Penhall v. Lake County Probation Department

Opinion

1 2 3 4 7 8 BRENDA PENHALL, Case No. 19-cv-03769-CRB

9 Plaintiff, ORDER GRANTING MOTION TO 10 v. DISMISS

DEPARTMENT, et al., 12 Defendants. 13

14 Plaintiff Brenda Penhall brings suit against her former employer, Lake County 15 Probation Department, and her former boss, Robert Howe (collectively, “Defendants”), 16 alleging violations of the ADA, FEHA, and the Equal Protection and Due Process Clauses 17 pursuant to 42 U.S.C. § 1983. See Compl. (dkt. 1). Her claims are all based on 18 Defendants’ alleged mistreatment of Penhall when she returned from a nearly two-year 19 medical leave. Id. Because the Court agrees with Defendants that Penhall has failed to 20 state a claim, the Court GRANTS the motion to dismiss. 21 I. BACKGROUND1 22 In March of 2013, Lake County Probation Department hired Penhall as a Welfare 23 Fraud Investigator Trainee.2 See Compl. ¶ 11; MTD (dkt. 14) at 3. The requirement and 24 expectation of that position is that the employee completes a training to become a Welfare 25 26

27 1 These allegations are taken from the Complaint and assumed to be true for the purposes of this 1 Fraud Investigator (i.e., no longer a trainee) within one year. See Compl. ¶ 12. 2 Defendants waived the one-year completion requirement for Penhall due to scheduling 3 difficulty. Id. ¶ 13. There are two available training courses to become an Investigator: a 4 basic course, and a “Specialized Investigator Course.” Id. ¶ 14. The latter is less 5 physically demanding. Id. In January 2014, Penhall enrolled in the basic course; she 6 performed admirably until she was injured. Id. ¶ 15. During the training course, Penhall 7 injured both knees, her right shoulder and her right elbow, and required surgery. Id. ¶ 16.3 8 On December 1, 2015, Penhall began a medical leave of absence, and was off of work 9 through September 11, 2017. Id. ¶ 18. On September 6, 2017, Penhall’s treating physician 10 released Penhall to return to work, and “did not impose any physical restrictions that 11 would limit her ability to perform the essential functions of her prior job as Welfare 12 [Fraud] Investigator Trainee.” Id. ¶ 19. 13 Defendants informed Penhall that she would not be given credit for the training that 14 she completed prior to her injuries. Id. ¶ 20. Penhall requested that she be enrolled in the 15 less-physically-demanding Special Investigator Course, as she was concerned that she had 16 a higher risk of re-injury in the basic course. Id. ¶¶ 21–22. Howe would not accommodate 17 that request, “stating that [Penhall’s] medical release was a full release without any 18 physical or other restrictions.” Id. ¶ 23. 19 On January 23, 2018, Penhall’s union filed a grievance about Defendants’ failure to 20 provide the accommodation Penhall requested: participating in the Special Investigator 21 Course. Id. ¶ 25. Defendants then “commenced a campaign of harassment, including 22 Defendant Howe instructing her to only work at her desk on menial office tasks, and 23 prohibiting her from shadowing Investigators on field visits, attending range practices, and 24 other trainings which Plaintiff and other Investigator Trainees routinely attended.” Id. ¶ 25 26. Howe informed Penhall that he would enroll her in the basic course as of January 26

