Rudy v. U.S. Department of Justice

• Court: District Court, S.D. California
• Decided: April 7, 2022
• Docket: 3:21-cv-01825
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AYOMA RUDY, Case No.: 3:21-cv-1825-H-AGS

12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS WITHOUT PREJUDICE

14 U.S. DEPARTMENT OF JUSTICE and [Doc. No. 7.] ATTORNEY GENERAL MERRICK 15 GARLAND, in his official capacity, 16 Defendants. 17 18 On October 27, 2021, Plaintiff Ayoma Rudy filed her Complaint against Defendants 19 U.S. Department of Justice and Attorney General Merrick Garland. (Doc. No. 1.) On 20 March 2, 2022, Plaintiff filed her First Amended Complaint. (Doc. No. 5, “FAC”.) On 21 March 14, 2022, Defendants filed a motion to dismiss the FAC pursuant to Fed. R. Civ. P. 22 12(b)(1) and (6). (Doc. No. 7.) Plaintiff filed her opposition on April 1, 2022. (Doc. No. 23 8.)1 Defendants filed their reply in support of their motion on April 4, 2022. (Doc. No. 9.) 24 25 1 Plaintiff filed her opposition to Defendants’ motion to dismiss after the deadline imposed by Civ. Local R. 7.1.e.2. Failure to comply with this rule “may constitute a consent to the 26 granting of a motion.” Civ. Local R. 7.1.f.3.c. District courts have broad discretion to 27 enact and apply their local rules, including through the dismissal of a case. Cano v. Hughes, 2015 WL 2365687, at *4-5 (S.D. Cal. 2015). In this case, the Court views the public policy 28 1 The Court, pursuant to its discretion under Local Rule 7.1(d)(1), determines that the motion 2 is fit for resolution without oral argument and submits the motion on the parties’ papers. 3 For the following reasons, the Court grants Defendants’ motion to dismiss with leave for 4 Plaintiff to file a second amended complaint. 5 BACKGROUND 6 Plaintiff is a former employee of the Drug Enforcement Administration’s (“DEA”) 7 Diversion Control Program.2 (FAC ¶¶ 6-7.) She retired from the DEA on August 23, 8 2019. (Id. ¶ 7.) Plaintiff alleges that she was disabled during her last year of employment 9 with the DEA as a result of coronary arteriosclerosis, hypertension, and hyperlipemia 10 caused and exacerbated by work stress. (Id. ¶ 8.) Plaintiff attributes her work stress to a 11 “campaign of harassment” and micromanagement by her manager and supervisor that 12 began in approximately September 2018. (Id. ¶¶ 10-14.) 13 In January 2019, Plaintiff sought treatment from a cardiologist. (Id. ¶ 15.) She was 14 diagnosed with hypertension in March 2019. (Id. ¶ 16.) Plaintiff subsequently “requested 15 reasonable accommodations for her disability.” (Id. ¶ 17.) She told her supervisors, an 16 Equal Employment Opportunity (“EEO”) counselor, and a DEA attorney about the 17 accommodations she was seeking and provided medical information regarding her 18 disability. (Id. ¶¶ 18-19.) “By August of 2019, [Plaintiff’s] supervisors were aware of her 19 disability and her requests for accommodation.” (Id. ¶ 20.) Plaintiff requested 20 accommodation through the use of DEA’s Voluntary Wellness Program, which permits 21 employees to engage in regular exercise during the workday. (Id. ¶ 21.) Plaintiff was 22 denied use of the Voluntary Wellness Program. (Id. ¶ 22.) 23 24

25 counsel should be mindful of the requirements of the Local Rules and the possibility of 26 sanctions for future failures of compliance. 27 2 The DEA is a division of Defendant U.S. Department of Justice. (Id.) Defendant Merrick Garland is the Attorney General of the United States, the principal officer of Defendant 28 1 In August 2019, Plaintiff requested a transfer to the Tactical Diversion Squad as an 2 alternative “reasonable accommodation.” (Id. ¶¶ 23-27.) The DEA denied the transfer 3 request on the basis that Plaintiff’s work performance was inadequate and that a position 4 was not available. (Id. ¶¶ 29-30.) Plaintiff alleges that the Tactical Diversion Squad had 5 the ability to add her position in order to provide an accommodation. (Id. ¶¶ 31-32.) 