1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Joan Wolf, No. CV-19-04989-PHX-JAT
10 Plaintiff, ORDER
11 v.
12 Discover Financial Services Incorporated,
13 Defendant.
14 15 Pending before the Court are Defendant Discover Financial Services 16 Incorporated’s Motion for Judgment on the Pleadings (Doc. 60), Defendant’s Request for 17 Summary Disposition (Doc. 67), and Plaintiff Joan Wolf’s Motion for Leave to File a 18 Late Opposition Response to Defendant’s Motion for Judgment on the Pleadings 19 (Doc. 72). The Court now rules on each of these motions. 20 I. DEFENDANT’S REQUEST FOR SUMMARY DISPOSITION 21 Defendant asks the Court to grant summary disposition on its Motion for 22 Judgment on the Pleadings (Doc. 60) as a result of Plaintiff’s failure to timely respond to 23 that Motion (Doc. 60). (Doc. 67). Plaintiff has sought leave to file a response to the 24 Motion for Judgment on the Pleadings (Doc. 60). (Doc. 72). 25 When a party fails to timely act, a court may extend the time to act for good cause 26 if that party failed to act as a result of excusable neglect. See Fed. R. Civ. P. 6(b)(1)(B). 27 “[I]t is clear that ‘excusable neglect’ under Rule 6(b) is a somewhat ‘elastic concept’ and 28 is not limited strictly to omissions caused by circumstances beyond the control of the 1 movant.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392 2 (1993) (footnotes and citations omitted). “To determine whether a party’s failure to meet 3 a deadline constitutes ‘excusable neglect,’ courts must apply a four-factor equitable test, 4 examining: (1) the danger of prejudice to the opposing party; (2) the length of the delay 5 and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether 6 the movant acted in good faith.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 7 (9th Cir. 2010) (citations omitted). Rule 6(b)(1)(B), “like all the Federal Rules of Civil 8 Procedure, is to be liberally construed to effectuate the general purpose of seeing that 9 cases are tried on the merits.” Id. at 1258–59 (internal quotation marks and citations 10 omitted). 11 Plaintiff has met her burden under Rule 6(b)(1)(B). Thus, Plaintiff’s Motion 12 (Doc. 72) will be granted, and Defendant’s Request for Summary Disposition (Doc. 67) 13 will be denied. 14 First, there is little, if any, prejudice to Defendant. Defendant claims that the delay 15 has prejudiced Defendant because it drafted the Motion for Summary Disposition 16 (Doc. 67) as a result of Plaintiff’s failure to respond to the Motion for Judgment on the 17 Pleadings (Doc. 60), which caused it to incur additional expenses. (Doc. 77 at 2). The 18 Ninth Circuit has rejected similar claims of prejudice. For example, in Bateman v. United 19 States Postal Service, the Ninth Circuit concluded that a defendant’s loss of “a quick 20 victory” based on a plaintiff’s failure to respond to that defendant’s summary judgment 21 motion was not so prejudicial that it should preclude relief under Rule 6(b)(1)(B) despite 22 the fact that the defendant “filed papers . . . asking that its motion be granted as 23 unopposed,” just as Defendant did here. 231 F.3d 1220, 1223, 1224–25 (9th Cir. 2000). 24 Here, the additional costs of litigation that resulted from Plaintiff’s failure to timely 25 respond and the potential—rather than the actual—loss of a victory due to Plaintiff’s 26 failure to respond do not constitute cognizable forms of prejudice, especially in light of 27 the fact that cases should be decided on the merits when possible. Evangelista v. Just 28 1 Energy Mktg. Corp., No. SACV1702270CJCSSX, 2018 WL 4849673, at *3 (C.D. Cal. 2 July 9, 2018). This factor favors Plaintiff. 3 Second, the delay was not excessive. The deadline to respond to Defendant’s 4 Motion for Judgment on the Pleadings was May 15, 2020. (Doc. 66). Defendant filed its 5 Motion for Summary Disposition a week later on May 22, 2020. (Doc. 67). Plaintiff 6 claims that she filed her response by mail on May 9, 2020; realized, on May 23, 2020, 7 that the filing had been returned to sender; and then sought leave to file her untimely 8 response on May 28, 2020. (Doc. 72 at 2–3). A less-than-two-week delay does not justify 9 denying a motion for extension of time under Rule 6(b)(1)(B). See Bateman, 231 F.3d at 10 1225 (finding a nearly-one-month delay “not long enough to justify denying relief”); 11 Evangelista, 2018 WL 4849673, at *3 (concluding delay of twenty-five days weighed in 12 favor of granting relief). Indeed, Defendant did not show this two-week delay has had 13 any effect on the progress of this case. See Bateman, 231 F.3d at 1225. This factor also 14 favors Plaintiff. 15 Third, the reason for delay also favors Plaintiff as Plaintiff has established 16 excusable neglect. Plaintiff claims that she failed to timely file her response because she 17 mistakenly addressed the filing, and it was returned to sender. (See Doc. 72 at 3; id. at 6). 18 Defendant simply notes in response that the reason for delay was Plaintiff’s “failure to 19 comply with applicable rules of procedure.” (Doc. 77 at 2). But “[t]he right way, under 20 Pioneer, to decide cases involving” the failure to comply with applicable rules of 21 procedure “is with an ‘elastic concept’ equitable in nature, not with a per se rule.” See 22 Pincay v. Andrews, 389 F.3d 853, 858–60 (9th Cir. 2004) (en banc) (citation omitted) 23 (holding that district court was within its discretion to grant relief under the same factor 24 test as required by Rule 6(b)(1)(B) while recognizing that the excuse presented there, 25 “[the] failure to read an applicable rule[,] is one of the least compelling excuses that can 26 be offered”). Even an attorney’s near-month-long delay in filing a response to summary 27 judgment “based on his recovery from jet lag and the time it took to sort through the mail 28 that had accumulated while he was away” has been excused. See Bateman, 231 F.3d at 1 1223, 1225; see also Ahanchian, 624 F.3d at 1262 (concluding that “a calendaring 2 mistake caused by the failure to apply a clear local rule,” while an admittedly “weak 3 justification for . . . delay,” constituted excusable neglect). The Court likewise finds that 4 Plaintiff’s less egregious error does not preclude a finding of excusable neglect. 