Colasanti v. City of Portland

• Decision Date: 19 August 2021
• Docket Number: 3:19-cv-00443-YY
• Parties: LOU COLASANTI, Plaintiff, v. CITY OF PORTLAND and STATE OF OREGON, Defendants.
• Court: U.S. District Court — District of Oregon

LOU COLASANTI, Plaintiff, v. CITY OF PORTLAND and STATE OF OREGON, Defendants.

No. 3:19-cv-00443-YY

United States District Court, D. Oregon, Portland Division

August 19, 2021

FINDINGS AND RECOMMENDATIONS

Youlee Yim You United States Magistrate Judge

FINDINGS

Plaintiff Lou Colasanti brings this action against defendants the City of Portland (“the City”) and the State of Oregon (“the State”). The court previously granted defendants' motions to dismiss but with leave to amend. See Opinion and Order (“O&O”), ECF 41. Plaintiff has filed a Second Amended Complaint. Against the City, plaintiff alleges claims for employment discrimination (claim one) and interference with his right to seek reasonable accommodations (claim two) under Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12111-12117, and for disability discrimination under O.R.S. Chapter 659A (claim three). Second Am. Compl. ¶¶ 51-92, ECF 43. Against the State, plaintiff alleges claims for discrimination and interference by a public entity under Title II of the ADA, 42 U.S.C. §§ 12131-12165 (claim four), under Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 701-797 (claim five), and by a state government under O.R.S. 659A.142 (claim six), and for interference under all three statutes. Id. ¶¶ 93-140.

This court has subject matter jurisdiction over the federal claims pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3), and supplemental jurisdiction over the state claims pursuant to 28 U.S.C. § 1367.

Defendants have each filed a second motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The City seeks dismissal of plaintiff's ADA interference claim (claim two), but not claims one or three. City Mot Dismiss 1, ECF 48. The State seeks dismissal of all claims against it. State Mot. 4-7, ECF 46.

For the reasons below, the City's motion to dismiss (ECF 48) should be DENIED, and the State's motion to dismiss (ECF 46) should be DENIED as to the ADA interference claim but otherwise GRANTED.

I. Relevant Law Regarding Sufficiency of Complaint and Rule 12(b)(6)

To state a claim for relief, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This standard “does not require ‘detailed factual allegations, '” but does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555).

A Rule 12(b)(6) motion tests whether there is a cognizable legal theory or sufficient facts to support a cognizable legal theory. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). In evaluating a motion to dismiss, the court must accept the allegations of material fact as true and construe those allegations in the light most favorable to the non-moving party. Parks Sch. of Bus., Inc. v Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

II. Background

The factual allegations in the Second Amended Complaint (ECF 43) are largely identical to those in the amended complaint (ECF 3), a summary of which can be found in the prior Findings and Recommendations (ECF 27).^[1] Plaintiff has added the following allegations:

(1) The City allowed him to retake a Physical Activity Test during the pre-hire process, Second Am. Compl. ¶ 22, ECF 43,

(2) Department of Public Safety Standards and Training (“DPSST”) Lieutenant Stradely told plaintiff on January 26, 2018, that he would be watching plaintiff's class particularly closely for missteps, id. ¶ 34,

(3) Lieutenant Stradely's comment that people had used health conditions as an “excuse” made plaintiff “feel diminished for having a disability and requesting accommodations and discouraged and intimidated Plaintiff from requesting accommodations for his disability, ” id. ¶ 35,

(4) DPSST Lieutenant Mahuna told plaintiff there were too many other recruits to allow plaintiff to continue his employment if he failed to appeal his dismissal from basic training, id. ¶ 42, and

(5) Christopher Gjovick and Portland Police Bureau (“PPB”) Sergeant William Goff responded “yes” when plaintiff asked them if he was being terminated for physical reasons. Id. ¶ 48. Plaintiff also emphasizes that he provided a letter to the pre-hire examining physician “from his cardiologist who wrote that Plaintiff was physically fit and cleared by his medical provider to serve as an active Police Officer so long as he does not have a Taser used on him during training” because of his heart condition. Id. ¶ 21.

