Carlsberg v. Wilken

• Court: District Court, S.D. California
• Decided: July 6, 2022
• Docket: 3:21-cv-01746
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 SOUTHERN DISTRICT OF CALIFORNIA 13 14 DEANNA CARLSBERG, Case No.: 3:21-cv-01746-H-RBB

15 Plaintiff, ORDER GRANTING DEFENDANT’S 16 v. MOTION TO DISMISS

17 DENIS MCDONOUGH, Secretary, U.S. [Doc. No. 30.] Department of Veterans Affairs, 18 Defendant. 19 20 On March 17, 2021, Plaintiff Deanna Carlsberg filed a first amended complaint 21 against Defendant Denis McDonough. (Doc. No. 15.) On December 27, 2021, Defendant 22 filed a motion to dismiss Plaintiff’s first amended complaint. (Doc. No. 30.) The Court 23 granted Plaintiff two extensions of time to file an opposition to Defendant’s motion to 24 dismiss. (Doc. Nos. 31, 34.) On February 4, 2022, Defendant filed a reply. (Doc. No. 32.) 25 On March 4, 2022, the Court submitted Defendant’s motion on the parties’ papers 26 pursuant to Local Rule 7.1(d)(1) and vacated the hearing. (Doc. No. 35.) Plaintiff has yet 27 to file an opposition to Defendant’s motion. For the reasons that follow, the Court grants 28 Defendant’s motion to dismiss without prejudice. 1 BACKGROUND 2 The following factual background in taken from the allegations in Plaintiff’s first 3 amended complaint (“FAC”). Plaintiff was an employee of Defendant at the San Diego 4 Veteran Affairs Health Care System in San Diego, CA (“San Diego VA”). (FAC ¶ 4.) On 5 March 31, 2016, Plaintiff alleges she had a serious fall at work and was injured. (Id. ¶¶ 6 14, 17.) Plaintiff alleges that after the fall, she was placed on light duty and was restricted 7 from seeing patients. (Id.) Plaintiff alleges she needed accommodations to work, but 8 “didn’t receive any accommodations.” (Id. ¶ 15.) In December 2018, Plaintiff alleges she 9 became “totally disabled” and went on disability leave. (Id. ¶¶ 14, 17.) Plaintiff alleges 10 that the San Diego VA Human Resources Department told her on multiple occasions that 11 her job was safe while she was on disability leave. (Id. ¶ 18.) However, Plaintiff alleges 12 that on July 20, 2019, she was terminated from her employment at the San Diego VA. 13 (Id. ¶¶ 19–21.) Plaintiff alleges that the San Diego VA sent the notice of termination to 14 her old address despite Plaintiff updating her address with the Human Resource 15 Department in February 2019. (Id. ¶ 6.) As a result, Plaintiff alleges she did not learn 16 about her termination until September 2019. (Id. ¶ 7.) 17 On October 18, 2019, Plaintiff contacted an Equal Employment Opportunity 18 (“EEO”) counselor. (Doc. No. 15-1 ¶ 1.) On November 15, 2019, Plaintiff’s counseling 19 concluded, and she was mailed the Notice of Right to File a Discrimination Complaint. 20 (Id.) On December 23, 2019, Plaintiff filed a formal complaint of discrimination with the 21 EEO. (Id.) On March 25, 2020, the U.S. Department of Veterans Affairs issued a Final 22 Agency Decision on Plaintiff’s complaint, dismissing the complaint “for failure to state a 23 claim, failure to raise matters with the EEO counselor, and failure to comply with 24 regulatory time limits.” (Id. ¶ 4.) 25 On July 1, 2020, Plaintiff, proceeding pro se, filed a complaint against Defendant 26 in the United States District Court for the District of Utah. (Doc. No. 4.) On July 27, 27 2020, Plaintiff obtained counsel. (Doc. No. 7.) On March 17, 2021, Plaintiff filed a first 28 amended complaint against Defendant alleging (1) failure to accommodate a disability 1 and (2) wrongful termination due to her disability, age, and national origin. (FAC ¶¶ 13– 2 21.) On October 8, 2021, the case was transferred to this district and assigned to this 3 Court. (Doc. Nos. 27, 28, 29.) 