27 3 Oddly, Penhall describes injuries to her knees, shoulder and elbow, see id., while Defendants 1 2018. Id. ¶ 27. Penhall then learned that Defendants had not completed the required 2 authorization for her to participate in the course. Id. ¶ 29. In May of 2018, Howe told 3 Penhall that she could not enroll in the course because she had expressed concern about re- 4 injury. Id. ¶ 31. 5 On June 6, 2018, Howe placed Penhall on Administrative Leave pending proposed 6 disciplinary action. Id. ¶ 32. She was directed to remain available at home, call in every 7 30 minutes, and not access Defendants’ systems. Id. ¶ 32. She was subsequently4 8 terminated. Id. ¶ 33. 9 Penhall brought suit on June 27, 2019. See generally Compl. She alleges that 10 Defendants violated the Americans with Disabilities Act by failing to accommodate her, 11 discriminating against her, and retaliating against her, all on the basis of her disability or 12 perceived disability. See id. ¶¶ 34–46. She alleges that Defendants violated the California 13 Fair Employment and Housing Act by creating a hostile work environment, terminating 14 her and failing to accommodate her, all because of her disability. See id. ¶¶ 47–56. And 15 she alleges that Howe violated the Equal Protection and Due Process Clauses and is 16 personally liable “for failing to provide [Penhall] with reasonable accommodations, 17 harassment against her because of her disability or perceived disability and terminating her 18 employment because of her disability or perceived disability and in retaliation for her 19 exercise of rights protected by the ADA.” Id. ¶¶ 57–61. 20 Defendants move to dismiss. See MTD. 22 Dismissal is proper where the complaint fails to “state a claim upon which relief can 23 be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a complaint must 24 plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. 25 v. Twombly, 550 U.S. 544, 570 (2007); see also Fed. R. Civ. P. 8(a)(2). A claim is 26 plausible “when the plaintiff pleads factual content that allows the court to draw the 27 1 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 2 Iqbal, 556 U.S. 662, 678 (2009); see also Fed. R. Civ. P. 12(b)(6). A court “must presume 3 all factual allegations of the complaint to be true and draw all reasonable inferences in 4 favor of the nonmoving party.” Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987). 5 A court need not, however, “accept as true allegations that are merely conclusory, 6 unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State 7 Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see also Twombly, 550 U.S. at 555 (“[A] 8 formulaic recitation of the elements of a cause of action will not do. . . .”). 10 Defendants move to dismiss all three claims. 11 A. ADA Claim 12 They advance a number of bases for dismissing the ADA claim. 13 1. Personal Liability for Howe 14 The first is that Howe is an individual, not an employer, and therefore cannot be 15 held personally liable in an ADA case. MTD at 4 (citing 42 U.S.C. § 12111(5)(A)). 16 Penhall concedes that this is accurate as to wrongful termination, failure to accommodate, 17 and retaliation claims under the ADA—the only claims presently in the Complaint. See 18 Opp’n (dkt. 20) at 1. But she asserts that “the ongoing harassment Plaintiff was subjected 19 to on her return to work was severe and pervasive such as to constitute an actionable 20 hostile work environment in violation of the ADA, 42 U.S.C. § 12182(b)(1),” and that the 21 Ninth Circuit has not decided whether individuals can be held liable for harassment/hostile 22 work environment under the ADA. See Opp’n at 1–3.5 Defendants correctly observe that 23 the Complaint does not currently allege a harassment/hostile work environment as part of 24 25