6 Plaintiff alleges that “[a]fter DEA denied [her] requested accommodations, DEA 7 utterly failed to enter into the interactive process required when a disabled person identifies 8 a disability and requests accommodations for that disability.” (Id. ¶ 33.) Plaintiff asserts 9 that she “initiated an EEO contact within 45 days of the final rejection of an 10 accommodation request . . . .” (Id. ¶ 34.) Further, Plaintiff alleges that the DEA engaged 11 in discriminatory conduct during the 45-day period proceeding her initiation of EEO 12 counseling on August 26, 2019. (Id. ¶ 35.) She filed an EEO complaint on August 26, 13 2019. (Id.) The Equal Employment Opportunity Commission (“EEOC”) issued a decision 14 on August 5, 2021, and its final order on September 14, 2021. (Id. ¶ 39.) Plaintiff asserts 15 that she exhausted all of her administrative remedies prior to filing this suit. (Id. ¶ 40.) 16 DISCUSSION 17 I. Legal Standard 18 Under Federal Rule of Civil Procedure 12(b)(1), a complaint may be dismissed for 19 lack of subject matter jurisdiction. Federal courts are courts of limited jurisdiction, 20 possessing only the power given to them by Constitution and by statute. See Kokkonen v. 21 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Federal courts are presumed to 22 lack jurisdiction. See id. The party invoking federal jurisdiction bears the burden of 23 establishing jurisdiction. United States ex rel. Solis v. Millennium Pharm., Inc., 885 F.3d 24 623, 625 (9th Cir. 2018). “Rule 12(b)(1) jurisdictional attacks can be either facial or 25 factual.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “In a facial attack, the 26 challenger asserts that the allegations contained in a complaint are insufficient on their face 27 to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th 28 Cir. 2004). 1 A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the 2 pleadings and allows a court to dismiss a complaint if the plaintiff has failed to state a claim 3 upon which relief can be granted. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 4 (9th Cir. 2011). In reviewing a Rule 12(b)(6) motion to dismiss, “[a] claim has facial 5 plausibility when the plaintiff pleads factual content that allows the court to draw the 6 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 7 Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must allege “more than an unadorned, the- 8 defendant-unlawfully-harmed-me accusation.” Id. “Factual allegations must be enough to 9 raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 10 U.S. 544, 555 (2007) (citation omitted). Still, “[d]ismissal under Rule 12(b)(6) is 11 appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to 12 support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 13 1097, 1104 (9th Cir. 2008). 14 If the court dismisses a complaint, it must then determine whether to grant leave to 15 amend. See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). “A district court may 16 deny a plaintiff leave to amend if it determines that allegation of other facts consistent with 17 the challenged pleading could not possibly cure the deficiency, or if the plaintiff had several 18 opportunities to amend its complaint and repeatedly failed to cure deficiencies.” 19 Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (internal quotation 20 marks and citations omitted) 21 II. Failure to Exhaust Administrative Remedies 22 Defendants assert that this Court lacks subject-matter jurisdiction to hear Plaintiff’s 23 claim because she failed to exhaust her administrative remedies. (Doc. No. 7 at 3-5.) 24 Specifically, they argue that Plaintiff failed to plead an allegation of discriminatory conduct 25 during the 45-day period proceeding her initiation of EEO counseling. (Id.) Defendants 26 argue that (i) DEA’s denial of Plaintiff’s participation in the Voluntary Wellness Program 27 occurred more than 45 days prior to Plaintiffs initial contact with an EEO counselor; (ii) 28 Plaintiff’s discussions with her supervisors about her disability do not constitute a timely 1 initiation of the administrative process; and (iii) DEA’s denial of Plaintiff’s transfer to the 2 Tactical Diversion Squad does not constitute a discrimination claim that renews the 45-day 3 period because the transfer request was made in the context of a mediation designed to 4 