Lacayo v. Donahoe, Case No. 14-cv-04077-JSC

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtJACQUELINE SCOTT CORLEY United States Magistrate Judge
Docket NumberCase No. 14-cv-04077-JSC
PartiesILIANA LACAYO, Plaintiff, v. PATRICK R. DONAHOE, Defendant.
Decision Date03 March 2015


Case No. 14-cv-04077-JSC


March 3, 2015


Re: Dkt. No. 24

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 Patrick R. Donahoe ("Defendant"), terminated her employment. Specifically, in the first amended complaint ("FAC"), Plaintiff contends that Defendant's decision to terminate her violated the Family Medical Leave Act ("FMLA"), and constituted age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), disability discrimination—in terms of both disparate treatment and failure to accommodate a disability—under the Rehabilitation Act, and retaliation and gender discrimination in violation of Title VII of the Civil Rights Act ("Title VII"). (Dkt. No. 16.)

Now pending before the Court is Defendant's motion to dismiss (Dkt. No. 27). Defendant initially moved to dismiss pursuant to both Federal Rule of Civil Procedure 12(b)(1), lack of subject matter jurisdiction, and Rule 12(b)(6), failure to state a claim. (Dkt. No. 24.) After carefully considering the parties' pleadings, and having had the benefit of oral argument on February 5, 2015, the Court GRANTS Defendant's motion to dismiss for failure to state a claim.

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A. Factual Background

The following facts are taken from Plaintiff's First Amended Complaint ("FAC") along with certain other documents that, as discussed in more detail below, are either incorporated or referenced in the complaint and central to Plaintiff's claims or otherwise subject to judicial notice. Plaintiff, who was 52 years old at the filing of the FAC, began working as a Letter Carrier at the Postal Service in 1985. (Dkt. No. 16 ¶¶ 8, 10.) At the time of the incidents at issue in this case, Plaintiff was based in the Townsend Carrier Annex in San Francisco. (Id.)

In March of 2011, Plaintiff filed a formal administrative complaint against her supervisor, Warren Lo. (Id. ¶ 9.) Plaintiff alleged that Lo's conduct constituted harassment, and she sought removal of certain disciplinary action from her employment record. (Id. ¶ 9.) Plaintiff and the Postal Service engaged in mediation and counseling, which resulted in administrative redress. (Id.)

AWOL in October and November 2011

Seven months later, a series of events occurred that eventually led Plaintiff to file this case. On Saturday, October 1, 2011, Plaintiff's ex-husband—and the father of her daughter—passed away in Chicago. (Id. ¶ 11.) The next day, Plaintiff called her supervisor, Emma Rivera, to inform her of the death and to request leave from work to travel to Chicago to comfort her daughter and arrange the funeral. (Id. ¶ 12.) Rivera responded "OK." (Id.) Plaintiff did not submit official paperwork, but believed that Rivera had approved her request for leave. (Id.)

The following Tuesday—October 4— Plaintiff called Rivera again and informed her that Plaintiff needed to extend her Chicago trip. (Id. ¶ 13.) Plaintiff spoke with Rivera next on Friday, October 7, 2011, to discuss when Plaintiff would return to work. (Id. ¶ 14.) On that call, Rivera mentioned Absence Without Leave ("AWOL") status. (Id.) Several days later, Rivera told Plaintiff that Postal Service Manager Cecilia Denton had advised Rivera to send Plaintiff an AWOL letter. (Id. ¶¶ 15-16.) On October 17, 2011, in a letter that Rivera signed, the Postal Service issued a letter stating that Plaintiff had been AWOL from October 4-6, 8, and 10-14, 2011.

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(Id. ¶ 17.) In the letter, Rivera noted that Plaintiff had been absent from work with "no call or no documentation," and that "the leave requests were not FMLA." (Id.)

On October 18, 2011, Plaintiff sought medical attention at a Kaiser Permanente medical office in Antioch, where she was "diagnosed with bereavement[ ] adjustment disorder with depressed mood." (Id. ¶ 18.) At that appointment and in a follow up on October 24, the treating physician recommended that Plaintiff take time off of work, but Plaintiff wished to return to work. (Id. ¶¶ 18, 22.)

The same day, Plaintiff responded in writing to the October 17 AWOL letter, explaining that she had been absent because her daughter was distraught about her father's death, which also impacted Plaintiff, and that Plaintiff believed Rivera had approved her request for leave. (Id. ¶ 20.) Plaintiff also requested that the AWOL be removed from her employment record. (Id.) Plaintiff returned to work on October 25, 2011. (Id. ¶ 23.)

On November 7, 2011, Rivera gave Plaintiff a formal Letter of Warning—Absence Without Leave. (Id. ¶, 24.) Plaintiff "explained her situation, burst out crying, and told Rivera she wanted to go home as she did not feel good." (Id.) The shop steward did not authorize Plaintiff to leave because there were not enough employees to cover the mail delivery routes, so Plaintiff remained at work feeling sick and depressed. (Id.)