5 Finally, there is no indication of bad faith here. The good faith analysis under Rule 6 6(b)(1)(B) looks to “whether the failure to file in a timely fashion was ‘in bad faith or [in 7 an attempt] to obtain any advantage.’” Goens v. Adams & Assocs., Inc., No. 8 216CV00960TLNKJN, 2018 WL 263896, at *4 (E.D. Cal. Jan. 2, 2018) (alteration in 9 original) (citation omitted); see Ahanchian, 624 F.3d at 1262; see also Pincay, 389 F.3d 10 at 861 (Berzon, J., concurring) (“The good faith consideration goes to the absence of 11 tactical or strategic motives, not to the degree of negligence.”). Plaintiff claims that her 12 failure to timely file was not the result of bad faith but instead “an honest mistake made 13 by [Plaintiff] in the Court’s address.” (Doc. 72 at 3–4). Mistakes in addressing happen, 14 and it is possible that Plaintiff was on vacation and did not check her mail for several 15 weeks as she asserts. (Id.). The fact that Plaintiff has produced an envelope addressed to 16 the Court with a NIXIE label that is dated as processed on May 9, 2020 tends to show 17 that she did not fabricate her excuse simply to buy more time. (Id. at 6); see Ahanchian, 18 624 F.3d at 1262 (finding this factor favored relief where “mistake was not a bad-faith, 19 post-hoc rationalization concocted to secure additional time”). In short, while Plaintiff 20 should have been more cautious in both properly filing the Response (Doc. 70) and 21 checking her mail considering she has a pending case in which she is representing 22 herself, the facts here simply do not appear to rise to the level of bad faith. Bateman, 231 23 F.3d at 1225. 24 The equities favor Plaintiff. Therefore, her Motion for Leave to File a Late 25 Opposition Response to Defendant’s Motion for Judgment on the Pleadings (Doc. 72) 26 will be granted, and consequently, Defendant’s Request for Summary Disposition 27 (Doc. 67) will be denied. 28 1 II. DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS 2 As noted, Defendant has filed a Motion for Judgment on the Pleadings (Doc. 60). 3 Plaintiff opposes that Motion (Doc. 60). (Doc. 70). 4 a. Background 5 The operative complaint is the First Amended Complaint. (Doc. 12). Defendant 6 has answered. (Doc. 17). The following facts are either undisputed or recounted in the 7 light most favorable to Plaintiff, the non-movant. See Fleming v. Pickard, 581 F.3d 922, 8 925 (9th Cir. 2009). 9 Defendant hired Plaintiff in September 1993 as a Cardmember Senior Prevention 10 Specialist in the fraud department within Defendant’s call center in Phoenix, Arizona. 11 (Doc. 12 at 5; Doc. 17 at 3). Plaintiff took a medical leave of absence from August 22, 12 2017 to February 14, 2018 in order to get throat and nose surgery to treat sleep apnea. 13 (Doc. 12 at 5; Doc. 17 at 3). 14 On March 29, 2018, after returning to work, Plaintiff claims that the “phone work” 15 that was required by her position was straining her voice, and she requested no phone 16 work until May 23, 2018 based on a doctor’s recommendation. (Doc. 12 at 7). Plaintiff 17 claims that she “suggested a number of positions that did not require that she use the 18 phone” and that her manager falsely indicated there were no such positions. (Id.). 19 Plaintiff asserts that she was “forc[ed] . . . to take short term disability [sic]” as a result 20 despite the fact that Defendant “could have accommodated” her with a different position. 21 (Id. at 7–8). Plaintiff alleges that while she was on short-term disability, human resources 22 “continued to insist [Defendant] had no work for [Plaintiff]” and that Defendant “offered 23 her part-time phone work instead.” (Id. at 8; see Doc. 17 at 4). But, according to Plaintiff, 24 part-time phone work was not suitable “because it would cause permanent damage to her 25 vocal cords.” (Doc. 12 at 8; see Doc. 17 at 4). On May 30, 2018, Plaintiff’s doctor 26 recommended that Plaintiff perform no phone work until July 30, 2018. (Doc. 12 at 8; 27 Doc. 17 at 4). In response, Plaintiff took paid time off to extend her leave. (Doc. 12 at 8). 28 1 Plaintiff claims that she “attempted to engage in an interactive process with 2 [Defendant] on three separate occasions” and that her “emails and phone calls to [human 3 resources] went unanswered.” (Id.). As a result, Plaintiff alleges that she submitted a 4 charge of disability discrimination on July 18, 2018. (Id.; see Doc. 17 at 4; Doc. 15-21 5 (charge to EEOC)). Plaintiff received her right to sue based on the charge on May 25, 6 2019. (Doc. 12 at 11; Doc. 15-3). 7 b. Legal Standard 8 Federal Rule of Civil Procedure 12(c) provides: “After the pleadings are closed— 9 but early enough not to delay trial—a party may move for judgment on the pleadings.” 10 “Judgment on the pleadings is proper when the moving party clearly establishes on the 11 face of the pleadings that no material issue of fact remains to be resolved and that it is 12 entitled to judgment as a matter of law.” Hal Roach Studios, Inc. v. Richard Feiner & 13 Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1990). 14 The analysis of a defendant’s Rule 12(c) motion is “substantially identical” to the 15 analysis of a Rule 12(b)(6) motion because, under both rules, “a court must determine 16 whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal 17 remedy.” Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (citation omitted). 18 When considering a Rule 12(c) motion, review is limited to the complaint and any 19 attachments to the complaint, documents that are incorporated into the complaint by 20 reference, and “facts that are contained in materials of which the court may take judicial 21 notice.” See Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 n.18 (9th Cir. 22 1999); Fed. Trade Comm’n v. LendingClub Corp., No. 18-CV-02454-JSC, 2020 WL 23 2838827, at *24 (N.D. Cal. June 1, 2020) (citation omitted). A court considering a 24 defendant’s Rule 12(c) motion must accept the plaintiff’s factual allegations as true.
