Estell v. McHugh

Filing 27

ORDER by Judge Maria-Elena James granting in part and denying in part 18 Motion to Dismiss for Lack of Jurisdiction. (mejlc3, COURT STAFF) (Filed on 8/4/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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QUO VAT ESTELL,

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Case No. 15-cv-04898-MEJ

Plaintiff,
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ORDER RE: MOTION TO DISMISS

v.

Re: Dkt. No. 18

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JOHN MCHUGH,

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Defendant.
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United States District Court
Northern District of California

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INTRODUCTION

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Plaintiff Quo Vat Estell (“Plaintiff”) brings this action against Defendant John McHugh1

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(“Defendant”) as Secretary of the United States Army2 (the “Army”), alleging the Army

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discriminated against her based on her disability and failed to accommodate her disability.

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Pending before the Court is Defendant’s Motion to Dismiss pursuant to Federal Rule of Civil

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Procedure (“Rule”) 12(b)(1) and 12(b)(6). Mot., Dkt. No. 18. Plaintiff filed an Opposition (Dkt.

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No. 24), and Defendant filed a Reply (Dkt. No. 25). The parties have consented to this Court’s

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jurisdiction. Dkt. Nos. 13, 22. The Court previously found this matter suitable for disposition

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without oral argument and vacated the hearing on the Motion. See Dkt. No. 26. Having

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considered the parties’ positions, relevant legal authority, and the record in this case, the Court

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GRANTS IN PART and DENIES IN PART Defendant’s Motion for the following reasons.

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In a footnote, Defendant requests that the Court substitute Secretary Eric K. Fanning with former
Secretary John McHugh pursuant to Federal Rule of Civil Procedure 25(d). The Court will not
rule on such a request at this time; such a request should be brought in a properly filed motion or
stipulation.
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Plaintiff’s Complaint does not expressly articulate whether she intends to bring claims against
Defendant in his official capacity, but all of her allegations relate to acts taken by the U.S. Army—
not Defendant specifically.

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BACKGROUND3

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Plaintiff is employed by the U.S. Army as a Human Resources Assistant. First Am.

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Compl. (“FAC”) ¶ 9, Dkt. No. 9. She alleges she is disabled due to Systemic Lupus

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Erythematosus (“SLE”). Id. ¶ 17. Due to her disability, Plaintiff experiences sensitivity to light,

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and in the past, the Army accommodated her sensitivity by modifying her position so that she

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would not have to work in areas directly under fluorescent lights. Id. ¶ 18. Plaintiff alleges she

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could perform the essential functions of her job with this accommodation. Id. ¶ 20.
On November 8, 2013, Plaintiff’s doctor took her off work from that date until January 14,

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2014. Id. ¶ 21. Plaintiff alleges the Army refused to honor this and other requests for
accommodation, subsequently refusing her entry to the building and refusing to allow her to return

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United States District Court
Northern District of California

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to work on January 14, 2014 when she was medically cleared to do so. Id. ¶¶ 22-25. Plaintiff

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eventually returned to work on March 12, 2014. Id. ¶ 24.

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Plaintiff further alleges that between 2013 and 2014, the Army took the following adverse

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employment actions against her because of her disability: (1) repeatedly warning and disciplining

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her for being tardy or missing work due to her disability; (2) refusing to complete disability

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paperwork; (3) refusing Plaintiff entrance to the building where she worked; (4) giving Plaintiff a

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negative performance review; and (5) disparaging Plaintiff to her co-workers. Id. ¶ 31. On

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February 10, 2014, Plaintiff contacted an Army Equal Employment Opportunity (“EEO”)

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counselor relating to the Army’s failure to accommodate her disability. Reding Decl. ¶ 2, Dkt.

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No. 18-1 & Ex. A (EEO Counselor’s Report) at 1.4 The Department of Defense (“DOD”) sent

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For purposes of this Motion to Dismiss, the Court accepts Plaintiff’s well-pleaded allegations as
true and construes them in the light most favorable to Plaintiff.

