Silveria v. Wilkie

Filing 54

ORDER by Judge Edward M. Chen Granting 44 Defendant's Motion to Dismiss. (emcsec, COURT STAFF) (Filed on 11/20/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANTHONY SILVERIA,
Plaintiff,

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Docket No. 44

ROBERT WILKIE,
Defendant.

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United States District Court
Northern District of California

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

v.

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Case No. 19-cv-06600-EMC

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Plaintiff Anthony Silveria filed a separate lawsuit against the Secretary of the Department

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of Veterans Affairs (“VA”), alleging violations of his employment rights. This Court dismissed

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the complaint and subsequent amendments three times. The last dismissal was of his Third

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Amended Complaint (“TAC”). During the pendency of that lawsuit, Mr. Silveria filed a new,

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separation action, the instant case. The parties stipulated to relating the cases and consolidating

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the matters, and the Court granted both and ordered Mr. Silveria to file a consolidated complaint.

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Mr. Silveria subsequently filed a consolidated complaint in the case at bar. Second Amended

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Complaint, Docket No. 30. Mr. Silveria then amended his complaint once more, and the operative

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complaint herein is the Third Amended Complaint (“TAC”). Having considered the parties’ briefs

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and accompanying submissions, as well as the oral argument of counsel, the Court hereby

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GRANTS Defendant’s Motion to Dismiss the TAC.
I.

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A.

FACTUAL AND PROCEDURAL BACKGROUND

Factual Background
Mr. Silveria served in the U.S. Marine Corps from 1989 to 1999. TAC ¶ 13. He worked

as a federal employee with the VA from September 2009 until his removal in June 2014, first as a

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Claims Assistant and then as a RVSR. TAC ¶¶ 14-16. In his capacity as a RVSR, Mr. Silveria

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“created ratings for veterans’ benefits claims, responded to veterans’ questions, typed rating

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decisions, reviewed medical records, and scheduled examinations.” TAC ¶ 16.

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Mr. Silveria alleges that he was hired under the Vocational Rehabilitation Program and
was “provided with reasonable accommodations for his back, shoulder and wrist,” e.g., “a back

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pad, wrist pad and an ergonomic mouse.” TAC ¶ 17. Beginning in August 2013, Mr. Silveria

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started experiencing adverse supervisory decisions. On August 2nd and 12th, while Mr. Silveria

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was on leave under the Family and Medical Leave Act (“FMLA”), his manager “ordered [him] to

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work despite receiving medical documentation” showing the need for medical treatment. TAC ¶

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19. On August 19th, Mr. Silveria’s supervisor proposed a suspension for failing to comply with

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United States District Court
Northern District of California

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the VA’s leave request procedures. TAC ¶ 20. And the following month (on September 11th),

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Mr. Silveria was, in fact, issued a suspension while on FMLA leave. TAC ¶ 21. Mr. Silveria’s

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troubles with the VA leave request procedures continued in November when he was issued a

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“return to duty order” after his manager “conclud[ed] erroneously that [his] medical

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documentation did not comply with VA leave request procedures.” TAC ¶ 22.

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In January 2014, Mr. Silveria alleges that his supervisors “unlawfully accessed [his] VA

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records and viewed [his] medical information, benefits, and financial records.” TAC ¶ 23. That

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same month, Mr. Silveria’s supervisor issued him a proposed removal, charging Mr. Silveria with

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“failure to follow supervisor’s orders, failure to follow established leave procedures, and for being

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AWOL.” TAC ¶ 24. The VA weighed the proposed removal and decided on a 12-day

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suspension, which was instituted on January 30, 2014; Mr. Silveria served that suspension from

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February 3rd through February 24th, 2014. TAC ¶¶ 25, 26.

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The VA’s disciplinary measures continued the following month. On March 24, 2014, Mr.

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Silveria was charged with AWOL for over 43 hours by his supervisor. TAC ¶ 27. On April 1,

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2014, he was charged with being AWOL on six occasions “on which [he] was at a doctor’s

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appointment, the hospital, or ill at home.” TAC ¶ 28. Nine days later (on April 10th), Mr. Silveria

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was issued 17 charges of AWOL despite “having medical documentation showing he was going to

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the hospital and scheduled doctor’s appointments.” TAC ¶ 29.
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The following month, on May 6th, 2014, Mr. Silveria alleges that he was issued a return to

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duty order despite being on FMLA leave. TAC ¶ 30. On May 20th, he alleges that he was

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“removed from the building by management without receiving an explanation for that removal.”