4 On December 27, 2021, Defendant the present motion to dismiss pursuant to 5 Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and, in the alternative, to strike 6 portions of Plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 12(f). (Doc. 7 No. 30-1.) Plaintiff did not file an opposition to Defendant’s motion within the time 8 frame required by Local Rule 7.1(e)(2). As a result, on January 13, 2022, the Court 9 granted Plaintiff an extension of time to file an opposition and continued the hearing on 10 Defendant’s motion. (Doc. No. 31.) Plaintiff did not file an opposition within the time 11 frame set by the Court. (Doc. No. 34.) On February 4, 2022, Defendant filed a reply to its 12 motion to dismiss, noting that Plaintiff had yet to file an opposition to Defendant’s 13 motion and requesting the Court grant Defendant’s motion to dismiss. (Doc. No. 32.) On 14 February 7, 2022, the Court granted Plaintiff a second extension of time to file an 15 opposition. (Doc. No. 34.) On March 4, 2022, the Court submitted Defendant’s motion 16 on the parties’ papers pursuant to Local Rule 7.1(d)(1). (Doc. No. 35.) Plaintiff has yet to 17 file an opposition. 18 DISCUSSION 19 I. Legal Standards 20 A. Rule 12(b)(1) Lack of Subject Matter Jurisdiction 21 Under Federal Rule of Civil Procedure 12(b)(1), a district court must dismiss an 22 action if it lacks jurisdiction over the subject matter of the suit. Fed. R. Civ. P. 12(b)(1). 23 “A Rule 12(b)(1) jurisdictional challenge may be facial or factual.” Safe Air for 24 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d 25 1214, 1242 (9th Cir. 2000)). In a facial challenge, “the challenger asserts that the 26 allegations contained in a complaint are insufficient on their face to invoke federal 27 jurisdiction.” Safe Air, 373 F.3d at 1039. In a factual attack, “the challenge disputes the 28 truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” 1 Id. “Once the moving party has converted the motion to dismiss into a factual motion by 2 presenting affidavits or other evidence properly brought before the court, the party 3 opposing the motion must furnish affidavits or other evidence necessary to satisfy the 4 burden of establishing subject matter jurisdiction.” Id. (quoting Savage v. Glendale Union 5 High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)). “[T]he plaintiff has the burden of 6 proving jurisdiction in order to survive the motion.” Kingman Reef Atoll Invs., LLC v. 7 United States, 541 F.3d 1189, 1197 (9th Cir. 2008) (citation omitted). 8 B. Rule 12(b)(6) Failure to State a Claim 9 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 10 sufficiency of a claim” and allows a court to dismiss a complaint if “there is a ‘lack of a 11 cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 12 theory.’” Conservation Force v. Salazar, 646 F.3d 1240, 1241 (9th Cir. 2011) (citations 13 omitted). A complaint will survive a Rule 12(b)(6) motion to dismiss if it contains 14 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 15 Twombly, 550 U.S. 544, 570 (2007). “A pleading that offers ‘labels and conclusions’ or 16 ‘a formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. 17 Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). In reviewing a 18 Rule 12(b)(6) motion to dismiss, a district court “must accept as true all facts alleged in 19 the complaint and draw all reasonable inferences in favor of the nonmoving party.” Retail 20 Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 21 2014) (citation omitted). A court does not need to accept “legal conclusions” as true. 22 Ashcroft, 556 U.S. at 678. It is improper for a court to assume the plaintiff “can prove 23 facts that it has not alleged or that the defendants have violated the . . . laws in ways that 24 have not been alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of 25 Carpenters, 459 U.S. 519, 526 (1983). 