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When ruling upon a Rule 12(b)(6) motion, a court may consider documents alleged in a
complaint that are essential to a plaintiff’s claims and whose authenticity no party questions. See
Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on other grounds by Galbraith
v. City of Santa Clara, 307 F.3d 1119, 1121 (9th Cir. 2002). Moreover, “[c]ourts can consider an
employee’s administrative record even if the documents were not referenced in the complaint.”
Lacayo v. Donahoe, 2015 WL 993448, *10 (N.D. Cal. Mar. 4, 2015) (citing cases). Plaintiff does
not challenge the authenticity of the documents attached to the Reding Declaration, although she
does argue that she later amended her EEO claims (Dkt. No. 24 at 3). The FAC alleges “Plaintiff
filed a formal complaint of discrimination on her disability-related claims [and that] more than 180
days have passed since she filed her formal complaint and no decision has been issued.” FAC ¶ 4.
Plaintiff does not question the authenticity of the documents attached to the Reding Declaration;
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Plaintiff a Notice of Right to File a Formal EEO Complaint of Discrimination on March 26, 2014.

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Id. ¶ 3 & Ex. B (Notice). Plaintiff signed her Formal EEO Complaint on April 13, 2014. Id. ¶ 4 &

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Ex. C (Formal EEO Complaint). In the EEO Complaint, Plaintiff alleges she was discriminated

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against because of her history of physical disability with fluorescent lights and sun sensitivity, as

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well as her prior EEO involvement. Id., Ex. C at 3-6. She further alleges her supervisor, Captain

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Spohr, engaged in various discriminatory and retaliatory actions between November 13, 2013 and

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January 31, 2014. Id., Ex. C at 2-5. On April 28, 2014, the DOD informed Plaintiff it had

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accepted her discrimination claims for investigation. Id. ¶ 5 & Ex. D (DOD Letter). The DOD

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letter informed Plaintiff that the investigation must be completed within 180 days, and that she
“may file a civil action” “if the Army has not issued a final decision on this complaint, after 180

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Northern District of California

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days from the date the formal complaint was filed.” Id., Ex. D.
Plaintiff filed her original complaint in this Court on October 24, 2015. Dkt. No. 1. Her

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FAC, filed February 4, 2016, sets forth a claim under the Family and Medical Leave Act of 1993,

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29 U.S.C. § 2601, et seq. (“FMLA”), and two claims under the Rehabilitation Act of 1973, 29

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U.S.C. § 791, et seq. (a failure to accommodate claim and a disability discrimination claim). See

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FAC.
LEGAL STANDARDS

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A.

Rule 12(b)(1)
Federal district courts are courts of limited jurisdiction; “[t]hey possess only that power

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authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen

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v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation omitted). Accordingly, “[i]t

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is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing

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the contrary rests upon the party asserting jurisdiction.” Id.; Chandler v. State Farm Mut. Auto.

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Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).

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she alleges the existence of the Formal Complaint in her FAC; exhausting her administrative
remedies is essential to her claim; and the documents attached to the Reding Declaration are all
part of Plaintiff’s administrative record. The Court accordingly may consider the documents
attached to the Reding Declaration without converting Defendant’s Motion into a motion for
summary judgment.
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Federal Rule of Civil Procedure 12(b)(1) authorizes a party to move to dismiss a lawsuit

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for lack of subject matter jurisdiction. A jurisdictional challenge may be facial or factual. Safe

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Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where the attack is facial, the

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court determines whether the allegations contained in the complaint are sufficient on their face to

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invoke federal jurisdiction, accepting all material allegations in the complaint as true and

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construing them in favor of the party asserting jurisdiction. Warth v. Seldin, 422 U.S. 490, 501

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(1975). Where the attack is factual, however, “the court need not presume the truthfulness of the

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plaintiff’s allegations.” Safe Air for Everyone, 373 F.3d at 1039. In resolving a factual dispute as

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to the existence of subject matter jurisdiction, a court may review extrinsic evidence beyond the
complaint without converting a motion to dismiss into one for summary judgment. Id.; McCarthy

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United States District Court
Northern District of California

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v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (holding that a court “may review any

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evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of

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jurisdiction”).

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B.

Rule 12(b)(6)

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Rule 8(a) requires that a complaint contain a “short and plain statement of the claim

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showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint must therefore

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provide a defendant with “fair notice” of the claims against it and the grounds for relief. Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations and citation omitted).

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A court may dismiss a complaint under Rule 12(b)(6) when it does not contain enough

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facts to state a claim to relief that is plausible on its face. Id. at 570. “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

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678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for

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more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550

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U.S. at 557). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

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

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

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cause of action will not do. Factual allegations must be enough to raise a right to relief above the
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speculative level.” Twombly, 550 U.S. at 555 (internal citations and parentheticals omitted).

