (Dkt. No. 45-2 at 2.) In December 2010, Plaintiff filed a formal EEO complaint alleging discrimination on the 8 9 basis of race, sex, age, disability, and retaliation challenging the same two incidents—e.g., discrimination and verbal abuse arising out of Ms. Suarez’s July 2010 refusal to let Plaintiff leave 11 United States District Court Northern District of California 10 work early despite his pain and discrimination due to the September 2010 Fitness for Duty Exam 12 order. (Dkt. No. 44 ¶ 7; Dkt. No. 45 ¶ 6; Dkt. No. 45-3 at 2.4) The administrative complaint also 13 alleged that Post Office management breached a settlement agreement. (Dkt. No. 45-3 at 2.) 14 Plaintiff sought relief including equal treatment and missed overtime opportunities. (Id.) In 15 January 2011 the EEO Office accepted Plaintiff’s claim about the Fitness for Duty Examination 16 but dismissed his claim arising out of the July refusal to let him leave work early due to pain. 17 (Dkt. No. 45-4 at 2-3.) On January 26, 2011, following his termination, Plaintiff requested further appointments 18 19 for counseling and filed an additional Information for Pre-Complaint Counseling, alleging 20 discrimination on the basis of race, color, mental disability, hostile work environment—continuing 21 violation, and prior EEO activity based on the December 8, 2010 notice of removal and placement 22 on administrative leave. (Dkt. No. 45-5.5) In the factual statement describing the incident that 23 prompted him to seek EEO counseling, Plaintiff wrote: 24 25 4 26 Plaintiff submitted a copy of the same December 14, 2010 EEO Complaint. (Dkt. No. 50 ¶ 7; Dkt. No. 50-5.) 27 5 28 Plaintiff submitted the same January 26, 2011 Information for Pre-Complaint Counseling. (Dkt. No. 50-8.) 6 On December 8, 2010 I was issued a “Notice of Removal” and was placed on administrative leave. On December 14, 2010 I first learned [Ms. Suarez] knew or should have known of my existing medical mental disability. On December 14, 2010 I first learned that my personal and confidential medical records were kept at the Sausalito Post Office. 1 2 3 4 (Id. at 2.) Plaintiff alleges that he filed an additional EEO complaint alleging termination on the 5 basis of disability and prior EEO activity, and improper disclosure of his personal and confidential 6 medical records. (Dkt. No. 44 ¶ 8.) The Post Office has no records of such EEO complaint. (Dkt. 7 No. 45 ¶ 9; Dkt. No. 51-1 ¶¶ 3-4.) Nor has Plaintiff submitted a copy of another administrative 8 complaint or pre-complaint form. On February 9, 2011, the EEO Office amended Plaintiff’s pending EEO Complaint to 9 address the claims raised in his January 26 Pre-Complaint Counseling form. (Dkt. No. 45 ¶ 10; 11 United States District Court Northern District of California 10 Dkt. No. 45-6 at 2.6) The EEO accepted the discrimination claim arising out of the notice of 12 removal but dismissed the claim about Plaintiff’s personal medical records. (Dkt. No. 45-6 at 3.) 13 According to the EEOC, Plaintiff did not respond to the EEO Office’s order. (Dkt. No. 45 ¶ 11.) 14 Plaintiff avers that he responded by letter of February 22, 2011 requesting that his claims for 15 “hostile work environment” and claims relating to the Post Office’s use of his medical records be 16 re-added to his complaint. (Dkt. No 50 ¶ 5; Dkt. No. 50-3 at 2.) Specifically, Plaintiff wrote that 17 the Post Office’s reliance “upon [his 1998] medical records in issuing [him] a Notice of Removal 18 . . . subject[ed him] to discrimination [and] harassment; due to [his] well documented mental 19 disability of being diagnosed with having obsessive compulsive and schizoid personality traits.” 20 (Dkt. No. 50-3 at 2.) In May 2011, the EEO issued an investigative summary, which referenced that Ms. Suarez 21 22 possessed Plaintiff’s medical records. (Dkt. No. 50 ¶ 7; Dkt. No. 50-4 at 11.) The report also 23 indicated that Plaintiff had been referred for the 1998 Fitness for Duty Exam to determine 24 “[w]hether or not his chronic worsening behavioral actions will ever allow him to perform the 25 essential functions of a letter carrier with or without accommodation.” (Dkt. No. 50-4 at 23.) In June 2011 Plaintiff, then represented by counsel, requested a hearing before an 26 27 6 28 Plaintiff submitted the same February 9, 2011 EEO order amending Plaintiff’s EEO Complaint and dismissing some of his claims. (Dkt. No. 50-2.) 7 1 administrative judge. (Dkt. No. 45 ¶ 12; Dkt. No. 45-7.) In an order acknowledging Plaintiff’s 2 request, the EEOC directed each party to “identify any claims the agency has dismissed from the 3 complaint during the agency investigative process . . . and to comment on the appropriateness of 4 each dismissal” and noted that the failure to oppose in writing the agency’s dismissal of any 5 claims within 30 days would be deemed waiver. (Dkt. No. 45-8.) The EEOC has no record of a 6 response to that Order from Plaintiff. (Dkt. No. 45 ¶ 14.) Nor has Plaintiff identified any 7 response. An administrative judge granted summary judgment in favor of the Post Office in July 8 9 2013, and the Post Office issued a notice of final action. (Dkt. No. 44 ¶ 11; Dkt. No. 45 ¶ 15; Dkt. No. 45-9; Dkt. No. 45-10.) After Plaintiff appealed (Dkt. No. 45-11), the EEOC affirmed the 11 United States District Court Northern District of California 10 dismissal in April 2015. (Dkt. No. 44 ¶ 12; id. at 23; Dkt. No. 45-12.) After filing a request for 12 reconsideration in May 2015, Plaintiff initiated this action on July 16, 2015. (Dkt. No. 44; Dkt. 13 No. 45 ¶ 18; Dkt. No. 45-13.) The EEOC denied Plaintiff’s request for reconsideration in October 14 2015. (Dkt. No. 45 ¶ 18; Dkt. No. 45-14.) 15 III. 16 Procedural History Plaintiff, then representing himself, filed the initial judicial complaint alleging that the 17 2010 Fitness Exam order and removal notice constituted race, gender, age, and disability 18 discrimination and reprisal for engaging in protected EEO activity under various statutes. (Dkt. 19 No. 1.) After the Court granted in part Defendant’s motion to dismiss, Plaintiff filed a First 20 Amended Complaint (“FAC”) alleging disability discrimination, failure to accommodate, 21 retaliation, and age discrimination. (Dkt. No. 26.) The Court then granted Defendant’s motion to 22 dismiss the FAC and granted Plaintiff’s request for appointment of counsel. (Dkt. No. 39.) After 23 counsel was appointed, Plaintiff filed the SAC, which alleges disability discrimination, retaliation, 24 failure to accommodate a disability and engage in the interactive process, and impermissible 25 disclosure of confidential medical records, all under the Rehabilitation Act. (Dkt. No. 42.) 