Greer v. Wormuth

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 21 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROGER E. GREER, No. 24-6425 D.C. No. Plaintiff - Appellant, 3:24-cv-00614-MMC v. MEMORANDUM* CHRISTINE WORMUTH, Secretary, Department of the Army; UNITED STATES DEPARTMENT OF THE ARMY,

Defendants - Appellees.

Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding

Submitted July 15, 2026**

Before: NGUYEN, OWENS, and LEE, Circuit Judges.

Roger Greer filed a pro se action under 42 U.S.C. § 1983 alleging violations

of Title VII and the Rehabilitation Act after he was terminated as a firefighter for

the United States Department of the Army for testing positive for illegal substances.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 42 U.S.C. § 2000e-2(a)(1); 29 U.S.C. § 791. Greer now appeals the district court’s

dismissal of his First Amended Complaint (FAC) for failure to state a claim without

leave to amend.

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp v. Twombly, 550

U.S. 544, 570 (2007)). “A formulaic recitation of the elements of a cause of action”

does not establish a viable claim. Id. (quoting Twombly, 550 U.S. at 545) (citation

modified). We review the district court’s order de novo. Est. of Bride v. YOLO

Techs., Inc., 112 F.4th 1168, 1174–75 (9th Cir. 2024). We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

1. Title VII discrimination claim. The district court correctly dismissed

Greer’s Title VII discrimination claim for failure to state a claim. To make a prima

facie Title VII discrimination claim under the Civil Rights Act, a plaintiff must show

that: (1) he belongs to a protected class, (2) he was qualified for the role, (3) he

experienced adverse employment action, and (4) similarly situated individuals

outside his protected class were treated more favorably, or the circumstances

encourage an inference of discrimination. Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d

1151, 1156 (9th Cir. 2010). Here, Greer does not plausibly allege that he is a member

of a protected class under Title VII. Greer merely asserts that he was discriminated

2 24-6425 against because of a disability, which is not protected under Title VII. § 2000e-

2(a)(1). Thus, Greer has not adequately pled a Title VII discrimination claim.

2. Rehabilitation Act discrimination claim. Greer also failed to state a

disability discrimination claim under the Rehabilitation Act. To bring a successful

claim under the Rehabilitation Act, a plaintiff must show that he (1) has a disability;

(2) is otherwise qualified for employment; and (3) was discriminated against because

of his disability. Walton v. United States Marshals Serv., 492 F.3d 998, 1005 (9th

Cir. 2007), superseded by statute on other grounds as stated in Nunies v. HIE

Holdings, Inc., 908 F.3d 428, 434 (9th Cir. 2018). Greer’s claim fails to allege the

threshold requirement that he is “disabled” because the FAC does not describe the

nature of his impairment with sufficient particularity. Greer merely alleges that he

was “perceived to have an actual or perceived physical or mental impairment”

without any additional factual details. See Landers v. Quality Communications, Inc.,

771 F.3d 638, 644 (9th Cir. 2015) (emphasizing “that conclusory allegations that

merely recite statutory language” are not sufficient to establish a plausible claim).1

3. Title VII and Rehabilitation Act retaliation claims. The district court

properly dismissed Greer’s retaliation claims under Title VII and the Rehabilitation

1 Even if we infer that Greer’s “disability” was a perceived substance-use impairment, the Rehabilitation Act expressly states that “the term ‘individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs, when a covered entity acts on the basis of such use.” 29 U.S.C. § 705(20)(C)(i).

3 24-6425 Act. A retaliation claim requires a plaintiff to allege that (1) he was engaged in a

protected activity; (2) he was subsequently subjected to an adverse employment

action; and (3) a causal link exists between the two. Ray v. Henderson, 217 F.3d

1234, 1240 (9th Cir. 2000); Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879,

887 (9th Cir. 2004) (demonstrating that retaliation claims under the Rehabilitation

Act are subject to the same requirements as retaliation claims under Title VII). The

FAC does not plausibly allege a causal link between Greer’s purported 2014 Equal

Employment Opportunity (EEO) complaint and his termination. Aside from the over

year-long gap between Greer’s alleged complaint and his termination, Greer’s

termination followed shortly after he tested positive for illegal substances. See

Manatt v. Bank of Am., 339 F.3d 792, 802 (9th Cir. 2003) (explaining that a nine-

month time lapse between a protected action and an alleged retaliatory employment

action did not support a causation finding). Thus, Greer does not state a plausible

retaliation claim under either Title VII or the Rehabilitation Act.

4. Denial of further leave to amend. The district court did not err in dismissing

the FAC without leave to amend. A district court has broad authority to deny leave

to amend when the plaintiff has already been granted such leave and failed to plead

his claims with sufficient particularity. Zucco Partners, LLC v. Digimarc Corp., 552

F.3d 981, 1007 (9th Cir. 2009). Because the FAC did not remedy the shortcomings

4 24-6425 identified earlier by the district court, Greer’s claims were properly dismissed

without further leave to amend.

AFFIRMED.

5 24-6425