Andrew Mattioda v. Jim Bridenstine et al.

Filing 24

ORDER GRANTING IN PART AND DENYING IN PART 18 Corrected MOTION TO DISMISS; terminating 17 . Signed by Judge Susan van Keulen on 1/8/2021. (svklc1S, COURT STAFF) (Filed on 1/8/2021)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANDREW MATTIODA,
Plaintiff,

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United States District Court
Northern District of California

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v.

Case No. 20-cv-03662-SVK
ORDER ON MOTION TO DISMISS
FIRST AMENDED COMPLAINT
Re: Dkt. No. 18

JIM BRIDENSTINE, et al.,
Defendants.
Plaintiff Andrew Mattioda alleges that he was subjected to disability-based discrimination,

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harassment, reprisal, and other actions between May 2011 and March 2019, during his

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employment as a scientist for Defendant National Aeronautics and Space Administration

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(“NASA”) at its Ames Research Center (“Ames”). Dkt. 16 (“First Amended Complaint” or

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“FAC”) ¶¶ 6, 10. Before filing this lawsuit, Plaintiff filed four Equal Employment Opportunity

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(“EEO”) complaints with NASA. Exs. A, C, D, and E to Dkt. 17-1 (“Scharf Decl.”).

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In this case, Plaintiff asserts multiple causes of action for violation of Section 501 of the

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Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791, et seq., specifically: (1) disability

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discrimination and harassment, (2) failure to engage in the interactive process, (3) reprisal, and

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(4) failure to provide reasonable accommodation. See FAC ¶¶ 141 et seq. Defendant Jim

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Bridenstine (“Bridenstine”) is the NASA agency head. Id. ¶ 2. Now before the Court is

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Defendants’ motion to dismiss the FAC under Federal Rules of Civil Procedure 8(a), 12(b)(1), and

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12(b)(6). Dkt. 18. All parties have consented to the jurisdiction of a magistrate judge. Dkt. 9, 12;

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see also Case No. 20-cv-3745 at Dkt. 14; Dkt. 20-cv-3849 at Dkt. 12; 20-cv-4457 at Dkt. 17.

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Pursuant to Civil Local Rule 7-1(b), the Court deems this matter suitable for determination

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without oral argument. After considering the parties’ submissions, the case file, and relevant law,

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and for the reasons discussed below, Defendants’ motion to dismiss the FAC is GRANTED IN

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PART and DENIED IN PART.

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I.

BACKGROUND
This discussion of the background facts is based on the allegations of the FAC. Since

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August 2007, Plaintiff has been employed as a Space and Planetary Scientist with the

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Astrochemistry Laboratory at the NASA Ames Research Center. FAC ¶ 6. Plaintiff alleges that

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he has been diagnosed with disorders of his hips and spine and that he has experienced life-long

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ear infections. Id. ¶ 7.
Plaintiff’s EEO Complaints

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A.

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On August 21, 2015, Plaintiff contacted NASA’s Office of Diversity and Equal

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Opportunity (“EEO”) concerning his claims of discrimination and harassment based on disability,
as well as reprisal for protected activity. Id. ¶ 52; see also Scharf Decl. ¶ 3 and Exs. A, B. The

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United States District Court
Northern District of California

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EEO’s Notice of Acceptance of Claim delineated this first EEO complaint as follows:

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Based on your disabilities (physical) and in retaliation for prior protected activity, you
were discriminated against and subjected to harassment when:

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a. your requests for accommodation were denied in 2011 and continually thereafter;

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b. on July 23, 2015, your supervisor rejected your request to reconsider the “Meets
Expectations” rating you received for your performance of Critical Element #2 in your
2014 - 2015 performance evaluation; and

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c. you have been subjected to on-going harassment, isolation and professional humiliation
and adverse rumors and innuendo on the part of your supervisors.

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Id. ¶ 7 and Ex. F. Plaintiff received a right to file a formal administrative complaint of
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employment discrimination on November 6, 2015, and he did so on November 16, 2015.
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FAC ¶ 57; Scharf Decl. ¶ 3 and Ex. A.
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Plaintiff filed a second formal EEO complaint on August 22, 2016. Scharf Decl. ¶ 4 and
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Ex. C. The EEO’s Notice of Acceptance of Claim delineated this second EEO complaint as

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follows:
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1.

Because of your race (Native American), disabilities (physical) and in
retaliation for prior EEO activity, you were discriminated against when, on
April 27, 2016, you was required to provide justification before you were
permitted to access your own grant funds when similarly situated
employees were treated more fairly.

2.

Because of your disabilities (physical) and in retaliation for prior EEO
activity, you were subjected to harassment (hostile work environment)
which includes but is not limited to the following:

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a.

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On May 12, 2016, your supervisor added a caveat to your premium
travel accommodation request and your funding was monitored; and

b.

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On May 25, 2016, you were temporarily transferred from the Space
Science and Astrobiology Division to the Planetary Systems Branch.

Id. ¶ 8 and Ex. G.
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Plaintiff filed a third formal EEO complaint on March 18, 2017. Id. ¶ 5 and Ex. D. The
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EEO’s Notice of Acceptance of Claim delineated this third EEO complaint as follows:

United States District Court
Northern District of California

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1.

Because of your disabilities (physical) and in retaliation for prior EEO
activity (filed formal complaints), from February 11, 2011 through February
15, 2017, you were subjected to on-going acts of harassment (hostile work
environment), including but not limited to threats to terminate you and
ostracism resulting from your request for reasonable accommodation.

2.

Because of your disabilities (physical) and in retaliation for prior EEO
activity (filed formal complaints) you were discriminated against when on
February 17, 2017, you were required to include your reasonable
accommodation travel funds in your work package to NASA Headquarters.

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Id. ¶ 9 and Ex. H.
Plaintiff filed a fourth formal EEO complaint on October 2, 2017. Id. ¶ 6 and Ex. E. The
EEO’s Notice of Acceptance of Claim delineated this fourth EEO complaint as follows:
Because of your disability (physical) and retaliation for participating in prior protected
EEO activity (filed three formal complaints of discrimination), you allege you were
discriminated against when, on August 8, 2017, you were not selected for the position
of Senior Scientist, Laboratory Astrophysics in the Science Directorate, Senior
Technical (ST) 1330-00, advertised under Vacancy Announcement No. AR17N0002.
Id. ¶ 10 and Ex. I.

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According to Defendant, Plaintiff requested hearings on all four EEO complaints, but after
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discovery was completed and the agency filed a motion for summary judgment, Plaintiff withdrew
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his request for hearing before the EEOC. Dkt. 18 at 5.
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B.

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District court litigation

Plaintiff filed four complaints in this District, on June 2, 2020; June 5, 2020; June 23,
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2020; and July 6, 2020. See generally Dkt. 10. On September 3, 2020, the Court consolidated the
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cases. Dkt. 15. As directed by the Court, Plaintiff filed a consolidated complaint on
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September 14, 2020. See FAC. In the FAC, Plaintiff alleges that beginning in March 2011, he
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experienced harassment, discrimination, failure to engage in the iterative process/provide a
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reasonable accommodation, and reprisal. See id. ¶¶ 10-140. Defendant, the NASA agency head,
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is the proper defendant in this Rehabilitation Act case against NASA. See SAI v. Smith, No. 168
cv-01024-JST, 2018 WL 534305, at *7 (N.D. Cal. Jan. 24, 2018).
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Now before the Court is Defendant’s motion to dismiss the FAC. Dkt. 18.1 Plaintiff

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opposes. Dkt. 21.
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United States District Court
Northern District of California

II.

LEGAL STANDARDS

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A.
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Rule 8(a)(2)

Federal Rule of Civil Procedure 8(a)(2) requires that the complaint contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Courts have power to
dismiss a complaint for egregious violations of Rule 8(a)’s “short and plain” requirement. See

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Cafasso v. U.S. ex rel. v. Gen. Dynamics C4 Systems, Inc., 637 F.3d 1047, 1058 (9th Cir. 2011)
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and cases cited therein.
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B.

Rule 12(b)(1)

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Defendants argue that the FAC should be dismissed for lack of subject matter jurisdiction
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under Rule 12(b)(1) to the extent contains allegations outside the scope of Plaintiff’s EEO charges
and investigation. Dkt. 18 at 11-15. If a court’s subject matter jurisdiction is challenged, the party

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asserting that a federal court has subject matter jurisdiction bears the burden of establishing it.
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Kokkonen v. Guardian Life Ins. Co. of Amer., 511 U.S. 375, 377 (1994).
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Defendant filed a motion to dismiss the FAC on September 25, 2020. Dkt. 17. On the
same date, Defendant filed a corrected motion to dismiss. Dkt. 18. The Court treats Dkt. 18 as the
operative motion and will terminate the original motion (Dkt. 17).
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C.

Rule 12(b)(6)

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Under Rule 12(b)(6), a district court must dismiss a complaint if it fails to state a claim

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upon which relief can be granted. In ruling on a motion to dismiss, the court may consider only

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“the complaint, materials incorporated into the complaint by reference, and matters of which the

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court may take judicial notice.” Metzler Inv. GmbH v. Corinthian Colls., Inc., 540 F.3d 1049,

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1061 (9th Cir. 2008). In deciding whether the plaintiff has stated a claim, the court must assume

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the plaintiff’s allegations are true and draw all inferences in the plaintiff’s favor. Usher v. City of

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L.A., 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true

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“allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable

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inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted).
To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must allege “enough facts

United States District Court
Northern District of California

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to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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570 (2007). This “facial plausibility” standard requires the plaintiff to allege facts that add up to

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“more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009).
Leave to amend must be granted unless it is clear that the complaint’s defects cannot be

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cured by amendment. Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995).

