Greer v. Wormuth

Opinion

1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 ROGER E. GREER, Case No. 24-cv-00614-MMC

8 Plaintiff, ORDER GRANTING DEFENDANTS' MOTION TO DISMISS; DISMISSING 9 v. FIRST AMENDED COMPLAINT WITHOUT FURTHER LEAVE TO 10 CHRISTINE WORMUTH, et al., AMEND; VACATING HEARING; DIRECTIONS TO CLERK Defendants. 11

12 13 Before the Court is defendants Department of the Army and Christine Wormuth's 14 Motion, filed July 8, 2024, "to Dismiss First Amended Complaint." Plaintiff Roger E. 15 Greer, who proceeds pro se, has not filed a response thereto.1 Having read and 16 considered the moving papers, the Court deems the matter appropriate for determination 17 thereon, VACATES the hearing scheduled for August 23, 2024, and rules as follows. 18 Plaintiff's claims arise from defendants' June 2015 notice of termination of 19 plaintiff's employment with the Department of the Army and the subsequent termination, 20 which termination, plaintiff alleges, was on account of the results of a random drug test, 21 namely, positive tests for amphetamine and methamphetamine. By order filed May 22, 22 2024 ("May 22 Order"), the Court granted defendants' motion to dismiss the initial 23 Complaint for failure to state a claim. In so ruling, the Court found (1) plaintiff's Title VII 24 discrimination claim failed, as he did not allege any facts to support a finding that his 25 termination was on account of race, color, religion, sex, or national origin, (2) his 26 1 As the motion was filed on July 8, 2024, plaintiff's opposition or other response to 27 the motion was due no later than July 22, 2024. See Civil L.R. 7-3(a) (providing 1 Rehabilitation Act claims for discrimination and for failure to accommodate failed, as he 2 did not allege facts to support a finding that he was disabled or, even if disabled, that he 3 qualified for a statutory safe harbor available to employees who are no longer engaged in 4 the illegal use of drugs, and (3) plaintiff's Title VII and Rehabilitation Act retaliation claims 5 failed, as he did not allege any facts to support a finding that he engaged in any protected 6 activity, let alone a causal link between any protected activity and the termination. The 7 Court granted plaintiff leave to amend and plaintiff subsequently filed a First Amended 8 Complaint ("FAC"). 9 By the instant motion, defendants argue the FAC likewise is subject to dismissal 10 for failure to state a claim. As set forth below, the Court agrees. 11 First, with respect to plaintiff's Title VII discrimination claim, plaintiff has added no 12 factual allegations to support a finding that his employment was terminated on account of 13 "race, color, religion, sex, or national origin," see 42 U.S.C. § 2000e-16(a) (setting forth 14 federal military employees' right to be free from discrimination), and, accordingly, said 15 claim will be dismissed without further leave to amend. 16 Next, with respect to plaintiff's Rehabilitation Act discrimination and failure to 17 accommodate claims, plaintiff now asserts he "is not claiming that he is an actual 18 'disabled person'," but, rather, that he was "regarded as" having a disabling impairment. 19 (See FAC, third attachment at 2.) Although a Rehabilitation Act claim may be brought by 20 an employee who is "regarded as" disabled, see Coons v. Secretary of U.S. Dep't of 21 Treasury, 383 F.3d 879, 884 (9th Cir. 2004), plaintiff fails to allege any facts to support a 22 finding that defendants regarded him as disabled, see Ashcroft v. Iqbal, 556 U.S. 662, 23 678 (2009) (holding "legal conclusions" not "supported by factual allegations" fail to state 24 cognizable claim). Further, even assuming defendants regarded plaintiff as disabled, 25 plaintiff's allegation that he tested positive for illegal drugs in April 2015 (see FAC at 2), 26 i.e., two months prior to the notice of termination, and the lack of any allegation that such 27 test result was in error, bars his Rehabilitation Act claims, see 29 U.S.C. § 705(20)(C)(i) 1 illegal use of drugs"); Collings v. Longview Fibre Co., 63 F.3d 828, 833 (9th Cir. 1995) 2 || (holding “drug involvement during the weeks and months prior to [employee's] discharge" 3 || barred claim). Accordingly, plaintiff's Rehabilitation Act termination and failure to 4 || accommodate claims will be dismissed without further leave to amend. 5 Lastly, with respect to plaintiff's retaliation claims, plaintiff now alleges he filed an 6 || "EEO complaint" in or around August 2014. (See FAC at 2.) Plaintiff fails to plead, 7 however, any facts to support a finding that a causal link exists between such filing and 8 the notice of termination issued ten months later. See Coons, 383 F.3d at 887 (holding 9 || retaliation claim not cognizable in absence of showing "causal link" between "protected 10 || activity" and "adverse employment action"); Clark County School Dist. v. Breeden, 532 11 U.S. 268, 273-74 (2001) (noting cases finding causal link based solely on timing of g 12 || protected activity and adverse employment action “uniformly hold that the temporal s 13 || proximity must be ‘very close"; citing with approval circuit court decisions holding three- 14 || month and four-month intervals insufficient). Accordingly, plaintiffs' retaliation claims will 2 15 || be dismissed without further leave to amend. a 16 CONCLUSION g 17 For the reasons stated above, defendants' motion to dismiss the FAC is hereby S 18 || GRANTED, and the First Amended Complaint is hereby DISMISSED without further 19 || leave to amend. 20 The Clerk of Court is hereby DIRECTED to close the file. 21 IT IS SO ORDERED. 22 23 || Dated: August 14, 2024 laine ld hata MAXINE M. CHESNEY 24 United States District Judge 25 26 27 28