During oral argument, plaintiff offered additional allegations against the City that he would add to the complaint should the court allow him to amend the complaint again. Specifically, plaintiff would allege that he discussed his heart condition with Sergeant Goff at PPB's training center and asked not to be perceived as lazy by the instructors if he fatigued faster than other recruits due to his heart condition, and talked about the letter from his doctor, which stated plaintiff could not be tased. Plaintiff would also allege that he asked Sergeant Goff whether the DPSST academy instructors knew about his heart condition before he attended the Academy.

III. City's Partial Motion to Dismiss (ECF 48)

A. Procedural History

Plaintiff previously alleged claims for employment discrimination and retaliation under Title I of the ADA and O.R.S. Chapter 659A. Am. Compl. ¶¶ 47-88, ECF 3. The City sought dismissal of plaintiff's retaliation claims and plaintiff's prayer for compensatory and noneconomic damages related to that claim. City Mot. 6-16, ECF 7. The court granted the City's motion, dismissing the retaliation claims without prejudice and plaintiff's prayer for damages with prejudice. O&O 4, ECF 41. The court gave plaintiff leave to amend his complaint “to allege that he engaged in the protected activity of requesting an accommodation.” Findings and Recommendations (“F&R”) 2, 19, ECF 27, adopted by O&O, ECF 41. Plaintiff amended his complaint by substituting the retaliation claim with a claim for interference. Compare First Am. Compl. ¶¶ 61-70 (second claim) with Second Am. Compl. ¶¶ 68-75 (second claim). At any rate, the City now moves to dismiss the interference claim. City Mot. Dismiss 1, ECF 48. At oral argument, plaintiff asked for leave to revive his retaliation claim, should the court find, when analyzing the retaliation claim, that he engaged in protected activity.

B. ADA Interference

In his Second Amended Complaint, plaintiff alleges the “City interfered with [his] exercise of his right to seek accommodations for his disability” under ADA § 503(b). Second Am. Compl. ¶ 69, ECF 43. That statute provides:

It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.

42 U.S.C. § 12203(b). An ADA interference claim, unaccompanied by a § 503(a) relation claim, is known as an interference-only claim. See Bayer v. Neiman Marcus Grp., Inc., No. 13-CV-04487-MEJ, 2018 WL 2427787, at *7 (N.D. Cal. May 30, 2018).

1. Legal Framework

The parties dispute what a plaintiff must allege to state an ADA interference-only claim in the Ninth Circuit. The City asserts the analysis is identical to the ADA retaliation claim plaintiff previously asserted, which requires that a plaintiff engaged in an activity protected by the ADA, the plaintiff suffered an adverse employment action, and there is a causal link between the two. See City Mot. 2-3, ECF 48; City Reply 1, ECF 58.^[2] Plaintiff asserts he has sufficiently alleged that he engaged in protected activities, if that is required, but argues the statute's plain language does not require that a plaintiff engaged in a protected activity.^[3] Neither party addresses the question left open by the Ninth Circuit in Brown v. City of Tucson, 336 F.3d 1181, 1191 (9th Cir. 2003), which is whether the employee must establish a causal link between the employee's enjoyment of an ADA right and the employer's conduct. Bayer, 2018 WL 2427787, at *7.

“Statutory interpretation begins with the plain meaning of the statute's language.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 732 (9th Cir. 2007) (quoting Botosan v. Paul McNally Realty, 216 F.3d 827, 831 (9th Cir. 2000). Statutes must “be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 U.S. 303, 314 (2009) (simplified).

Again, ADA § 503(b) provides:

It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.

42 U.S.C. § 12203(b). The plain language of § 503(b) prohibits three separate categories of conduct: (1) interference “with any individual in the exercise or enjoyment of” an ADA right, (2) interference “with any individual . . . on account of his or her having exercised or enjoyed” an ADA right, and (3) interference “with any individual...