26 Defendant moves to dismiss some claims for lack of subject matter jurisdiction due to failure to 27 exhaust administrative remedies and others for failure to state a claim upon which relief may be 28 granted. (Dkt. No. 44.) 8 DISCUSSION 1 2 I. Motion to Dismiss for Lack of Subject Matter Jurisdiction A. 4 Under Federal Rule of Civil Procedure 12(b)(1), a district court must dismiss an action if it 5 lacks jurisdiction over the subject matter of the suit. See Fed. R. Civ. P. 12(b)(1). “Subject matter 6 jurisdiction can never be forfeited or waived and federal courts have a continuing independent 7 obligation to determine whether subject-matter jurisdiction exists.” Leeson v. Transamerica 8 Disability Income Plan, 671 F.3d 969, 975 n.12 (9th Cir. 2012) (internal quotation marks and 9 citations omitted). Where, as here, a defendant challenges subject matter jurisdiction pursuant to 10 Rule 12(b)(1), “the plaintiff has the burden of proving jurisdiction in order to survive the motion.” 11 United States District Court Northern District of California 3 Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1197 (9th Cir. 2008) (internal 12 quotation marks and citation omitted). 13 Legal Standard A party challenging the court’s subject matter jurisdiction under Rule 12(b)(1) may bring a 14 facial challenge or a factual challenge. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A 15 facial attack is one where “the challenger asserts that the allegations contained in a complaint are 16 insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 17 1035, 1039 (9th Cir. 2004). In evaluating such a challenge, the court accepts the factual 18 allegations in the complaint as true. See Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th Cir. 19 2001). In a factual challenge, “however, a court may look beyond the complaint to matters of 20 public record without having to convert the motion into one for summary judgment.” White, 227 21 F.3d at 1242 (citation omitted). Once the moving party has made a factual challenge by offering 22 affidavits or other evidence to dispute the allegations in the complaint, the party opposing the 23 motion must “present affidavits or any other evidence necessary to satisfy its burden of 24 establishing that the court, in fact, possesses subject matter jurisdiction.” St Clair v. City of Chico, 25 880 F.2d 199, 201 (9th Cir. 1989). 26 B. Framework for Administrative Exhaustion 27 “To establish federal subject matter jurisdiction, [a plaintiff is] required to exhaust her 28 administrative remedies before seeking federal adjudication of her claims.” EEOC v. Farmer 9 1 Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994). While not all administrative exhaustion requirements 2 are jurisdictional in nature, Ninth Circuit “case law holds that substantial compliance with the 3 presentment of discrimination complaints to an appropriate administrative agency is a 4 jurisdictional prerequisite.” Sommatino v. United States, 255 F.3d 704, 709 (9th Cir. 2001). This 5 requirement applies to Rehabilitation Act claims. See Leong v. Potter, 347 F.3d 1117, 1121-22 6 (9th Cir. 2003) (affirming the district court’s determination that it lacked subject matter 7 jurisdiction over the plaintiff’s Rehabilitation Act claim because the plaintiff failed to exhaust his 8 administrative remedies). “The jurisdictional scope of the plaintiff’s court action depends on the scope of the EEO[ ] 9 charge and investigation.”7 Id. at 1122. Ordinarily, “specific claims made in district court . . . 11 United States District Court Northern District of California 10 must be presented to the EEO[ ].” Id. This requirement affords “the agency an opportunity to 12 investigate the charge,” provides the “charged party notice of the claim,” and “narrow[s] the issues 13 for prompt adjudication and decision.” B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th 14 Cir. 2002) (internal quotation marks and citation omitted). To determine the nature of the charge 15 presented, courts rely on the factual statement contained in the plaintiff’s administrative 16 complaint. See id. at 1100; see also Robinson v. Geithner, 359 F. App’x 726, 728 (9th Cir. 2009) 17 (noting that courts consider the “language in an administrative complaint” when determining 18 whether allegations are exhausted). 19 Courts may also consider charges of discrimination not included in the plaintiff’s 20 administrative complaint so long as the charges are “like or reasonably related to the allegations 21 made before the EEO[ ], [or] are within the scope of an EEO[ ] investigation that reasonably could 22 be expected to grow out of the allegations.” Leong, 347 F.3d at 1122 (internal citation and 23 quotation marks omitted). Courts must construe EEO charges “with utmost liberality since they 24 are made by those unschooled in the technicalities of formal pleading.” Sosa v. Hiraoka, 920 F.2d 25 1451, 1458 (9th Cir. 1990) (citation omitted). “Subject matter jurisdiction extends over all 26 27 28 7 Although the Ninth Circuit most often refers to the scope of the EEOC charge and investigation, the Court here instead refers to the scope of the EEO charge and investigation given that Plaintiff filed his administrative charge with the EEO and the EEO conducted an investigation. 10 1 allegations of discrimination that either fell within the scope of the [EEO Office’s] actual 2 investigation or an investigation which can reasonably be expected to grow out of the charge of 3 discrimination” or if the new claims are consistent with the plaintiff’s original theory of the case. 4 B.K.B., 276 F.3d at 1100; see also Green v. Los Angeles Cnty. Superintendent of Schs., 883 F.2d 5 1472, 1475-76 (9th Cir. 1989) (noting that an allegation is like or reasonably related to previous 6 EEO allegations if the prior EEO investigation actually encompassed the additional allegations or 7 if the new allegations could reasonably be expected to grow out of the investigation into the initial 8 charges) (citation omitted). In determining whether a plaintiff has exhausted allegations that he 9 did not specify in his administrative complaint, courts consider the following factors: (1) the “alleged basis of the discrimination;” (2) “dates of discriminatory acts specified in the charge;” (3) 11 United States District Court Northern District of California 10 “perpetrators of discrimination named in the charge;” and (4) “any locations at which 12 discrimination is alleged to have occurred.” B.K.B., 276 F.3d at 1100 (citation omitted). 