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III.

DISCUSSION

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A.

Materials That Can Be Considered

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As a preliminary matter, the Court must rule on the admissibility of the extra-record

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materials that both parties have submitted in connection with the motion to dismiss. When

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adjudicating a factual challenge to the court’s subject matter jurisdiction pursuant to Federal Rule

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of Civil Procedure 12(b)(1), a court may consider evidence outside the pleadings, including

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affidavits submitted by the parties. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th

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Cir. 2004). When adjudicating a motion to dismiss brought pursuant to Rule 12(b)(6), the Court’s

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consideration of extra-pleading materials is more limited. Normally, the Court cannot consider

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matters outside of the pleadings without converting the motion into a motion for summary

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judgment. See Fed. R. Civ. P. 12(b)(6); 12(d); see also Ramirez v. United Airlines, Inc., 416 F.
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Supp. 2d 792, 795 (N.D. Cal. 2005). However, the Ninth Circuit has held courts may consider

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materials submitted with and attached to the complaint. U.S. v. Corinthian Colleges, 655 F.3d

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984, 999 (9th Cir. 2011). A court may also consider unattached evidence on which the complaint

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“necessarily relies” if: “(1) the complaint refers to the document; (2) the document is central to

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the plaintiff’s claim; and (3) no party questions the authenticity of the document.” Id. The Court

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may also “take judicial notice of documents on which allegations in the complaint necessarily rely,

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even if not expressly referenced in the complaint, provided that the authenticity of those

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documents is not in dispute.” Tercica, Inc. v. Insmed Inc., No. C 05-5027 SBA, 2006 WL

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1626930, at *8 (N.D. Cal. June 9, 2006) (citation omitted). In addition, courts may take judicial
notice of matters of public record, including “records and reports of administrative bodies.”

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United States District Court
Northern District of California

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Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012); see also Coto Settlement v.

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Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). “In the context of employment discrimination

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cases in particular, it is well established that courts may consider the administrative record of a

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plaintiff’s claims before the EEOC as judicially noticeable matters of public record.” Lacayo v.

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Donahue, No. 14-cv-04077-JSC, 2015 WL 993448, at *9 (N.D. Cal. Mar. 3, 2015) (citations

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omitted).

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Both parties have submitted extrinsic evidence concerning Plaintiff’s EEO proceedings.

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All these materials are either referenced in the complaint or matters of public record and properly

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considered in either a 12(b)(1) or 12(b)(6) motion to dismiss. The Court overrules Plaintiff’s

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objection that because Defendant’s Rule 12(b)(1) motion is “irrelevant,” the evidence offered to

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attack the FAC is “neither relevant nor appropriate.” See Dkt. 21 at 3. As for the 12(b)6 motion,

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the FAC necessarily relies on the administrative records, they are matters of public record, and

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Plaintiff has not offered any reason to doubt the authenticity of the documents. Indeed, Plaintiff

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himself has submitted extrinsic evidence of his EEO complaints in opposition to the motion to

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dismiss (see Dkt. 21-1 (exhibits to Juratovac Decl.)) and made arguments based on that evidence

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(see Dkt. 21 at 7-8), thereby effectively conceding that the Court may properly consider the record

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of Plaintiff’s administrative complaints.

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Accordingly, the Court will consider the documents referenced in the complaint and
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judicially noticeable matters of public record with respect to the motion to dismiss. However, in

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doing so, the Court notices only the existence of the administrative proceedings and the agency’s

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findings and does not credit the truth of any fact recounted or matter asserted in the documents.

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See Lacayo v. Donahue, 2015 WL 993448, at *10.

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B.

Failure to Exhaust Administrative Remedies
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Subject Matter Jurisdiction

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Plaintiff sues under the Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq.), which

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prohibits federal departments and agencies (among others) from discriminating against employees

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solely based on disability. 29 U.S.C. § 791, 793, 794. The remedies, procedures, and rights
available under Title VII of the Civil Rights Act of 1964, including sections 706(f)-(k) and 717

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United States District Court
Northern District of California

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(42 U.S.C. §§2000e-5(f)-(k) and 2000e-16), are available to federal employees in actions against a

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federal agency employer under section 501 of the Rehabilitation Act. 29 U.S.C. § 794a(a)(1).

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“To preserve her right to maintain a suit alleging employment discrimination against an

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agency of the United States, a claimant must exhaust her administrative remedies by filing a claim

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of discrimination with the allegedly offending agency in accordance with published procedures.”

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Leorna v. U.S. Dept. of State, 105 F.3d 548, 550 (9th Cir. 1997) (citing Brown v. Genl. Servs.

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Admin., 425 U.S. 820 832 (1976)); see also Leong v. Potter, 347 F.3d 1117, 1121 (9th Cir. 2003).

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To bring a claim under the Rehabilitation Act, a federal employee must first contact an EEO

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counselor within forty-five days of the alleged discrimination. 29 C.F.R. § 1614.105(a)(1). The

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agency then investigates, and the claimant may later file a formal EEO complaint. 29 C.F.R.

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§ 1614.105(c), (d). If the latter is not resolved after the agency issues its final decision, the

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claimant may either file directly in federal court within 90 days (see 29 C.F.R. § 1614.407(a)) or

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appeal through the EEOC within 30 days (see 29 C.F.R. § 1614.401(a), 1614.402(a)). If at any

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time, the employee’s complaint sits idle within the administrative process for more than 180 days,

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the employee has an immediate right to file a civil action in federal court but must do so within 90

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days. See 29 C.F.R. § 1614.407(b)(d). These time limits “are subject to waiver, estoppel and

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equitable tolling.” 29 C.F.R. § 1614.604(c).

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Defendant argues that the exhaustion requirement is jurisdictional and that claims in the
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FAC that exceed the scope of the EEO proceedings should be dismissed for lack of subject matter

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jurisdiction. Dkt. 18 at 11-15. Plaintiff responds that the exhaustion requirement is a claim

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processing requirement and is not jurisdictional in nature. Dkt. 21 at 1-3. Defendant does not

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address Plaintiff’s argument in its reply. See Dkt. 22.

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The Ninth Circuit previously held that an employee’s “substantial compliance” with the

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administrative complaint process is a requirement for exhaustion that precludes district court

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jurisdiction. See Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001). However, the

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Supreme Court recently held that Title VII’s requirement that a party file an EEOC charge before

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suing in district court “is not of a jurisdictional cast” but is instead “a processing rule, albeit a
mandatory one.” Fort Bend Cty., Tex. v. Davis, 139 S. Ct. 1843, 1850-51 (2019). Subsequently,

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United States District Court
Northern District of California

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courts in this District have held that in light of Fort Bend, “the administrative complaint

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requirement for Title VII claims by federal employees is not jurisdictional.” Williams v. Wolf, No.

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19-cv-00652-JCS, 2019 WL 6311381, at *6 (N.D. Cal. Nov. 25. 2019); see also Pringle v.

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Wheeler, No. 19-cv-07432-WHO, 2020 WL 4673954, at *5 (N.D. Cal. Aug. 12, 2020); Burnes v.

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Chavez, No. 19-CV-03420-LHK, 2020 WL 2306488, at *3 (N.D. Cal. May 8, 2020); dela Cruz v.

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Brennan, No. 19-cv-01140-DMR, 2020 WL 1233886, at *4 (N.D. Cal. Mar. 13, 2020).

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The Court finds the analysis of these cases persuasive and concludes that the requirement

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of exhaustion of EEO administrative remedies is not jurisdictional. Accordingly, Defendant’s

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motion to dismiss the FAC pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction is

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DENIED. However, the charge-filing requirement remains a “mandatory processing rule,” and a

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plaintiff “must allege compliance with that requirement … in order to state a claim on which relief

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may be granted.” Williams, 2019 WL 6311381, at *6 (quoting Fort Bend, 139 S. Ct. at 1851)

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(internal quotation marks omitted). The Court therefore proceeds to consider Defendant’s

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administrative exhaustion arguments together with Defendant’s other arguments under Rule

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12(b)(6).

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2.

Compliance with Pre-suit Filing Requirements

Plaintiff alleges in the FAC that he exhausted his administrative remedies because on four
occasions, he filed EEO charges and permitted the agency to engage in more than 180 days of
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investigation before bringing this matter to court. FAC ¶¶ 61, 96, 111, 132. However, as

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discussed in Section III.A. above, in evaluating whether Plaintiff complied with the mandatory

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processing rule before filing suit, the Court may look beyond the face of the FAC to public records

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concerning Plaintiff’s EEO complaints.

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To show compliance with Title VII’s claim presentment requirements, the allegations of a

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plaintiff’s judicial complaint must be “like or reasonably related to” the allegations made in the

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EEO complaint, such that they would fall within “the scope of an [EEO] investigation which

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[could] reasonably be expected to grow out of the [administrative] charge.” Sosa v. Hiraoka, 920

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F.2d 1451, 1456 (9th Cir. 1990) (citations, internal quotations marks, and emphasis omitted). A
court evaluating the similarity between an administrative complaint and a complaint filed in

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United States District Court
Northern District of California

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district court may consider “such factors as the alleged basis of the discrimination, dates of

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discriminatory acts specified within the charge, perpetrators of discrimination named in the

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charge, and any locations at which discrimination is alleged to have occurred.” Vasquez v. City of

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Los Angeles, 349 F.3d 634, 644 (9th Cir. 2004) (citation omitted). “In addition, the court should

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consider plaintiff’s civil claims to be reasonably related to allegations in the charge to the extent

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that those claims are consistent with the plaintiff’s original theory of the case.” Pringle, 2020 WL

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4673954, at *5 (citation omitted). “Procedural technicalities” should not be employed to impede

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the claimant from obtaining a judicial hearing on the merits. Id. (citation omitted).