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In considering a motion to dismiss, a court must accept all of the plaintiff’s allegations as

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true and construe them in the light most favorable to the plaintiff. Id. at 550; Erickson v. Pardus,

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

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addition, courts may consider documents attached to the complaint. Parks Sch. of Bus., Inc. v.

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Symington, 51 F.3d 1480, 1484 (9th Cir. 1995) (citation omitted).
If a Rule 12(b)(6) motion is granted, the “court should grant leave to amend even if no

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

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be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en
banc) (internal quotations and citations omitted). However, the Court may deny leave to amend

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United States District Court
Northern District of California

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for a number of reasons, including “undue delay, bad faith or dilatory motive on the part of the

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movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice

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to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.”

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Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citing Foman v.

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Davis, 371 U.S. 178, 182 (1962)).
DISCUSSION

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A.

FMLA Claim
Defendant argues Plaintiff fails to state an FMLA claim because the United States has not

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waived its sovereign immunity under Title II of the FMLA. See Mot. at 6. Plaintiff agrees her

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FMLA claim must be dismissed. See Opp’n at 1. The Court accordingly GRANTS Defendant’s

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Motion as to Plaintiff’s FMLA claim and DISMISSES Plaintiff’s FMLA claim WITH

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PREJUDICE.

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B.

Rehabilitation Act Claims
Defendant moves to dismiss Plaintiff’s Rehabilitation Act claims on grounds related to (1)

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Plaintiff’s exhaustion and utilization of administrative remedies, urging dismissal under Rule

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12(b)(1) or alternatively Rule 12(b)(6); and (2) Plaintiff’s failure to state a claim under Rule

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12(b)(6) for either her disparate treatment or failure to accommodate claims.

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Administrative Exhaustion and EEO Allegations

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As an initial matter, Defendant challenges Plaintiff’s Rehabilitation claims on grounds

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related to her exhaustion of administrative remedies. First, Defendant contends Plaintiff failed to

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timely exhaust those remedies, which Defendant alleges divests the Court of subject matter

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jurisdiction over Plaintiff’s related claims under Rule 12(b)(1); alternatively, Defendant contends

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Plaintiff’s claims for any alleged discrimination prior to December 27, 2013 are time-barred and

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subject to dismissal under Rule 12(b)(6). Second, Defendant contends Plaintiff may not bring

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claims related to certain allegedly wrongful acts because Plaintiff did not include those acts in her

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administrative claims.

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United States District Court
Northern District of California

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a.

Timing of EEO Claims

Before filing a Rehabilitation Act claim, a federal employee must exhaust the

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administrative remedies afforded by the Equal Employment Opportunity Commission (“EEOC”).

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See Leong v. Potter, 347 F.3d 1117, 1121-22 (9th Cir. 2003). One step that is required to exhaust

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those remedies is contacting an EEO Counselor within 45 days of each act the plaintiff alleges is

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wrongful. 29 C.F.R. § 1614.105(a)(1). Whether the 45-day “requirement is jurisdictional is a

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matter of debate among the courts.” Lacayo v. Donahoe, 2015 WL 993448, at *7-9 (N.D. Cal.

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Mar. 4, 2015) (collecting cases). While “in the context of a motion to dismiss for lack of subject

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matter jurisdiction,” earlier Ninth Circuit cases held that “substantial compliance with the

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requirement of presenting a claim to an EEO counselor is a jurisdictional prerequisite” (id. at *9

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(citing Sommatino v. United States, 255 F.3d 704, 709 (9th Cir. 2001))), more recent precedent

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states it is not (id. (citing Kraus v. Presidio Tr. Facs. Div./Residential Mgmgt. Branch, 572 F.3d

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1039, 1043 (9th Cir. 2009))). The Lacayo court agreed with those cases holding the failure to

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follow the 45-day timing requirement relates to the substantive adequacy of a complaint but does

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not constitute a jurisdictional flaw requiring dismissal under Rule 12(b)(1). Id. at *8. Without

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deciding whether “substantial compliance” is a jurisdictional requirement, the court held that

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“strict compliance with the 45-day request-for-counseling requirement is not.” Id. at *9.