26 5 See also Brown v. City of Tucson, 336 F.3d 1181, 1190 (9th Cir. 2003) (“Our court has not yet held that such a claim exists, let alone what its source in the statute might be. . . . We decline to do 27 so here. . . . .); Anello v. Berryhill, No. 18-CV-00070-DMR, 2019 WL 4141928, at *8 (N.D. Cal. 1 the ADA claim. See Reply (dkt. 21) at 2 (citing Compl. ¶¶ 34–46). Penhall asks that she 2 be “afforded an opportunity to amend the complaint to add further specificity, including 3 comments and additional conduct which Defendant Howe manifested his disdain and 4 hostility toward [Penhall].” Opp’n at 3. The Court will allow Penhall to amend her ADA 5 claim against Howe. 6 2. Failure to State a Claim: Disability 7 Defendants also argue that Penhall fails to state a claim under the ADA. This is 8 certainly true, as the Complaint does not plausibly allege that Penhall is disabled within the 9 meaning of the ADA.6 10 The ADA defines disability as “(A) a physical . . . impairment that substantially 11 limits one or more major life activities . . . (B) a record of such an impairment; or (C) 12 being regarded as having such an impairment.” 42 U.S.C. § 12102(A)–(C). But despite 13 alleging in conclusory fashion that “Plaintiff has a disability,” see Compl. ¶ 35, the 14 allegations in the Complaint do not support that conclusion. Indeed, the Complaint alleges 15 that Penhall was released to return to work without “any physical restrictions.” Id. ¶ 19. 16 Nor does the Complaint allege that Penhall was limited in any major life activity. Penhall 17 responds to this point by arguing that the allegations in her Complaint “firmly establish 18 that Plaintiff suffered a disability from her injuries that substantially limited her major life 19 activities including working, bending, stooping, lifting and general limitations on her 20 physical mobility.” Opp’n at 5. But the Complaint does not say that. Penhall adds that 21 “she can amend the complaint to demonstrate that she has been rated at 27% permanently 22 disabled by her workers’ compensation evaluators, and that she continues to have 23 limitations associated with her shoulder manipulation in particular.” Id. The Court will 24 allow Penhall to amend, as her present allegations do not adequately allege that she is 25 disabled. 26 27 1 Likewise, while the Complaint alleges simply that Penhall was “perceived as having 2 a disability,” see Compl. ¶ 35, the other allegations in the Complaint contradict this. The 3 thrust of Penhall’s Complaint is that Defendants failed to perceive her as having a 4 disability, instead insisting that she participate in the basic training course because “she 5 had been released to return to work without any restrictions.” See id. ¶ 24. In her 6 opposition, Penhall asserts that she “easily” makes out a “regarded as” claim because 7 “Howe advised [her] that she could not now enroll in the Basic Course because . . . [she] 8 had expressed concern about re-injury.” Opp’n at 8. But this falls short of alleging that 9 Howe said that he could not enroll her because he believed that she was disabled. 10 Moreover, Penhall alleges that she did express concern about re-injury. See Compl. ¶¶ 21, 11 25.7 The Court will allow Penhall to amend, as her present allegations do not adequately 12 allege that Defendants perceived of her as disabled.8 13 3. Exhaustion 14 Defendants also note that Penhall failed to allege that she exhausted her 15 administrative remedies under the ADA. MTD at 9. Penhall concedes that she failed 16 allege this, but asserts that she can do so upon amendment. Opp’n at 9. Again, the Court 17 will allow her to amend. 18 B. FEHA Claim 19 Defendants argue that the Court should dismiss the FEHA claim because (1) Howe 20 is not liable for FEHA violations and (2) Penhall failed to allege that she exhausted 21 administrative remedies. See MTD at 10–11. 22 As to the first argument, Penhall responds that Howe is liable for his own actions to 23 the extent that they involve harassment. Opp’n at 9 (citing Cal. Gov’t Code § 12940(j)(3)). 24 25 7 Notably, even if Penhall could adequately allege that she was perceived to have a disability, 26 Penhall cannot pursue a “failure to accommodate” theory against a public employer based on being perceived to have a disability. See 42 U.S.C. § 12201(h). 27 8 Penhall does not allege that she has a record of a disability pursuant to 42 U.S.C. § 12102(1)(B). 1 She is correct that “[a]n employee of an entity subject to this subdivision is personally 2 liable for any harassment prohibited by this section that is perpetrated by the employee, 3 regardless of whether the employer or covered entity knows or should have known of the 4 conduct and fails to take immediate and appropriate corrective action.” See Cal. Gov’t 5 Code § 12940(j)(3). Defendants reply that the Complaint’s FEHA claim “does not actually 6 use the term ‘harassment.’” See Reply at 7. While that is technically true, the claim does 7 include the allegation that “Defendant Howe, in his role as Chief of the Probation Dept., 8 knew or should have known of the harassing conduct to which Plaintiff was subjected but 9 failed to take immediate and corrective action to end such conduct.” See Compl. ¶ 56. 10 That is sufficient for present purposes. 11 Defendants are correct as to their second FEHA argument, that Penhall failed to 12 plead exhaustion. She asserts that she “did file a timely complaint under the FEHA with 13 the California Department of Fair Employment and Housing” and can amend her 14 Complaint to include information about her right to sue letter. See Opp’n at 10. The Court 15 will permit Penhall to amend her FEHA claim to do so. 16 C. Section 1983 Claim 17 Defendants argue finally that (1) Defendants are not liable for ADA violations 18 under § 1983; (2) Plaintiffs’ Equal Protection claim fails; and (3) her Due Process claim 19 fails. MTD at 9–10. Penhall agrees that “the § 1983 claim, which is predicated on the 20 ADA[,] should be dismissed.” Opp’n at 1. 21 IV. CONCLUSION 22 For the foregoing reasons, the Court GRANTS the motion and 23 (1) dismisses the ADA claim with leave to amend; 24 (2) dismisses the FEHA claim with leave to amend; and 25 (3) dismisses the Section 1983 claim without leave to amend. 26 Plaintiff shall file an amended complaint, if she wishes to do so, within thirty (30) 27 days of this Order. Failure to timely amend could result in dismissal of the case with 1 || prejudice. 3 Dated: November 25, 2019 □□ ~ CHARLES R. BREYER 4 United States District Judge 5 6 7 8 9 10 ll a 12

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