Valli v. Mayorkas

• Court: District Court, S.D. California
• Decided: December 15, 2023
• Docket: 3:21-cv-01390
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FRANK D. VALLI, Case No.: 3:21-cv-01390-RBM-BGS Plaintiff, 12 ORDER GRANTING DEFENDANT’S v. 13 MOTION FOR SUMMARY ALEJANDRO N. MAYORKAS, JUDGMENT 14 Secretary of the Department of Homeland 15 Security, [Doc. 24] Defendant. 16 17 18 19 On August 3, 2021, Plaintiff Frank D. Valli (“Plaintiff”) filed his Complaint for 20 “Civil Rights—Employment Discrimination and Retaliation.” (Doc. 1, Complaint 21 (“Compl.”).) In his Complaint, Plaintiff alleges two causes of action for discrimination 22 and retaliation under the American Disabilities Act (“ADA”). (Compl. ¶¶ 45–53.) 23 On June 9, 2023, Defendant Alejandro N. Mayorkas, Secretary of the United States 24 Department of Homeland Security (“Defendant”), filed his Motion for Summary Judgment 25 (“Motion”). (Doc. 24.) On July 24, 2023, Plaintiff filed his Opposition to Defendant’s 26 Motion (“Opposition”). (Doc. 25.) It includes a Motion for Leave to Amend his 27 Complaint. (Id. at 18–20). On August 7, 2023, Defendant filed his Reply in Support of 28 his Motion (“Reply”). (Doc. 27.) 1 The Court finds this matter suitable for determination without oral argument 2 pursuant to Civil Local Rule 7.1(d)(1). For the reasons set forth below, the Court 3 GRANTS Defendant’s Motion and DENIES Plaintiff’s Motion for Leave to Amend. 4 I. BACKGROUND 5 A. Factual Background 6 1. Plaintiff’s Employment History 7 Plaintiff is a Supervisory Marine Interdiction Agent (“SMIA”) assigned to the San 8 Diego Air and Marine Branch of the Air and Marine Operations (“AMO”) of the United 9 States Customs and Border Protection (“CBP”). (Doc. 28, Joint Statement of Undisputed 10 and Disputed Facts (“Joint Statement”) ¶¶ 1–5.) Plaintiff has been in this supervisor role 11 since October 2011. (Id. ¶ 6.) 12 As a SMIA, Plaintiff’s duties include supervising Marine Interdiction Unit personnel 13 in the performance of interdictory and marine law enforcement support activities, such as 14 apprehending persons engaged in the smuggling of aliens, narcotics, and other illegal 15 contraband by watercraft, vessels, and vehicles. (Id. ¶ 7; Doc. 24, Ex. 13, p. 335.)1 It also 16 requires Plaintiff to carry a firearm.2 (Doc. 24, Ex. 13, p. 336.) 17 When Plaintiff started as a SMIA, his immediate supervisor was Director of Marine 18 Operations (“MO”) Jeremy Thompson. (Joint Statement ¶ 8.) Thompson reported to the 19 AMO Director Hunter Davis. (Id.) Timothy Sutherland, Director of Air Operations 20 (“AO”), then replaced Davis as AMO Director. (Doc. 24, Ex. 11, Declaration of Timothy 21 Sutherland (“Sutherland Decl.”) ¶¶ 1–2; Ex. 9, Declaration of Christopher Hunter (“Hunter 22 Decl.”) ¶ 5.) In September 2018, Christopher Hunter, Plaintiff’s peer, was promoted from 23 SMIA to Assistant MO Director and became Plaintiff’s immediate supervisor. (Joint 24

25 1 The Court cites to the court-generated CM/ECF pagination of the document unless 26 otherwise noted. 27 2 Plaintiff’s attempt to dispute this fact (see Joint Statement ¶ 68) is not persuasive. While Plaintiff was able to continue working “light” or “modified” duty without a firearm, the 28 1 Statement ¶¶ 9–10.) Thompson then became Plaintiff’s second-in-line supervisor. (Id. ¶ 2 10.) 3 Effective June 10, 2019, Plaintiff was reassigned from the Marine Unit to the Air 4 Unit located at North Island, which is a secure facility. (Id. ¶ 12.) After being reassigned 5 to the Air Unit, Plaintiff initially reported to AO Director Sutherland. (Id. ¶ 15.) However, 6 when Sutherland was promoted to AMO Director, David Stavish replaced Sutherland as 7 AO Director and became Plaintiff’s supervisor. (Id.)3 8 In March 2021, Plaintiff transferred back to the Marine Unit, where he currently 9 works as a SMIA. (Id. ¶ 16.) None of Plaintiff’s former supervisors, including Hunter, 10 Thompson, Sutherland, and Davis, are currently within Plaintiff’s chain of command. (Id. 11 ¶ 18.) 12 Throughout the time period relevant to Plaintiff’s claims, Plaintiff’s SMIA position, 13 job title, and pay grade remained the same. (Id. ¶ 19; Doc. 24, Ex. 1, Deposition of Frank 14 D. Valli (“Pl. Depo.”) 298:24–299:8.) 15 2. Plaintiff’s Workplace Injury 16 On March 1, 2016, Plaintiff injured his right shoulder, resulting in the diagnoses of 17 a right shoulder acromioclavicular joint strain and right shoulder rotator cuff tear. (Joint 18 Statement ¶ 20.) After Plaintiff’s injury, Plaintiff was placed off work on temporary total 19 disability (“TTD”). (Id. ¶ 21.) CBP then granted Plaintiff’s request for a leave of absence. 20 (Id.) 21 On May 19, 2016, Plaintiff was released to modified duty with restrictions, including 22 no firearm or gun belt, no law enforcement apprehensions, no combative training, and no 23

24 25 3 In addition to Plaintiff, 19 employees within the San Diego Air and Marine Unit were reassigned duty locations between September 2017 and July 2020. (Joint Statement ¶ 13.) 26 Of the 19 employees who were reassigned duty locations or had supervisor functions 27 removed between September 2017 and July 2020, at least six were GS-13 employees (like Plaintiff), but none had known disabilities and only one had engaged in prior Equal 28 1 vessel crew or driving. (Id. ¶ 22.) CBP placed Plaintiff in a limited duty assignment that 2 allowed him to perform supervisory administrative duties that complied with his medical 3 restrictions. (Id. ¶ 24.) 4 While on light duty, on November 25, 2016, Plaintiff was in an altercation with a 5 drunk driver, during which he re-injured his shoulder. (Doc. 25, Ex. 1, Pl. Depo. 83:10– 6 85:13; Joint Statement ¶ 25.) After this incident, Plaintiff requested to work in plain clothes 7 to avoid being identified as law enforcement and put at risk of further injury. (Doc. 24, 8 Ex. 1, Pl. Depo. 89:16–91:12; Doc. 24, Ex. 10, Thompson Decl. ¶¶ 10, 23; Doc. 25-2, Ex. 9 1, Pl. Depo. 118:17–119:1; Doc. 25, Ex. 7, Thompson Depo. 18:13–19:1.) Thompson 10 granted Plaintiff’s request. (Doc. 24, Ex. 1, Pl. Depo. 89:16–91:12; Joint Statement ¶ 72.) 11 Plaintiff was initially only supposed to wear plain clothes for 90 days, but he ultimately 12 wore plain clothes for more than two years. (Joint Statement ¶ 72.) Before the altercation 13 on November 25, 2016, Plaintiff wore his law enforcement uniform for approximately six 14 months following his return to work in May 2016 after his initial injury. (Joint Statement 15 ¶ 26.) 16 On May 10, 2017, Plaintiff underwent a right shoulder arthroscopic procedure, 17 which was performed by Dr. Michael Lenihan. (Id. ¶ 27.) Following his surgery, Plaintiff 18 was placed off work on TTD and then CBP granted Plaintiff’s request for a leave of 19 absence. (Id. ¶ 28.) 20 On June 26, 2017, Plaintiff was released to modified duty with restrictions, including 21 no repetitive pushing or pulling with the right upper extremity, no work at shoulder level 22 or above, no lifting greater than five pounds, no field work, sedentary desk work only, and 23 no firearms. (Id. ¶ 29.) For the next approximately two years, Plaintiff’s physician 24 continued to place him on modified duty with various restrictions. (Id. ¶ 30.) During these 25 two years, CBP placed Plaintiff in a limited duty assignment that allowed him to perform 26 supervisory administrative duties that complied with his medical restrictions. (Id. ¶ 31.) 27 28 1 3. Air and Marine Operation’s Uniform Policy and Plaintiff’s Requested 2 Accommodation/Waiver 3 AMO’s Uniform Handbook and Wear Policy (“Uniform Policy”) requires all 4 employees to be in official CBP uniform while on duty unless the requirement is waived 5 by the appropriate Director. (Id. ¶ 32.) AMO has a “Class 4 Administrative Support and 6 Enforcement Polo Uniform” designed specifically for non-law enforcement agents or 7 personnel on limited or light duty. (Id. ¶ 34.) The administrative uniform includes a white 8 or black, short or long sleeve administrative or enforcement polo shirt. (Id. ¶ 35.) AMO 9 operations personnel do not have the authority to conduct their duties in plain clothes. (Id. 10 ¶ 36.) 11 In late 2018, the Executive Assistant Commissioner of AMO addressed all directors 12 regarding the expectation for workforce appearance. (Id. ¶ 37.) On February 7, 2019, 13 AMO Director Davis sent an email to MO Director Thompson and AO Deputy Director 14 Sutherland emphasizing the need to comply with the organization’s uniform and grooming 15 requirements. (Id. ¶ 39.) In response to the February 7, 2019 email from Davis, Thompson 16 ordered that all personnel be in uniform. (Id. ¶ 40.) This order applied equally to all 17 employees, including at least three San Diego Marine Unit employees on light duty 18 assignments. (Id. ¶ 41.) All “light duty” employees in the Marine Unit complied with the 19 order except for Plaintiff. (Doc. 24, Ex. 10, Thompson Decl. ¶¶ 10, 23; Doc. 24, Ex. 9, 20 Hunter Decl. ¶ 33.)4 21 On February 15, 2019, Assistant MO Director Hunter instructed Plaintiff to begin 22 wearing the non-enforcement, administrative uniform. (Id. ¶ 42.) In his February 15, 2019 23 email to Plaintiff, Hunter stated that he had reviewed Plaintiff’s medical documentation 24 25

