Dayacamos v. City and County of San Francisco

Filing 5

ORDER OF SERVICE. Signed by Magistrate Judge Jacqueline Scott Corley on 7/25/2017. (Attachments: # 1 Certificate of Service)(ahm, COURT STAFF) (Filed on 7/25/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PJ DAYACAMOS,

Case No. 17-cv-02644-JSC

Plaintiff,
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v.

ORDER OF SERVICE

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United States District Court
Northern District of California

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Re: Dkt. Nos. 1, 2

CITY AND COUNTY OF SAN
FRANCISCO,
Defendant.

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Plaintiff PJ Dayacamos, proceeding pro se and in forma pauperis, alleges she was

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terminated by Defendant, the City and County of San Francisco (“CCSF”), in retaliation for

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complaining that Defendant failed to provide reasonable accommodation for her disability. (Dkt.

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No. 1.) The Court previously granted Plaintiff’s Application to Proceed In Forma Pauperis. (Dkt.

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No. 4.) Pending before the Court is review of the Complaint pursuant to 28 U.S.C. § 1915. (Dkt.

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No. 1.) After careful review, the Court finds that the Complaint adequately states an Americans

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with Disability Act (“ADA”) retaliation claim and orders service of the Complaint by the Marshal.

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LEGAL STANDARD

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Under 28 U.S.C. § 1915, the Court has a continuing duty to dismiss any case in which a

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party is proceeding in forma pauperis if the Court determines that the action is (1) frivolous or

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malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief

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against a defendant who is immune from such relief. A complaint is frivolous for Section 1915

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purposes where there is no subject matter jurisdiction. See Castillo v. Marshall, 207 F.3d 15, 15

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(9th Cir. 1997) (citation omitted); see also Pratt v. Sumner, 807 F.2d 817, 819 (9th Cir. 1987)

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(recognizing the general proposition that a complaint should be dismissed as frivolous on Section

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1915 review where subject matter jurisdiction is lacking). Regarding dismissals for failure to state

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a claim, Section 1915(e)(2) parallels the language of Federal Rules of Civil Procedure 12(b)(6).

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Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000). The complaint therefore must allege

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facts that plausibly establish the defendant’s liability. See Bell Atl. Corp. v. Twombly, 550 U.S.

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544, 555-57 (2007). When the complaint has been filed by a pro se plaintiff, as is the case here,

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courts must “construe the pleadings liberally ... to afford the petitioner the benefit of any doubt.”

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Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). Upon dismissal, pro se

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plaintiffs proceeding in forma pauperis must be given leave to “amend their complaint unless it is

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absolutely clear that the deficiencies of the complaint could not be cured by amendment.”
Franklin v. Murphy, 745 F.2d 1221, 1228 n.9 (9th Cir. 1984) (internal citations and quotation

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United States District Court
Northern District of California

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marks omitted).

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COMPLAINT ALLEGATIONS
Plaintiff began working for the CCSF in 1989 as a 9183 Transit Operator (Bus Driver).

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(Complaint ¶ 1.) In 1999, Plaintiff was involved in an accident and sustained head, neck,

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shoulder, back/spine, hip, and knee injuries. (Id.) Plaintiff underwent physical therapy for two

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years but never regained full function of her back, legs, hips, or shoulders. (Id.) In 2004, Plaintiff

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began working as a 1424 Clerk Typist and receptionist with the Department of Environment

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(“DOE”) as a result of the CCSF’s ADA transfer policy. (Complaint ¶ 2.) On her first day of

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work Plaintiff requested an ergonomically appropriate work station to meet her documented ADA

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needs. (Id.) Plaintiff’s employer denied the equipment for about a year, forcing Plaintiff to

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experience physical pain and take time off work despite the adjustments she tried to make herself

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in the absence of any accommodation. (Complaint ¶ 3.)

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In 2008, Plaintiff was told that her work station would undergo reconstruction and that as a

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result, she would receive an ergonomically appropriate work space to accommodate her ADA

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needs, specifically a work station with a desk, chair, and two-way access/egress. (Complaint ¶ 4.)

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Shawn Rosenmoss, a CCSF employee and the DOE Fundraising Coordinator, was in charge of the

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construction and did not reconstruct Plaintiff’s desk to fit her ADA needs. (Complaint ¶¶ 4, 5.)