13 Courts have found that claims are not like or reasonably related, and thus refused to 14 exercise jurisdiction, where they rely on different theories of discrimination or statutes. See id. 15 (holding that an EEOC investigation of discrimination on the basis of race, color, religion, sex, 16 and national origin was not like or reasonably related to a Rehabilitation Act disability 17 discrimination claim); see also Rodriguez v. Airborne Express, 265 F.3d 890, 897 (9th Cir. 2001) 18 (refusing to construe the plaintiff’s race-based discrimination claim to include a disability 19 discrimination claim because the “two claims involve[d] totally different kinds of allegedly 20 improper conduct, and investigation into one claim would not likely lead to investigation of the 21 other”); Gomez v. Serv. Emps. Int’l Union Local 87, No. C 10-01888 RS, 2010 WL 4704407, at *4 22 (N.D. Cal. Nov. 12, 2010) (holding that a properly exhausted claim for national origin 23 discrimination did not exhaust a gender-discrimination claim even though each claim “allegedly 24 flowed from the same factual scenario”). 25 C. Analysis 26 Defendant contends that the Court lacks jurisdiction over the third (failure to 27 accommodate) and fourth (unlawful disclosure) causes of action because Plaintiff has failed to 28 exhaust his administrative remedies. 11 1 1. Third Cause of Action: Failure to Accommodate a Disability 2 Plaintiff has exhausted the claims alleged in the third cause of action, failure to 3 accommodate a disability and engage in the interactive process. (Dkt. No. 42 ¶¶ 57-61.) 4 Plaintiff’s 2010 Information for Pre-Complaint Counseling forms alleged discrimination for 5 “physical” disability, and his 2010 EEO Complaint alleged “physical/psychological” disability. 6 (Dkt. Nos. 45-1, 45-2, 45-3.) His November 2011 Information for Pre-Complaint Counseling 7 form alleged that he was discriminated against on account of his “mental disability.” (Dkt. No. 8 45-5 at 2.) “Disability discrimination” encompasses disparate treatment—denying an employee 9 equal jobs or benefits because of the employee’s disability, 42 U.S.C. § 12112(a), (b)(4), and failure to accommodate a disability, 42 U.S.C. § 12112(a), (b)(5). See Boyd, 752 F.2d at 413-14 11 United States District Court Northern District of California 10 (noting that the Rehabilitation Act incorporates the types of discrimination claims available under 12 the ADA). Here, Defendant does not dispute that Plaintiff alleged disparate treatment disability 13 discrimination in his administrative complaints: he asserted that he was sent to his Fitness for Duty 14 Exam, denied requests to leave work early, and terminated when Post Office management treated 15 other, non-disabled letter carriers differently. (See Dkt. Nos. 45-1, 45-2, 45-3, 45-5.) Defendant 16 argues, however, that Plaintiff did not exhaust his failure to provide a reasonable accommodation 17 claim. But Plaintiff’s reasonable accommodation claim is “like or reasonably related” to his 18 exhausted disparate treatment disability claim. 19 Turning to the factors identified in B.K.B. v. Maui Police Department, 276 F.3d 1091 (9th 20 Cir. 2002), the “alleged basis of the discrimination” is the same: Plaintiff’s disparate treatment 21 claim alleges that he was treated differently than other letter carriers because of his Asperger’s, 22 and his failure to accommodate claim alleges that the Post Office failed to accommodate his 23 Asperger’s. Because both claims allege disability discrimination based on the same condition, this 24 factor weighs in favor of exhaustion. Next, the dates of discriminatory acts are the same: the 25 disparate treatment claim arises out of Plaintiff’s termination, and he alleges he was terminated 26 because the Post Office failed to accommodate his disability. The perpetrators of discrimination 27 are also the same: Plaintiff alleges that Ms. Suarez and Post Office management treated him 28 differently and denied him reasonable accommodations. Finally, the locations at which the 12 1 discrimination is alleged to have occurred are identical: both occurred at the Post Office’s 2 Sausalito branch. Thus, all four B.K.B. factors indicate that Plaintiff exhausted the reasonable 3 accommodation claim that was not specified in his administrative complaint. The inquiry ends 4 here. 5 However, there is further support for this conclusion as Plaintiff’s failure to accommodate claim falls within the scope of the EEOC investigation which would reasonably be expected to 7 grow out of the disparate treatment disability charge because the agency actually addressed the 8 failure to accommodate claim. For example, the EEO’s investigative summary references 9 potential accommodations. (See, e.g., Dkt. No. 50-4 at 19 (quoting a letter from the Post Office 10 Area Medical Director to the Sausalito Postmaster stating that “[a]fter treatment, [Plaintiff] could 11 United States District Court Northern District of California 6 probably do a job that does not require postal vehicle driving or deadlines”); id. at 23 (noting that 12 the Area Medical Director’s letter requesting Plaintiff’s 2010 Fitness for Duty Exam asked Dr. 13 Bresnick to determine “[w]hether or not his chronic worsening behavioral actions will ever allow 14 him to perform the essential functions of a letter carrier with or without accommodation”); id. at 15 46 (noting that an appropriate reasons for referral for a psychiatric examination include “[a] need 16 to determine the ability of the employee to perform the job, with or without accommodation”).) 