26 27 4 Plaintiff’s attempt to dispute this fact (see Joint Statement ¶ 73) is not persuasive. Plaintiff concedes that he did not wear a uniform until June 29, 2019. (Doc. 24, Ex. 1, Pl. Depo. 28 1 and “did not find any restrictions on wearing a non-enforcement uniform.” (Id. ¶ 74.) 2 Hunter also stated that the administrative uniform would “not identify [Plaintiff] as a law 3 enforcement officer and does not require duty gear or a gun belt.” (Id. ¶ 43.) 4 On February 26, 2019, Assistant MO Director Hunter learned that Plaintiff was not 5 wearing his uniform, so he approached Plaintiff regarding the matter. (Id. ¶ 45.) Plaintiff 6 informed Hunter that he had a doctor’s note, dated February 20, 2019, with the restriction 7 of “plain clothes only, no uniform.” (Id. ¶ 46.) The doctor’s note was the first time Dr. 8 Lenihan had included a uniform restriction for Plaintiff. (Id. ¶ 47.) In response, Hunter 9 screamed at Plaintiff “Oh, no. You work for me” or something to that effect. (Doc. 25-2, 10 Ex. 1, Pl. Depo. 242:9–243:3.) Hunter also asked Plaintiff “what [are you] trying to do, 11 get a medical retirement out of this?” or something to that effect. (Id. at 244:11–14.) 12 Hunter then stated, “we’re going to go nine rounds. We’re going to go nine rounds, and 13 you’re going to lose.” (Id. at 244:20–22.) Hunter asked Plaintiff to write a memorandum 14 as to why he was not in uniform, but Plaintiff refused. (Id. at 243:4–14, 245:5–12.) 15 Likewise, on March 5, 2019, MO Director Thompson ordered Plaintiff to put in writing 16 accusations that he made against Assistant MO Director Hunter during a previous meeting 17 by March 6, 2019, but Plaintiff said he needed more time. (Doc. 24, Ex. 10, Thompson 18 Decl. ¶ 40.) Thompson then said he needed the facts by March 11, 2019, but Plaintiff did 19 not comply. (Id.) 20 Despite this conflict, Plaintiff was permitted to continue wearing plain clothes to 21 work until management could get clarification from Plaintiff’s doctor on the “plain clothes 22 only” restriction. (Joint Statement ¶ 49.) Notably, Dr. Linehan testified that the “plain 23 clothes only” requirement was a “prophylactic restriction” because Plaintiff had reported 24 that he had been in an altercation while in uniform and did not want to be identified as law 25

26 27 5 Plaintiff contends that this statement is misleading (see Joint Statement ¶ 74), but the Court is not persuaded. This is an accurate summary of Hunter’s letter. (Doc. 24, Ex. 28, 28 1 enforcement. (Id. ¶ 76.) Dr. Linehan also testified that there was no reason Plaintiff could 2 not put on the non-enforcement, administrative uniform with Plaintiff’s range of motion at 3 the time he was given the “plain clothes only” restriction. (Id. ¶¶ 48, 76.) 4 On April 3, 2019, MO Director Thompson again ordered Plaintiff to write, complete, 5 and turn in a memorandum regarding Plaintiff’s complaints against Assistant MO Director 6 Hunter. (Id. ¶ 98; Doc. 24, Ex. 10, Thompson Decl. ¶ 40.) Thompson gave Plaintiff until 7 April 4, 2019 to turn in the memorandum. (Doc. 24, Ex. 10, Thompson Decl. ¶ 40.) 8 Thompson did not know that April 4, 2019 was Plaintiff’s day off. (Id. ¶ 41.) Plaintiff did 9 not submit the memorandum until April 11, 2019. (Id. ¶¶ 40–41.) 10 On May 22, 2019, Plaintiff emailed an EEO Counselor requesting an 11 accommodation for the uniform requirement, but on June 12, 2019, Plaintiff confirmed that 12 he did not wish to pursue this accommodation request. (Joint Statement ¶ 50.) 13 4. Plaintiff’s Transfer to the North Island Air Unit 14 On or around February 28, 2019, MO Director Thompson told Plaintiff he had been 15 on light duty too long, threatened Plaintiff with a Fitness for Duty Examination, and told 16 Plaintiff that he would be reassigning Plaintiff to the Air Branch. (Doc. 25-2, Ex. 8, p. 17 143.) Around the same time, Plaintiff learned that Thompson and Assistant MO Director 18 Hunter directed Mission Support Specialist Melissa Walkup to initiate a search for light 19 duty positions within San Diego and to contact Plaintiff’s nurse case manager concerning 20 his medical information in an effort to move Plaintiff into another position. (Id. at 143– 21 144.) On March 21, 2019, AO Director Sutherland discussed with Thompson the 22 possibility of moving Plaintiff from the Marine Unit to the Air Unit on North Island. (Doc. 23 24, Ex. 33, p. 509.) 24 On May 2, 2019, Plaintiff made his initial contact with an EEO Counselor regarding 25 his complaints of disability discrimination and retaliation. (Joint Statement ¶ 61.) On May 26 31, 2019, Stephanie Kopchak, Labor and Employee Relations Specialist for CBP, wrote to 27 Davis: 28 I consulted with EEO Specialist Ahmad Zadah. He is aware of the PDO 1 referral from complainant Frank Valli against Deputy Director Thompson and Associate Director Hunter. I explained the agency’s position that it would be 2 a hardship to the agency to move both the Deputy and the Associate from the 3 branch, given that would remove your two highest ranking management officials from marine operations. I explained that it would be more 4 operationally feasible to move the complainant. He understands how crippling 5 the movement of the managers could be to operations. He recommends offering Mr. Valli the opportunity to go to North Island or to go to one of the 6 air locations. He said that if Mr. Valli doesn’t agree to move, management 7 should allow him to stay at his current location.

8 (Doc. 24, Ex. 36, p. 522.) Shortly thereafter, on June 7, 2019, AMO Director Davis notified 9 Plaintiff that he was being transferred to North Island: 10 [I]n light of recent allegations within the Marine Unit, I’m redirecting your work assignment to North Island effective Monday June 10th. … This should 11 neutralize any concerns of a hostile work environment or harassment and 12 provide a comfortable environment for you to work. We will provide a Silver Ford Fusion GOV which can be used to transit between the Marine Unit and 13 North Island during work hours. 14 15 (Doc. 25-2, Ex. 5, p. 112.) 16 MO Director Thompson stated that, during the three years since Plaintiff was 17 injured, AMO’s needs evolved significantly and that it was critical to have a fully capable 18 and operational SMIA on the night shift. (Doc. 24, Ex. 10, Thompson Decl. ¶¶ 10, 27, 34.) 19 Specifically, he contends that transnational criminal organizations were exploiting the 20 maritime arrival zones at higher rates than ever before and that the San Diego Air and 21 Marine Branch was facing migrant surges, increased media attention, and a deteriorating 22 relationship with U.S. Border Patrol. (Id. ¶ 10.) For this reason, the Marine Unit needed 23 a SMIA on the night shift who was capable of performing necessary law enforcement 24 support capabilities in the field, which Plaintiff could not because of his medical 25 restrictions and refusal to wear a uniform.6 (Id.) Thompson also contends that he offered 26