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Defendant argues that the following claims in the FAC are barred by Plaintiff’s failure to

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exhaust administrative remedies: (1) claims based on incidents occurring after August 2017,

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which is the last date mentioned in Plaintiff’s EEO complaints; (2) claims against management

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officials who were not identified in Plaintiff’s EEO complaints; and (3) claims against Dr. Lee

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(who was named in the EEO complaints) that are based on discrete incidents not mentioned in the

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EEOC complaints. Dkt. 18 at 13-15.

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a.

Claims occurring after August 8, 2017

Defendant argues that claims based on incidents occurring after August 8, 2017, which is

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“the final date of allegations accepted by the agency,” are barred because they exceed the scope of

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the EEO investigations. Dkt. 18 at 15; see also id. at 10-11 (citing FAC ¶¶ 107-109 and 133-140).
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In response, Plaintiff argues that he may properly assert claims that “can reasonably be expected to

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grow from any charge of discrimination,” including “facts and allegations occurring not only

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before, but also after, the filing of the EEO complaint.” Dkt. 21 at 8.

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In Sosa, which Plaintiff cites in support of this proposition, the Ninth Circuit held that a

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claim could proceed based on its relationship to an earlier administrative charge even though

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“[t]he EEOC could not have investigated the claim … because [the plaintiff] did not discover the

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inequality until the same month the EEOC issued its reasonable cause determination.” 920 F.2d at

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1457. However, another court in this District has noted that “Ninth Circuit authority appears to be

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somewhat inconsistent on the question of claims based on similar conduct arising after an
investigation concluded.” Williams, 2019 WL 6311381, at *7. The court in Williams contrasted

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United States District Court
Northern District of California

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Sosa with Vasquez, in which the Ninth Circuit affirmed dismissal of a claim based on an incident

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that occurred after the EEOC issued its right to sue letter, stating that “[t]he EEOC could not have

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investigated that incident because it had not yet happened at the time the EEOC was conducting its

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investigation.” Id. (citing Vasquez, 349 F.3d at 645). The court in Williams conducted a careful

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analysis of these authorities, in which it noted that Vasquez involved a litigation claim that was

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dissimilar to the Plaintiff’s administrative claim, and discussed Ninth Circuit authority articulating

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practical reasons as to when a second filing would serve no purpose. The Williams court

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concluded that “Ninth Circuit precedent provides that even facts occurring after the administrative

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agency has completed its investigation can fall within the scope of an earlier administrative

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complaint so long as they are sufficiently similar to the claims raised therein.” Williams, 2019

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WL 6311381, at *8 (emphasis added).

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The court in Pringle applied this principle in holding that a plaintiff had exhausted

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administrative remedies for claims concerning denial of leave in 2019 that occurred after the

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administrative action he filed in 2016 ended. 2020 WL 4673954, at *6. The court found that “the

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2019 allegations are consistent with [plaintiff]’s original theory of the case because it involves the

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same actors and similar conduct.” Id. The court acknowledged that its decision “would allow

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[plaintiff] to pursue claims for leave denials that occurred more than three years after his [] 2016

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EEO Complaint” but noted that “the dates of discriminatory acts specified within the charge” are
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only one of the factors I must weigh here” and found that “[o]n balance,” the facts that “[t]he

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perpetrators of discrimination named in the charge are the same and the claims are consistent with

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[the] original theory of the case ... shows that there is substantial similarity between his

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administrative complaint and his Title VII claims.” Id.

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Here, Defendant identifies paragraphs 107-109 and 133-140 of the FAC as being based on

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incidents that occurred after the last incident alleged in Plaintiff’s EEO complaints. Dkt. 18 at 10-

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11. Applying the foregoing legal principles, the Court rules as follows regarding the paragraphs of

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the FAC challenged by Defendant:

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United States District Court
Northern District of California

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FAC Paragraph
107. On December 11, 2017, MATTIODA emailed Dr. Hudgins an update on a project. Dr.
Hudgins responded that he could not
recommend, and did not recommend, the
Astrophysics division fund any of
MATTIODA’s projects. Dr. Hudgins copied
his e-mail to NASA’s Astrophysics program,
and the head of NASA’s Planetary Science
Program, as well as other leaders of NASA’s
Planetary Science program. This denial of
participation in the project was another effort
to harass MATTIODA because of his
disability, and to support the actions of Dr.
Dotson and Dr. Lee against MATTIODA.

Court’s Ruling
The Court GRANTS the motion to dismiss
claims based on the incident alleged in this
paragraph for failure to exhaust administrative
remedies. The conduct alleged is not
sufficiently similar to the allegations made in
the EEO complaints. Dr. Hudgins’ funding
role in the Astrophysics division does not
appear in the EEO record, and he is mentioned
only in connection with different discussions
in the 2013-14 time frame.

108. On December 13, 2017, MATTIODA
was notified that his Emerging Worlds
proposal had been rejected for funding by the
Planetary Science division. After the rejection,
MATTIODA’s, coinvestigator on the
proposal, Dr. Uma Gorti, asked him, “Is
anyone at NASA Headquarters mad at you?”
Dr. Gorti explained that her extensive
experience with NASA proposal review
panels, taught her that the decision not to fund
MATTIODA’s proposal was “purely political”
and not based on merit. Dr. Gorti also said
other Emerging Worlds proposals with
identical scores as MATTIODA’s were funded
in the same call. AMES’ action to reject this
project was yet another form of reprisal.

The Court GRANTS the motion to dismiss
claims based on the incident alleged in this
paragraph for failure to exhaust administrative
remedies. The conduct alleged is not
sufficiently similar to the allegations made in
the EEO complaints. The Emerging Worlds
proposal does not appear in the EEO record,
and Dr. Gorti is mentioned only in connection
with a different discussion in the 2013 time
frame.

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109. On December 20, 2017, MATTIODA emailed Dr. Jeff Grossman, Discipline Scientist
for Emerging Worlds program, regarding
MATTIODA’s rejection and the unfair rating
his Emerging Worlds proposal had received.
Eventually, Dr. Grossman agreed to provide
preliminary funding for two of the three years
requested. MATTIODA believes Dr.
Grossman’s partial response was an additional
attempt to support the retaliatory efforts by Dr.
Lee and Dr. Dotson against MATTIODA.

The Court GRANTS the motion to dismiss
claims based on the incident alleged in this
paragraph for failure to exhaust administrative
remedies. The conduct alleged is not
sufficiently similar to the allegations made in
the EEO complaints. Neither Dr. Grossman
nor the Emerging Worlds proposal appears in
the EEO record.

133. On December 13, 2017, Dr. Bicay told
MATTIODA that Dr. Bicay wanted the ST
position (Dr. Sandford) to assist in negotiating
new hires for the group and obtaining direct
funding from NASA Headquarters.
MATTIODA and Dr. Farid Salama had vast
experience with these two functions.
In contrast, for some 10 years, Dr. Sandford
had not had a relationship with, nor had he
even worked with, the Astrophysics Program
at NASA Headquarters. This admission was
yet other evidence that NASA’s rationale for
not selecting MATTIODA for the ST position
was unworthy of credence because it was
internally inconsistent.

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. The conduct alleged is sufficiently
similar to the allegations made in the EEO
complaints, which discuss Plaintiff’s
application for this specific ST position, allege
similar conduct, and identify the same actor
(Dr. Bicay).

134. On April 18, 2018, an announcement was
posted for a vacant position in the
Astrophysics and Astrochemistry Laboratory
group. MATTIODA volunteered to serve on
the selection/rating panel. On April 30, 2018,
during a meeting with Dr. Jeff Hollingsworth,
MATTIODA told Dr. Hollingsworth that he
felt like Dr. Howell had blacklisted
MATTIODA due to his disabilities and prior
protected activities. MATTIODA also told Dr.
Hollingsworth that he had volunteered to be on
the selection committee for the new
Laboratory Astrophysics position, but had not
been selected for that committee.

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. Although the EEO complaints do
not complain about Dr. Hollingsworth,
Plaintiff’s non-selection for this selection
committee is sufficiently similar to the
allegations made in the EEO complaints,
which involve the same actor (Dr. Howell) and
similar conduct, such as passing over Plaintiff
and not selecting Plaintiff’s candidates.

135. On or about June 29, 2018, MATTIODA
learned NASA had hired a new Astrophysics
and Astrochemistry Laboratory hire.
MATTIODA was not consulted regarding the
new hire, even though he was the only

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. The alleged conduct is sufficiently
similar to the allegations made in the EEO
complaints, which involve similar conduct,

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potential “unbiased” Astrophysics evaluator
when the other two evaluators both had their
own research candidates applying for the job.
Again, NASA retaliated against MATTIODA
by excluding him from an assignment wherein
he was the only obvious, nonbiased selecting
official.

such as passing over Plaintiff and not selecting
Plaintiff’s candidates.