17 Moreover, the administrative judge addressed Plaintiff’s reasonable accommodation claim 18 in the 2013 decision granting summary judgment to the Post Office. (Dkt. No. 45-9 at 16.) While 19 the administrative judge described Plaintiff as raising the failure to accommodate claim for the 20 first time in opposition to summary judgment (id.), the judge did not grant judgment in the Post 21 Office’s favor on the claim for a failure to exhaust or because it was outside the scope of the 22 EEO’s investigation; instead, the judge ruled there was no “evidence that [Plaintiff] ever asked for 23 any accommodation in a manner that would have triggered a duty by the Agency to consider an 24 accommodation or to engage in the interactive process.” (Id.) In its opinion affirming the 25 administrative judge’s decision, the EEOC concurred with the finding that Plaintiff had failed to 26 show that he was denied a reasonable accommodation, likewise concluding that there was no 27 evidence that he requested an accommodation prior to his Fitness for Duty Exam or removal or 28 that the Fitness for Duty Exam report recommended particular accommodations. (Dkt. No. 4513 12.) In other words, the EEOC addressed the failure to accommodate claim on the merits. At oral 2 argument, Defendant conceded that it cannot identify any case that holds that a court can find a 3 plaintiff failed to exhaust a claim when the EEOC addressed that very claim on the merits. This 4 lack of caselaw is unsurprising: if the EEOC chose to address a claim on the merits it follows that 5 (1) the EEOC considers the claim to have been expressly raised as part of the administrative 6 process, or (2) the claim is like or reasonably related to the claimant’s other claims. Defendant’s 7 insistence that the EEOC did not actually investigate Plaintiff’s accommodation claim is meritless: 8 “whether the EEOC in fact conducted any investigation at all is not material for purposes of 9 exhaustion.” B.K.B., 276 F.3d at 1100. Further, in Plaintiff’s written request for reconsideration 10 he wrote that Post Office “management should have given [him] a reasonable accommodation for 11 United States District Court Northern District of California 1 his mental impairments” and instead of doing so, fired him. (Dkt. No. 45-13.) This puts to rest 12 Defendant’s argument that Plaintiff never raised a failure to accommodate claim at the 13 administrative level. 14 Defendant’s heavy reliance on the Seventh Circuit’s decision in Green v. National Steel 15 Corp., 197 F.3d 894 (7th Cir. 1999), is unavailing. There, the court noted that disparate treatment 16 and failure to accommodate claims “are analyzed differently under the law” so “they are not like 17 or reasonably related to one another, and one cannot expect a failure to accommodate claim to 18 develop from an investigation into a claim that an employee was terminated because of a 19 disability.” 197 F.3d at 898. From this, Defendant urges that the two types of claims can never be 20 “like or reasonably related” for the purposes of exhaustion. (See Dkt. No. 44 at 20.) Not so, for 21 several reasons. First, as an out-of-circuit case, Green is not binding on the court. Second, Green 22 did not analyze the contents of the administrative complaint or address any similarities between 23 the two claims in any way similar to the parameters the Ninth Circuit mandated in B.K.B. Third, 24 Green is distinguishable on its facts. There, the underlying facts of the exhausted and unexhausted 25 claims did not overlap: the plaintiff’s exhausted claim concerned her termination whereas her 26 failure to accommodate claim challenged her employer’s failure to provide her with a suitable 27 desk chair and dimmed lights. 197 F.3d at 898. In light of those facts, courts cite Green for the 28 unremarkable proposition that the two types of claims are not “like or reasonably related” when 14 1 the circumstances underlying the claims “have nothing to do with” each other. See Morales v. 2 Goodwill Indus. Of Southeastern Wis., Inc., No. 14 CV 2370, 2014 WL 4914255, at *4 (N.D. Ill. 3 Sept. 30, 2014) (collecting cases). Here, in contrast, Plaintiff’s failure to accommodate claim 4 overlaps with his disparate treatment challenge to his termination because he contends the failure 5 to accommodate led to the termination. Defendant’s reliance on Jones v. Sumser Retirement Village, 209 F.3d 851 (6th Cir. 2000), 6 7 is unpersuasive. While it could be read to support Defendant’s position, it is out-of-Circuit 8 authority and did not engage in any analysis similar to the Ninth Circuit’s B.K.B.-factors test and 9 arguably violates the Ninth Circuit’s command that the claimant’s administrative charge be viewed with the “utmost liberality.” Finally, and perhaps most importantly, the EEOC did not 11 United States District Court Northern District of California 10 expressly consider the merits of the Jones plaintiff’s accommodation claim as did the EEOC here. 12 Defendant’s argument that the date a plaintiff identifies in his administrative charge can 13 preclude a reasonable accommodation claim from being like or reasonably related to a disparate 14 treatment claim fares no better. On this point, Defendant again cites Jones, which is inapposite for 15 the reasons described above, and a decision from this District: Baird v. Office Depot, No. C-12- 16 6316 EMC, 2014 WL 2527114, at *6 (N.D. Cal. June 4, 2014). In Baird, the court concluded that 17 the plaintiff’s reasonable accommodation claim was “like or reasonably related” to his hostile 18 work environment claim.8 Id. at *4-5. In reaching that conclusion, the court noted that the 19 plaintiff “left the date blank for when the earliest act of discrimination took place” and “checked 20 the box for continuing action which would put [the d]efendant on notice of various claims[,]” and 21 the factual statement describing the hostile work environment referenced the plaintiff’s work 22 restrictions. Id. at *4. Here, Plaintiff’s administrative complaints identified particular dates when 23 the discrimination occurred. (Dkt. No. 45-1, 45-2, 45-3, 45-5.) But this fact alone is not 24 dispositive; Defendant has not identified any case that holds that where a plaintiff identifies a 25 particular date of disability discrimination in his administrative complaints, the EEO cannot 26 reasonably be expected to investigate whether reasonable accommodations were available. 27 8 28 Baird involved discrimination claims arising under California’s Fair Employment Housing Act, but it applied the B.K.B. factors to address exhaustion. 2014 WL 2527114, at *3-4. 