25 1 Though Plaintiff did not attach the charge (Doc. 15-2) until nearly two weeks after filing the First Amended Complaint (Doc. 12), Defendant does not object, and thus, the 26 Court will consider the attachments as properly attached to the First Amended Complaint (Doc. 12). (See Docs. 15, 15-1, 15-2, 15-3 (attachments)). Consequently, Plaintiff’s 27 charge to the EEOC can be considered in ruling on Defendant’s Motion (Doc. 60). See Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 n.18 (9th Cir. 1999); Fed. 28 Trade Comm’n v. LendingClub Corp., No. 18-CV-02454-JSC, 2020 WL 2838827, at *24 (N.D. Cal. June 1, 2020) (citation omitted). 1 Chavez, 683 F.3d at 1108. However, courts may not accept legal conclusions couched as 2 factual allegations. See id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). As such, 3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 4 statements” are not sufficient to survive a Rule 12(c) motion. Barker v. Gottlieb, 978 F. 5 Supp. 2d 1168, 1173 (D. Haw. 2013) (alteration in original) (quoting Iqbal, 556 U.S. at 6 678). To prevail over a defendant’s Rule 12(c) motion for judgment on the pleadings, a 7 plaintiff must show that the complaint contains “sufficient factual matter, accepted as 8 true, to state a claim of relief that is plausible on its face.” Harris v. County of Orange, 9 682 F.3d 1126, 1131 (9th Cir. 2012) (quoting Iqbal, 556 U.S. at 678). “A claim has facial 10 plausibility when the plaintiff pleads factual content that allows the court to draw the 11 reasonable inference that the defendant is liable for the misconduct alleged.” Chavez, 683 12 F.3d at 1108 (quoting Iqbal, 556 U.S. at 678). 13 c. Analysis 14 Plaintiff alleges three claims in the First Amended Complaint: (1) a disability 15 discrimination claim under the Americans with Disabilities Act (“ADA”), 42 U.S.C. 16 § 12112(a); (2) a retaliation claim under the ADA, 42 U.S.C. § 12203(a); and (3) a 17 retaliation claim under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. 18 § 623(d).2 (Doc. 12). The Court will take each claim in turn. 19 1. Disability Discrimination Under the ADA 20 The ADA forbids an employer from discriminating “against a qualified individual 21 on the basis of disability in regard to job application procedures, the hiring, advancement, 22 or discharge of employees, employee compensation, job training, and other terms, 23 conditions, and privileges of employment.” 42 U.S.C. § 12112(a). “‘[Q]ualified 24 individual’ means an individual who, with or without reasonable accommodation, can 25 perform the essential functions of the employment position that such individual holds or 26 desires.” Id. § 12111(8). An employer discriminates against a qualified individual with a 27 disability by “not making reasonable accommodations to the known physical or mental
28 2 Plaintiff also alleged a defamation claim that was dismissed as a result of the parties’ stipulation. (Doc. 26; Doc. 27). 1 limitations of an otherwise qualified individual with a disability who is an applicant or 2 employee, unless [the employer] can demonstrate that the accommodation would impose 3 an undue hardship on the operation of the business of [the employer].” Id. 4 § 12112(b)(5)(A) (emphasis added). Therefore, a plaintiff can establish a prima facie case 5 for failure to accommodate under the ADA where she establishes: “(1) she is disabled; 6 (2) she is qualified for the job in question and capable of performing it with reasonable 7 accommodation; (3) the employer had notice of her disability; and (4) the employer failed 8 to reasonably accommodate her disability.” Steenmeyer v. Boeing Co., 92 F. Supp. 3d 9 1024, 1030 (W.D. Wash. 2015) (citations omitted). 10 Defendant has not challenged Plaintiff’s allegations regarding her disability, her 11 qualifications, or that it had notice of her disability. (Doc. 60). Rather, the key dispute 12 between Plaintiff and Defendant is whether Defendant failed to reasonably accommodate 13 Plaintiff’s disability. 14 Plaintiff alleges Defendant did not reasonably accommodate her disability because 15 it did not reassign her to a vacant position. (Doc. 12 at 7–8). More specifically, Plaintiff 16 claims her throat surgery prevented her from doing phone work and that she requested 17 reassignment to a vacant position that did not include phone work. (Id). Defendant 18 responds that it satisfied its obligations under the ADA. (Doc. 60; see also Doc. 17 at 3– 19 4). 20 The ADA explicitly provides that the term “reasonable accommodation may 21 include . . . reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B); US Airways, 22 Inc. v. Barnett, 535 U.S. 391, 396 (2002). The reasonableness of a particular 23 accommodation is a fact-intensive inquiry that must be decided on a case-by-case basis. 24 Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999). 25 When an employer becomes aware of the employee’s need for accommodation, 26 the employer must “engage in an interactive process with the employee to identify and 27 implement appropriate reasonable accommodations.” Humphrey v. Mem’l Hosps. Ass’n, 28 239 F.3d 1128, 1137 (9th Cir. 2001) (citation omitted). “An appropriate reasonable 1 accommodation must be effective[] in enabling the employee to perform the duties of the 2 position.” Id. “The interactive process is the key mechanism for facilitating the 3 integration of disabled employees into the workplace.” Vanderpool v. Sysco Food Servs. 