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Instead, Shawn cut up Plaintiff’s old desk and rearranged the parts to make a smaller work area.

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(Complaint ¶ 5.) When Plaintiff complained that her new desk was not ADA compliant, Shawn

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told her that “an ADA compliant workstation ‘wasn’t in keeping’ with her ‘vision.’” (Id.) Instead

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of raising Plaintiff’s desk according to ADA specifications, Shawn used step tools from her home

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to fashion makeshift stairs. (Complaint ¶ 6.) Shawn told Plaintiff that “the project ‘ran out of

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money’” and that her desk “was not a ‘priority.’” (Id.)

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In 2009, Plaintiff fell while trying to exit her work station via the makeshift stairs, injured
her neck, back, and knees, and had to take time off of work. (Complaint ¶ 7.) In 2010, Joe Salem,

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the DOE Senior Budget Officer, told Plaintiff he would install ADA compliant stairs for her work

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station. (Complaint ¶ 8.) The final stairs were built in August 2010 but were not ADA compliant.

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United States District Court
Northern District of California

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(Id.) Plaintiff fell again in August 2010, tore the ligaments in her arm/shoulder, and re-injured her

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knee and back. (Complaint ¶ 9.) She was out of work for three months. (Id.)

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Following the accident in August 2010, DOE informed Plaintiff that she could no longer

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use her work station because it did not comply with the ADA. (Complaint ¶ 10.) DOE moved

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Plaintiff to another area that was also not ADA compliant. (Id.)

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On August 10, 2012, Plaintiff received a letter from DOE informing her that she would be

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laid off on October 5, 2012 because her position had been eliminated due to lack of funding.

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(Complaint ¶ 11.) DOE hired a new receptionist to replace Plaintiff shortly thereafter. (Id.)

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Plaintiff was “bumped into a succession of other CCSF positions” that continued to fail to

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accommodate her disability. (Complaint ¶ 12.)

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In August 2015, CCSF gave Plaintiff an “ultimatum.” (Complaint ¶ 12.) She could either

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be medically separated at 59 (before reaching retirement age of 60) or quit and “vest” in her

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retirement. (Id.) Plaintiff quit. (Id.) Plaintiff alleges that her “termination was clearly retaliation

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for years of legitimate complaints against DOE for failing to accommodate [her] disability.”

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(Complaint ¶ 11.)

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Plaintiff is permanently disabled and cannot work. (Complaint ¶ 13.) Plaintiff has been
denied medical disability retirement and lives off of $1,000 per month. (Id.) Plaintiff has
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exhausted all of her administrative remedies and filed this civil suit pursuant to a right to sue letter

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she received from the Equal Employment Opportunity Commission dated February 7, 2017.

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PLAINTIFF’S RETALIATION CLAIM

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“[A] prima facie case of retaliation requires a plaintiff to show: (1) involvement in a

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protected activity, (2) an adverse employment action, and (3) a causal link between the two.”

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Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1269 (9th Cir. 2009) (internal quotation marks

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and citations omitted).
First, Plaintiff engaged in protected ADA activity by consistently requesting reasonable

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accommodation for her disability and complaining when she did not receive it, including filing

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complaints with the Department of Fair Employment and Housing (attached to her Complaint).

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United States District Court
Northern District of California

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Second, Plaintiff experienced an adverse employment action when she was constructively

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discharged in August 2015. Finally, Plaintiff alleges she was terminated due to her continuous

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failed requests for reasonable accommodation. Plaintiff has adequately alleged the three required

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elements of an ADA retaliation case, at least for the purposes of surviving Section 1915 review.
CONCLUSION

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For the reasons explained above, Plaintiff’s Complaint appears to state a claim upon which

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relief can be granted as to her retaliation claim, and therefore passes Section 1915 review. The

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Clerk of Court shall issue the summons. Further, the U.S. Marshal for the Northern District of

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California shall serve upon the Defendant, without prepayment of fees, a copy of the Complaint,

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any amendments or attachments, this Order, and Plaintiff’s affidavit.

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This Order disposes of Docket No. 2.

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IT IS SO ORDERED.

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Dated: July 25, 2017
______________________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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