27 6 Plaintiff disputes that he was unable to perform the SMIA night shift (Joint Statement 28 1 Plaintiff the position at the North Island branch because it was located in a secure facility 2 where Plaintiff could perform his duties without fear of being identified as law enforcement 3 and attacked. (Id. ¶ 27.) 4 5. Plaintiff’s Light Duty Offer 5 On June 27, 2019, shortly after Plaintiff had transferred to North Island, AO Director 6 Sutherland met with Plaintiff to offer him a new temporary light duty assignment that 7 complied with his medical restrictions. (Joint Statement ¶ 51.) The offer indicated that the 8 SMIA position, while modified, was still uniformed and that Plaintiff would be expected 9 to wear the non-enforcement, administrative uniform, which “consists of a non- 10 enforcement polo shirt with the Air and Marine Logo (no badge or other markings) and tan 11 pants.” (Id. ¶ 52.) 12 Sutherland met with Plaintiff again on June 29, 2019 and informed him that the 13 conditions of the offer would not change. (Id. ¶ 54.) Plaintiff then asked again to have the 14 uniform requirement waived. (Id. ¶ 55.) In response, Sutherland explained that the 15 Workers’ Compensation Specialist had given clear guidance to proceed with a light duty 16 offer that did not have any exemptions regarding clothing or the administrative logo. (Id. 17 ¶ 56.) 18 Plaintiff refused to sign the light duty agreement, stating it was not accurate because 19 it did not align with his doctor’s note regarding his uniform. (Id. ¶ 57.) AO Director 20 Sutherland advised Plaintiff that he could not work light duty without signing the offer 21 letter and that Plaintiff’s only other options would be to use his earned leave or take leave 22 without pay status. (Id. ¶ 58.) Plaintiff took sick leave until approximately August 24, 23 2019.7 (Doc. 24, Ex. 24, p. 438.) 24 25 26 medical restrictions that interfered with his ability to perform the SMIA role, including 27 apprehending persons and carrying a weapon. (Joint Statement ¶¶ 22, 29–31.) 7 There is a genuine dispute as to whether Plaintiff chose to take sick leave or was forced 28 1 On July 24, 2019, Plaintiff filed his formal EEO Complaint. (Id. ¶ 62.) 2 6. Plaintiff Returns to Full Duty 3 On August 19, 2019, Dr. Lenihan released Plaintiff to return to full duty with no 4 restrictions, and Plaintiff returned to work on August 24, 2019. (Id. ¶ 59.) 5 B. Procedural Background 6 1. Plaintiff’s Complaint 7 On August 3, 2021, Plaintiff filed the instant lawsuit, alleging two causes of action 8 for discrimination and retaliation in violation of the ADA. (Compl. ¶¶ 45–53.) In his 9 Complaint, Plaintiff alleges that he “has been subject to constant harassment, 10 discrimination, hostile work environment, and retaliation[,]” that “CBP supervisors and 11 management level employees have discriminated against Plaintiff in the terms, conditions, 12 and privileges of his employment on a regular basis[,]” and that “DHS supervisors and 13 management level employees repeatedly undermined Plaintiff’s ability to conduct his job 14 duties competently” since his injury. (Compl. ¶¶ 14, 17.) Plaintiff then alleges numerous 15 specific acts of harassment, discrimination, and retaliation. (Compl. ¶¶ 18–44.) 16 2. Defendant’s Motion for Summary Judgment 17 In Defendant’s Motion, Defendant first argues that the federal government is not 18 subject to suit under the ADA and, therefore, that both claims must be dismissed with 19 prejudice. (Doc. 24 at 16–17.) Even had Plaintiff brought his claims under the 20 Rehabilitation Act, Defendant argues Plaintiff failed to timely exhaust his administrative 21 remedies because Plaintiff did not contact an EEO counselor within 45 days of many of 22 the allegedly discriminatory and retaliatory acts. (Id. at 17–19.) 23 Defendant then argues that Plaintiff cannot establish the elements required to prove 24 a disability discrimination claim. Specifically, Defendant argues that Plaintiff is not a 25 “qualified individual” protected by the Rehabilitation Act because, at the time of the 26

27 fact” is not material to the Court’s analysis because Plaintiff’s request for accommodation 28 1 alleged discriminatory acts, Plaintiff could not perform the essential functions of his 2 position with or without reasonable accommodation. (Id. at 20–21.) Likewise, Defendant 3 argues that Plaintiff was not treated less favorably than similarly situated, non-disabled 4 employees (id. at 21–22); that CBP had legitimate, non-discriminatory reasons for its 5 actions; and that Plaintiff cannot establish pretext (id. at 22–30). 6 Lastly, Defendant argues that Plaintiff cannot establish a prima facie case of 7 Retaliation because there is no causal link between Plaintiff’s protected activity (e.g., the 8 filing of Plaintiff’s EEO claim) and the allegedly adverse employment acts (id. at 31–32) 9 and because Defendant had legitimate, non-retaliatory reasons for all his actions. (Id. at 10 32.) 11 3. Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment 12 In his Opposition, Plaintiff recites many of the claims and allegations set forth in his 13 Complaint and in his written discovery responses. (Doc. 25 at 8–11.) Specifically, Plaintiff 14 accuses Defendant of the following discriminatory and retaliatory acts: 15 a. On October 6, 2017, Hunter attached a decal of a scrotum and penis to Plaintiff’s vehicle, photographed it, then sent the photo to Plaintiff via email 16 attachment, and later made a homosexual reference to Plaintiff and laughed at 17 him.

18 b. From the year 2018 through 2019, on almost every morning, Hunter would 19 turn the office lights off despite Plaintiff requesting to keep the lights on.

20 c. On January 30, 2018, Hunter ordered Plaintiff to give him Plaintiff’s service 21 weapon to wear because Hunter left his at his residence and was expecting a visit from the Under Secretary. 22

23 d. On or around March 3, 2018, Hunter yelled and used foul language at Plaintiff in front of his subordinates in an attempt to undermine him. 24

25 e. On March 7, 2018, Hunter and Thompson initially told Plaintiff, due to his injury, he would not be attending Firearms Instructor Recertification Training 26 Program (FIRTP). 27 f. On March 27, 2018, while working in a light duty capacity, Thompson 28 1 threatened to send Plaintiff for a Fitness for Duty Examination.

2 g. On March 27, 2018, when Plaintiff was consulting with a locksmith, Hunter 3 approached Plaintiff and told him, “Get the fuck back upstairs to the meeting.”

4 h. On September 24, 2018, Hunter approached Plaintiff about a schedule change 5 that was not reflected on the schedule, berated Plaintiff, and told Plaintiff it was his (Plaintiff’s) job to update the schedule. 6

7 i. On February 26, 2019, Hunter ordered Plaintiff to start wearing his uniform, despite Plaintiff having a doctor’s note to work in plain clothes, called him a 8 “malingerer,” threatened him with punitive action, and told Plaintiff, “We will 9 go nine rounds, and you will lose.”

10 j. On February 26, 2019, Hunter asked Plaintiff, “What are you trying to do, get 11 a medical retirement?” then Thompson ordered Plaintiff to write a memorandum as to why he was not in uniform, and again threatened Plaintiff 12 with a Fitness for Duty Examination. 13 k. On or around February 28, 2019, Thompson told Plaintiff that he would be 14 reassigning Plaintiff to the Air Branch to work as an Air Command Duty 15 Officer or in the Operations Department; told Plaintiff he had been on light duty going on three years and was going to have to “take some action;” and, 16 once again threatened Plaintiff with a Fitness for Duty Examination. 17 l. On or around February 28, 2019, Plaintiff learned that Davis and Thompson 18 directed Mission Support Specialist Melissa Walkup to initiate a search for 19 light duty positions within the San Diego Area of Responsibility (AOR) and to contact Plaintiff’s nurse case manager concerning his medical information 20 in an effort to move Plaintiff into another position. 21 m. On or around February 28, 2019, Thompson delayed in issuing Plaintiff his 22 fifteen (15) year Federal Service Certificate, which was a year late. 23 n. On April 3, 2019, Thompson ordered Plaintiff to write, complete, and turn in 24 a memorandum on Plaintiff’s scheduled day off. 25 o. On June 7, 2019, Complainant was assigned to NASNI effective June 10, 26 2019, and had his supervisory duties removed. 27 p. On June 12, 2019, Plaintiff learned from his subordinates that during a going 28 1 away party, Thompson attempted to start a physical altercation with one of Plaintiff’s subordinate employees and slandered Plaintiff saying, “Frank Valli 2 fucked me.” 3 q. On June 17, 2019, Complainant learned his Fiscal Year (FY) 2019 mid-year 4 performance review was not completed by Hunter and Thompson because he 5 was not issued an FY 19 performance plan.