4 of Portland, Inc., 177 F. Supp. 2d 1135, 1140–41 (D. Or. 2001) (quoting Barnett v. U.S. 5 Air, Inc., 228 F.3d 1105, 1116 (9th Cir. 2000) (en banc), vacated sub nom. US Airways, 6 Inc., 535 U.S. 391). The process is intended to “foster[] the framework of cooperative 7 problem-solving contemplated by the ADA” as it “encourag[es] employers to seek to find 8 accommodations that really work” and because it “avoid[s] the creation of a perverse 9 incentive for employees to request the most drastic and burdensome accommodation 10 possible out of fear that a lesser accommodation might be ineffective.” U.S. E.E.O.C. v. 11 UPS Supply Chain Sols., 620 F.3d 1103, 1111 (9th Cir. 2010) (second and third 12 alterations in original). 13 Accordingly, “[t]he interactive process requires: (1) direct communication 14 between the employer and employee to explore in good faith the possible 15 accommodations; (2) consideration of the employee’s request; and (3) offering an 16 accommodation that is reasonable and effective.” Zivkovic v. S. Cal. Edison Co., 302 F.3d 17 1080, 1089 (9th Cir. 2002) (citation omitted); see also 29 C.F.R. Pt. 1630, App. (noting 18 that an employer “should . . . [c]onsider the preference of the individual to be 19 accommodated and select and implement the accommodation that is most appropriate for 20 both the employee and the employer”). The employer and employee must explore 21 possible accommodations in good faith. Humphrey, 239 F.3d at 1137–38. And the 22 employer’s duty to explore possible accommodations “is a continuing duty that is not 23 exhausted by one effort.” McAlindin v. County of San Diego, 192 F.3d 1226, 1237 (9th 24 Cir. 1999) (internal quotation marks and citation omitted), opinion amended on denial of 25 reh’g, 201 F.3d 1211 (9th Cir. 2000). “Liability for failure to provide reasonable 26 accommodations ensues only where the employer bears responsibility for the breakdown 27 in the interactive process.” Zivkovic, 302 F.3d at 1089 (internal quotation marks and 28 citation omitted). “Employers, who fail to engage in the interactive process in good faith, 1 face liability for the remedies imposed by the statute if a reasonable accommodation 2 would have been possible.” Humphrey, 239 F.3d at 1137–38 (citation omitted). 3 Plaintiff alleges just that. She claims Defendant refused to engage in the 4 interactive process, and thus, her disability was not reasonably accommodated. (Doc. 12 5 at 7–9; Doc. 70 at 9–11). However, Defendant asserts it satisfied its duty to take part in 6 the interactive process as, according to Plaintiff’s charge to the EEOC, a human resources 7 representative spoke with Plaintiff numerous times. (Doc. 60 at 12 n.6 (citing Doc. 15-2 8 (Plaintiff’s charge))). Yet communication is not all that is required by the interactive 9 process. Instead, as noted, “[t]he interactive process requires: (1) direct communication 10 between the employer and employee to explore in good faith the possible 11 accommodations; (2) consideration of the employee’s request; and (3) offering an 12 accommodation that is reasonable and effective.” Zivkovic, 302 F.3d at 1089. Boiled 13 down, Plaintiff asserts that Defendant did not engage in the interactive process in good 14 faith or truly consider her request. (Doc. 12 at 7–9). Defendant may believe that it did 15 perform its obligations in good faith and may even have evidence to support that belief. 16 But a motion for judgment on the pleadings is not the appropriate vehicle to resolve such 17 a dispute. 18 Even so, a failure to engage in the interactive process is not actionable in and of 19 itself. Humphrey, 239 F.3d at 1137–38; see also Kramer v. Tosco Corp., 233 F. App’x 20 593, 596 (9th Cir. 2007) (“[F]ailure to engage in that process is not itself evidence of 21 failure to reasonably accommodate.”). The plaintiff employee must still show that the 22 failure to engage in the interactive process resulted in a failure to reasonably 23 accommodate the plaintiff’s disability. Humphrey, 239 F.3d at 1137–38. 24 Defendant argues that it cannot be liable for failure to reassign Plaintiff because 25 Defendant claims it reasonably accommodated Plaintiff by allowing her to take leave. 26 (Doc. 60 at 12–13). The key to Defendant’s argument is its assertion that “[t]he ADA 27 does not require [that] an employer grant the employee’s specific requested 28 accommodation.” (Id. at 13). Accordingly, if Defendant is correct that leave was a 1 reasonable accommodation, liability cannot attach under the ADA as the ADA’s 2 provisions only require Defendant to reasonably accommodate Plaintiff’s disability. 3 Zivkovic, 302 F.3d at 1089. Stated differently, an employer need not accommodate an 4 employee in the exact manner the employee requests or prefers. See id. 5 “A leave of absence for medical treatment may be a reasonable accommodation 6 under the ADA” where it “permit[s] [an employee], upon [her] return, to perform the 7 essential functions of [her] job.” Humphrey, 239 F.3d at 1135–36. But here, Plaintiff did 8 not request leave because Plaintiff could work; her disability simply limited her in what 9 work she could perform. (Doc. 12 at 7–8). Plaintiff had taken about six months of 10 medical leave by the time she requested reassignment in March 2018. (Id. at 5–8). 