136. During 2018 MATTIODA worked
months on the team’s 2018 version of the Lab
Astro WP. MATTIODA was a senior member
of that package. On July 3, 2018, Dr. Howell
announced Dr. Ella Sciamma O’Brien (“Dr.
Sciamma O’Brien”) would be the point of
contact for the work package. NASA’s
selection was in direct contradiction to Dr.
Bicay’s prior statement that MATTIODA was
to participate in the “leadership and vision” for
the future of the Astrophysics program. The
selection was yet another form of ongoing
retaliation.

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. Plaintiff’s non-selection as the
point of contact for this work package is
sufficiently similar to the allegations made in
the EEO complaints, which involve the same
actor (Dr. Howell) and similar conduct, such
as passing over Plaintiff and not selecting
Plaintiff’s candidates.

137. On August 1, 2018, Dr. Howell led a SS
Division panel meeting to review potential
NPP postdoctoral candidates. For
MATTIODA’s proposed NPP candidate, Dr.
Howell asked him aggressive and
interrogation-like questions regarding that
candidate. Dr. Howell did not ask these same
aggressive and interrogation-like questions of
the other scientists with proposed candidates.
But for MATTIODA’s disability and prior
EEO complaints, Dr. Howell would not have
treated MATTIODA in this manner.

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. The conduct alleged is sufficiently
similar to the allegations made in the EEO
complaints, which involve the same actor (Dr.
Howell) and similar conduct, such as passing
over Plaintiff and not selecting Plaintiff’s
candidates.

138. On August 17, 2018, MATTIODA was
informed his NPP postdoctoral applicant was
not selected in this round of applications. The
reasons listed for not selecting MATTIODA’s
candidate mirrored Dr. Howell’s comments
given during his aggressive questioning of
MATTIODA. Dr. Howell controlled whether
MATTIODA’s NPP candidate was selected,
and this non-selection was yet another form of
reprisal/retaliation.

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. Plaintiff’s non-selection as the
point of contact for this work package is
sufficiently similar to the allegations made in
the EEO complaints, which involve the same
actor (Dr. Howell) and similar conduct, such
as passing over Plaintiff and not selecting
Plaintiff’s candidates.

139. On October 26, 2018, when MATTIODA
was moving an item in the lab, Dr. Salama

The Court GRANTS the motion to dismiss
claims based on the incident alleged in this
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yelled out to him, “Watch it. Don’t hurt your
back, I know you have back issues.”
MATTIODA had never told Dr. Salama about
his back disability issues, so Defendant must
have disclosed confidential information about
his hips, back, and accommodations without
MATTIODA’s permission.

paragraph for failure to exhaust administrative
remedies. The conduct alleged is not
sufficiently similar to the allegations made in
the EEO complaints. The EEO complaints do
not allege misconduct by Dr. Salama but
mention Dr. Salama only in the context of an
example of differential treatment by Plaintiff
by superiors. The EEO complaints do not
allege conduct similar to what is alluded to in
this paragraph.

140. On March 19, 2019, Ms. Kim Dufour,
representative for USJobs website, told
MATTIODA that when the ST Position was
being evaluated in late 2017, NASA had never
requested disability status information from
that USJOBS system. Despite the 2017
vacancy announcement having stated the
position was open to candidates with
disabilities, NASA never requested the
disability status for any candidates. NASA
apparently never intended to promote anyone
with a disability, or in accord with Schedule-A
preference, or in accord with the prior
recommendations for “diversity.”

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. The conduct alleged is sufficiently
similar to the allegations made in the EEO
complaints, which discuss Plaintiff’s
application for this specific ST position.

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b.

Claims against management officials not named in EEO
complaints

Defendant argues that Plaintiff’s claims against certain management officials are barred
because Plaintiff’s EEO charges did not include any allegations against those individuals. Dkt. 18

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at 13-14; see also id. at 9-10 (citing ¶¶ 20, 51, 53, 74, 81, 82, 87, 94, 99, 106, 116).
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As a general rule, Title VII plaintiffs may sue only those named in the EEOC charge,
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because only those parties had an opportunity to respond to the charges during the EEOC’s
investigation. Sosa, 920 F.2d at 1458. Based on an employee’s charge against one supervisor,
“the EEOC would have no reason to investigate” employees who had responsibilities outside the
named employee’s authority. Vasquez, 349 F.3d at 645. However, courts have developed a

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number of exceptions to this rule in Title VII cases and allowed suit against unnamed defendants
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where, for example: (1) the unnamed persons “were involved in the acts giving rise to the EEOC

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claims”; (2) “where the EEOC or defendants themselves should have anticipated that the claimant

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would name those defendants in a Title VII suit”; (3) the respondent named in the EEOC charge is

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a principal or agent of the unnamed party or if they are substantially identical parties; (4) if the

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EEOC could have inferred that the unnamed party violated Title VII; or (5) if the unnamed party

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had notice of the EEOC conciliation efforts and participated in the EEOC proceedings. Sosa, 920

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F.2d at 1458-59 (internal quotation marks and citations omitted).

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Applying the foregoing legal principles, the Court rules as follows regarding the

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paragraphs of the FAC that Defendant argues are barred because Plaintiff’s EEO charges did not

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include any allegations against the individuals identified in those paragraphs (see Dkt. 18 at 9-10):

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FAC Paragraph
20. In mid August 2011, MATTIODA had a
telephone call with Ombudsman, Dr. James
Arnold (“Dr. Arnold”). On or about August
17, 2011, MATTIODA then went to see an
AMES Ombudsman, Jack Boyd. MATTIODA
reviewed the series of events involving Dr.
Lee. MATTIODA asked Mr. Boyd, “Is this an
EEO Matter?” to which Mr. Boyd responded,
“Just let it slide” or words to that affect. Mr.
Boyd recommended MATTIODA not take any
action to what he reported as harassment.

Court’s Ruling
The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. An investigation of Plaintiff’s
complaints against Dr. Lee in this time frame
would reasonably encompass this meeting
with Dr. Arnold.

51. On August 7, 2015. MATTIODA met with
Dr. Arnold. MATTIODA detailed the background and facts regarding his disability,
multiple failed reasonable accommodations,
and what he considered to be the pervasive
atmosphere of illegal harassment he had been
undergoing. MATTIODA was surprised when
Dr. Arnold responded with, “I have nothing
but the highest respect for her [Dr. Dotson].”
The manner of Dr. Arnold’s comment
suggested he already believed Dr. Dotson was
not guilty of any type of harassment,
discrimination, or retaliation. Dr. Arnold then
suggested MATTIODA, Dr. Lee and Dr.
Dotson meet together about the issues.
MATTIODA said he would normally agree to
such a meeting only if one or two events had

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. In light of references in the EEO
record to a similar meeting (see ECF 17-2 at
PDF p. 120), an investigation of Plaintiff’s
complaints would reasonably encompass this
incident.
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occurred and his superiors were completely
unaware of what they were doing. Despite the
facts, though, MATTIODA agreed to a
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53. On August 24, 2015. MATTIODA met
with Dr. Janice Fried (AMES Anti-harassment
coordinator) and provided the information for
his harassment and retaliation complaint. Dr.
Fried admitted that it was “very difficult” to
prove harassment using NASA’s policies and
procedures.

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. In light of references in the EEO
record to Plaintiff filing a harassment
complaint with Ms. Fried on this date (see
ECF 17-2 at PDF p. 51), an investigation of
Plaintiff’s complaints would reasonably
encompass this incident.

74. On or around May 12, 2016, MATTIODA
sent Dr. Michael Bicay (“Dr. Bicay”), Science
Directorate Chief - MATTIODA’s third level
supervisor - an email, “I would like to report
continuing harassment by my immediate
supervisor, Dr. Jessie Dotson.” MATTIODA
then detailed Dr. Dotson’s actions regarding
her personally imposed requirements on
MATTIODA’s reasonable accommodation
travel requests. MATTIODA said, “Dr.
Dotson has added this additional requirement
in retaliation for my previous EEO activities
and due to my disabilities.” Dr. Bicay
responded to the email saying he would speak
to Dr. Dotson about the complaint.
MATTIODA sent another e-mail confirming
he would file another harassment complaint
and another EEO complaint regarding these
specially imposed requirements on him as a
person with disabilities. MATTIODA stated
he would also report Dr. Dotson had discussed
MATTIODA’s medical issues with Dr.
Sandford. MATTIODA told Dr. Bicay, “Jessie
is doing this purely to embarrass me, harass
me, retaliate against me and discriminate
against me.”

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. In light of references in the EEO
record to Plaintiff’s complaints about travel
restrictions in this time frame, including
emails involving Drs. Bicay and Dotson (see
ECF 17-2 at PDF pp. 53-54, 129-130), an
investigation of Plaintiff’s complaints would
reasonably encompass this incident.

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81. On May 18, 2016, Dr. Bicay responded
saying he did not know enough details to
either agree or disagree with MATTIODA.
But, Dr. Bicay did not offer to investigate
MATTIODA’s claims.

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. In light of references in the EEO to
a number of issues with Dr. Bicay in this time
frame, an investigation of Plaintiff’s
complaints would reasonably encompass this
incident.
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82. On May 19, 2016, MATTIODA confirmed
to Dr. Bicay in an e-mail that MATTIODA
had fulfilled obligations required under the
NASA Anti-Harassment policy to inform a
manager about harassment in the work place.
He also reminded Dr. Bicay about Dr. Bicay’s
earlier commitment (made in writing) to
provide a “healthy work environment, free of
harassment and retribution.”