26 II. Analysis 27 In the FAC, Plaintiff’s contends Defendant (1) failed to accommodate her 28 disability and (2) wrongfully termination her due to her disability, age, and national 1 origin in violation of the Rehabilitation Act of 1973 (the “Rehabilitation Act”), 29 U.S.C. 2 § 701 et seq.; Age Discrimination and Employment Act of 1967 (“ADEA”), 29 U.S.C. § 3 621 et seq.; and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (FAC 4 ¶¶ 1, 13–21.) Defendant argues Plaintiff has failed to allege sufficient facts to support her 5 failure to accommodate and wrongful termination claims. (Doc. No. 30-1 at 4–6.) 6 Defendant also argues Plaintiff failed to exhaust administrative remedies for her age and 7 national origin discrimination claims. (Id. at 3–4.) 8 A. Plaintiff’s Disability Discrimination Claims 9 The Rehabilitation Act “creates a private right of action for individuals subjected 10 to disability discrimination by any program or activity receiving federal financial 11 assistance.” Fleming v. Yuma Reg’l Med. Ctr., 587 F.3d 938, 940 (9th Cir. 2009) 12 (citations omitted). To make a prima facie case of disability discrimination, the plaintiff 13 is required to produce evidence that the plaintiff “is ‘disabled.’” Wong v. Regents of 14 Univ. of Cal., 410 F.3d 1052, 1058 (9th Cir. 2005) (citation omitted). For purposes of the 15 Rehabilitation Act, disability is defined as “(A) a physical or mental impairment that 16 substantially limits one or more of the major life activities of such individual; (B) a 17 record of such impairment; or (C) being regarded as having such an impairment.” 29 18 U.S.C. § 12102(2); 29 U.S.C. § 705(2)(B). “The plaintiff bears the burden of proving that 19 he or she is disabled.” Wong, 410 F.3d at 1063 (citation omitted). 20 In the FAC, Plaintiff alleges that in March 2016 she suffered a “work related 21 injury,” that “she developed a disability,” and that in December 2018 “she became totally 22 disabled.” (FAC ¶¶ 14, 17.) However, Plaintiff has not alleged what her physical or 23 mental impairments are or how such impairments affect any of her major life activities. 24 See 29 U.S.C. § 12102(2). In evaluating the legal sufficiency of Plaintiff’s pleadings, the 25 Court cannot assume Plaintiff “can prove facts that [she] has not alleged.” Assoc. Gen. 26 Contractors, 459 U.S. at 526. Thus, even drawing all reasonable inferences in favor of 27 Plaintiff, Plaintiff has not sufficiently alleged that she is disabled under the Rehabilitation 28 Act. See Arden v. U.S. Sports Acad., No. 18-v-0007-JCS, 2018 WL 4378774, at *2 (N.D. 1 Cal. Feb. 6, 2018) (holding that the plaintiff’s allegations that he has “mental health 2 disabilities” were “too conclusory to establish that he is disabled under the Rehabilitation 3 Act”). As a result, the Court dismisses Plaintiff’s disability discrimination claims without 4 prejudice. 5 B. Plaintiff’s Age and National Origin Discrimination Claims 6 1. Failure to Exhaust Administrative Remedies 7 “To establish federal subject matter jurisdiction, [a plaintiff is] required to exhaust 8 her administrative remedies before seeking federal adjudication of her claims.” EEOC v. 9 Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994) (citation omitted). “[S]ubstantial 10 compliance with the presentment of discrimination complaints to an appropriate 11 administrative agency is a jurisdictional prerequisite.” Sommatino v. United States, 255 12 F.3d 704, 709 (9th Cir. 2001). While “[t]he specific claims made in district court 13 ordinarily must be presented to the EEO[],” “the district court has jurisdiction over any 14 charges of discrimination that are ‘like or reasonably related to’ the allegations made 15 before the EEOC[], as well as charges that are within the scope of an EEO[] investigation 16 that reasonably could be expected to grow out of the allegations.” Leong v. Potter, 347 17 F.3d 1117, 1122 (9th Cir. 2003) (citation omitted). 