6 r. On June 29, 2019, after Plaintiff refused to sign [a] light duty agreement that 7 did not comply with his medical restrictions, Davis and Sutherland required Plaintiff to take sick leave until Plaintiff signed the light duty agreement or 8 returned to full duty. 9 10 (Id.) In support of these allegations, Plaintiff cites various excerpts from his deposition 11 testimony and his interrogatory responses. (Id.) 12 Plaintiff then argues that his claims are not time-barred because all his claims and 13 allegations, even those arising more than 45 days before Plaintiff first contacted an EEO 14 counselor, were accepted for review by the EEOC in accordance with the EEOC 15 Regulation in 29 CFR Part 1614. (Id. at 13–14.) Plaintiff does not cite any specific 16 provision of the EEOC Regulations or any other law or authority supporting his position. 17 (Id.) 18 Plaintiff also argues that his discrimination claims are triable because he is a 19 “qualified individual” who, with or without accommodation, can perform the essential job 20 functions of the SMIA position and because Defendant failed to provide him “reasonable 21 accommodation” related to his disability. (Id. at 15–16.) 22 Plaintiff argues that his retaliation claim is triable because transferring him to the 23 North Island Air Unit, effective June 10, 2019, was an “act of retaliation.” (Doc. 25 at 7, 24 17.) Specifically, Plaintiff argues that he engaged in a protected activity when he filed his 25 EEO complaint and that, as a result, he was reassigned to the North Island Air Unit, a less 26 desirable location. (Id. at 17.) 27 28 1 Finally, acknowledging that his claims should have been brought under the 2 Rehabilitation Act, not the ADA, Plaintiff requests leave to amend his Complaint. (Doc. 3 25 at 18–20.) 4 II. LEGAL STANDARD 5 Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil 6 Procedure if the moving party demonstrates there is no genuine issue of material fact and 7 that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. 8 Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing 9 substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 10 477 U.S. 242, 248 (1986); Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., 11 Inc., 618 F.3d 1025, 1031 (9th Cir. 2010). “A genuine issue of material fact exists when 12 the evidence is such that a reasonable jury could return a verdict for the nonmoving 13 party.” Fortune Dynamic, 618 F.3d at 1031 (internal quotation marks and citations 14 omitted). “Disputes over irrelevant or unnecessary facts will not preclude a grant of 15 summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 16 630 (9th Cir. 1987). 17 The party seeking summary judgment “bears the initial responsibility of informing 18 the district court of the basis for its motion.” Celotex, 477 U.S. at 323. To carry its burden, 19 “the moving party must either produce evidence negating an essential element of the 20 nonmoving party’s claim or defense or show that the nonmoving party does not have 21 enough evidence of an essential element to carry its ultimate burden of persuasion at 22 trial.” Jones v. Williams, 791 F.3d 1023, 1030–31 (9th Cir. 2015) (quoting Nissan Fire & 23 Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000)). 24 Once the moving party establishes the absence of a genuine issue of material fact, 25 the burden shifts to the nonmoving party to “set forth, by affidavit or as otherwise provided 26 in Rule 56, ‘specific facts showing that there is a genuine issue for trial.’” T.W. Elec. Serv., 27 809 F.2d at 630 (citations omitted). The nonmoving party “may not rest upon the mere 28 1 allegations or denials of his pleading, but . . . must set forth specific facts showing that 2 there is a genuine issue for trial.” Anderson, 477 U.S. at 248 (citation omitted). 3 When ruling on a summary judgment motion, the court must view the facts and draw 4 all reasonable inferences in the light most favorable to the nonmoving party. Scott v. 5 Harris, 550 U.S. 372, 378 (2007). “Credibility determinations, the weighing of the 6 evidence, and the drawing of legitimate inferences from the facts are jury functions, not 7 those of a judge, whether he is ruling on a motion for summary judgment or for a directed 8 verdict.” Anderson, 477 U.S. at 255. In ruling on a motion for summary judgment, the 9 Court “need consider only the cited materials, but it may consider other materials in the 10 record.” Fed. R. Civ. P. 56(c)(3). 11 III. DISCUSSION 12 A. The Federal Government is Not Subject to Suit Under the ADA 13 Title I of the ADA provides, “[n]o covered entity shall discriminate against a 14 qualified individual on the basis of disability in regard to job application procedures, the 15 hiring, advancement, or discharge of employees, employee compensation, job training, and 16 other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a) (emphasis 17 added). The ADA then defines “covered entity” as “an employer, employment agency, 18 labor organization, or joint labor-management committee.” 42 U.S.C. § 12111(2) 19 (emphasis added). The ADA then defines “employer” as “a person engaged in an industry 20 affecting commerce who has 15 or more employees for each working day in each of 20 or 21 more calendar weeks in the current or preceding calendar year, and any agent of such 22 person….” 42 U.S.C. § 12111(5)(A). 23 However, the term “employer” excludes “the United States, a corporation wholly 24 owned by the government of the United States, or an Indian tribe….” 42 U.S.C. § 25 12111(5)(B)(i). Thus, “[i]t is well-settled that the federal government is excluded from the 26 ADA’s definition of ‘employer’” and “the ADA provides no remedy to federal employees.” 27 Jackson v. Napolitano, No. CV-09-1822-PHX-LOA, 2010 WL 94110, at *3 (D. Ariz. Jan. 28 5, 2010) (internal quotation marks and citations omitted); see also Channel v. Wilke, No. 1 2:18-cv-02414 MCE AC (PS), 2019 WL 1491646, at *4 (E.D. Cal. Apr. 4, 2019), report 2 and recommendation adopted, No. 2:18-cv-02414 MCE AC (PS), 2019 WL 2448423 (E.D. 3 Cal. June 12, 2019) (dismissing ADA claims with prejudice). Instead, “[t]he Rehabilitation 4 Act, 29 U.S.C. § 791, et seq., not the ADA, is the exclusive remedy for claims of disability 5 discrimination in federal employment.” Ibanez v. Donahue, No. EDCV 14-00462-VAP 6 (SPx), 2014 WL 12967593, at *2 (C.D. Cal. Oct. 28, 2014) (citation omitted); see also 7 Calero-Cerezo v. U.S. Dep’t of Just., 355 F.3d 6, 19 (1st Cir. 2004) (“The [Rehabilitation 8 Act], the precursor to the ADA, applies to federal agencies, contractors and recipients of 9 federal financial assistance, while the ADA applies to private employers with over 15 10 employees and state and local governments.”). 11 Here, Plaintiff brings two causes of action under the ADA—one for discrimination 12 and one for retaliation. (Compl. ¶¶ 45–53.) However, as stated above, the ADA is not the 13 proper avenue for disability discrimination and retaliation claims against federal 14 employers, like the Department of Homeland Security. On this basis alone, the Court 15 dismisses Plaintiff’s claims with prejudice.8 See Channel, 2019 WL 1491646, at *4. 16 Plaintiff is correct, however, that “‘[t]here is no significant difference in analysis of 17 the rights and obligations created by the ADA and the [Rehabilitation Act],’ and courts 18 routinely look to [Rehabilitation Act] case law to interpret the rights and obligations created 19 by the ADA.” Washington v. Serrato, Case No. 22-cv-05832 BLF (PR), 2023 WL 20 2671384, at *2 (N.D. Cal. Mar. 28, 2023) (quoting Zukle v. Regents of Univ. of Cal., 166 21 F.3d 1041, 1045 n.11 (9th Cir. 1999)) (citing Collings v. Longview Fibre Co., 63 F.3d 828, 22 832 n.3 (9th Cir. 1995)). Nevertheless, even construing Plaintiff’s claims as brought under 23 24 25 26 8 Acknowledging that his claims should have been brought under the Rehabilitation Act 27 and not the ADA, Plaintiff requests leave to amend his Complaint. (Doc. 25 at 18–20.) However, as discussed in detail below, Plaintiff’s Rehabilitation Act claims would also 28 1 the Rehabilitation Act, there is no genuine dispute of material fact warranting this case to 2 proceed to trial. The Court conducts this analysis below. 3 B. Plaintiff’s Claims Pre-Dating March 18, 2019 are Time-Barred 4 “No qualified individual with a disability shall, on the basis of that disability, be 5 subjected to discrimination in employment under any program or activity conducted by the 6 Department [of Homeland Security]. The definitions, requirements and procedures of 7 section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the Equal 8 Employment Opportunity Commission in 29 CFR part 1614, shall apply….” 6 C.F.R. § 9 15.40 (emphasis added). Pursuant to 29 CFR part 1614, “[a]ggrieved persons who believe 10 they have been discriminated against on the basis of … disability … must consult a 11 Counselor prior to filing a complaint in order to try to informally resolve the matter. An 12 aggrieved person must initiate contact with a Counselor within 45 days of the date of the 13 matter alleged to be discriminatory or, in the case of personnel action, within 45 days of 14 the effective date of the action.” 29 C.F.R. § 1614.105(a)(1). 15 In accordance with these regulations, the Ninth Circuit has held that “[t]o preserve 16 [his or] her right to maintain a suit alleging employment discrimination against an agency 17 of the United States, a claimant must exhaust [his or] her administrative remedies by filing 18 a claim of discrimination with the allegedly offending agency in accordance with published 19 procedures.” Leorna v. U.S. Dep’t of State, 105 F.3d 548, 550–52 (9th Cir. 1997) (internal 20 citations omitted). “[A] claimant must consult the allegedly discriminating agency’s EEO 21 counselor prior to filing a complaint in order to try to informally resolve the matter (‘pre- 22 complaint processing’) [and] [t]he claimant must initiate this contact with the counselor 23 within forty-five days of the date of the alleged discriminatory act.” Id. (internal citations 24 omitted) (failure to timely contact EEO counselor resulted in failure to preserve right to 25 maintain a suit alleging employment discrimination against the State Department); see also 26 Thompson v. Donahoe, 961 F. Supp. 2d 1017, 1026 (N.D. Cal. 2013) (“A plaintiff must 27 initiate contact with an EEO counselor within 45 days of the harassing conduct. The 28 counselor must inform a plaintiff of the right to file a formal EEO claim no later than 30 1 days after being contacted. A plaintiff has 15 days from receipt of this notice to file a 2 formal claim with the EEO office. For an EEO claim to be properly exhausted, therefore, 3 the conduct at issue must have occurred no earlier than 90 days prior to the filing of a 4 formal EEO claim.”) (internal citations omitted). 5 “Failure to comply with this regulation is ‘fatal to a federal employee’s 6 discrimination claim.’” Cherosky v. Henderson, 330 F.3d 1243, 1245 (9th Cir. 2003) 7 (quoting Lyons v. England, 307 F.3d 1092, 1105 (9th Cir. 2002) (““Although it does not 8 carry the full weight of statutory authority, failure to comply with this regulation has been 9 held to be fatal to a federal employee’s discrimination claim.”) (internal quotations and 10 citations omitted)). 11 “The timeliness requirement for the purposes of exhaustion of discrimination claims 12 further depends on whether the claim is based on discrete acts or a single discriminatory 13 employment practice. Discrete discriminatory acts are not actionable if time barred, even 14 when they are related to acts alleged in timely filed charges. Thus, each discrete 15 discriminatory act starts a new clock for filing charges alleging that act.” Blackman-Baham 16 v. Kelly, Case No. 16-cv-03487-JCS, 2017 WL 679514, at *13–14 (N.D. Cal. Feb. 21, 17 2017) (internal quotations and citations omitted) (claims based on conduct occurring more 18 than 45 days before initial EEO counselor contact are time-barred); see also Nat’l R.R. 19 Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (“[d]iscrete acts such as termination, 20 failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident 21 of discrimination and each retaliatory adverse employment decision constitutes a separate 22 actionable ‘unlawful employment practice.’”). 23 Here, it is undisputed that Plaintiff first contacted an EEO counselor on May 2, 2019. 24 (See Joint Statement ¶ 61.) For this reason, Defendant argues that Plaintiff’s claims 25 regarding discriminatory and/or retaliatory acts occurring before March 18, 2019—45 days 26 before May 2, 2019—are time-barred. Plaintiff seemingly disregards Defendant’s 27 argument and very briefly responds that his claims, even those arising more than 45 days 28 before Plaintiff first contacted an EEO counselor, are timely because they were accepted 1 for review by the EEOC. (Doc. 25 at 13–14.) However, the Court agrees with Defendant 2 that claims based on conduct occurring more than 45 days before the initial EEO counselor 3 contact are time-barred. Blackman-Baham, 2017 WL 679514 at *13–14. Thus, the only 4 remaining allegations set forth in Plaintiff’s Opposition are the following: 5 a. From the year 2018 through 2019, on almost every morning, Hunter would turn the office lights off despite Plaintiff requesting to keep the lights on. 6