resolve the initial grievance. (Id.) 5 Plaintiff brings her sole cause of action pursuant to the Americans with Disabilities 6 Act, 42 U.S.C. §§ 12101, et seq. (FAC ¶¶ 41-47.) Title I of the ADA incorporates 7 procedures and remedies from Title VII of the Civil Rights Act of 1964. Zimmerman v. 8 Oregon Dept. of Justice, 170 F.3d 1169, 1177 (9th Cir. 1999). Accordingly, Plaintiff must 9 first exhaust her administrative remedies prior to filing suit against a federal government 10 agency. Jasch v. Potter, 302 F.3d 1092, 1094 (9th Cir. 2002); Romero v. Carvajal, 2021 11 WL 1963822, at *3 (S.D. Cal. 2021). “Under federal regulations promulgated by the 12 EEOC, federal employees complaining of discrimination by a governmental agency must 13 . . . initiate contact with [an EEO] Counselor within 45 days of the date of the matter alleged 14 to be discriminatory. Lyons v. England, 307 F.3d 1092, 1105 (9th Cir. 2002) (citing 29 15 C.F.R. § 1614.105(a)(1)). Absent some form of equitable tolling,3 the failure to comply 16 with this regulation “has been held to be fatal to a federal employee’s discrimination 17 claim.” Id. 18 Defendants contend that DEA’s denial of Plaintiff’s participation in the Voluntary 19 Wellness Program falls outside of the 45-day period preceding her initial contact with an 20 EEO Counselor. (Doc. No. 7 at 4.) Although Plaintiff does not dispute this point (see Doc. 21 No. 8), the Court cannot determine the accuracy of Defendants’ contention from the FAC 22 alone, as it is vague as to many of the relevant dates in this case. (See FAC ¶¶ 17-19, 22.) 23 Defendants assert that the Court may look beyond the FAC and take judicial notice of 24 Plaintiff’s EEO Complaint. (Doc. No. 7-1.) The Court agrees.4 25 26 3 Plaintiff does not raise any argument for equitable tolling of the 45-day period in this case. (Doc. No. 8.) 27 4 A district court may take notice of material outside the pleadings on a motion to dismiss 28 1 The EEO Complaint reflects that Plaintiff’s first contact with an EEO Counselor was 2 on June 26, 2019. (Doc. No. 7-2 at 1.) Plaintiff’s EEO Complaint states that in March 3 2019 she “asked to participate in the DEA wide Wellness Program. [Her supervisor] 4 denied it even though [her] cardiologist provided a letter due to a heart condition. In April 5 2019, [she] asked to see the Special Agent in Charge (SAC) regarding this matter . . . .” 6 (Id. at 3.) Since the 45-day period prior to June 26, 2019 began on May 12, 2019, the 7 DEA’s denial of Plaintiff’s participation in the Voluntary Wellness Program was outside 8 of the relevant time frame. See 29 C.F.R. § 1614.105(a)(1). Accordingly, Plaintiff’s claim, 9 as currently pled, is time-barred. Lyons, 307 F.3d at 1105. 10 Plaintiff asserts three alternative bases for the Court to conclude that she initiated 11 contact with the EEO Counselor within 45 days of the alleged discriminatory conduct. 12 First, she alleges that Defendants “fail[ure] to be proactive in the interactive process to 13 accommodate a known disability” is a “[s]tand[] alone . . . basis of liability . . . .” (Doc. 14 No. 8 at 2.) But Plaintiff misstates the law of the Ninth Circuit. “[T]here exists no stand- 15 alone claim for failing to engage in the interactive process. Rather, discrimination results 16 from denying an available and reasonable accommodation.” Snapp v. United Transp. 17 Union, 889 F.3d 1088, 1095 (9th Cir. 2018). A claim for failure to engage in the interactive 18 process is measured from the date that an employer denies an accommodation request. 19 Crowder-Woods v. Shinseki, 2013 WL 12133843, at *4-5 (C.D. Cal. 2013). Thus, 20 Defendants’ purported failure to engage in the interactive process is also outside of the 45- 21