11 Further, at that time, her doctor had only recommended a restriction of no phone work 12 due to the strain it would cause on her vocal cords. (Id. at 7–8). Plaintiff asserts that she 13 was “forc[ed] to take short term disability” and paid time off “when . . . [Defendant] 14 could have accommodated [her]” by reassigning her to another vacant position. (Doc. 12 15 at 7–8). At this stage, it is simply inappropriate to determine whether leave was a 16 reasonable accommodation considering Plaintiff’s allegation that there were available, 17 vacant positions that she could perform. Mois v. Wynn Las Vegas LLC, 715 F. App’x 600, 18 601 (9th Cir. 2017) (concluding that leave was an unreasonable accommodation when 19 employer failed to show reassignment would create an undue hardship); Dang v. Solar 20 Turbines, Inc., No. 07CV520 BTMPOR, 2007 WL 4536632, at *4 (S.D. Cal. Dec. 18, 21 2007) (“Whether reinstatement and transfer to a different position after the long term 22 [sic] leave enjoyed by [p]laintiff constitutes a reasonable accommodation will be a factual 23 question.”); see also Nunes, 164 F.3d at 1247 (“Determining whether a proposed 24 accommodation (medical leave in this case) is reasonable . . . requires a fact-specific, 25 individualized inquiry.”). The fact that Defendant allowed Plaintiff to take leave therefore 26 is not dispositive at this time. 27 Finally, Defendant contends that Plaintiff’s allegations do not sufficiently establish 28 that reassignment was a reasonable accommodation because Plaintiff does not identify 1 any vacant position that she was qualified to fill in the First Amended Complaint 2 (Doc. 12). (Doc. 60 at 13 n.7). To show that reassignment constitutes a reasonable 3 accommodation, a plaintiff must establish not only that there was a vacant position 4 available but also that she is qualified to fill that vacant position. Dark v. Curry County, 5 451 F.3d 1078, 1089 (9th Cir. 2006). 6 Plaintiff has alleged that there were vacant positions and that she was qualified to 7 fill them. (Doc. 12 at 7–9 (“[Plaintiff] . . . suggested a number of positions that did not 8 require that she use the phone.”); see id. at 7–8 (stating there were non-phone positions 9 available and Defendant “could have accommodated [Plaintiff]”); see also Doc. 15-2 at 1 10 (“I have provided information for jobs that I can perform as an accommodation . . . .”)). 11 At this stage, Plaintiff’s allegations must be taken as true. Williams v. Am. Airlines, Inc., 12 No. 19-CV-08434-JSC, 2020 WL 1330388, at *5 (N.D. Cal. Mar. 23, 2020). 13 It is not clear that Plaintiff’s allegations are sufficient. However, the deadline for 14 amendment has passed, and the Court will not entertain another round of amendments at 15 this late stage. As the Court previously recognized, there was no deadline for filing 16 motions to amend the complaint as the parties implicitly represented in the Joint Rule 17 26(f) Case Management Plan that no amendment would be necessary. (Doc. 55; see 18 Doc. 28). It is suspect that Plaintiff would have agreed to no amendments to the 19 complaint if she had known that Defendant was planning on later filing a motion to 20 dismiss and the instant Motion for Judgment on the Pleadings (Doc. 60). These motions 21 came several months after Plaintiff’s counsel withdrew, further complicating the issue as 22 now Plaintiff is proceeding pro se. Moreover, Defendant filed the Motion for Judgment 23 on the Pleadings (Doc. 60) approximately eight months after Plaintiff filed the original 24 Complaint (Doc. 1) and about seven after Plaintiff filed the First Amended Complaint 25 (Doc. 12). And Defendant has asserted, at least since November 2019, that there were no 26 vacant positions that Plaintiff could fill. (Doc. 28 at 3). There is no apparent reason why 27 Defendant could not have sought dismissal sooner based on its theory that Plaintiff failed 28 1 to identify, in the First Amended Complaint (Doc. 12), what vacant positions she was 2 qualified to fill. 3 If Defendant had done so, Plaintiff would have had the opportunity to potentially 4 cure any deficient allegations before the deadline to amend expired. The Court must 5 apply the timeliness requirements equally. It is the lateness of Defendant’s Motion 6 (Doc. 60) that has created issues related to the timeliness of any potential amendment to 7 the pleadings by Plaintiff. 8 The Court will therefore accept Plaintiff’s allegation that she had the requisite 9 qualifications for vacant positions—for purposes of ruling on the Motion for Judgment on 10 the Pleadings (Doc. 60) alone—despite her failure to identify any of these positions in the 11 First Amended Complaint (Doc. 12). See Dang, 2007 WL 4536632, at *4 (denying 12 motion to dismiss claim under ADA for failure to reassign plaintiff to a different position 13 despite the fact that the pro se plaintiff did not identify specific vacant positions in the 14 complaint). But see Sinyan v. Swedish Hosp. Med. Ctr., 482 F. App’x 209, 210 (9th Cir. 15 2012) (affirming dismissal where pro se plaintiff did not “allege facts sufficient to show 16 that there was a vacant position and that she was qualified for such a position”). Granting 17 the Motion (Doc. 60) based on Plaintiff’s failure to identify vacant positions at this stage 18 would likely just cause excessive delay. Fed. R. Civ. P. 12(c) (“After the pleadings are 19 closed—but early enough not to delay trial—a party may move for judgment on the 20 pleadings.”); Sec. & Exch. Comm’n v. Hemp, Inc., No. 216CV01413JADPAL, 2018 WL 21 1220566, at *2 (D. Nev. Mar. 8, 2018) (denying motion for judgment on the pleadings 22 where court found that the motion “cause[d] undue and unnecessary delay”); 5C Charles 23 Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1367 (3d ed. 2017) 24 (“[A] Rule 12(c) motion is considered timely if it is made early enough not to delay trial 25 or cause prejudice to the non-movant.”). Defendant may raise the argument that there 26 were no vacant positions that Plaintiff could fill in a motion for summary judgment, if 27 appropriate. 28 1 The Court finds that the First Amended Complaint (Doc. 12) sufficiently alleges a 2 claim for failure to reasonably accommodate Plaintiff’s disability under the ADA. Thus, 3 Defendant’s Motion (Doc. 60) will be denied as to this claim. 4 2. Retaliation Claim Under the ADA 5 Defendant argues that it is entitled to judgment as a matter of law on Plaintiff’s 6 retaliation claim under the ADA as well. (Doc. 60 at 11–12). The ADA provides: “No 7 person shall discriminate against any individual because such individual has opposed any 8 act or practice made unlawful by this chapter or because such individual made a charge, 9 testified, assisted, or participated in any manner in an investigation, proceeding, or 10 hearing under this chapter.” 