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. In light of references in the EEO
record to Dr. Bicay’s “healthy work
environment” statement and Plaintiff’s
complaints about issues with Dr. Bicay in this
time frame (see ECF 17-2 at PDF pp. 51, 55,
134), an investigation of Plaintiff’s complaints
would reasonably encompass this incident.

87. On May 23, 2016, MATTIODA met with
Dr. Deborah Feng (“Dr. Feng”), Associate
Center Director, AMES, to initiate his
informal harassment and reprisal complaint.
MATTIODA later met with the investigator,
Dr. Alfonso Vera, who said he had been
conducting investigations for many years and
it was “very difficult to prove harassment.”
“To prove harassment, the manager basically
has to say, ‘Yes, I was harassing him’ in order
to get a finding of harassment.”

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. In light of references in the EEO
record to harassment complaints regarding Dr.
Dotson in this time frame (see ECF 17-2 at
PDF pp. 29-31), an investigation of Plaintiff’s
complaints would reasonably encompass this
incident.

94. On or around October 4, 2016, the AMES
Deputy Center Director (Dr. Thomas
Edwards) issued a decision on MATTIODA’s
harassment complaint about Dr. Dotson’s
travel requirements. In the memorandum to
MATTIODA, Dr. Edwards wrote that Dr.
Dotson’s actions “adversely affected your
work environment by requiring you to disclose
your disability to managers who should not
need to know about it.” Dr. Edwards also
stated, “This complaint sheds light on a
shortcoming of the Agency’s policies and
procedures, however. There is no clear
approach to handle the financial repercussions
of RA findings, and so managers and
employees can be left lacking the tools needed
to provide accommodations.” Dr. Edwards
then requested AMES assemble a team to
develop recommendations clarifying: (1) the
roles, responsibilities, and authorities in
making reasonable accommodation travel
request determinations, (2) which officials
should have access to information, and (3)
how to secure funds necessary to fulfill
reasonable accommodation determinations.
Dr. Edwards set a date of no later than March

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. In light of references in the EEO
record to the memo referenced in this
paragraph (see ECF 17-2 at PDF p. 127), an
investigation of Plaintiff’s complaints would
reasonably encompass this incident.

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31, 2017 for the team to brief center
management on its progress.
99. On October 4, 2016, Dr. Thomas A.
Edwards (“Dr. Edwards”), Deputy Center
Director, sent both SSA and MATTIODA a
memorandum regarding MATTIODA’s
internal second discrimination and harassment
complaint. Dr. Edwards admitted Dr. Dotson’s
actions “adversely impacted your work
environment by requiring MATTIODA to
disclose his disabilities to managers who
should not need to know about it.” Dr.
Edwards also acknowledged MATTIODA’s
“complaint sheds light on a shortcoming of the
Agency’s policies and procedures” as there “is
no clear approach to handle the financial
repercussions of RA findings, and so managers
and employees can be left lacking the tools
needed to provide accommodations.”

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. In light of references in the EEO
record to the memo referenced in this
paragraph (see ECF 17-2 at PDF p. 127), an
investigation of Plaintiff’s complaints would
reasonably encompass this incident.

106. Around March 20, 2017, MATTIODA
discussed his new proposal concept for the
Astrophysics Data Analysis program (ADAP)
with Dr. Doug Hudgins, Discipline Scientist,
to ensure MATTIODA’s proposal concept
aligned with program requirements. Dr.
Hudgins said the proposal concept was aligned
with the program requirements, so
MATTIODA submitted his new proposal. On
or around May 2016, Dr. Hudgins sent an email telling MATTIODA that his proposal was
not responsive (aligned) to the program
requirements, and Dr. Hudgins had rejected
the proposal without submitting it for review.
Without copying MATTIODA, Dr. Hudgins
sent a separate e-mail to Dr. Dotson and Dr.
Lee with the text included, “FYI.” Dr.
Hudgins was informing these AMES officials
that he was acting consistently with what he
knew were their efforts to curtail
MATTIODA’s professional development.

The Court GRANTS the motion to dismiss
claims based on the incident alleged in this
paragraph for failure to exhaust administrative
remedies. The conduct alleged involves a
different actor and different issue than
Plaintiff’s EEO complaints, and there is no
reason why an investigation of Plaintiff’s EEO
complaints would have elicited information
about the incident alleged in this paragraph.

116. On April 11, 2017, MATTIODA
exchanged emails with Dr. Steve Howell (“Dr.
Howell”), requesting a meeting. Dr. Howell
responded, “If you are having an issue with
Tim [Dr. Lee] and the WP [Lab Astro WP]

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. In light of references in the EEO
record to an email to Dr. Howell in this time
frame (see ECF 17-2 at PDF p. 141), an

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formulation, I’d suggest you take [sic] to him.
Next step is to talk to your branch chief.”
MATTIODA then provided Dr. Howell a high
level overview of the years of discrimination
and retaliation involving Dr. Lee.
MATTIODA said Dr. Lee’s stripping
authority for the Lab Astro WP formulation
was a continuation of the harassment. When
MATTIODA cited examples about Dr. Lee’s
shunning and excluding MATTIODA from
certain critical meetings, Dr. Howell admitted,
“Yeah, that was kinda weird.” MATTIODA
also commented he had heard Dr. Lee made
several derogatory comments about
MATTIODA that included the false comments
that MATTIODA was a “troublemaker,” and
had been transferred to SST because he could
not get along with SSA management. Dr.
Howell did not offer to pass this information
onward so that NASA could start a
discrimination or harassment investigation.

investigation of Plaintiff’s complaints would
reasonably encompass this incident.

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c.

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Claims against Dr. Lee for incidents not identified in EEO
charges

Although Dr. Lee was specifically named in Plaintiff’s EEO charges, Defendant argues

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that the FAC includes claims against Dr. Lee that should be barred because they involve new

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incidents that were not raised in the previous EEO complaints. Dkt. 18 at 14; see also id. at 10

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(citing ¶¶ 44, 55, 56, 60, 113, 117, 122, 123). The Court rules as follows regarding those

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paragraphs:

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FAC Paragraph
44. On March 19, 2015, MATTIODA saw an
ear, nose, and throat (“ENT”) doctor who
discovered an ear infection and instructed
MATTIODA not to fly to the 2015 ACS
meeting in Denver set for March 22-26.
Previously, MATTIODA had informed Dr.
Dotson about his repeated ear infections.
MATTIODA then called Dr. Allamandola
about the situation because Dr. Allamandola
was one of the conference organizers. During
their discussion Dr. Allamandola admitted he
had had to argue with Dr. Lee to convince him
to include MATTIODA at the conference. Dr.

Court’s Ruling
The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. Dr. Lee is the focus of Plaintiff’s
EEO complaints, and an investigation of
Plaintiff’s complaints would reasonably
encompass this and other alleged incidents
involving Dr. Lee. Moreover, the EEO record
refers to issues concerning Plaintiff’s
attendance of the Denver conference and to a
conversation with Dr. Allamandola regarding
Dr. Lee’s lack of respect in a different time
frame (see ECF 17-2 at PDF pp. 6, 10, 117).
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Allamandola confirmed Dr. Lee had suggested
in other meetings that Dr. Lee (a) did not
respect MATTIODA’s work, (b) thought
MATTIODA was lazy, and (c) believed
MATTIODA was using his medical and
disability issues to avoid work. When
MATTIODA later proposed doing a video
presentation for the conference, Dr. Lee lied
and said the ACS organization did not permit
video conferencing.
55. During the September 13-17, 2015 period,
MATTIODA was an invited speaker at a
symposium to honor Lou Allamandola’ s
contributions to molecular science. After
MATTIODA’s presentation, Dr. Annemieke
Petrignani and Dr. Alessandra Candian from
the Netherlands, approached MATTIODA
about possibly collaborating on research
involving the overtone and combination bands
of PAHs. Neither mentioned ever speaking to
Dr. Lee regarding this topic, or any topic.

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. This paragraph appears to give
context to paragraph 57, which is a further
complaint against Dr. Lee, rather than a charge
against Drs. Petrignani or Candian. Dr. Lee is
the focus of Plaintiff’s EEO complaints, and
an investigation of Plaintiff’s complaints
would reasonably encompass this and other
alleged incidents involving Dr. Lee.

56. On October 13, 2015 MATTIODA gave an
invitational lecture to the Astrochemistry
School held at the SETI Institute in Mountain
View. Because of this lecture, Dr. Xinchuan
Huang (Dr. Lee’s postdoctoral fellow)
contacted MATTIODA to discuss the
possibility of collaborating with Dr. Petrignani
and Dr. Candian. MATTIODA responded
saying he had already discussed this
possibility with the two researchers in
September. MATTIODA then learned Dr. Lee
had falsely claimed that he, Dr. Lee, was the
one who spoke with the two researchers
regarding a collaboration with MATTIODA.

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph, for the reasons discussed in
connection with paragraph 55.

60. On February 4, 2016, Dr. Boersma and
MATTIODA met with Dr. Lee and his
postdoctoral fellow, Dr. Huang. Based on
previous exchanges with Dr. Huang,
MATTIODA had initiated the meeting to
discuss potentially collaborating on a project.
Dr. Boersma and MATTIODA presented their
concept to Dr. Huang and Dr. Lee. After the
presentation, Dr. Lee made it clear Dr. Lee

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. Dr. Lee is the focus of Plaintiff’s
EEO complaints, and an investigation of
Plaintiff’s complaints would reasonably
encompass this and other alleged incidents
involving Dr. Lee.