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At the earliest, Plaintiff initially contacted an EEO official to discuss her discrimination
claims on February 10, 2014. Reding Decl., Ex. A (EEO Counselor’s Report identifying date of
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initial contact).5 For purposes of this motion to dismiss, the Court finds that in doing so, Plaintiff

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has substantially complied with the statutory presentation requirement. The fact that some of the

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conduct she alleges predates her initial EEO contact by more than 45 days relates to the

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substantive adequacy of her claims—it does not divest this Court of jurisdiction to hear her

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Rehabilitation Act claims in their entirety. See Lacayo, 2015 WL 993448, at *7-9. Accordingly,

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Defendant’s Motion to Dismiss the Rehabilitation Act claims pursuant to Rule 12(b)(1) is

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DENIED.
However, only wrongful acts occurring within 45 days of Plaintiff’s initial contact with the

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EEO Counselor—i.e., before December 27, 2013—are timely under EEO regulations. See 29
C.F.R. § 1614.105(a)(1); see also Lyons v. England, 307 F.3d 1092, 1105 (9th Cir. 2002). To the

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Northern District of California

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extent Plaintiff’s claims are based on incidents occurring before December 27, 2013, they are not

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properly exhausted. As such, they are time-barred and cannot be the basis for a claim under the

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Rehabilitation Act. See Bosse v. Napolitano, 337 F. App’x 633, 635 (9th Cir. 2009) (plaintiff

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must initiate contact with EEO counselor within 45 days of each discriminatory act; plaintiff only

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could have exhausted claims that accrued within 45 days of counseling session; district court did

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not err in finding claims based on acts preceding that time were unexhausted); Lacayo v. Donahoe,

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2015 WL 3866070, at *4 (N.D. Cal. June 22, 2015) (allowing plaintiff’s Rehabilitation Act claims

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to proceed only to the extent they were based on incidents falling within 45-day window;

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dismissing claims based on conduct that fell outside 45-day window); Vaughn v. Donahoe, 2011

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WL 2199245, at *7 (N.D. Cal. June 7, 2011) (plaintiff may not rely on conduct for which she did

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not exhaust administrative remedies); see also Thompson v. Donahoe, 961 F. Supp. 2d 1017,

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1025-26 (N.D. Cal. 2013) (because plaintiff must initiate contact with counselor within 45 days of

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incident, counselor must inform plaintiff of right to file formal claim no later than 30 days after

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initial contact, and plaintiff has 15 days from receipt of notice to file formal claim, only conduct at

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issue “no earlier than 90 days prior to the filing of a formal EEO claim” can be properly

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The Formal EEO Complaint identifies the date of initial contact as February 13, 2014. Reding
Decl., Ex. C. For purposes of this motion to dismiss, the Army construes the facts in the light
most favorable to Plaintiff and uses the earlier date of February 10, 2014. See Mot. at 3, n.3.
Plaintiff does not dispute that February 10, 2014 was the date of first contact. See Opp’n.
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exhausted).
Plaintiff suggests that the EEO timeliness requirements may be subject to waiver, estoppel,

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and equitable tolling. Opp’n at 4.6 Plaintiff, however, has not pleaded allegations sufficient to

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show these doctrines apply in her case. See Goel v. Shah, 2014 WL 2154005, at *5 (N.D. Cal.

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May 22, 2014) (“Plaintiff bears the burden of pleading and proving equitable reasons to excuse his

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failure to comply with the 45-day requirement”); Lacayo, 2015 WL 3866070, at *4 (plaintiff

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“failed to plead facts to plausibl[y] establish grounds for equitable tolling”); Lacayo, 2015 WL

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993448, at *11-12 (dismissing certain claims as time-barred where facts plaintiff pleaded “fail to

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demonstrate ground for equitable tolling”). Plaintiff’s allegations that her doctors requested she
take two months off from work are insufficient because they do not show the issues that prevented

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her from working also prevented her from contacting an EEO counselor. See also Opp’n at 4

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(arguing “plaintiff’s own serious health issues which caused her doctors to take her off work may

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also have affected her ability to make an initial complaint. There are also many other issues . . .

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that may warrant extension of a time limitation period” (emphasis added)).
Accordingly, the Court GRANTS IN PART Defendant’s Motion to Dismiss Plaintiff’s

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Rehabilitation Act claims to the extent they are based on conduct occurring prior to December 27,

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2013. The claims are dismissed with leave to amend, as Plaintiff may be able to allege facts

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showing that equitable tolling (or another doctrine) applies that allow her to rely on conduct

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occurring prior to that date.
b.