42 U.S.C. § 12203(a). “To establish a prima facie case of 11 retaliation under the ADA, an employee must show that: (1) [] she engaged in a protected 12 activity; (2) [she] suffered an adverse employment action; and (3) there was a causal link 13 between the two.” Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004). 14 Defendant only asserts that Plaintiff failed to identify an adverse employment 15 action; thus, the Court will focus its analysis on that element. (Doc. 60 at 11–12). 16 Plaintiff alleges the following forms of retaliation: 17 (A) [Managers] sent a carpet cleaner to [Plaintiff’s] work area knowing the carpet cleaning would aggravate [Plaintiff’s] COPD. 18 (B) [Defendant] de-activated [Plaintiff’s] badge while being on PTO[.] 19 (C) Attempted to block [Plaintiff’s] unemployment by falsely representing to the Arizona Department of Economic Security that [Plaintiff] quit her 20 job. . . . 21 (D) [A manager] scrutinize[ed] [Plaintiff’s] emails. (E) Labeling [Plaintiff] as a “conspiracy theorist[.]” 22 (F) Refusal to give [Plaintiff] a non-phone position. 23 24 (Doc. 12 at 10). Defendant contends that the first five acts alleged are not sufficient to 25 show adverse employment action. (Doc. 60 at 11–12). 26 The Court need not go further as the sixth alleged act—“[r]efusal to give 27 [Plaintiff] a non-phone position”—may constitute adverse employment action. To 28 establish adverse employment action, a plaintiff employee need only show that the action 1 is “reasonably likely to deter employees from engaging in protected activity.” Pardi, 389 2 F.3d at 850 (citation omitted). An employer’s denial of reassignment “because of [the 3 employee’s] involvement in protected activities” can constitute an adverse employment 4 action under certain circumstances. Bouman v. Block, 940 F.2d 1211, 1229 (9th Cir. 5 1991).3 In fact, Defendant did not even raise the argument that refusal to reassign 6 Plaintiff is not an adverse employment action. Consequently, the Court will not consider 7 Defendant’s arguments as to the first five alleged acts of adverse employment action at 8 this time. Fed. R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a claim or 9 defense alternatively or hypothetically . . . . If a party makes alternative statements, the 10 pleading is sufficient if any one of them is sufficient.”). Defendant’s Motion (Doc. 60) 11 will be denied as to Plaintiff’s retaliation claim under the ADA. 12 3. Retaliation Claim Under the ADEA 13 Defendant raises two principal issues in support of its argument that Plaintiff’s 14 retaliation claim under the ADEA must be dismissed. (Doc. 60 at 9–12). The Court takes 15 each in turn. 16 A. Exhaustion 17 Defendant first asserts that Plaintiff’s ADEA claim must be dismissed as it 18 contends that she failed to exhaust her administrative remedies. (Doc. 60 at 9–10). A 19 plaintiff alleging a claim under the ADEA must first exhaust her administrative 20 remedies.4 See 29 U.S.C. § 626(d)(1); B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099
21 3 The Court notes that the retaliation claim in Bouman was brought under Title VII. 940 F.2d at 1228–29. Nonetheless, retaliation claims under the ADA “are adjudicated under 22 the same standards as Title VII retaliation claims.” Purcell v. Am. Legion, 44 F. Supp. 3d 1051, 1057 (E.D. Wash. 2014) (citing Barnett, 228 F.3d at 1121). Thus, Title VII cases 23 are relevant to the analysis under the ADA here.
24 4 The Supreme Court recently clarified that the exhaustion requirement under Title VII is not jurisdictional but rather is a “mandatory claim-processing rule” that may be waived if 25 not timely raised by the defendant. Fort Bend County v. Davis, 139 S. Ct. 1843, 1849–52 (2019). This holding extends to ADEA claims. Hodge v. Walrus Oyster House, No. CV 26 TDC-18-3845, 2019 WL 6069114, at *3 (D. Md. Nov. 15, 2019). While Fort Bend County must therefore abrogate Ninth Circuit precedent establishing that the ADEA’s 27 exhaustion requirement is jurisdictional, the distinction is without practical effect here as Defendant raised it in its first responsive pleading, (Doc. 17 at 6 (Defendant’s Answer)), 28 and Plaintiff did not raise any issue relating to waiver. See Fort Bend County, 139 S. Ct. at 1849, 1850–52. 1 (9th Cir. 2002); Ramirez v. Kingman Hosp. Inc., 374 F. Supp. 3d 832, 854 (D. Ariz. 2 2019). To exhaust administrative remedies, a plaintiff must “fil[e] a timely charge with 3 the EEOC, or the appropriate state agency, thereby affording the agency an opportunity 4 to investigate the charge.” Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th 5 Cir. 2002) (citations omitted); see Ramirez, 374 F. Supp. 3d at 854. 6 “Whether a plaintiff has in fact exhausted his or her administrative remedies 7 depends on an analysis of the ‘fit’ between the administrative charges brought and 8 investigated and the allegations of the subsequent judicial complaint.” Ong v. Cleland, 9 642 F.2d 316, 318 (9th Cir. 1981). A plaintiff’s civil claim must be “like or reasonably 10 related to the allegations” within the charge. See Lyons v. England, 307 F.3d 1092, 1104 11 (9th Cir. 2002); B.K.B., 276 F.3d at 1100. A claim of discrimination is reasonably related 12 to the charge’s allegations where it is “within the scope of the EEOC’s actual 13 investigation or an EEOC investigation which can reasonably be expected to grow out of 14 the charge of discrimination.” EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 15 1994) (internal quotation marks and citations omitted); see Vasquez v. County of Los 16 Angeles, 349 F.3d 634, 644 (9th Cir. 2003). In making that determination, relevant 17 factors include: “the alleged basis of the discrimination, dates of discriminatory acts 18 specified within the charge, perpetrators of discrimination named in the charge, and any 19 locations at which discrimination [was] alleged to have occurred.” Vasquez, 349 F.3d at 20 644 (citation omitted). If the claim is “‘consistent with the plaintiff’s original theory of 21 the case’ as reflected in the plaintiff's factual allegations and [her] assessment as to why 22 the employer’s conduct is unlawful,” then the claim is reasonably related to the charge 23 such that it was properly exhausted. Lyons, 307 F.3d at 1104 (quoting B.K.B., 276 F.3d at 24 1100). 