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was not interested in collaborating with
MATTIODA and Dr. Boersma on that project.
Dr. Lee stated that Dr. Boersma and
MATTIODA were free to collaborate with
other people.
113. Sometime around Spring 2017, Dr. Tim
Lee (“Dr. Lee”) stepped down from the SS
Division Branch Chief position. MATTIODA
had filed prior EEO Complaints against NASA
and named Dr. Lee in his complaints. NASA
was well aware of MATTIODA’s disability
status before 2017. Despite MATTIODA’s
prior EEO and harassment complaints against
Dr. Lee, when Dr. Lee stepped down from
his Branch Chief position, NASA assigned Dr.
Lee to work in the Planetary Sciences Branch,
alongside MATTIODA. Dr. Lee then used
about $3,000 of Division funds to redecorate
his new office, next to MATTIODA, despite
having previously told MATTIODA the
Agency lacked funds to pay for
MATTIODA’s reasonable accommodation
requests.

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. Dr. Lee is the focus of Plaintiff’s
EEO complaints, and an investigation of
Plaintiff’s complaints would reasonably
encompass this and other alleged incidents
involving Dr. Lee.

117. On May 10, 2017, Mr. Mark Fonda (“Dr.
Fonda”) asked Dr. Lee’s opinion about
involving MATTIODA in a Lab Astro Tour.
Dr. Lee responded, “Not Andy.” Other than a
retaliatory motive, Dr. Lee had no other reason
to deny this tour opportunity to MATTIODA.

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. Dr. Lee is the focus of Plaintiff’s
EEO complaints, and an investigation of
Plaintiff’s complaints would reasonably
encompass this and other alleged incidents
involving Dr. Lee.

122. On July 10, 2017, Dr. Lee told Dr. Steve
Zornetzer about MATTIODA’s EEO and
harassment complaints. As of June 2017,
NASA had assigned Dr. Lee to be on the
selection panel (“ST Panel”) to select the
person filling the Sr. Technical Scientist
position. NASA allowed Dr. Lee onto this
panel, which had accepted MATTIODA’s
application, despite the fact that Dr. Lee was
the person against whom MATTIODA had
filed prior EEO complaints.

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. Dr. Lee is the focus of Plaintiff’s
EEO complaints, and an investigation of
Plaintiff’s complaints would reasonably
encompass this and other alleged incidents
involving Dr. Lee.

123. In that July 10, 2017 meeting, Dr. Lee
spoke with the other hiring panel members
about MATTIODA. For whatever reason, and

The Court DENIES the motion to dismiss
claims based on the incident alleged in this
paragraph. Dr. Lee is the focus of Plaintiff’s

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3
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5
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7
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in violation of both procedures and custom, all
the members of the ST Panel either destroyed,
or removed, their notes taken from that
meeting, thus creating a spoliation of the
evidence. About one month after making these
comments about MATTIODA and other
potential candidates to the hiring panel, Dr.
Lee recused himself from serving on the ST
Panel. Dr. Jaya Bajpayee (“Dr. Bajpayee”)
replaced him. MATTIODA believes based on
the other circumstances surrounding the
selection process, that Dr. Lee communicated
with others during this one month period of
activity.

EEO complaints, and an investigation of
Plaintiff’s complaints would reasonably
encompass this and other alleged incidents
involving Dr. Lee.

9
d.

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United States District Court
Northern District of California

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Conclusion re Exhaustion of Administrative Remedies

For the reasons discussed above, Defendant’s motion to dismiss Plaintiff’s claims pursuant
to Rule 12(b)(1) on the basis of lack of subject matter jurisdiction is DENIED. Defendant’s
motion to dismiss Plaintiff’s claims pursuant to Rule 12(b)(6) on the grounds of failure to exhaust
administrative remedies is GRANTED IN PART and DENIED IN PART as indicated in the
charts above. Where the motion to dismiss has been granted on the grounds of failure to exhaust
administrative remedies, no leave to amend is granted. Although leave to amend should be freely
given, it should be denied where amendment would be futile. Carrico v. City & Cnty. of S.F., 656
F.3d 1002, 1008 (9th Cir. 2011). Plaintiff cannot correct his failure to exhaust administrative
remedies by filing an amended complaint.
C.

Failure to State a Claim

Defendant argues that even if Plaintiff exhausted his administrative remedies, the FAC
should nevertheless be dismissed because each claim in the FAC fails to state a cause of action.
Dkt. 18 at 17-24.
1.

Claims for disability discrimination

Defendant argues that Plaintiff’s discrimination claims should be dismissed because:
(1) they include allegations about discrete events that occurred prior to July 7, 2015 and for which
Plaintiff did not file an EEO claim; and (2) as to the timely discrimination claims, Plaintiff failed
to plead facts giving rise to a plausible claim for discrimination. Dkt. 18 at 17-18.
22

1

a.

Timeliness

As discussed above, to bring a claim under the Rehabilitation Act, a federal employee must
2
first contact an EEO counselor within forty-five days of the alleged discrimination. 29 C.F.R.
3
4
5
6

§ 1614.105(a)(1). “The limitations-period analysis is always conducted claim by claim” and
“begins running on any separate underlying claim of discrimination when that claim accrues.”
Green v. Brennan, 136 S. Ct. 1769, 1782 (2016); see also Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 113-115 (2002). “This requirement is not jurisdictional, but a federal employee

7
who fails to contact an EEO counselor for pre-complaint processing risks dismissal of any
8

subsequent complaint.” Williams, 2019 WL 6311381, at *8 (citations omitted).

9
The parties agree that Plaintiff first contacted an EEO counselor on August 21, 2015. Dkt.
10
18 at 3; Dkt. 21 at 7. According to Defendant, this means that Plaintiff cannot base his
11

United States District Court
Northern District of California

discrimination claim on any conduct that occurred more than 45 days before August 21, 2015, i.e.,
12

before July 7, 2015. Dkt. 18 at 17. Both Plaintiff’s first EEO complaint and the FAC in this case

13
describe conduct dating back to 2011. See, e.g., Scharf Decl. ¶ 2 and Ex. A; FAC ¶¶ 10-47.
14
15
16

Plaintiff characterizes these allegations of the first EEO complaint as “continuous violations
spanning many years.” Dkt. 21 at 7. Plaintiff argues that the existence of past acts and his
knowledge of those acts does not bar him from filing charges about related discrete acts, “so long

17
as the acts are independently discriminatory and charges addressing those acts are themselves
18
19

timely filed.” Id. He also argues that he is not barred from using “prior acts as background
evidence to support a timely claim.” Id. (citing Morgan, 536 U.S. at 102).

20
Morgan concerned the timely filing requirements of Title VII, which require that a charge
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be filed within 180 days “after the alleged unlawful employment practice occurred.” Morgan, 536
U.S. at 109. The Supreme Court stated that “[a] discrete retaliatory or discriminatory act
‘occurred’ on the day that it ‘happened.’” Id. at 110. The court rejected an argument that “the
term ‘practice’ converted related discrete acts into a single unlawful practice for purposes of
timely filing.” Id. Accordingly, the court held that “discrete discriminatory acts are not actionable
if time barred, even when they are related to acts alleged in timely filed charges” and “[e]ach
discrete discriminatory act starts a new clock for filing charges alleging that act.” Morgan, 536

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23

1

U.S. at 113. However, the Court noted the following limitations on this principle:

2

The existence of past acts and the employee’s prior knowledge of their occurrence
… does not bar employees from filing charges about related discrete acts so long as
the acts are independently discriminatory and charges addressing those acts are
themselves timely filed. Nor does the statute bar an employee from using the prior
acts as background evidence in support of a timely claim.

3
4
5

Id. at 113.2

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Northern District of California

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12

Applying Morgan’s holdings in another Title VII case, the Ninth Circuit concluded that
“[a] discriminatory practice, though it may extend over time and involve a series of related acts,
remains divisible into a set of discrete acts, legal action on the basis of each of which must be
brought within the statutory limitations period.” Lyons v. England, 307 F.3d 1092, 1108 (9th Cir.
2002). Subsequently, the Ninth Circuit has held that Morgan “applies with equal force to the
Rehabilitation Act.” Ervine v. Desert View Regional Med. Ctr. Holdings, LLC, 753 F.3d 862, 869
(9th Cir. 2014) (citation omitted).

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16
17

Although Plaintiff’s opposition to the motion to dismiss refers to the allegations of the first
EEO complaint as “continuous violations” (Dkt. 21 at 7), the Supreme Court’s decision in Morgan
substantially limited the notion of continuing violations to situations involving a pattern or
practice that is pervasive throughout the workplace. Williams, 2019 WL 6311381, at *9-10
(citations omitted). There is no allegation that such a situation existed in this case.

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23
24

Accordingly, to the extent the FAC could be construed as bringing discrimination claims
based on discrete adverse actions occurring before July 7, 2015, the motion to dismiss is
GRANTED WITHOUT LEAVE TO AMEND. Plaintiff may not present evidence of those
events as a continuing violation based on a theory of discrimination, although in some
circumstances evidence of past conduct that was not timely presented to the EEO may be
presented “as background evidence in support of a timely claim.” See Morgan, 536 U.S. at 113;
see also Williams, 2019 WL 6311381, at *10. To the extent such evidence may be permissible,

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2

In Morgan, the Supreme Court also noted that the time period under Title VII for filing a charge
“is subject to equitable doctrines such as tolling and estoppel,” although these doctrines “are to be
applied sparingly.” Morgan, 536 U.S. at 113. In this case, Plaintiff does not argue that these
equitable doctrines apply, and therefore the Court does not discuss them further.
24

1

objections to that evidence arising under the Federal Rules of Evidence, as well as rulings on those

2

objections, are reserved for discovery and trial.