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Next, Defendant argues there is no evidence Plaintiff addressed with the EEO two of the

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“Like or Reasonably Related” to EEO Allegations

allegations in her FAC: (1) that Defendant refused to fill out her disability paperwork and (2) that

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Plaintiff also suggests that Green v. Brennan, 136 S. Ct. 1769 (2016) provides guidance. Opp’n
at 3-4. In Green, the Supreme Court held that a constructive discharge claim does not accrue until
a plaintiff resigns because that is when the plaintiff has a “complete and present” cause of action
for constructive discharge. Id. at 1777. Plaintiff does not explain how this holding is relevant to
her discrimination claims when she continues to be employed and does not allege any adverse
conduct after March 2014. To the extent Plaintiff is invoking the continuing violation doctrine,
the FAC does not plead allegations sufficient to show it applies. See Vaughn, 2011 WL 2199245,
at *7 & n.10 (rule that “discrete discriminatory acts are not actionable if time-barred” does not
apply to “pattern-or-practice claims” or to hostile work environment claims (quoting Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113, 123 n.9 (2002))).
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Defendant disparaged her in front of her co-workers (FAC ¶ 31). See Mot. at 9-10. Plaintiff

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responds that the Formal EEO Complaint Defendant has attached to the motion is “not even an

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accurate statement of plaintiff’s claims – she disputed this characterization of her claims, and they

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were also later amended.” Opp’n at 3.
At this point in the litigation, the Court cannot determine based on the pleadings that the

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allegations are not “like or reasonably related” to the allegations of discrimination Plaintiff listed

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in her EEO complaint. See Haney v. United Airlines, Inc., 2016 WL 80554, at *3 (N.D. Cal. Jan.

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7, 2016) (“[W]here ‘the new claims are like or reasonably related to the allegations contained in

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the EEOC charge, separate exhaustion of the new claims is not required’” (quoting Lyons, 307

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F.3d at 1104)); Johnson v. United Cont’l Holdings, Inc., 2013 WL 6354210, at *14 (N.D. Cal.

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Northern District of California

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Dec. 5, 2013) (“In determining whether a civil claim is like or reasonably related to a claim made

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in an EEOC charge, a district court ‘construe[s] the language of the EEOC charge[ ] with utmost

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liberality’” (quoting B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002))). Even if

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Plaintiff did not exhaust those particular claims at the administrative level, the Court will not

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dismiss them at this juncture. The Court thus DENIES Defendant’s Motion to Dismiss Plaintiff’s

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claims to the extent they are based on Defendant’s refusal to fill out disability paperwork and

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disparagement of Plaintiff to her co-workers.7

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2.

Failure to State a Claim

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Plaintiff asserts two claims under the Rehabilitation Act of 1973: a disparate treatment

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claim and a failure to accommodate claim. See FAC. To state a disparate treatment claim under

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the Rehabilitation Act, Plaintiff must plead facts sufficient to plausibly allege that “(1) she is a

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person with a disability, (2) who is otherwise qualified for employment, and (3) suffered

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discrimination because of her disability.” Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th

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Cir. 2007) (citation omitted). To state a failure to accommodate claim under the Rehabilitation

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Act, Plaintiff must plead facts sufficient to plausibly allege (1) she is disabled, (2) she is a

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qualified individual, and (3) a reasonable accommodation is possible that would enable her to

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To the extent Defendant argues these claims should be dismissed pursuant to Rule 12(b)(1), the
request is denied on the grounds stated above.
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perform the essential functions of her job. See Zukle v. Regents of the Univ. of Cal., 166 F.3d

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1041, 1045 (9th Cir. 1999) (citation omitted). “The Americans with Disabilities Act, whose

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standards of substantive liability are incorporated in the Rehabilitation Act, defines ‘disability’ as:

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(A) a physical or mental impairment that substantially limits one or more of the major life

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activities of such individual, (B) a record of such an impairment, or (C) being regarded as having

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such an impairment.” Walton, 492 F.3d at 1005. A person is “[a]n otherwise qualified individual”

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if she “can perform the essential functions of the position with or without reasonable