22 Inc., 899 F.3d 988, 998 (9th Cir. 2018). The incorporation by reference doctrine treats 23 documents relied on in a complaint as part of the complaint itself. Id. at 1002. Defendants argue that the Court may take notice of the EEO Complaint because Plaintiff alleged its 24 contents in the FAC and the authenticity of the document is not in dispute. (Doc. No. 7-1 25 at 2.) The FAC includes several general references to the contents of the EEO Complaint. Further, Plaintiff does not contest the accuracy or authenticity of the EEO Complaint in her 26 opposition; in fact, she references the EEO Complaint in her opposition without comment 27 on Defendants’ request for judicial notice. In its discretion, the Court takes judicial notice of the EEO Complaint. See Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1160 (9th 28 1 day period preceding Plaintiff’s first contact with an EEO Counselor. The alleged failure 2 became ripe when DEA denied her participation in the Voluntary Wellness Program. Id. 3 Second, Plaintiff asserts that there was “an ongoing failure to accommodate” that 4 “necessarily occurred within 45 days of [her] seeking EEO counseling.” (Doc. No. 8 at 2- 5 3.) Plaintiff does not provide argument on this point. Id. Presumably, she means that the 6 DEA’s denial of her participation in the Voluntary Wellness Program began a series of 7 discrete failures to accommodate and some of those failures occurred within the 45-day 8 period. If there are independently wrongful, discrete acts within the 45-day period 9 preceding her contact with the EEO Counselor, then Plaintiff’s claim may still be viable. 10 See Lindroos v. Bernhardt, 2021 WL 2322367, at *8-10 (N.D. Cal. 2021). However, no 11 specific allegations on this point are in the FAC or in Plaintiff’s opposition. Accordingly, 12 as pled, this argument does not save Plaintiff’s claim from being time-barred. 13 Third, Plaintiff suggests that her request for a transfer to the Tactical Diversion 14 Squad is relevant to the Court’s consideration of whether her claim is time-barred. (Doc. 15 No. 8 at 1-2.) Defendants disagree. They argue that the transfer request is inadmissible 16 because it was made in the context of a mediation designed to resolve her initial grievance. 17 (Doc. No. 7 at 5.) Plaintiff does not dispute Defendants’ argument in principle, but argues 18 that the mediation was not the only instance of her transfer request. (See Doc. No. 8.) 19 The FAC states that “[t]he transfer request came in August of 2019.” (FAC ¶ 27.) 20 In her opposition, Plaintiff argues that this allegation does not “say that Plaintiff first raised 21 the issue of a transfer at the mediation.” (Doc. No. 8 at 2-3.) Plaintiff represents that if 22 she is permitted leave to amend, then “it can be clarified that the transfer request was made 23 prior to the mediation date[.]” (Doc. No. 8 at 2.) Implicit in Plaintiff’s representation is 24 that the transfer request occurred on a date that is relevant to whether her claim is time- 25 barred, i.e., that it occurred prior to her initial EEO counseling. If so, Plaintiff may be able 26 to plead sufficient allegations to show that she pursued EEO counseling within 45 days of 27 an alleged discriminatory action. 28 1 As aresult, the Court grants leave to Plaintiff to file a second amended complaint so 2 ||that she may plead allegations of discrete discriminatory acts, if any, within the 45-day 3 || period prior to her initial EEO counseling session on June 26, 2019. See Cherosky, 330 4 at 1246. The Court accepts Plaintiff's representations that amendment will allow her 5 cure the deficiencies of the FAC. Thus, this is not a case where amendment would be 6 || futile. Telesaurus, 623 F.3d at 1003. Although Plaintiff has amended her complaint once 7 || before, this Court views leave to amend as appropriate given the Ninth Circuit’s guidance 8 ||that “requests for leave should be granted with extreme liberality” and that “[d]ismissal 9 || without leave to amend is improper unless it is clear . . . that the complaint could not be 10 ||saved by any amendment.” Moss v. U.S. Secret Service, 572 F.3d 962, 972 (9th Cir. 2009). 11 CONCLUSION 12 For the foregoing reasons, the Court grants Defendants’ motion to dismiss without 13 prejudice. Plaintiff may file her second amended complaint on or before May 9, 2022. 14 || Accordingly, the hearing scheduled for April 11, 2022 on this motion is vacated. 15 16 IT IS SO ORDERED. 17 ||}DATED: April 7, 2022 -

MARILYN L. HUFF, District Judge 19 UNITED STATES DISTRICT COURT 20 21 22 23 24 25 26 27 28