18 Plaintiff alleges Defendant wrongfully terminated her due to her age, national 19 origin, and disability. (FAC ¶¶ 12, 21.) In the FAC, Plaintiff alleges that on or about 20 October 18, 2019, she filed EEO complaints with the U.S. Department of Veteran Affairs 21 regarding “Defendant’s discriminatory conduct.” (Id. ¶ 8.) Plaintiff also alleges that on 22 March 30, 2020, she received a Final Agency Decision on her EEO complaints. (Id. ¶10.) 23 As a result, Plaintiff alleges “she exhausted all applicable administrative processes and 24 remedies.” (Id. ¶ 9.) However, the Notice of Final Agency Decision attached as an exhibit 25 to Plaintiff’s FAC is for a complaint of discrimination “based on [d]isability,” and does 26 not mention any complaints made to the EEO of discrimination based on age or national 27 28 1 origin. (Doc. No. 15-1, Ex. 1.) Furthermore, disability, age, and national origin represent 2 “separate theories of discrimination,” and so Plaintiff’s allegations of discrimination 3 based on age or national origin in the FAC are not “like or reasonably related to” 4 Plaintiff’s allegations of discrimination based on disability that were before the EEO. 5 See, e.g., Rodriguez v. Airborne Express, 265 F.3d 890, 897 (9th Cir. 2001) (holding that 6 the plaintiff’s disability discrimination claim raised for the first time before the district 7 court were not “like or reasonably related to” the plaintiff’s timely administrative 8 complaint based on racial discrimination); see also Gomez v. Serv. Emps. Intern. Union 9 Local 87, No. C 10-01888-RS, 2010 WL 4704407, at *3 (N.D. Cal. Nov. 12, 2010) 10 (collecting cases) (“Claims that rely on differing theories of discrimination…may be 11 unrelated.”). Based on the record before the Court, Plaintiff has not sufficiently alleged 12 that she exhausted administrative processes related to her age and national origin 13 discrimination claims necessary to establish jurisdiction. See Farmer Bros., 31 F.3d at 14 899. As a result, the Court dismisses Plaintiff’s wrongful termination claims based on age 15 and national origin without prejudice. 16 2. Failure to State a Claim for Wrongful Termination 17 Plaintiff also has not alleged sufficient facts for her wrongful termination due age 18 or national origin claims to survive a Rule 12(b)(6) motion to dismiss. The ADEA 19 prohibits discrimination against employees who are at least forty years of age. 29 U.S.C. 20 §§ 631(a)–(b), 633a(a). Further, Title VII of the Civil Rights Act makes it unlawful for an 21 employer to “discharge any individual… because of such individual’s race, color, 22 religion, sex, or national origin.” 20 U.S.C. § 2000e-2(a)(1). A plaintiff bringing a claim 23 under Title VII “must first establish a prima facie case of discrimination,” which requires 24 a showing that the plaintiff “belongs to a protected class.” Chuang v. Univ. of Cal. Davis, 25 Bd. of Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000) (citation omitted). Plaintiff did not 26

27 1 “In resolving a factual attack on jurisdiction, the district court may review evidence beyond the 28 complaint without converting the motion to dismiss into a motion for summary judgment.” Safe Air, 373 1 || indicate her age or her national origin in the FAC, and so Plaintiff has not sufficiently 2 || alleged that she is in the age range covered by ADEA or part of a protected class for 3 || purposes of Title VII. As a result, Plaintiff's age and national origin discrimination 4 ||claims are also dismiss without prejudice for failure to state a claim. 5 CONCLUSION 6 For the foregoing reasons, the Court grants Defendant’s motion to dismiss the case 7 || without prejudice. Should Plaintiff file an opposition to Defendant’s motion to dismiss 8 || within thirty (30) days of the date of this Order, the Court will treat Plaintiff's opposition 9 a motion for reconsideration pursuant to Federal Rule of Civil Procedure 60(b). 10 IT IS SO ORDERED. 11 || DATED: July 6, 2022 } / | ) | | / 12 MAAL-YV\ Le til ha MARILYN L.AHUFF, District Iudg} 13 UNITED STATES DISTRICT COURT 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28