3

b.

4

Elements of claim for disability discrimination

Defendant argues that as to any timely claims for discrimination, the FAC fails to state a

5

claim “because [such claims] have no factual support.” Dkt. 18 at 18. To state a prima facie case

6

of discrimination under the Rehabilitation Act, Plaintiff must demonstrate that (1) he is a person

7

with a disability, (2) who is otherwise qualified for employment, meaning that he can perform the

8

essential duties of this position with or without reasonable accommodation, and (3) suffered

9

discrimination because of his disability. Silveria v. Wilkie, No. 18-cv-07327-EMC, 2020 WL
820377, at *7 (N.D. Cal. Feb. 19, 2020) (citing Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005

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United States District Court
Northern District of California

10

(9th Cir. 2007)). “[A] plaintiff is not required to plead a prima facie case of discrimination or

12

retaliation in order to survive a motion to dismiss,” but “courts still look to the elements of the

13

prima facie case “to decide, in light of judicial experience and common sense, whether the

14

challenged complaint contains sufficient factual matter, accepted as true, to state a claim for relief

15

that is plausible on its face.” Cloud v. Brennan, 436 F. Supp. 3d 1290, 1300–01 (N.D. Cal. 2020)

16

(citations omitted).

17

Defendant argues that Plaintiff’s claim for disability discrimination should be dismissed

18

because he fails to allege that he suffered discrimination because of his disability. Dkt. 18 at 18.

19

According to Defendant, the only facts Plaintiff pleads that show a connection to his disability

20

concern Dr. Dotson’s request that Plaintiff provide concurrence from the manager of travel funds

21

for Plaintiff’s travel requests, and Dr. Lee’s request that Plaintiff include reasonable

22

accommodation funding in his travel fund request. Id. (citing FAC ¶¶ 65, 68, 69, 70, 72, 73, 75-

23

80, 104-105). Defendant argues that these actions do not constitute discrimination but instead

24

“demonstrate management’s attempts to work with Plaintiff to ensure that the agency fulfilled his

25

reasonable accommodation requests.” Id. Plaintiff’s opposition to the motion to dismiss focuses

26

on Defendant’s administrative exhaustion argument and does not address Defendant’s argument

27

that the acts alleged in the FAC do not constitute discrimination. See Dkt. 21.

28

Defendant’s argument essentially offers an alternative, non-discriminatory interpretation of
25

1

the conduct attributed to Drs. Dotson and Lee. However, Defendant has not identified a missing

2

element of Plaintiff’s claim for discrimination. Plaintiff has met the standard of pleading a

3

plausible claim for discrimination, and accordingly Defendant’s motion to dismiss Plaintiff’s

4

claims for disability discrimination is DENIED.

5

2.

Claims for harassment based on disability

6

Defendant argues that Plaintiff’s claims for harassment based on disability should be

7

dismissed because if such a cause of action exists: (1) Plaintiff’s harassment claims include

8

allegations about events that occurred prior to July 7, 2015 and for which Plaintiff did not file an

9

EEO claim; and (2) as to the timely discrimination claims, Plaintiff failed to plead facts giving

10

rise to a plausible claim for harassment. Dkt. 18 at 18-21.

United States District Court
Northern District of California

11

a.

Timeliness

12

As discussed above, in Morgan the Supreme Court held that claims of discrete

13

discriminatory acts must be filed within the appropriate time period. Morgan, 536 U.S. at 113.

14

However, Morgan also noted that “[h]ostile environment claims are different in kind from discrete

15

acts” because “[t]heir very nature involves repeated conduct.” Id. at 115. Accordingly, “a hostile

16

work environment claim … will not be time barred so long as all acts which constitute the claim

17

are part of the same unlawful employment practice and at least one act falls within the time

18

period.” Id. at 122; see also Lyons v. England, 307 F.3d 1092, 1106-1107 (9th Cir. 2002).

19

Here, the FAC includes alleged incidents of harassment that occurred after July 7, 2015,

20

which as discussed above is the cut-off date for actions to be included in Plaintiff’s first EEO

21

complaint. See, e.g., FAC ¶¶ 48-57, 65, 70, 72-74, 80, 103, 105, 107. Taking Plaintiff’s

22

allegations are true and drawing all inferences in Plaintiff’s favor, as the Court must do on a

23

motion to dismiss, the Court finds that the FAC adequately alleges that the harassment that

24

predated July 7, 2015 was part of the same unlawful employment practice as the harassment that

25

occurred after that date. The Court therefore DENIES the motion to dismiss Plaintiff’s

26

harassment claims as untimely; however, as discussed in the following section, the Court will

27

dismiss Plaintiff’s harassment claims because they fail to plausibly allege all required elements of

28

such a claim.
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2

b.

Elements of a harassment claim

As an initial matter, Defendant argues that “the Ninth Circuit has not determined whether
the ADA or Rehabilitation Act gives rise to a claim of harassment.” Dkt. 18 at 19 (citations

3
omitted). The parties have not fully briefed this issue. Accordingly, adopting the approach taken
4

by another court in this District, on the present motion to dismiss this Court will “[a]ssume[]

5
without deciding that such a claim exists and that the Ninth Circuit would adopt a test for
6

disability based harassment claim that is similar to the one articulated by the Fifth Circuit.” See

7
Anello v. Berryhill, No. 18-cv-00070-DMR, 2019 WL 285197, at *11 (N.D. Cal. Jan. 22, 2019).
8
The Fifth Circuit states that in order to prove a claim of disability-based harassment, the plaintiff
9
must prove: (1) that he belongs to a protected group; (2) that he was subjected to unwelcome
10
harassment; (3) that the harassment complained of was based on his disability or disabilities; (4)
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United States District Court
Northern District of California

that the harassment complained of affected a term, condition, or privilege of employment; and
12
(5) that the employer knew or should have known of the harassment and failed to take prompt,
13
14
15

remedial action. Id. at *11 (citing Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 235-36
(5th Cir. 2001)). “Moreover, the disability-based harassment must be sufficiently pervasive or
severe to alter the conditions of employment and create an abusive working environment.” Id. at

16
236 (quotation marks omitted).
17
The harassment cause of action in the FAC includes an assertion that Defendant engaged in
18

harassment by “failing to treat plaintiff in the same manner as non-disabled employees,

19
continuously and pervasively harassing MATTIODA over many years (including with respect to
20
evaluations and promotions), and directing adverse treatment against him because of his disability
21
22

conditions.” FAC ¶ 142. The Court is not required to accept conclusory allegations as true. See
Iqbal, 556 U.S. at 678-79. Moreover, Plaintiff must do more than “simply recite the elements of a

23
cause of action.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
24
The FAC alleges a series of remarks by Drs. Lee and Dotson that Plaintiff alleges were
25
harassing. See, e.g., id. ¶¶ 11, 19, 26, 30, 48. Many, if not all, of these alleged remarks have no
26
27

readily apparent link to Plaintiff’s disability. For example, Plaintiff cites as an “example[] of
harassment” a conversation in which Dr. Lee allegedly said he did not respect Plaintiff’s work and

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27

1

that Dr. Allamondola “is doing all the work for you.” FAC ¶¶ 18-20. Another “harassing

2

comment[]” identified by Plaintiff concerns Dr. Lee’s statement that Plaintiff should seek labor

3

funding from NASA Headquarters since Plaintiff chose to step down from the Deputy Branch

4

Chief position. Id. ¶ 30. Plaintiff also claims that Dr. Dotson’s request that Plaintiff sign a letter

5

rejecting his reconsideration request concerning his performance rating was “harassing because

6

the agency’s regulations required Dr. Dotson, not MATTIODA, to sign that form.” Id. ¶ 48. In

7

his opposition to the motion to dismiss, Plaintiff does not address the elements of a disability

8

claim or identify where he pleaded facts connecting the allegedly harassing actions and his

9

disability.

10

Even if Plaintiff had pleaded facts showing a link between the conduct attributed to others

United States District Court
Northern District of California

11

and Plaintiff’s disability, Plaintiff fails to plead facts establishing a plausible claim that this

12

conduct rose to the level of severe and pervasive conduct. To be actionable harassment, the

13

alleged conduct must be “sufficiently pervasive or severe to alter the conditions of employment

14

and create an abusive working relationship.” See Flowers, 247 F.3d at 236. To meet that

15

threshold, a plaintiff must show that “the workplace is permeated with ‘discriminatory

16

intimidation, ridicule, and insult.’” Anello, 2019 WL 285197, at *11 (quoting Fowler v. Potter,

17

No. C 06-04716-SBA, 2008 WL 2383073, at *9 (N.D. Cal. June 9, 2008) and Morgan, 536 U.S.

18

101 at 116)). Courts must “determine whether an environment is sufficiently hostile or abusive by

19

looking at all the circumstances, including the frequency of the discriminatory conduct; its

20

severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and

21

whether it unreasonably interferes with an employee’s work performance.” Anello, 2019 WL

22

285197, at *11 (quoting Farragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)). Again,

23

Plaintiff’s opposition to the motion to dismiss does not address or establish whether the FAC

24

plausibly alleges severe and pervasive conduct.