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accommodation.” 29 C.F.R. § 1613.702(f). A “reasonable accommodation” is defined as

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“modifications or adjustments to the work environment, or to the manner or circumstances under
which the position held or desired is customarily performed, that enable a qualified individual with

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a disability to perform the essential functions of that position.” 29 C.F.R. § 1630.2(o)(1)(ii).
The Court agrees with Defendant that Plaintiff’s allegations at present are insufficient to

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state either claim. As to the first elements of Plaintiff’s Rehabilitation Act claims, Plaintiff

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adequately alleges, and Defendant does not dispute, that Plaintiff is an individual with a disability,

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as she alleges she has SLE, a physical impairment that substantially limits her ability to perform

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major life activities, including work; that she has a record of having an impairment, and that she

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was regarded as having an impairment.8 FAC ¶ 17. Plaintiff also adequately alleges the second

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element of these claims, i.e., that she is qualified to perform the essential functions of her job;

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indeed Plaintiff alleges she currently remains employed as a Human Resources Assistant, the same

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position she has held for many years. FAC ¶¶ 9, 18, 20, 24. But Plaintiff does not adequately

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allege the third elements of her Rehabilitation Act claims.
As to her disparate treatment claim, Plaintiff does not allege facts plausibly indicating her

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disability was a factor in Defendant’s employment actions. She alleges in purely conclusory terms

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that “defendant took numerous adverse employment actions against plaintiff . . . because of her

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disability” (FAC ¶ 31) and that “defendant discriminated against plaintiff because of her

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disability” (id. ¶ 32). These conclusory statements are not sufficient to allow the Court to draw the

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Defendant acknowledges this allegation is sufficient to plead the first element of both her
Rehabilitation Act claims. Mot. at 11.
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reasonable inference that the Army took these employment actions because of Plaintiff’s

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disability. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.

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Plaintiff’s failure to accommodate claim is similarly insufficient, as she does not allege
sufficient facts as to when and how she was denied reasonable accommodation. While Plaintiff

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alleges the Army accommodated her condition by ensuring she did not have to work directly

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below fluorescent lights (id. ¶ 18), she does not allege the Army ever revoked that

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accommodation. Rather, she alleges the Army failed to reasonably accommodate her disability in

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other ways by: denying her request to take time off pursuant to her doctor’s documented

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recommendation (id. ¶ 21); denying her time off to attend doctor’s appointments (id., ¶ 25);

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refusing to make scheduling allowances to accommodate lateness or absences caused by her

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disability (id.). Although the “failure to provide reasonable accommodation can constitute

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discrimination” under the Rehabilitation Act (Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir.

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2002)), Plaintiff fails to provide sufficient detail regarding the denial of her accommodation

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requests. For example, after alleging the Army denied her request for time off, Plaintiff also

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alleges that while she was “taking the time off” the Army prevented her from entering the

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building. FAC ¶ 23. With respect to the other requests for accommodation, Plaintiff does not

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indicate when she made the requests, to whom she made those requests, or why these requests

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were necessary. See Gladle v. McDonald, 2016 WL 1573421, at *4 (C.D. Cal. Apr. 19, 2016)

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(granting motion to dismiss where plaintiff failed to allege “when and to whom” she requested

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accommodation or how requested accommodations would enable her to perform essential job

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functions); Abdul-Haqq v. Kaiser Found. Hosps., 2015 WL 335863, at *3 (N.D. Cal. Jan. 23,

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2015) (dismissing FEHA claim where complaint failed to describe substance of requests for

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accommodation); see also Anaya v. Marin Cty. Sheriff, 2014 WL 6660415, at *11 (N.D. Cal. Nov.

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24, 2014) (dismissing ADA claim where plaintiff failed to explain why defendant’s actions were

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inappropriate for her disability: “[s]he must [] explain how her disability created physical

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limitations or symptoms . . . so that she needed specifically identified reasonable

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accommodations”).

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Accordingly, the Court GRANTS Defendant’s Motion to Dismiss for failure to state
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Rehabilitation Act claims, with leave to amend.
CONCLUSION

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For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART

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Defendant’s Motion to Dismiss and gives Plaintiff leave to amend the complaint as described

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herein. Plaintiff shall file any amended complaint by September 6, 2016.

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IT IS SO ORDERED.

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Dated: August 4, 2016
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

United States District Court
Northern District of California

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