Lacayo v. Donahoe

• Decision Date: 22 June 2015
• Docket Number: Case No. 14-cv-04077-JSC
• Court: U.S. District Court — Northern District of California
• Parties: ILIANA LACAYO, Plaintiff, v. PATRICK R. DONAHOE, Defendant.

ILIANA LACAYO, Plaintiff,
v.
PATRICK R. DONAHOE, Defendant.

Case No. 14-cv-04077-JSC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

June 22, 2015

ORDER RE: MOTION TO DISMISS SECOND AMENDED COMPLAINT

Re: Dkt. No. 43

In this postal-worker employment suit, Plaintiff Iliana Lacayo ("Plaintiff"), proceeding pro se and in forma pauperis, alleges that her civil rights were violated when her employer, the United States Post Office, run by Defendant Postmaster General Megan J. Brennan ("Defendant"), terminated her employment. The Court granted Defendant's motion to dismiss all but one claim (for retaliation) in the First Amended Complaint ("FAC") for failure to state a claim, finding Plaintiff's claims under the Family Medical Leave Act ("FMLA"), age discrimination in violation of the Age Discrimination in Employment Act, disability discrimination under the Rehabilitation Act, gender discrimination in violation of Title VII of the Civil Rights Act ("Title VII") insufficiently pleaded. See Lacayo v. Donahoe, No. 14-cv-4077-JSC, 2015 WL 993448, at *1 (N.D. Cal. Mar. 4, 2015).

Plaintiff has since filed a Second Amended Complaint ("SAC"); she no longer brings age and gender discrimination claims, but the FMLA, disability discrimination, and retaliation claims remain. (Dkt. No. 42.) Defendant moves to dismiss all four claims in the SAC, contending that the newly added allegations fail to cure the defects identified in the Court's Order dismissing the FAC and that the retaliation claim also fails to state a claim as pleaded. (Dkt. No. 43.) Having carefully considered the parties' submissions, the Court concludes that oral argument is

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unnecessary, see Civ. L.R. 7-1(b), and GRANTS Defendant's motion to dismiss as set forth below.

BACKGROUND

A. Factual Background

The factual background of this case was detailed extensively in the Court's Order granting Defendant's motion to dismiss the FAC, which the Court incorporates here in full. Lacayo, 2015 WL 993448, at *1-4. The Court will not reiterate the entire factual background here. Suffice it to say that this action pertains to Plaintiff's 2012 termination from her employment as a Letter Carrier in a San Francisco branch of the Post Office that occurred in the wake of an incident in which Plaintiff pleaded guilty to a DUI after an on-the-job drinking-and-driving incident in her Post Office vehicle.

Plaintiff's claims relate to two administrative claims she filed with the Postal Service's Equal Employment Opportunity Office ("EEO"). First, Plaintiff filed a 2013 EEO Complaint alleging race, national origin, sex, and disability discrimination based on the Post Office's following three actions: (1) a November 7, 2011 decision finding Plaintiff AWOL; (2) a February 15, 2012 decision to place her on off-duty, non-pay status of Emergency Placement—effectively, a suspension; and (3) a March 29, 2012 Notice of Removal that became effective on June 8, 2012. The Post Office dismissed Plaintiff's 2013 EEO Complaint and upheld her termination. Plaintiff then requested reinstatement to her old position. When that request was denied, Plaintiff filed a 2014 EEO Complaint contending that the Postal Service's failure to respond to her request for reinstatement constituted retaliation for filing the 2013 EEO Complaint and discrimination on the basis of race, national origin, sex, age, and disability. The SAC includes four causes of action: (1) violation of the FMLA; (2) disparate treatment disability discrimination under the Rehabilitation Act; (3) failure to accommodate a disability in violation of the Rehabilitation Act; and (4) retaliation, or reprisal, for engaging in protected activity in violation of Title VII. (See Dkt. No. 42.)

The Court previously granted Defendant's motion to dismiss without prejudice for failure to state a claim upon which relief could be granted. The Court concluded that the claims raised in

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Plaintiff's 2013 EEO Complaint were time-barred for failure to seek counseling within 45 days as the relevant statutes require, and therefore dismissed all but the FMLA claims to the extent that they challenge the adverse actions complained of in that administrative complaint. With respect to this administrative exhaustion issue, the Court cautioned Plaintiff that "she must allege facts that give rise to a plausible inference that she sought EEO counseling within 45 days or that there are grounds for equitable tolling" or risk dismissal of the unexhausted claims with prejudice. Lacayo, 2015 WL 993448, at *18. The Court further advised Plaintiff that any repleaded claims must "allege facts that give rise to a plausible inference of discrimination based on each protected characteristic." Id. The Court also noted that Plaintiff was "free to exclude from the [SAC] any causes of action she no longer wishes to bring." Id.

Plaintiff thereafter filed the SAC, which reiterates many of the factual allegations and most of same claims raised in the preceding complaints except for gender and age discrimination, which she no longer alleges. Defendant moved to dismiss the SAC on May 6, 2015, contending that Plaintiff had neither cured the administrative exhaustion problem nor alleged sufficient facts to make her substantive discrimination claims plausible. (Dkt. No. 43.) Plaintiff missed her deadline to oppose the motion, submitting her opposition nearly two weeks late. (Dkt. No. 45.) Although untimely, "in light of Plaintiff's pro se status and the Court's own preference to resolve matters on the merits," the Court considered Plaintiff's late opposition and gave Defendant additional time to file a reply. (Dkt. No. 46.) The motion is now fully briefed.

LEGAL STANDARD

A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facial plausibility standard is not a "probability requirement" but mandates "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the non-moving party." Manzarek v. St. Paul Fire & Mar. Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). "[D]ismissal may be based on

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either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008) (internal quotation marks and citations omitted); see also Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law.").

Even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), under which a party is only required to make "a short and plain statement of the claim showing that the pleader is entitled to relief," a "pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively."), cert. denied, 132 S. Ct. 2101 (2012). The court must be able to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663. "Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 663-64.

Pro se pleadings are generally liberally construed and held to a less stringent standard. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). In Hebbe v. Pliler, 627 F.3d 338 (9th Cir. 2010), the Ninth Circuit held that courts must still liberally construe pro se filings post-Iqbal noting that "[w]hile the standard is higher, our obligation remains, where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt." Id. at 342 (internal quotation marks and citations omitted). Nevertheless, the Court may not "supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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DISCUSSION

A. Extra-Pleading Materials

As in the Order dismissing the FAC, the Court must consider the admissibility of a variety of extra-pleading materials that Defendant has submitted. When adjudicating a motion to dismiss brought pursuant to Rule 12(b)(6), the Court's consideration of extra-pleading materials is limited. Normally, the Court cannot consider matters outside of the pleading...