25 Here, Plaintiff has alleged retaliation both in her First Amended Complaint, 26 (Doc. 12 at 6–8, 10), and in her charge, (Doc. 15-2). However, Plaintiff explicitly alleged 27 retaliation in violation of the ADEA only in the complaint. In the charge, Plaintiff 28 checked the box for disability discrimination and retaliation. (Doc. 15-2). Plaintiff 1 explained in the charge’s narrative that she believed that she had been “retaliated against 2 by not being approved for an accommodation in violation of the [ADA]”—specifically 3 reassignment to a vacant position—as a result of “fil[ing] a complaint against” her 4 manager, “Mr. Glover, in or about March 2018.” (Doc. 15-2). In the First Amended 5 Complaint, Plaintiff elaborates that there was allegedly an incident in March 2018 in 6 which Plaintiff stated, during a group meeting, that Glover discriminated against Plaintiff 7 and other employees based on age. (Doc. 12 at 6). Plaintiff then claims that “Glover 8 became hostile, rude, and unprofessional,” culminating in Glover’s refusal to reassign 9 Plaintiff to another position, which is consistent with Plaintiff’s charge. (Id. at 6–8; see 10 Doc. 15-2). 11 The Court recognizes that Plaintiff did not include any allegations related to age 12 discrimination in her charge. (Doc. 15-2). But Plaintiff has not raised an age 13 discrimination claim in the First Amended Complaint (Doc. 12). Rather, she alleges 14 retaliation as a result of her conflict with Glover during March 2018. (See Doc. 12 at 6–8, 15 10). In the charge, Plaintiff describes retaliation based on this same conflict with Glover; 16 she simply failed to include allegations that it was related to age discrimination. (Doc. 15- 17 2). 18 It is axiomatic that a plaintiff may “bring suit on claims that are ‘like or reasonably 19 related’ to allegations mentioned in [the] administrative charge[].” Henry v. Regents of 20 the Univ. of Cal., 37 F. Supp. 3d 1067, 1083 (N.D. Cal. 2014) (quoting Freeman, 291 21 F.3d at 636). Plaintiff exhausted her retaliation claim under the ADEA as that claim is 22 reasonably related to the allegations of retaliation Plaintiff raised against Glover in the 23 charge. A claim is exhausted even where the “charge does not contain the relevant legal 24 theory” so long as the charge “contain[s] the relevant factual allegations.” See Cohen v. 25 Clark Cty. Sch. Dist., No. 11-CV-1619-MLH-RJJ, 2012 WL 5473483, at *3 (D. Nev. 26 Nov. 9, 2012) (quoting Vasquez, 349 F.3d at 645) (holding gender discrimination claim 27 was exhausted despite plaintiff’s failure to specifically allege gender discrimination in the 28 charge as gender discrimination claim was based on the factual allegations of 1 “harassment” in the charge). The Court is hard-pressed to find that a claim based on 2 factual allegations in the charge has not been exhausted. 3 The allegations in the charge and the First Amended Complaint are consistent and 4 Plaintiff’s retaliation claim under the ADEA is based on the factual allegations in the 5 charge. Indeed, an EEOC investigation into the circumstances of Plaintiff’s complaint 6 against Glover in March 2018 is necessary to evaluate and understand Plaintiff’s theory 7 of the retaliation claim. See Farmer Bros. Co., 31 F.3d at 899 (noting that employee’s 8 charge sufficiently exhausted a discriminatory layoff claim, even assuming the charge did 9 not “explicitly [] raise a claim of discriminatory layoff,” because, “in order to evaluate (or 10 even to understand) [the employee’s] theory of the case, it was necessary for the EEOC 11 to investigate the circumstances of [her] layoff”). The alleged events that occurred in 12 March 2018 center on Plaintiff’s “protests” against age discrimination. (Doc. 12 at 6–8). 13 The alleged basis of retaliation in both the First Amended Complaint (Doc. 12) and the 14 charge was based on conflict with Glover in March 2018, the perpetrator was the same— 15 Glover, and the timing is the same. The only information missing from the charge is that 16 the March 2018 conflict allegedly related to Plaintiff’s protests regarding age 17 discrimination. In short, Plaintiff exhausted her ADEA claim because that claim is “like 18 or reasonably related to allegations in the charge” as it is “consistent with [her] original 19 theory of the case” based on the factual allegations in the charge—i.e., that she was 20 retaliated against due to her conflict with Glover. Lyons, 307 F.3d at 1104 (citation 21 omitted). Therefore, Plaintiff exhausted her ADEA claim because an EEOC investigation 22 into retaliation forbidden by the ADEA could reasonably have resulted from the charge. 23 Plaintiff certainly could have more clearly alleged in the charge that her retaliation 24 claim was based on her protests regarding age discrimination. But charges must be read 25 with the “utmost liberality” given that they are drafted by laypersons. B.K.B., 276 F.3d at 26 1100. Plaintiff’s failure to mark the box related to age discrimination is not fatal as “[t]he 27 crucial element of a charge of discrimination is the factual statement contained therein.” 