15 1 Moreover, like Baird, Plaintiff’s formal EEO complaint alleged that he was subject to a hostile 2 work environment, which would put the Post Office on notice that the discrimination alleged was 3 not a one-time incident, and the subject matters overlap. One other circumstance bears noting. The Post Office’s Information for Pre-Complaint 4 5 Counseling form does not give an employee the option to identify a claim for failure to 6 accommodate a disability and instead steers employees towards alleging only a disparate treatment 7 claim.9 (See Dkt. Nos. 45-1,45-2, 45-5.) In Section B, the form directs the employee-complainant 8 to identify what “factor(s)” of discrimination he alleges, noting that prohibited discrimination 9 includes actions taken based on the employee’s “Race, Color, Religion, Sex, Age (40+), National Origin, Physical and/or Mental Disability, or in Retaliation[.]” (Dkt. No. 45-2 at 2.) Drilling 11 United States District Court Northern District of California 10 down on the disparate treatment theory, in Section D, entitled “Comparisons,” the form directs the 12 employee-complainant to identify other employees with different “factors” and explain how they 13 were treated differently. (Id. at 3.) Put simply, the form asks for comparators to show that the 14 challenged action constituted disparate treatment. In contrast, the form has no section that asks the 15 employee-complainant to identify accommodations he requested or to list when the Post Office 16 denied accommodations. Likewise, the Post Office’s form entitled “EEO Complaint of 17 Discrimination in the Postal Service”—i.e., the formal administrative complaint template—has a 18 check-the-box section asking the employee-complainant to identify the type of discrimination 19 alleged. (Dkt. No. 45-3.) That form has a box for disability discrimination, which Plaintiff 20 checked, but it does not offer separate boxes or otherwise distinguish disparate treatment or failure 21 to accommodate discrimination claims. (Id.) Thus, the Post Office’s forms are geared exclusively 22 towards disparate treatment claims and do not give an employee-complainant an option to 23 specifically identify a failure to accommodate claim. This suggests that courts should be 24 especially lenient—applying something even more flexible than “utmost liberality,” see Sosa, 920 25 F.2d at 1458—in construing whether Post Office administrative complaints like Plaintiff’s here 26 include failure to accommodate claims. Even without this especially lenient lens, in light of the 27 9 28 The Information for Pre-Complaint Counseling is Post Office Form number 2564-A. (Dkt. Nos. 45-1, 45-2.) 16 1 B.K.B. factors and the EEOC’s consideration on the merits of Plaintiff’s failure to accommodate 2 claim, the Court finds that Plaintiff exhausted the claim. Defendant does not separately address the failure to engage in the interactive process 3 4 claim. And indeed, the two are related: an employer has a “mandatory obligation” to engage in 5 the interactive process to determine whether a reasonable accommodation is available when a 6 disabled employee requests one or when the employer recognizes the need for such an 7 accommodation. See Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000), vacated and 8 remanded on other grounds, 535 U.S. 391 (2002). In the SAC Plaintiff brings the two claims 9 together. (See Dkt. No. 42 ¶¶ 57-61.) And district courts in the Ninth Circuit have recognized that there is no “stand-alone claim for failure to engage in the interactive process.” Yonemoto v. 11 United States District Court Northern District of California 10 McDonald, 114 F. Supp. 3d 1067, 1114 (D. Haw. 2015) (citing Barnett, 228 F.3d at 1115). 12 Instead, the two are intertwined: a failure to engage in the interactive process is cognizable only 13 where a reasonable accommodation is available. See Yonemoto, 114 F. Supp. 3d at 1115; see also 14 id. at n.21 (collecting cases from other Courts of Appeal holding as much). Thus, the claim for 15 failure to engage in the interactive process is “like or reasonably related” to Plaintiff’s disparate 16 treatment disability claim for the same reasons as his failure to accommodate claim: because the 17 EEO’s investigation reasonably should have encompassed looking into whether the Post Office 18 failed to accommodate Plaintiff’s disability, the first step of which would have entailed the Post 19 Office engaging in the interactive process with Plaintiff to identify whether a reasonable 20 accommodation was available. Accordingly, the Court has subject matter jurisdiction over the failure to accommodate 21 22 23 24 claim. 2. Fourth Cause of Action: Impermissible Disclosure of Medical Records In the fourth cause of action, Plaintiff alleges a violation of 29 C.F.R. § 1630.14, which 25 provides that employers may require medical examinations of employees and specifies in relevant 26 part that “[i]nformation obtained” pursuant to these examinations “shall be collected and 27 maintained on separate forms and in separate medical files and be treated as a confidential medical 28 record” subject to certain exceptions, such as informing supervisors and managers of necessary job 17 1 restrictions or accommodations. 29 C.F.R. § 1630.14(c). Plaintiff’s pre-complaint requests and formal EEO complaints did not cite Section 1630.14 2 3 by name or include language that expressly indicates a claim for improper disclosure of medical 4 information. (See Dkt. No. 45-1; Dkt. No. 45-2; Dkt. No. 45-3.) At oral argument, Defendant 5 emphasized that Section 1630.14 is a “highly technical” and specific statute, so Plaintiff’s failure 6 to include the words “improper disclosure” in his factual statement precludes the court from 7 finding the claim like or reasonably related to the claims alleged there. But a plaintiff need not 8 include the name of the claim to put the agency on notice. If anything, the “highly technical” 9 nature of the statute leads to the inference that the court should be even more generous in 10 construing whether the factual basis for the claim exists. United States District Court Northern District of California 11 But even under the typical “utmost liberality” standard, Plaintiff’s January 26 Information 12 for Pre-Complaint Counseling raised the issue of his confidential medical records sufficient to put 13 the agency on notice of his improper disclosure claim.10 (See Dkt. Nos. 45-5, 45-6.) Specifically, 14 Plaintiff’s January 26 form reads: On December 8, 2010 I was issued a “Notice of Removal” and as placed on administrative leave. On December 14, 2010 I first learned [Ms. Suarez] knew or should have known of my existing medical mental disability. On December 14, 2010 I first learned that my personal and confidential medical records were kept at the Sausalito Post Office. 