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TAC ¶ 31. Ten days later, on May 30th, Mr. Silveria was issued a proposed removal from federal

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service. TAC ¶ 32. On June 24th, 2014, Mr. Silveria was removed from federal service. TAC ¶

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33. Mr. Silveria alleges that he was not paid his last check after being removed from federal

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service. TAC ¶ 34.
In light of this history, Mr. Silveria alleges that, “[b]ecause of [his] protected status as an

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employee with a disability, [his] supervisors engaged in a pattern of severe and pervasive
harassment, which created a hostile and offensive workplace environment and negatively impacted

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United States District Court
Northern District of California

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[his] terms and conditions of employment.” TAC ¶ 36.

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B.

Procedural History

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This Court previously laid out the procedural background preceding Mr. Silveria’s

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complaint in federal court. See Silveria v. Wilkie, No. 18-cv-07327-EMC, 2020 U.S. Dist. LEXIS

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28334, at *6-10 (N.D. Cal. Feb. 19, 2020) (“Silveria I”). Relevant to the case at bar is his

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administrative EEO complaint filed in 2014. On April 19, 2014, Mr. Silveria initiated an EEO

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complaint (“2014 EEO Claim”) (following an earlier EEO complaint filed in 2013), asserting the

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following: (1) a non-mixed-case claim that Mr. Silveria was subjected to a hostile work

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environment and five discrete acts based on disability and reprisal by events occurring between

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July 2013 and July 2014; (2) a mixed-case claim based on a request for reconsideration for the

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denial of Mr. Silveria’s within-grade increase; and (3) a mixed-case claim that Mr. Silveria was

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subjected to discrimination based on disability and reprisal when he was removed from

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employment effective June 29, 2014 (the “Removal Claim”). In Silveria I, this Court dismissed

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the claims based on (2) and (3). The instant case is based solely on (1).

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Mr. Silveria’s only remaining claim before this Court is the hostile work environment
claim arising from the five discrete acts in the 2014 EEO Claim.

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II.

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A.

LEGAL STANDARD

Rule 12(b)(6)
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A

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complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil

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Procedure 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss

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after the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must

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. . . suggest that the claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765
F.3d 1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true

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United States District Court
Northern District of California

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and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St.

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Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a

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complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient

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

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effectively.” Levitt, 765 F.3d at 1135 (internal quotation marks omitted). “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.” Iqbal, 556 U.S. at 678. “The

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plausibility standard is not akin to a probability requirement, but it asks for more than a sheer

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possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted).
III.

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DISCUSSION

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Defendant contends that Plaintiff’s complaint should be dismissed for failure to state a

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claim because: (1) the TAC fails to provide any details about Mr. Silveria’s alleged disability,

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aside from passing references to the accommodations he was provided for his back, neck, and

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wrist, at some point following his hire in 2009; (2) Mr. Silveria has not alleged that he was

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subjected to verbal or physical conduct of a harassing nature; and (3) Mr. Silveria has not alleged

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the predicate non-discrete acts necessary to support a hostile work environment claim.

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A.

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Mr. Silveria’s Disability
The Rehabilitation Act incorporates the substantive standards of liability set forth in the
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Americans with Disabilities Act (“ADA”). Lopez v. Johnson, 333 F.3d 959, 961 (9th Cir. 2003),

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citing 29 U.S.C. § 791(f). Under the ADA, an individual is disabled if “that individual (1) has a

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physical or mental impairment that substantially limits one or more of the individual’s major life

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activities; (2) has a record of such an impairment; or (3) is regarded as having such an

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impairment.” Coons v. Sec’y of the United States Dep’t of the Treasury, 383 F.3d 879, 884 (9th

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Cir. 2004). See also 42 U.S.C. § 12102(1) (“[t]he term ‘disability’ means, with respect to an

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individual—(A) a physical or mental impairment that substantially limits one or more major life

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

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such an impairment”).
Mr. Silveria’s complaint provides nothing more than a passing and cursory allegation that

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United States District Court
Northern District of California

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he was “provided with reasonable accommodations for his back, shoulder and wrist” and that

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those accommodations included “a back pad, wrist pad and an ergonomic mouse.” TAC ¶ 17

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Nowhere does Mr. Silveria describe how this physical impairment “substantially limits” one or

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more of his major life activities. Nor does Mr. Silveria provide any additional details about his

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alleged disability other than his being hired under the VA’s Vocational Rehabilitation Program.
Mr. Silveria has failed to sufficiently allege he is disabled under the ADA.