28 Id. (citation omitted); see Hill v. City of Phoenix, No. CV-13-02315-PHX-DGC, 2014 1 WL 4980001, at *3 (D. Ariz. Oct. 6, 2014). Critically, the allegations in the charge and 2 First Amended Complaint (Doc. 12) deal with the same incident of discrimination— 3 alleged retaliation based on conflict between Plaintiff and Glover in March 2018. See 4 Cohen, 2012 WL 5473483, at *3. Plaintiff’s retaliation claim under the ADEA is 5 therefore within the scope of an EEOC investigation that would “reasonably be expected 6 to grow out of the charge” as the allegations of Plaintiff’s protests against age 7 discrimination are necessary to evaluate and understand her retaliation theory. See 8 Farmer Bros. Co., 31 F.3d at 898–99 (emphasis removed); see also Schagene v. Spencer, 9 No. 13CV0333 WQH (RBB), 2018 WL 4282633, at *2 (S.D. Cal. Sept. 7, 2018) (finding 10 retaliation claim was exhausted despite plaintiff’s failure to mark box for “reprisal” 11 because “[a] reasonable EEOC investigation of the allegations made in [p]laintiff’s EEO 12 complaint would include investigation of the same facts alleged in [p]laintiff’s retaliation 13 claim in this case”); cf. Freeman, 291 F.3d at 637 (finding plaintiff failed to exhaust 14 claims for incidents of discrimination first alleged in the complaint as those incidents 15 “would not have been necessary to, or addressed, in the scope of an investigation into 16 the” allegations included in the charge). Plaintiff’s ADEA claim is therefore reasonably 17 related to the allegations in the charge. 18 In short, Plaintiff’s ADEA claim alleging retaliation is reasonably related to the 19 factual allegations in the charge, and it is reasonable to expect that the ADEA claim 20 would be within the scope of an EEOC investigation into the factual allegations of the 21 charge. Accordingly, Plaintiff exhausted her ADEA claim. 22 B. Prima Facie Retaliation Claim Under ADEA 23 Defendant also asserts that Plaintiff failed to sufficiently allege a retaliation claim 24 under the ADEA. (See Doc. 60 at 11–12). The ADEA provides: 25 It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to 26 discriminate against any individual, or for a labor organization to 27 discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed 28 any practice made unlawful by this section, or because such individual, 1 member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation 2 under this chapter. 3 4 29 U.S.C. § 623(d). To prevail on a retaliation claim under the ADEA, a plaintiff must 5 show: “(1) [she was] engaged in protected activity; (2) the employer took an adverse 6 employment action against the plaintiff; and (3) a causal link between the protected and 7 the adverse action.” Robillard v. Opal Labs, Inc., 428 F. Supp. 3d 412, 453 (D. Or. 2019) 8 (citing Ray v. Henderson, 217 F.3d 1234, 1242–43 (9th Cir. 2000)). Defendant asserts 9 Plaintiff has not sufficiently alleged an adverse employment action. (Doc. 60 at 11–12). 10 Defendant’s argument fails for the same reason it failed as to Plaintiff’s retaliation 11 claim under the ADA. Plaintiff alleged that she was denied reassignment to a vacant 12 position as a result of her protests regarding age discrimination. (Doc. 12 at 6–8, 10). An 13 adverse employment action is “any adverse treatment that is based on a retaliatory motive 14 and is reasonably likely to deter the charging party or others from engaging in protected 15 activity.” See Robillard, 428 F. Supp. 3d at 453 (quoting Ray, 217 F.3d at 1242–43). 16 Denial of reassignment “because of [the employee’s] involvement in protected activities” 17 can constitute an adverse employment action. Bouman, 940 F.2d at 1229.5 It is irrelevant 18 if the other alleged acts do not constitute adverse employment actions at this stage. Fed. 19 R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a claim or defense 20 alternatively or hypothetically . . . . If a party makes alternative statements, the pleading 21 is sufficient if any one of them is sufficient.”). Defendant’s Motion (Doc. 60) will be 22 denied as to Plaintiff’s retaliation claim under the ADEA. 23 24 25
26 5 Again, the Court recognizes that the retaliation claim in Bouman was brought under Title VII. 940 F.2d at 1228–29. However, “[t]he ADEA retaliation provision [is] the 27 ‘equivalent of the anti-retaliation provision of Title VII.’” Stilwell v. City of Williams, 831 F.3d 1234, 1246–47 (9th Cir. 2016) (citation omitted). As such, Title VII cases are 28 relevant to the analysis under the ADEA here. 1 d. Conclusion 2 The Motion for Judgment on the Pleadings (Doc. 60) will be denied. As such, 3|| Plaintiff's discrimination claim under the ADA, retaliation claim under the ADA, and retaliation claim under the ADEA will go forward. 5|| I. CONDUCT IN THIS LITIGATION 6 As the Court discussed above, the Motion for Judgment on the Pleadings 7\| (Doc. 60) was filed relatively late in the case and only after Plaintiff became pro se. The 8 || Court reminds Defendant that it should not “engag[e] in hardball tactics designed to 9|| avoid resolution of the merits of th[e] case.” See Ahanchian, 624 F.3d at 1263. 10] IV. CONCLUSION 11 Based on the foregoing, 12 IT IS ORDERED that Plaintiff's Motion for Leave to File a Late Opposition 13 || Response to Defendant’s Motion for Judgment on the Pleadings (Doc. 72) is GRANTED, and therefore, Defendant’s Request for Summary Disposition (Doc. 67) is |} DENIED. 16 IT IS FURTHER ORDERED that Defendant’s Motion for Judgment on the 17|| Pleadings (Doc. 60) is DENIED.® 18 Dated this 29th day of July, 2020. 19 20 A 21 James A. Teilborg 22 Senior United States District Judge 23 24 25 26 27 6 Consequently, Plaintiff's request for leave to amend contained within her response to the Motion (Doc. 60) is denied as moot. (See Doc. 70 at 16). -2]-