25

The Court concludes that the FAC fails to adequately allege harassing conduct that is

26

linked to his disability and that is sufficiently pervasive or severe to alter the conditions of

27

employment and create an abusive working relationship. Accordingly, the Court GRANTS

28

WITH LEAVE TO AMEND the motion to dismiss the harassment claims.
28

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2

3.

Claims for reasonable accommodation

Defendant argues that Plaintiff’s claims for failure to provide reasonable accommodation
based on disability should be dismissed because: (1) Plaintiff’s claims for failure to provide

3
reasonable accommodation include allegations about events that occurred prior to July 7, 2015 and
4
for which Plaintiff did not file an EEO claim; and (2) as to the timely claims, Plaintiff failed to
5
plead facts giving rise to a plausible claim for failure to provide reasonable accommodation. Dkt.
6
18 at 21-22.
7
8

a.

Timeliness

A claim for failure to provide reasonable accommodation may include only those
9
10

discriminatory acts that occurred within 45 days prior to the Plaintiff’s EEO report. See Yonemoto
v. Shulkin, 725 Fed. Appx. 482, 485 (9th Cir. 2018). Several of Plaintiff’s claims for reasonable

11

United States District Court
Northern District of California

accommodation are based on incidents that occurred more than 45 days before August 21, 2015,
12
i.e., before July 7, 2015. See, e.g., FAC ¶¶ 10, 12, 21, 22-28, 40-41. Accordingly, to the extent
13
the FAC could be construed as bringing claims based on alleged failure to provide reasonable
14
accommodation occurring before July 7, 2015, the motion to dismiss is GRANTED WITHOUT
15
LEAVE TO AMEND.
16
17

b.

Elements of a claim for failure to provide reasonable
accommodation

18

To state a prima facie case for failure to accommodate a disability, a plaintiff must show

19

that (1) he is disabled, (2) he is a qualified individual who can perform the essential functions of

20

the job position with or without reasonable accommodation, and (3) that a reasonable

21

accommodation is possible. Estell v. McHugh, No. 15-cv-04787-MEJ, 2020 WL 4140819, at *5

22

(N.D. Cal. Aug. 4, 2016) (citations omitted). A “reasonable accommodation” is defined as

23

“[m]odifications or adjustments to the work environment, or to the manner or circumstances under

24

which the position held or desired is customarily performed, that enable an individual with a

25

disability who is qualified to perform the essential functions of that position[.]” Silveria, 2020

26

WL 820377, at *8 (citing 29 C.F.R. § 1630.2(o)(ii)).

27

Plaintiff’s timely claims for failure to accommodate appear to relate to Plaintiff’s request

28

for upgraded travel. See FAC ¶¶ 68, 72. Plaintiff concedes in the FAC that at least one of these
29

1

travel accommodation requests was granted. Id. ¶ 69-70, 72-77. Plaintiff’s complaint appears to

2

be that he was required to provide additional approvals regarding the funds to be used for

3

upgraded travel. Id. However, “[a]n employer is not obligated to provide an employee the

4

accommodation he requests or prefers, the employer need only provide some reasonable

5

accommodation.” Zikovic v. So. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002). Moreover,

6

“[w]hen accommodation is required to enable the employee to perform the essential functions of

7

the job, the employer has a duty to gather sufficient information from the applicant and qualified

8

experts as needed to determine what accommodations are necessary to enable the applicant to

9

perform the job.” Buckingham v. U.S., 998 F.2d 735, 740 (9th Cir. 1993) (internal quotation
marks and citation omitted) (emphasis in original). “An accommodation is not reasonable if it

11

United States District Court
Northern District of California

10

results in undue hardship – that is, when it causes ‘more than a de minimis cost to the employer’”

12

or other impacts. Hayes v. Potter, No. C-02-0437 VRW, 2006 WL 8448504, at *5 (N.D. Cal.

13

2006) (quoting Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999)).

14

Here, Plaintiff’s claims for failure to provide reasonable accommodation rely on

15

allegations that Plaintiff was required to provide additional documentation about available funding

16

for his requested travel upgrades. Because cost is a relevant consideration for the agency in

17

determining whether a proposed accommodation is reasonable and not an undue hardship, under

18

the facts of this case, the allegations of the FAC are insufficient to support a claim for failure to

19

provide reasonable accommodation. Accordingly, the Court GRANTS WITH LEAVE TO

20

AMEND the motion to dismiss the claims for failure to provide reasonable accommodation.

21

4.

Claims for reprisal

22

Defendant argues that Plaintiff’s claims for reprisal should be dismissed because:

23

(1) Plaintiff’s claims for failure to provide reprisal include allegations about events that occurred

24

prior to July 7, 2015 and for which Plaintiff did not file an EEO claim; and (2) as to the timely

25

claims, Plaintiff failed to plead facts giving rise to a plausible claim for reprisal. Dkt. 18 at 22-24.

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27
28

a.

Timeliness

Under Morgan, claims for reprisal are not subject to the continuing violations doctrine, and
instead each retaliatory adverse employment decision concerns a separate actionable unlawful
30

1

employment practice that must be the subject of a timely complaint. Morgan, 536 U.S. at 114.

2

Accordingly, to the extent the FAC could be construed as bringing claims based on alleged acts of

3

reprisal occurring before July 7, 2015, the motion to dismiss is GRANTED WITHOUT LEAVE

4

TO AMEND.

5

b.

Elements of a claim for reprisal

6

To state a claim for retaliation, a plaintiff must allege: (1) that he engaged in a protected

7

activity; (2) that he was subsequently subjected to an adverse employment action; and (3) that a

8

causal link exists between the two. Silveria, 2020 WL 820377, at *9 (citing Manatt v. Bank of

9

America, 339 F.3d 792, 800 (9th Cir. 2003)).

10

With respect to Plaintiff’s timely claims for reprisal, he identifies several alleged incidents

United States District Court
Northern District of California

11

that he contends were retaliation for his prior EEO complaints, such as the following: (1) Dr.

12

Dotson’s imposition of additional requirements for Plaintiff’s travel requests in May 2016 (FAC

13

¶ 74); (2) Dr. Lee’s exclusion of Plaintiff from a meeting with Dr. Boersma in February 2017 (id.

14

¶ 103); (3) Dr. Grossman’s “partial response” to Plaintiff’s request for funding in December 2017

15

(id. ¶ 109); (4) Dr. Lee’s direction to exclude Plaintiff from a Lab Astro Tour in May 2017 (id.

16

¶ 117); (5) Plaintiff’s exclusion from decisions regarding hiring and postdoctoral candidate

17

selection in June and August 2018 (id. ¶ 135, 138); and (6) Dr. Howell’s designation in July 2018

18

of someone other than Plaintiff as the point of contact for a work package on which Plaintiff was a

19

senior member (id. ¶ 136).

20

Other than labeling these incidents as retaliatory, Plaintiff does not plead any facts

21

connecting these incidents to his prior protected EEO activity. Accordingly, the Court GRANTS

22

WITH LEAVE TO AMEND the motion to dismiss the claims for reprisal.

23

C.

Failure to Satisfy Rule 8(a)

24

Defendant also argues that the FAC fails to satisfy the “short and plain statement”

25

requirement of Rule 8(a)(2). Dkt. 18 at 15. Given the history of this case, which involved

26

consolidation of four separate lawsuits and an order that Plaintiff file a consolidated complaint, the

27

Court concludes that the FAC, which consists largely of a chronological recitation of Plaintiff’s

28

factual allegations, complies with the requirements of Rule 8(a). However, in a Second Amended
31

1

Complaint (“SAC”), Plaintiff must consolidate each cause of action and identify supporting

2

paragraphs. For example, whereas the FAC contains four causes of action for reprisal (Counts

3

Three, Six, Nine, and Eleven), the SAC should contain a single cause of action for reprisal that

4

refers to the specific supporting paragraphs. The SAC must similarly consolidate the FAC’s

5

multiple causes of action for disability discrimination, harassment, failure to engage in the

6

interactive process, and failure to provide reasonable accommodation into one count for each type

7

of claim, and it must refer to the specific supporting paragraphs for each of those counts.

8

IV.

For the foregoing reasons, the Court ORDERS as follows:

9

1. Defendants’ motion to dismiss under Rule 12(b)(1) for lack of subject matter

10

jurisdiction is DENIED.

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United States District Court
Northern District of California

CONCLUSION

2. Defendants’ motion to dismiss the FAC under Rule 12(b)(6) is DENIED IN PART

12

and GRANTED IN PART.

13
14

3. If Plaintiff wishes to attempt to address the deficiencies identified in this order for

15

which he has been granted leave to amend, and if he can do so in compliance with

16

Rule 11 standards, he may file a Second Amended Complaint (“SAC”) within 21

17

days of the date of this order. The SAC must consolidate Plaintiff’s duplicative

18

causes of action and provide references to specific supporting paragraphs, as

19

explained in Section III.C. above. The Plaintiff must file as an exhibit to the SAC a

20

redline comparing the FAC and SAC.

21

4. Following the filing of a SAC, Defendant must file a response within 21 days.

22

5. If Defendant responds by filing a motion to dismiss the SAC, Plaintiff must file an

23

opposition to that motion within 14 days. Defendant may file a reply within 7 days

24

of the filing of Plaintiff’s opposition. The Court will advise the parties if a hearing

25

is necessary.

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6. If Defendant responds by filing an answer to the SAC, he must on the same date
file a Notice of Need for Case Management Conference.
SO ORDERED.
Dated: January 8, 2021

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SUSAN VAN KEULEN
United States Magistrate Judge

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United States District Court
Northern District of California

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