15 16 17 18 19 (Dkt. No. 45-5 at 2 (emphasis added).) As mentioned above, while Plaintiff’s administrative 20 charge did not include the words “improper disclosure” or cite the statute, an administrative 21 charge need not include the specific legal name of a claim to invoke it. See Lelaind, 576 F. Supp. 22 2d at 1091. Given the mandate to construe plaintiffs’ EEO charges with “utmost liberality,” see 23 Sosa, 920 F.2d at 1458, this reference to Ms. Suarez knowing about his disability and to his 24 confidential medical records—even if it did not name the code section or include the words 25 10 26 27 28 While courts generally look to the factual statement in the formal complaint and not the precomplaint forms, see B.K.B., 276 F.3d at 1101-02, here Plaintiff did not file a formal complaint alleging the claims included in the January 26 Pre-Complaint Counseling Form. Instead, the EEO amended his complaint to address these claims. (See Dkt. No. 45-6.) Thus, the Court can consider the pre-complaint form, especially to the extent that Plaintiff disagrees with the way the EEO framed his claims, which he does here. See B.K.B., 276 F.3d at 1102. 18 1 “improper disclosure”—suffices to establish that the improper disclosure claim is “like or 2 reasonably related” to Plaintiff’s exhausted claims. See Deppe v. United Airlines, 217 F.3d 1262, 3 1267 (9th Cir. 2000) (finding the plaintiff’s “record of disability” claim “like or reasonably 4 related” to a “perceived disability” claim based on factual statement that his employer “imposed 5 medical restrictions based on ‘18 month old medical evaluations’” even though the plaintiff did 6 not formally list a record of disability claim in his EEO charge). 7 Even if the language of the factual statement alone were not enough to establish that the 8 claim is like or reasonably related to Plaintiff’s exhausted discrimination and retaliation claims, 9 the EEO administrative record shows that the actual EEO investigation encompassed or should have encompassed Plaintiff’s improper disclosure claim. First, the issue of Ms. Suarez’s access to 11 United States District Court Northern District of California 10 Plaintiff’s confidential medical information arose repeatedly throughout the EEO investigation. 12 For example, the EEO’s May 2011 investigative summary notes that Ms. Suarez “stumbled on” 13 Plaintiff’s 1998 Fitness for Duty Exam report and forwarded the file to another Post Office 14 employee. (Dkt. No. 50-4 at 11.) She described the confidential report’s findings to the 15 investigator. (Id.) The summary also cites a note from Ms. Suarez that discusses the 1998 Fitness 16 for Duty Exam report, writing “Dr. Raffle states in his letter than [Plaintiff] is not a danger to 17 anyone.” (Id. at 22.) Thus, the EEO’s investigation uncovered information that Ms. Suarez had 18 access to Plaintiff’s confidential medical records. 19 Moreover, the EEO Office understood that Plaintiff was making a medical records 20 disclosure claim and addressed it directly in its decision to partially accept and partially dismiss 21 Plaintiff’s claim as amended to include his January 26 Pre-Complaint Counseling form claims. 22 (See Dkt. No. 45-6 at 5.) Specifically, the EEO analyst wrote that “we acknowledge that 23 disclosure of medical information to unauthorized individuals is in violation of the Rehabilitation 24 Act; however, in this case there does not appear to be an occurrence of such disclosure.” (Id.) 25 The EEO Office further reasoned that to the extent that Plaintiff’s medical records “somehow 26 contributed to his removal, such an allegation . . . should be addressed in conjunction with such, 27 not as a separate or distinct issue.” (Id.) Plaintiff responded in writing asking the EEO to 28 reconsider and include the claims related to his medical records. (See Dkt. No. 50-3.) Although 19 1 Plaintiff asked the EEO to consider the medical records in connection with his discrimination 2 claim (see id.), the substance of the claim, and not the label, controls. See Ng v. Potter, C09-192Z, 3 2009 WL 3836045, at *5 (W.D. Wash. Nov. 12, 2009) (in the context of determining whether 4 claims were like or reasonably related, noting that “it is the substance of the charge, and not its 5 label, which controls the analysis”) (citation omitted). Moreover, the EEO’s decision not to 6 address Plaintiff’s claim as a separate charge “has no bearing on whether” Plaintiff exhausted his 7 administrative remedies. B.K.B., 276 F.3d at 1099. Instead, the EEO’s acknowledgement of the 8 claim, coupled with the discovery during the course of its investigation that Ms. Suarez did, in 9 fact, have access to Plaintiff’s records, indicates that the EEO’s investigation into Plaintiff’s 10 exhausted claims reasonably encompassed his improper disclosure claim. Defendant’s reliance on Franklin v. City of Slidell, 936 F. Supp. 2d 691, 710 (E.D. La. United States District Court Northern District of California 11 12 2013), is misplaced. There, the court addressed defendant’s motion to dismiss the plaintiff’s 13 improper disclosure of medical information for failure to exhaust.11 Because the plaintiff’s 14 administrative complaints “did not mention any allegedly improper disclosure of medical 15 information” and there was “no evidence that [the p]laintiff brought this grievance to the EEOC at 16 any point during the investigation of his original charge,” there was no reason to infer that the 17 administrative investigation would have encompassed wrongful disclosure of medical information 18 charges. Id. The court specifically noted that “a claim that an employer unlawfully required a 19 medical examination and a claim that an employer unlawfully disclosed confidential medical 20 information are distinct” so the agency’s investigation into the former does not reasonably include 21 the latter. Id. To be sure, the claims are distinct. But, unlike Franklin, in this case Plaintiff’s 22 administrative complaints and correspondence with the EEO referenced improper disclosure of 23 medical information and evidence of such violation came to light during the EEO’s investigation. 