7 b. On April 3, 2019, Thompson ordered Plaintiff to write, complete, and turn in a memorandum on Plaintiff’s scheduled day off. 8

9 c. On June 7, 2019, Complainant was assigned to NASNI effective June 10, 2019, and had his supervisory duties removed. 10

11 d. On June 12, 2019, Plaintiff learned from his subordinates that during a going away party, Thompson attempted to start a physical altercation with 12 one of Plaintiff’s subordinate employees and slandered Plaintiff saying, 13 “Frank Valli fucked me.”

14 e. On June 17, 2019, Complainant learned his Fiscal Year (FY) 2019 mid- 15 year performance review was not completed by Hunter and Thompson because he was not issued an FY 19 performance plan. 16

17 f. On June 29, 2019, after Plaintiff refused to sign a light duty agreement that did not comply with his medical restrictions, Davis and Sutherland 18 required Plaintiff to take sick leave until Plaintiff signed the light duty 19 agreement or returned to full duty.

20 (Doc. 25 at 8–11.) The Court now addresses the merits of each of these remaining claims. 21 C. Disability Discrimination (First Cause of Action) 22 “Rehabilitation Act § 504 forbids organizations that receive federal funding, …, 23 from discriminating against people with disabilities.” Mark H. v. Hamamoto, 620 F.3d 24 1090, 1097 (9th Cir. 2010) (citing 29 U.S.C. § 794; Mark H. v. Lemahieu, 513 F.3d 922, 25 929 (9th Cir. 2008); Bird v. Lewis & Clark Coll., 303 F.3d 1015, 1020 (9th Cir.2002)). 26 Specifically, the Rehabilitation Act states, “[n]o otherwise qualified individual with a 27 disability in the United States, as defined in section 705(20) of this title, shall, solely by 28 reason of her or his disability, be excluded from the participation in, be denied the benefits 1 of, or be subjected to discrimination under any program or activity receiving Federal 2 financial assistance or under any program or activity conducted by any Executive 3 agency….” 29 U.S.C. § 794(a) (emphasis added). The Rehabilitation Act broadly defines 4 “program or activity” to include “all of the operations of... an entire corporation, 5 partnership, or other private organization, or an entire sole proprietorship” if the entity as 6 a whole receives federal assistance or if the entity “is principally engaged in the business 7 of providing education, health care, housing, social services, or parks and recreation,” and 8 various other services. 29 U.S.C. § 794(b)(3)(A). 9 Interpreting the Rehabilitation Act, the Ninth Circuit has decided that “[s]ection 504 10 creates a private right of action for individuals subjected to disability discrimination by any 11 program or activity receiving federal financial assistance, including employment 12 discrimination in such programs.” Fleming v. Yuma Reg’l Med. Ctr., 587 F.3d 938, 940 13 (9th Cir. 2009) (citations omitted) (emphasis added). Further, Section 504(d) provides that 14 “[t]he standards used to determine whether this section has been violated in a complaint 15 alleging employment discrimination under this section shall be the standards applied under 16 title I of the Americans with Disabilities Act ... as such sections relate to employment.” 29 17 U.S.C. § 794(d). Therefore, to establish a prima facie case of discrimination under the 18 Rehabilitation Act or the ADA Plaintiff must also show that he is disabled, qualified, and 19 suffered an adverse employment action solely because of his disability. Snead v. Metro. 20 Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001) (citing Sanders v. Arneson 21 Prods., Inc., 91 F.3d 1351, 1353 (9th Cir.1996); 29 U.S.C. § 794(a)) (emphasis added). 22 Here, the Parties do not dispute that Plaintiff has a disability—his shoulder injury. 23 (Doc. 24 at 20.) Therefore, the pertinent questions are (1) whether Plaintiff is a “qualified 24 individual” and (2) whether Plaintiff suffered an adverse employment action based “solely” 25 on his disability. See 29 U.S.C. § 794(a); Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 26 1080, 1087 (9th Cir. 2001); Cefalu v. Holder, No. C12-0303 TEH, 2013 WL 5315079, at 27 *7 (N.D. Cal. Sept. 23, 2013), on reconsideration in part, No. C12-0303 TEH, 2013 WL 28 6671799 (N.D. Cal. Dec. 18, 2013). “A failure to provide reasonable accommodation can 1 constitute discrimination under section 504 of the Rehabilitation Act.” Vinson v. Thomas, 2 288 F.3d 1145, 1154 (9th Cir. 2002) (citing 28 C.F.R. § 35.130(b)(7)). 3 As set forth below, the Court finds that Plaintiff is not a qualified individual and did 4 not suffer an adverse employment action based solely on his disability. 5 1. Plaintiff is Not a Qualified Individual 6 Under the ADA and, therefore, the Rehabilitation Act, a “qualified individual” is an 7 individual with a disability “who, with or without reasonable accommodation, can perform 8 the essential functions of [the] position.” 29 C.F.R. § 1630.2(m). “The term essential 9 functions means the fundamental job duties of the employment position the individual with 10 a disability holds or desires.” 29 C.F.R. 1630.2(n)(1). “The term ‘essential functions’ does 11 not include the marginal functions of the position.” Id. 12 Further, the individual must be “‘qualified’ at the time of the alleged discrimination.” 13 Johnson v. Bd. of Trustees of Boundary Cnty. Sch. Dist. No. 101, 666 F.3d 561, 564 (9th 14 Cir. 2011) (citing Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1112 (9th 15 Cir. 2000)). “If a disabled person cannot perform a job’s ‘essential functions’ (even with 16 a reasonable accommodation), then the ADA’s employment protections do not apply.” 17 Cripe v. City of San Jose, 261 F.3d 877, 884–85 (9th Cir. 2001). An employer is not 18 required “to exempt an employee from performing essential functions or to reallocate 19 essential functions to other employees.” Dark v. Curry Cnty., 451 F.3d 1078, 1089 (9th 20 Cir. 2006). 21 Plaintiff argues that he performed the essential functions of his SMIA position from 22 the time of his injury to approximately June 2019 and received “glowing performance 23 reviews.” (Doc. 25 at 15.) However, Plaintiff’s performance while on modified or light 24 duty is not the relevant inquiry. CBP was not required to exempt him from performing the 25 essential functions of a full-duty SMIA or to reallocate those essential functions to another 26 employee. Dark, 451 F.3d at 1089. The relevant inquiry is whether Plaintiff could perform 27 the duties of a full-duty SMIA. He could not. 28 1 It is undisputed that Plaintiff was on modified or limited duty from the time of his 2 injury on March 1, 2016 until approximately August 19, 2019 (See Joint Statement ¶¶ 20, 3 22–24, 28–31), the entire time frame of the alleged discrimination. It is also undisputed 4 that a full-duty SMIA’s duties include law enforcement support activities, such as 5 apprehending persons and carrying a firearm, and that Plaintiff was released to modified 6 duty with restrictions, including no law enforcement apprehensions, no firearms, and 7 “sedentary desk work only.” (See Joint Statement ¶¶ 7, 22, 29.) Thus, it is apparent that 8 Plaintiff could not perform all the essential functions of a full-duty SMIA and, therefore, 9 is not a “qualified individual” under the Rehabilitation Act. See Puletasi v. Wills, 290 F. 10 App’x 14, 17 (9th Cir. 2008) (special agent that cannot carry a firearm or handle dangerous 11 persons is not a “qualified individual”), cert. denied, 555 U.S. 1056 (2008); Cefalu v. 12 Holder, 2013 WL 5315079, at *8–10 (plaintiff not a “qualified individual” under the 13 Rehabilitation Act where elbow injury prevented him from lifting a firearm, an essential 14 function of his position as an ATF Special Agent). 