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B.

Verbal or Physical Conduct of a Harassing Nature
Mr. Silveria’s claim fails for a second reason. First, although the Ninth Circuit has not

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expressly recognized a claim for hostile work environment under the Rehabilitation Act of 1973 or

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the ADA, Brown v. City of Tucson, 336 F.3d 1181, 1188-93 (9th Cir. 2003) (distinguishing an

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anti-interference claim from a hostile work environment claim), it has recognized such a cause of

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action under Title VII of the Civil Rights Act of 1964. The Court presumes that such a claim

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could be asserted where the hostile work environment is based on disability. A hostile work

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environment requires the employee to plead: (1) that he/she/they was subjected to verbal or

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physical conduct of a harassing nature, (2) that this conduct was unwelcome, and (3) that the

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conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment

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and create an abusive working environment. Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1110 (9th

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Cir. 2000).
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Defendant concedes that “differential treatment may be considered as part of a hostile

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work environment claim in assessing whether the conduct is sufficiently severe or pervasive to

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satisfy the third element of a prima facie claim.” Mot. at 10 fn.5. Indeed, courts have recognized

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such a claim. See, e.g., McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1108-09, 1112-18 (9th Cir.

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2004) (discussing incidents which could contribute to a hostile work environment, e.g., the

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defendant-employer fixing the tires of white employees but failing to do so for the African-

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American plaintiff-employee, which caused him to get into an accident); Velez v. Roche, 335 F.

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Supp. 2d 1022, 1032 n.1 (N.D. Cal. 2004) (“[d]ifferential treatment may be considered as part of a

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hostile work environment even though it, in and of itself, does not reach the level of an adverse

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United States District Court
Northern District of California

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employment action”).
Here, Plaintiff does not allege verbal or physical conduct of a harassing nature. There is no

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allegation of, e.g., disparaging remarks about Mr. Silveria’s alleged disability. Instead, the claim

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is based on a series of adverse actions. But Mr. Silveria fails to connect the alleged differential

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treatment to a recognized disability. For instance, Mr. Silveria alleges that he was ordered to work

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by his manager despite receiving documentation of his need for medical treatment. TAC ¶ 19.

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Mr. Silveria has not shown that such leave was based on a recognized disability. For all we know,

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his medical leave may have been taken to address an acute medical condition.

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Mr. Silveria also alleges that his supervisors unlawfully accessed his medical information,

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benefits, and financial records. TAC ¶ 23. But, again, Mr. Silveria does not connect this action to

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his disability (e.g., he does not allege that his supervisors accessed his private information to

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harass him for his disability). Likewise, Mr. Silveria alleges that he was charged AWOL on

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numerous occasions when he was at a doctor’s appointment. TAC ¶ 27-29. However, the Court

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cannot assume that this AWOL charge constitutes differential treatment because Mr. Silveria has

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not connected these appointments to his disability. Mr. Silveria’s alleged removal from the

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building, without explanation, also suffers from this pleading deficiency. TAC ¶ 31. Drawing all

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reasonable inferences in his favor, Mr. Silveria has not plausibly alleged that this removal was part

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of an abusive work environment targeting a recognized disability.

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The Court does not foreclose the possibility that future plaintiffs can make out a plausible
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claim for a hostile work environment, under the Rehabilitation Act, by alleging differential

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treatment. But Mr. Silveria has failed to state a plausible claim of a series of adverse employment

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actions which were taken in connection with his disability.
IV.

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CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss the Third

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Amended Complaint with prejudice. Mr. Silveria has already been afforded numerous

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opportunities to amend.

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This order disposes of Docket No. 44. The Clerk is instructed to enter Judgment and close
the file.

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United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: November 20, 2020

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______________________________________
EDWARD M. CHEN
United States District Judge

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