24 Defendant also relies on Foos v. Taghleef Industries, Inc., 132 F. Supp. 3d 1034, 1049 25 (S.D. Ind. 2015), for the proposition that “in analogous circumstances, courts have held that a 26 27 28 11 The Franklin court addressed exhaustion under 12(b)(6), not 12(b)(1); despite this procedural difference, the substantive analysis under the “like or reasonably related” test is the same. 936 F. Supp. 2d at 710. 20 1 claim for unlawful disclosure of confidential medical information is distinct from a claim that an 2 employer unlawfully required a medical examination for purposes of administrative exhaustion.” 3 (Dkt. No. 44 at 16-17.) But Foos is inapposite. There, the factual statement “relate[d] solely to 4 the requirement that [the plaintiff] submit to a drug and alcohol test” and did not mention medical 5 records, even though improper disclosure might have led to the decision to test him. 132 F. Supp. 6 3d at 1049. Here, in contrast, the factual statement referenced Plaintiff’s confidential medical 7 records and noted that they were kept in the Post Office; the reasonable inference to be drawn is 8 that Plaintiff was challenging the disclosure of that information, especially since the EEOC 9 actually interpreted his charge as making such a claim. For each of these reasons, Plaintiff’s improper disclosure claim is like or reasonably related 10 United States District Court Northern District of California 11 to his exhausted claims such that the Court has jurisdiction over the improper disclosure claim. 12 II. Motion to Dismiss for Failure to State a Claim 13 A. Fourth Cause of Action: Disclosure of Medical Records 14 Defendant contends that the SAC fails to state a claim for improper disclosure of medical 15 records because Plaintiff has failed to adequately allege injury and causation. (Dkt. No. 44 at 20.) 16 The Ninth Circuit has not addressed the elements of an improper disclosure of medical records 17 claim under the ADA or Rehabilitation Act, but courts that have require plaintiffs to establish that 18 “the disclosed information was confidential and that he suffered some kind of tangible injury as a 19 result of the disclosure.” McPherson v. O’Reilly Automotive, Inc., 491 F.3d 726, 732 (8th Cir. 20 2007) (citation omitted); Cossette v. Minn. Power & Light, 188 F.3d 964, 970 (8th Cir. 1999) 21 (“[Plaintiff] must also establish that [defendant’s] violation of the ADA caused some sort of 22 tangible injury.”); see Koch v. White, 35 F. Supp. 3d 37, 40 (D.D.C. 2014) (noting that the 23 confidentiality provision of the ADA as incorporated into the Rehabilitation Act requires that an 24 employee’s medical history be treated as confidential); Fisher v. Harvey, No. 1:05-CV-102, 2006 25 WL 849868, at *5 (E.D. Tenn. Mar. 31, 2006) (noting that Section 1630.14(c) “mirrors the 26 statutory confidentiality provisions found in 42 U.S.C. § 12112(D)(3)(B)” and thus the case law 27 for the statutory provision is instructive). 28 Defendant does not dispute that the SAC adequately alleges the first element, as a Fitness 21 1 for Duty Exam report is the type of confidential information that falls within the law’s protective 2 reach. See Franklin, 936 F. Supp. 2d at 711 (noting that to success on a Section 12112(d) 3 disclosure claim, the employer must obtain the medical information through a disability-related 4 inquiry) (citations omitted); Fisher, 2006 WL 849868, at *7 (noting that employers must keep 5 confidential records of employer-conducted voluntary medical examinations and inquiries into the 6 ability of an employee to perform job-related functions) (citing 42 U.S.C. § 12112(d)(4)(B), (C)). 7 Plaintiff also has adequately alleged the second element—that the disclosure caused a 8 tangible injury. He alleges that Ms. Suarez repeatedly referenced the contents of his confidential 9 medical records, that the records were not kept confidential, and that Ms. Suarez terminated Plaintiff. (See, e.g., Dkt. No. 42 ¶¶ 31-33.) Although the improper disclosure happened as early 11 United States District Court Northern District of California 10 as 2007 and Plaintiff was not terminated until December 2010, Ms. Suarez quoted and referenced 12 the confidential records as late as August 2010—one month before ordering Plaintiff to undergo a 13 Fitness for Duty Exam and four months before she terminated him. (See, e.g., id. ¶¶ 30-31.) 14 Drawing all inferences in Plaintiff’s favor, Ms. Suarez’s repeated reference to specific, negative 15 language Dr. Raffle’s 1998 report plausibly alleges that the disclosure of that report was a 16 substantial factor—i.e., proximately caused—Plaintiff’s termination. 17 Defendant’s arguments to the contrary are unpersuasive. First, in Defendant’s view, 18 termination cannot constitute tangible injury for the purposes of a disclosure claim because it is a 19 separate cause of action, not an injury flowing from disclosure. (See Dkt. No. 51 at 15.) Some 20 courts have found actionable violations of disability-related disclosure laws where the injury that 21 results is distinct from related adverse employment actions. See, e.g., EEOC v. Ford Motor 22 Credit, 531 F. Supp. 2d 930, 943 (M.D. Tenn. 2008) (at summary judgment, finding a cognizable 23 “tangible injury” where there was a genuine dispute regarding whether plaintiff suffered emotional 24 distress). But those courts did not address, let alone foreclose the possibility, that an adverse 25 employment action might suffice, and other courts have recognized that an adverse employment 26 action can serve as the tangible injury flowing from disclosure. See, e.g., Cossette v. Minn. Power 27 & Light, 188 F.3d 964, 970 (8th Cir. 1999) (finding disputed issues of fact existed involving 28 tangible injury—specifically, whether the employer decided not to hire plaintiff because of her 22 1 medical disclosure); see also Franklin, 936 F. Supp. 2d at 711 (concluding that the plaintiff did 2 not adequately allege tangible injury from disclosure because nothing in the complaint suggested 3 that the plaintiff’s termination was based on the disclosure). This is unsurprising, as a 4 “confidential disclosure claim is most typically asserted by a plaintiff-employee as part of a more 5 general disability discrimination lawsuit.” In re Nat’l Hockey League Players’ Concussion Injury 6 Litig., 120 F. Supp. 3d 942, 950 (D. Minn. 2015) (citation omitted). Thus, Plaintiff’s ultimate 7 termination may serve as the “tangible injury” for the purposes of an improper disclosure claim. 