15 The Puletasi case is particularly informative. The Puletasi plaintiff, a Special Agent 16 for the Bureau of Customs, Immigration and Enforcement (“ICE”), developed “Guillain- 17 Barre” syndrome, which resulted in paralysis and weakness that was projected to last for a 18 year or more. Sam Puletasi v. Wills, No. CV 05-00291 HG-KSC, 2006 WL 8451351, at 19 *1 (D. Haw. Nov. 21, 2006). The Puletasi defendant held the plaintiff’s job open for over 20 a year, but when the plaintiff returned to work, he was in a wheelchair, had little hand/grip 21 strength, and could not take the firearm test. Id. For this reason, the plaintiff’s duties were 22 reduced to light desk work. Id. The Puletasi defendant then discontinued the plaintiff’s 23 overtime pay and failed to give him a grade increase. Id. Approximately two to three years 24 after becoming ill, the Puletasi plaintiff was still unable to perform the physical duties of 25 a special agent, and his employment was terminated. Id. The district court held that the 26 Puletasi plaintiff was not “qualified” for his Special Agent position because he could not 27 take his firearm recertification test and, therefore, was unable to perform the “essential 28 functions” of the Special Agent job. Sam Puletasi, 2006 WL 8451351, at *5. The Ninth 1 Circuit Court of Appeals agreed, noting that the plaintiff was not cleared to carry a firearm 2 and could not run, jump, or climb, all essential functions of the Special Agent position. 3 Puletasi, 290 F. App’x at 17. 4 This case is similar to the Puletasi case. As in Puletasi, Plaintiff is not a qualified 5 individual because at the time of the allegedly discriminatory acts, Plaintiff was unable to 6 perform the “essential functions” or the SMIA role, such as apprehending persons or 7 carrying a firearm. (Joint Statement ¶¶ 29–30.) Even so, Defendant allowed plaintiff to 8 continued working as an SMIA on light, administrative duty for years until Plaintiff was 9 able to resume his full duty SMIA position. (Id. ¶ 31.) On this basis alone, Plaintiff’s 10 discrimination claim fails. Nevertheless, the Court address the remaining elements of a 11 disability discrimination claim below. 12 2. Plaintiff Was Not Discriminated Against Solely by Reason of His 13 Disability 14 Whether Plaintiff was discriminated against solely based on his disability is analyzed 15 under the same burden-shifting analysis applied to Title VII claims and set forth in 16 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Mustafa v. Clark Cnty. Sch. 17 Dist., 157 F.3d 1169, 1175–76 (9th Cir. 1998). “Under this scheme, if the employer 18 disclaims any reliance on the employee’s disability in having taken the employment action, 19 McDonnell Douglas Title VII disparate impact analysis should be used to determine if the 20 employer’s reason is pretextual. On the other hand, if the employer acknowledges reliance 21 on the disability in the employment decision, the employer bears the burden of showing 22 that the disability is relevant to the job’s requirements.” Id. at 1175–76 (internal citations 23 omitted). 24 Here, the evidence is clear that Defendant accommodated Plaintiff’s disability for 25 approximately three years and that Plaintiff’s request to wear “plain clothes” was not 26 reasonable. Further, Defendant has set forth numerous legitimate, non-discriminatory 27 reasons for the allegedly adverse employment actions and, regardless, has demonstrated 28 that Plaintiff’s disability is relevant to the SMIA job requirements. 1 a) Defendant Accommodated Plaintiff’s Disability for Three 2 Years 3 Plaintiff cannot prove that he was discriminated against based solely on his 4 disability. There is no genuine dispute that Defendant accommodated Plaintiff’s disability 5 in accordance with his medical restrictions for approximately three years. For instance, it 6 is undisputed that Defendant granted Plaintiff’s two requests for paid medical leave. (Joint 7 Statement ¶¶ 21, 28.) It is also undisputed that Defendant allowed Plaintiff to work limited 8 or modified duty from the time of his injury on March 1, 2016 until approximately July of 9 2019. (Joint Statement ¶¶ 20, 23–24, 28–30.) Finally, it is undisputed that Defendant also 10 allowed Plaintiff to wear “plain clothes” for approximately two and a half years. (Joint 11 Statement ¶¶ 72, 79.) Plaintiff cannot establish a claim for disability discrimination when 12 Defendant granted Plaintiff’s requests for medical leave and accommodated Plaintiff’s 13 disability medical restrictions for several years. 14 b) Plaintiff’s Request to Wear “Plain Clothes” Was Not a 15 Reasonable Accommodation 16 As stated above, “[a] failure to provide reasonable accommodation can constitute 17 discrimination under section 504 of the Rehabilitation Act.” Vinson, 288 F.3d at 1154. “A 18 public entity shall make reasonable modifications in policies, practices, or procedures when 19 the modifications are necessary to avoid discrimination on the basis of disability, unless 20 the public entity can demonstrate that making the modifications would fundamentally alter 21 the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). 22 However, “[r]easonable accommodation does not require an organization to make 23 fundamental or substantial alterations to its programs.” Mark H., 620 F.3d at 1098. For 24 example, “[a]n ‘employer is not obligated to provide an employee the accommodation he 25 requests or prefers, the employer need only provide some reasonable accommodation.’” 26 Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (citation omitted). 27 “An accommodation is reasonable if it is reasonable on its face.” Mark H., 620 F.3d 28 at 1098 (internal quotation omitted). “The question whether a particular accommodation 1 is reasonable ‘depends on the individual circumstances of each case’ and ‘requires a fact- 2 specific, individualized analysis of the disabled individual’s circumstances and the 3 accommodations that might allow him to meet the program’s standards.’” Vinson, 288 4 F.3d at 1154 (quoting Wong v. Regents of the Univ. of Cal., 192 F.3d 807, 818 (9th Cir. 5 1999)). 6 “[W]hen a handicapped person is not able to perform the essential functions of the 7 job, the employer, and later the court, must also consider whether any ‘reasonable 8 accommodation’ by the employer would enable the handicapped person to perform those 9 functions.” Am. Fed’n of Gov’t Emps., Loc. 51 v. Baker, 677 F. Supp. 636, 638 (N.D. Cal. 10 1987) (citations omitted). “It is the word ‘accommodation,’ not the word ‘reasonable,’ that 11 conveys the need for effectiveness.” US Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002). 12 A plaintiff bears the initial burden of producing evidence that a reasonable 13 accommodation was possible, but thereafter, the burden shifts to the defendant to produce 14 rebuttal evidence that the requested accommodation was not reasonable. Vinson, 288 F.3d 15 at 1154 (quoting Wong, 192 F.3d at 818). 16 Here, the evidence demonstrates that Plaintiff’s request to wear plain clothes after 17 February 2019 was not reasonable. First, although not outcome determinative, it is 18 noteworthy that Plaintiff did not formally request an accommodation. Rather, it is 19 undisputed that “[o]n May 22, 2019, Plaintiff emailed an EEO Counselor requesting an 20 accommodation for the uniform requirement, but on June 12, 2019, Plaintiff confirmed that 21 he did not wish to pursue this accommodation request.” (Joint Statement ¶ 50.) 22 Second, although Plaintiff now contends that he experienced pain when putting on 23 pullover shirts (see Plaintiff’s Responses to Joint Statement ¶¶ 71, 102), the evidence does 24 not support Plaintiff’s contention. Rather, the evidence shows that Plaintiff requested to 25 wear plain clothes out of fear of being identified as law enforcement after an altercation 26 with a drunk driver that exacerbated his shoulder injury. (See Doc. 25-2, Ex. 1, Pl. Depo. 27 83:10–85:13, 118:17–119:1, 156:8–157:8; Doc. 25-2, Ex. 7, Thompson Depo. 18:13–19:1; 28 Doc. 24, Ex. 1, Pl. Depo. 89:16–91:12; Doc. 24, Ex. 10, Thompson Decl. ¶¶ 10, 23; Joint 1 Statement ¶¶ 25–26.) In fact, Dr. Linehan stated at his deposition that the “plain clothes 2 only” requirement was a “prophylactic restriction” because Plaintiff had been in an 3 altercation while in uniform and did not want to be identified as law enforcement. (See 4 Joint Statement ¶ 76.) Dr. Linehan also stated that there was no reason Plaintiff could not 5 put on the non-enforcement, administrative polo shirt with his range of motion at the time 6 he was given the “plain clothes only” restriction. (See id. ¶¶ 48, 76.) Not wanting to be 7 identified as law enforcement when Plaintiff is a law enforcement officer is unreasonable 8 on its face, and Plaintiff’s disability discrimination claim fails on this basis. See Mark H., 9 620 F.3d at 1098. 10 Third, Plaintiff’s reason for requesting a “plain clothes” accommodation is not based 11 on his injury but rather his fear of being identified as law enforcement and therefore being 12 at risk of further injury. At least one Circuit Court of Appeals has determined that fear of 13 future injury is not a reasonable basis for accommodation. See Hale v. Harrison Cnty. Bd. 14 of Supervisors, 8 F.4th 399, 404 n.† (5th Cir. 2021) (finding ADA claim based on fear of 15 future harm to the plaintiff’s liver “frivolous”). The Court agrees. 16 Fourth, Plaintiff’s concern about being identified as law enforcement, attacked, and 17 re-injured was alleviated when Defendant permitted Plaintiff to wear the non-law 18 enforcement, administrative polo uniform and transferred to the secure facility at North 19 Island. It is undisputed that the AMO has an “Administrative Support and Enforcement 20 Polo Uniform” designed specifically for non-law enforcement agents and that, on February 21 15, 2019, Hunter instructed Plaintiff to begin wearing this non-enforcement, administrative 22 uniform. (Joint Statement ¶¶ 31–36, 42–43.) Likewise, it is undisputed that, on June 27, 23 2019, Sutherland offered Plaintiff a new temporary light duty assignment requiring 24 Plaintiff to wear the non-enforcement, administrative polo. (Id. ¶¶ 52–53.) Lastly, it is 25 undisputed that Plaintiff was reassigned to the Air Unit located at North Island, which is a 26 secured facility. (Id. ¶ 12.) Thus, there is no genuine dispute that Plaintiff’s concern about 27 being identified as law enforcement, attacked, and re-injured was addressed. 28 1 Finally, Plaintiff’s request to wear “plain clothes” is not a reasonable 2 accommodation that would allow him to fully perform his SMIA duties. Even if permitted 3 to wear plain clothes, Plaintiff still required a modified or light duty assignment due to his 4 medical restrictions. Therefore, the “reasonable accommodation” requested by Plaintiff 5 did not allow him to perform the essential functions of his SMIA position. See Am. Fed’n 6 of Gov’t Emps., Loc. 51, 677 F. Supp. at 638. Therefore, Plaintiff has not met his burden 7 of proving his request for accommodation was reasonable. See Vinson, 288 F.3d at 1154 8 (quoting Wong, 192 F.3d at 818). 9 (1) Defendant Had Legitimate, Non-Discriminatory 10 Reasons for Its Actions, and Plaintiff Cannot Prove Pretext 11 As explained above, Plaintiff’s Opposition only presents six remaining factual 12 allegations. (See supra Section III.B.) In his Motion, Defendant argues that he had a 13 legitimate, non-discriminatory reasons for each of these actions and that Plaintiff cannot 14 establish pretext. (See Doc. 24 at 22–30.) Notably, Plaintiff does not address any of these 15 arguments in his Opposition. (See Doc. 25 at 14–16.) Plaintiff also does not argue that 16 Defendant’s actions were pretext. (Id.) 17 Even assuming Plaintiff argued that Defendant’s actions were pretext, which he did 18 not, Plaintiff could not establish that Defendant’s actions were pretext. First, the following 19 allegations are not related to Plaintiff’s disability or request for reasonable accommodation, 20 did not result in any allegedly adverse employment action, and, therefore, cannot support 21 a claim for disability discrimination: 22 • From the year 2018 through 2019, on almost every morning, Hunter would turn 23 the office lights off despite Plaintiff requesting to keep the lights on. 24 • On June 12, 2019, Plaintiff learned from his subordinates that during a going 25 away party, Thompson attempted to start a physical altercation with one of 26 Plaintiff’s subordinate employees and slandered Plaintiff saying, “Frank Valli 27 fucked me.” 28 1 • On June 17, 2019, Complainant learned his Fiscal Year (FY) 2019 mid-year 2 performance review was not completed by Hunter and Thompson because he was 3 not issued an FY 19 performance plan. 4 Plaintiff’s only remaining claims involve Plaintiff’s request for reasonable 5 accommodation not to wear his uniform, Defendant’s request that Plaintiff draft a 6 memorandum explaining why he would not wear his uniform, Defendant’s decision to 7 reassign Plaintiff to the Air Unit, and Defendant’s refusal to make Plaintiff a light duty 8 offer exempting him from the uniform requirement. (See supra Section III.B.) 9 As explained in detail above (see supra Section III.C.2.b), Plaintiff’s request to wear 10 “plain clothes” was not reasonable. Therefore, Defendant’s request that Plaintiff draft a 11 memorandum explaining why he would not wear his uniform and Defendant’s refusal to 12 make Plaintiff a light duty offer exempting him from the uniform requirement cannot 13 support a claim for disability discrimination. Further, Plaintiff does not contend that 14 Defendant’s decision to reassign Plaintiff to the Air Unit was based on his disability. 15 Rather, Plaintiff contends that Defendant’s decision to reassign Plaintiff to the Air Unit 16 was made in retaliation for the filing of Plaintiff’s EEO complaint. (Doc. 25 at 12.) 17 Therefore, the Court addresses this retaliation claim below. (See infra III.D.) 18 D. Retaliation (Second Cause of Action) 19 “Because the ADA was modeled on section 504 of the Rehabilitation Act, ‘courts 20 have applied the same analysis to claims brought under both statutes.’” Boose v. Tri- 21 County Metro. Transp. Dist. of Oregon, 587 F.3d 997, 1001 n.5 (9th Cir. 2009) (quoting 22 Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999)); see also 23 Douglas v. Cal. Dep’t of Youth Auth., 285 F.3d 1226, 1229 n.3 (9th Cir. 2002) (noting that 24 cases interpreting the ADA and the Rehabilitation Act are “interchangeable”). 25 “[T]he legal elements and the production of proof for a retaliation claim under the 26 Rehabilitation Act is the same as that used under the ADA, namely, that in the absence of 27 direct evidence of retaliation, a plaintiff may rely on the burden-shifting framework used 28 for proving discrimination claims under Title VII as articulated in McDonnell Douglas 1 Corp. v. Green, 411 U.S. 792, 802–04 [] (1973).” Brooks v. Capistrano Unified Sch. Dist., 2 1 F. Supp. 3d 1029, 1035–36 (C.D. Cal. 2014) (citation omitted). “Under the McDonnell 3 Douglas burden-shifting framework, the plaintiff must first establish a prima facie case of 4 retaliation. Then the burden shifts to the defendant to set forth a legitimate, non-retaliatory 5 reason for the actions taken. If the defendant does so, the plaintiff must then show that the 6 defendant’s proffered reason is a pretext for retaliation.” Id. (citation omitted). 7 “To establish a prima facie case of retaliation under the Rehabilitation Act, ‘the 8 employee must establish that: (1) he or she engaged in a protected activity; (2) suffered an 9 adverse employment action; and (3) there was a causal link between the two.’” Aki v. Univ. 10 of Cal. Lawrence Berkeley Nat’l Lab’y, 74 F. Supp. 3d 1163, 1180 (N.D. Cal. 2014) 11 (quoting Pardi v. Kaiser Found. Hosp., Inc., 389 F.3d 840, 849 (9th Cir.2004)) (citing 12 (citing Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir.2000)). 13 Here, there is no genuine dispute that Plaintiff engaged in a protected activity—the 14 filing of his EEO Complaint. Instead, Defendant argues that there is no causal link between 15 the protected activity and the allegedly adverse employment action—the reassignment of 16 Plaintiff to the Air Unit. (Doc. 24 at 31–32.)9 For the reasons set forth below, the Court 17 finds that there is a genuine issue of material fact as to whether there is a causal link 18 between Plaintiff’s EEO complaint and his reassignment to the Air Unit. However, the 19 Court’s analysis does not end there. Defendant has set forth legitimate, non-discriminatory 20 reasons for his actions, and Plaintiff cannot establish pretext. Thus, Plaintiff’s retaliation 21 claim fails. 22 23 24