8 9 Defendant’s argument that the SAC does not adequately allege that Plaintiff’s termination is the tangible injury at issue fares no better. In the improper disclosure cause of action Plaintiff alleges that “as a direct and proximate cause of the unlawful discrimination by defendant, 11 United States District Court Northern District of California 10 [Plaintiff] suffered damages caused by defendant’s wrongful acts” outlined in a separate and 12 general “damages” section. (Dkt. No. 42 ¶ 69.) Because this paragraph references “unlawful 13 discrimination” and not “improper disclosure,” Defendant urges that Plaintiff has not even alleged 14 that the improper disclosure itself resulted in the damages set forth in the general damages section 15 of the SAC. But to conclude as much the Court would have to draw inferences in Defendant’s 16 favor, which flips the legal standard on its head. Instead, drawing all reasonable inferences in 17 Plaintiff’s favor, he adequately alleges that the improper disclosure caused him to suffer the 18 damages set forth in the general damages section, which include “harm by loss of his employment 19 position” (id. ¶ 71)—termination—because the information Ms. Suarez learned from the 20 confidential report contributed to her decision to fire Plaintiff. If Plaintiff does not ultimately 21 succeed on his disparate treatment disability discrimination claim challenging his termination, it 22 may well be that he cannot claim the termination as damage flowing from the wrongful disclosure. 23 But it is too early now to exclude such damages as a matter of law. 24 Defendant next contends that causation is absent. In its view, Ms. Suarez’s ultimate 25 termination of Plaintiff could not be caused by Dr. Raffle’s 1998 report because Dr. Raffle 26 concluded that Plaintiff was fit to perform the duties of a letter carrier. (Dkt. No. 51 at 15.) In 27 other words, even if termination is the tangible injury, it is not causally connected to the alleged 28 improper disclosure. But Dr. Raffle concluded that Plaintiff was unfit for duty, and that decision 23 1 was only overturned after two other physicians determined otherwise. The SAC also alleges that 2 Ms. Suarez focused on, and quoted verbatim, portions of the report that describe Plaintiff’s 3 condition and symptoms, which further connects the records disclosure to Plaintiff’s termination. 4 Trying a different tack, Defendant insists that the improper disclosure claim fails because the SAC alleges that Defendant had been aware of Plaintiff’s mental health conditions for well 6 over 15 years and therefore disclosure of Plaintiff’s mental health condition in the report cannot 7 have caused him any harm. (Dkt. No. 42 ¶ 43.) It is true that no injury flows from improper 8 disclosure where the plaintiff had already disclosed the same information. See EEOC v. C.R. 9 England, Inc., 644 F.3d 1028, 1047 (10th Cir. 2011) (“In sum, if an employer discloses medical 10 information that was voluntarily offered by an employee . . . then the employer is not subject to 11 United States District Court Northern District of California 5 liability[.]”); Koch v. White, 35 F. Supp. 3d 37, 40-41 (D.D.C. 2014) (no improper disclosure 12 where the employee already voluntarily disclosed the information in the confidential records). But 13 the SAC does not allege that Plaintiff ever disclosed the information contained in the Raffle 14 report. Instead, it only alleges that Defendant was aware of “Plaintiff’s conditions for well over 15 15 years.” (Dkt. No. 42 ¶ 43 (emphasis added).) Drawing all inferences in Plaintiff’s favor, this 16 vague reference to the Post Office’s awareness of Plaintiff’s “conditions”—which the Court 17 construes as a reference to his Asperger’s disorder and related symptoms—is not tantamount to 18 knowledge of Dr. Raffle’s conclusion that Plaintiff was unfit for duty and the specific negative 19 findings in his report. Thus, this allegation does not undermine Plaintiff’s improper disclosure 20 claim. 21 For each of the above reasons, Plaintiff states a plausible claim for improper disclosure of 22 medical records. 23 B. 24 Defendant argues that the SAC fails to state a claim for disability discrimination—both First and Third Causes of Action: Disability Discrimination 25 disparate treatment and failure to accommodate a disability—because Plaintiff does not identify 26 the disability upon which he bases his claims. (Dkt. No. 44 at 22-23.) To state a disability 27 discrimination under the Rehabilitation Act, a plaintiff must allege facts sufficient to plausibly 28 allege that he suffers from a disability. See Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 24 1 (9th Cir. 2007) (disparate treatment) (citations omitted); Zukle v. Regents of Univ. of Cal., 166 2 F.3d 1041, 1045 (9th Cir. 1999) (failure to accommodate); see also 29 U.S.C. § 705(20) (noting 3 that, under the Rehabilitation Act, a plaintiff has a disability if he “has a physical or mental 4 impairment which for such individual constitutes or results in a substantial impediment to 5 employment[,]” and “can benefit in terms of an employment outcome from vocational services”). 6 Plaintiff does so here. He alleges that he “suffers from Asperger’s disorder – a medical condition 7 and mental disability related to autism[.]” (Dkt. No. 42 ¶ 16.) He then describes that he suffers 8 from a series of conditions related to his Asperger’s disorder. (Id. ¶ 17.) While Plaintiff should 9 clarify during discovery the extent to which the other conditions or symptoms existed and served as the basis for his claims, his identification of Asperger’s disorder and related conditions is 11 United States District Court Northern District of California 10 sufficient to withstand Defendant’s motion to dismiss. 12 CONCLUSION 13 For the reasons described above, the Court DENIES Defendant’s motion to dismiss. 14 Defendant shall answer Plaintiff’s SAC within the time prescribed by Federal Rule of Civil 15 Procedure 12(a)(4). 16 A Case Management Conference is scheduled for March 9, 2017 at 1:30 p.m. The parties 17 shall file a joint case management statement at least one week before the conference that includes 18 a proposed schedule for the case. 19 This Order disposes of Docket No. 44. 20 IT IS SO ORDERED. 21 Dated: January 27, 2017 22 23 JACQUELINE SCOTT CORLEY United States Magistrate Judge 24 25 26 27 28 25

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?