25 9 While Defendant notes in his moving brief that Plaintiff’s pay, job title, and status within 26 the organization stayed the same after his transfer to the Air Unit (see Doc. 24 at 27), 27 Defendant does not explicitly address the second element—whether Plaintiff suffered an “adverse employment action.” Accordingly, the Court assumes for the purposes of this 28 1 1. There is a Genuine Dispute of Material Fact as to Whether There Is a 2 Causal Link Between Plaintiff’s EEO Complaint and His Reassignment 3 “Courts have generally held that causation can be inferred from timing alone where 4 the adverse action follows closely on the heels of the protected activity.” Lee v. Natomas 5 Unified Sch. Dist., 93 F. Supp. 3d 1160, 1169 (E.D. Cal. 2015). In other words, “[w]hen 6 an adverse action closely follows a complaint, retaliatory intent may be inferred.” Id. 7 (citation omitted). Here, it is undisputed that (1) Plaintiff first contacted an EEO counselor 8 on May 2, 2019, (2) CBP’s Labor and Employee Relations department became aware of 9 Plaintiff’s EEO complaint on May 31, 2019, and (3) Plaintiff was transferred to the Air 10 Unit effective June 10, 2019. (See Joint Statement ¶¶ 61, 65, 82, 99.) The Court could 11 infer causation from this close timing alone. 12 Timing aside, there is still a genuine dispute of material facts as to whether Plaintiff 13 was transferred to the Air Unit because of his EEO complaint. The record shows that 14 Sutherland and Thompson discussed the possibility of moving Plaintiff from the Marine 15 Unit to the Air Unit as early as March 21, 2019, before Plaintiff filed his EEO complaint. 16 (See Doc. 24, Ex. 33, p. 509.) However, the record also shows that, on May 31, 2019, 17 CBP’s Labor and Employee Relations Specialist recommended offering Plaintiff the 18 opportunity to move to the North Island Air Unit due to Plaintiff’s complaints against 19 management within the Marine Unit (see Joint Statement ¶ 81; Doc. 24, Ex. 36, p. 522) 20 and that, shortly thereafter, Davis wrote to Plaintiff, “in light of recent allegations within 21 the Marine Unit, I’m redirecting your work assignment to North Island effective June 10, 22 2019.” (Joint Statement ¶ 108.) Thus, there is a genuine dispute of material fact as to 23 whether there is a causal connection between Plaintiff’s EEO complaint and his transfer to 24 the North Island Air Unit. 25 2. Defendant Had Legitimate, Non-Discriminatory Reasons for Its Actions, 26 and Plaintiff Cannot Prove Pretext 27 Having found a genuine dispute of material fact concerning a causal link between 28 Plaintiff’s EEO complaint and his transfer to the Air Unit, “the burden shifts to [Defendant] 1 to set forth a legitimate, non-retaliatory reason for the actions taken.” Brooks, 1 F. Supp. 2 3d at 1035–36. “If [Defendant] does so, the plaintiff must then show that [Defendant’s] 3 proffered reason is a pretext for retaliation.” Id. 4 To meet his burden, Defendant proffers several legitimate and non-retaliatory 5 reasons for reassigning Plaintiff to the North Island Air Unit. First, the evidence shows 6 that Defendant contemplated transferring Plaintiff to the Air Unit before Plaintiff contacted 7 an EEO counselor. (Doc. 24, Ex. 33, p. 509; Doc. 25-2, Ex. 8, p. 143–144.) Plaintiff 8 himself contends in his verified written discovery responses that, on or around February 9 28, 2019, Thompson told Plaintiff that he would be reassigning Plaintiff to the Air Branch 10 and a Mission Support Specialist initiated a search for light duty positions within San Diego 11 in an effort to move Plaintiff into another position. (Doc. 25-2, Ex. 8, p. 143–144.) Further, 12 on March 21, 2019, Sutherland discussed with Thompson the possibility of moving 13 Plaintiff from the Marine Unit to the Air Unit on North Island. (Doc. 24, Ex. 33, p. 509.) 14 Second, Thompson stated, and Defendant argues, that, during the three years since 15 Plaintiff was injured, AMO’s needs evolved significantly and that it was critical to have a 16 fully capable and operational SMIA on the night shift. (See Doc. 24, Ex. 10, Thompson 17 Decl. ¶¶ 10, 27, 34.) Specifically, Thompson stated that transnational criminal 18 organizations were exploiting the maritime arrival zones at higher rates than ever before 19 and that the San Diego Air and Marine Branch was facing migrant surges, increased media 20 attention, and a deteriorating relationship with U.S. Border Patrol. (Id. ¶ 10.) For this 21 reason, the Marine Unit needed a SMIA on the night shift who was capable of performing 22 necessary law enforcement support capabilities in the field, which Plaintiff could not 23 because of his medical restrictions and refusal to wear a uniform. (Id.) Plaintiff has not 24 presented any evidence that Thompson’s statements regarding AMO’s needs are not true. 25 Rather, Plaintiff contends that he was capable of performing all the night-shift job 26 functions. The Court is not persuaded. As discussed above, Plaintiff had medical 27 restrictions that interfered with his ability to perform the SMIA role, including 28 apprehending persons and carrying a weapon. (See Joint Statement ¶¶ 22, 29–31.) 1 Third, it is undisputed that other non-disabled individuals were also reassigned 2 during the relevant time period. In fact, 19 employees within the San Diego Air and Marine 3 Unit were reassigned duty locations between September 2017 and July 2020. (Joint 4 Statement ¶ 13.) Of the 19 employees who were reassigned duty locations and/or had 5 supervisor functions removed between September 2017 and July 2020, at least six were 6 GS-13 employees (like Plaintiff), but none of whom had known disabilities and only one 7 of whom had engaged in prior Equal Employment Opportunity (“EEO”) activity. (Id. ¶ 8 14.) 9 Fourth, Thompson also contends that he offered Plaintiff the position at the North 10 Island branch because it was located in a secure facility where Plaintiff could perform his 11 duties without fear of being attacked. (Doc. 24, Ex. 10, Thompson Decl. ¶ 27.) Thompson 12 contends that this alleviated Plaintiff’s concern about wearing a uniform, being identified 13 as law enforcement, and being attacked. (Id.) Plaintiff does not dispute that the Air Unit 14 located at North Island is a secure facility. (See Joint Statement ¶ 12.) Plaintiff also cannot 15 dispute that one of the stated reasons for his transfer was to provide him with a 16 “comfortable work environment[.]” (Doc. 24, Ex. 55, p. 601.) Plaintiff, therefore, cannot 17 establish that this proffered reason was pretext. 18 Fifth, the evidence shows that Plaintiff’s transfer was not retaliatory but an attempt 19 to satisfy Plaintiff’s desire not to be within Hunter and Thompson’s chain of command. It 20 is undisputed that on May 31, 2019, CPB’s Labor and Employee Relations Specialist wrote 21 to Davis informing him of the EEO specialist’s recommendation: 22 “[EEO Specialist Ahmad Zadah] is aware of the PDO referral from complainant Frank Valli against Deputy Director Thompson and Associate 23 Director Hunter. I explained the agency’s position that it would be a hardship 24 to the agency to move…[the] two highest ranking management officials from marine operations. … He recommends offering Mr. Valli the opportunity to 25 go to North Island or to go to one of the air locations.” 26 27 (Joint Statement ¶ 81; Doc. 24, Ex. 36, p. 522.) 28 1 Finally, the evidence shows that Plaintiff was free to decline the transfer. CPB’s 2 ||Labor and Employee Relations Specialist wrote, “[EEO Specialist Ahmad Zadah] 3 ||recommends offering Mr. Valli the opportunity to go to North Island or to go to one of the 4 locations. He said that if Mr. Valli doesn’t agree to move, management should allow 5 to stay at his current location.” (Joint Statement 4 81; Doc. 24, Ex. 36, p. 522.) While 6 || Plaintiff contends in his Opposition that “the transfer was not posed to Plaintiff as optional” 7 ||(Doc. 25 at 12), Plaintiff has not presented any evidence that he attempted to decline the 8 ||reassignment and was refused. Plaintiff cannot claim that his transfer was retaliatory when 9 was free to decline. 10 IV. CONCLUSION 11 Based on the foregoing, the Court GRANTS Defendant’s Motion for Summary 12 Judgment and DENIES Plaintiff's Motion for Leave to Amend. 13 IT IS SO ORDERED. 14 ||} DATE: December 15, 2023 Is gat Baermrude, Mfoatiaggs □□ 16 ON. RUTH BERMBUDEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 33