On November 30, 2011, Plaintiff wrote a grievance letter to challenge the AWOL determination. (Id. ¶ 25.) In the letter, Plaintiff reiterated that she had been absent due to "her ex-husband's passing that caused [her] daughter to be distraught which also depressed Plaintiff." (Id.) The AWOL was never removed from Plaintiff's record. (Id. ¶ 27.)

Plaintiff's On-Duty DUI, Suspension, and Removal

On February 14, 2012, Plaintiff was involved in an accident while driving her Postal Service van after drinking at a bar during working hours. (Id. ¶ 28.) Plaintiff had gone to a restaurant near her Postal Service facility with several co-workers, including Jeff Crowley, Sergio Acosta, and Frieda Brown. (Id.) All four postal workers drank at the bar. (Id.)

After drinking, Plaintiff returned to her Postal Service vehicle intending to return it to the

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Postal Service facility, but ended up involved in a three-car collision; Plaintiff contends that she drove through the intersection on a yellow light and was broadsided, but she was charged with and pleaded guilty to running a red light. (Dkt. No. 16 ¶ 28.) Plaintiff contends that she "received [the] D.U.I. because of her depression and [because] she had started drinking." (Id.)

The very next day, the Postal Service suspended Plaintiff "due to the . . . DUI incident." (Id. ¶ 29.) Plaintiff then became even more depressed and incapacitated. (Id.) On March 29, 2012, the Postal Service issued a Notice of Removal to Plaintiff. (Id. ¶ 30.) The Notice of Removal charged Plaintiff with "Improper Conduct" and "Unsatisfactory Job Performance." (Dkt. No. 25, Ex. A at 1.) The basis of the charge for improper conduct was that Plaintiff drank at least two, maybe three, alcoholic beverages then was "involved in an at fault accident and was arrested and charged with driving under the influence." (Id.) The Postal Service noted that Plaintiff stated during her interview that she was under stress, but found that statement to be disingenuous and self-serving given that Plaintiff did not make a claim of stress until after the DUI incident. (Id.) The Postal Service stated that this self-serving conduct alone warrant Plaintiff's removal from her job. (Id.)

The basis of the charge for unsatisfactory job performance was that, by going to the restaurant near the Postal Service facility and drinking with co-workers, Plaintiff "deviated from [her] assignment, extended [her] break and lunch, expanded [her] street time, failed to immediately return to [the] office, stop[ped] unnecessarily, . . . enter[ed] an establishment for other than official duties[, and] operated [a] Postal vehicle in an unsafe manner by driving under the influence and getting into an at fault accident." (Id.) The Notice of Removal stated that this conduct violated a number laws and Postal Service rules and regulations, including "endangering the public by driving drunk, drinking on the job, deviating from her route, and failing to return to work upon completion of her 'street time.'" (Id.)

Following grievance procedures, Plaintiff's removal became effective June 8, 2012. (Dkt. No. 16 ¶ 31; Dkt. No. 25, Ex. 2.) The other three postal workers who were drinking with Plaintiff on February 14, 2012 were also cited for drinking on the job, deviating from their routes, failing to

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immediately return to the office, stopping unnecessarily, and entering an establishing for other than official duties. (Id. at Ex 2 at 14.) All three other postal workers were cited for the on-the-job drinking. (Dkt. No. 16 ¶ 28.) Crowley and Acosta were not terminated; Brown retired. (Id.)

In October 2013, Plaintiff requested reinstatement to her position. (See id. ¶ 46.) Denton, her manager, "refused to consider" that request, "failed to process" it, and "admittedly lost" the 2013 request. (Id.)

Plaintiff's Medical History

From February 26, 2012 through June 11, 2012, Plaintiff attended the Postal Service Employee Assistant Program and received treatment from psychologist Cynthia Front, Ph.D. (Id. ¶¶ 32-33.) Dr. Front diagnosed Plaintiff with "longstanding bipolar disorder, childhood history of post-traumatic stress disorder, problems with employment and with primary support group and alcohol dependence." (Id. ¶ 33.) At some point, at "CD Adult Group Psychotherapy" the "group leader" diagnosed Plaintiff with alcohol dependence. (Id. ¶ 34.) On March 31, 2012, Plaintiff saw a physician who noted that Plaintiff "had been sick for a week" and was getting worse." (Id.) In addition, Plaintiff attended therapy sessions with a Dr. Kahani at Kaiser from March 13, 2012 to June 12, 2012. (Id. ¶¶ 41-42.) She had been visiting Kaiser for mental health treatment since 1998. (Id. ¶ 42.) At some point Drs. Front and Kahani diagnosed Plaintiff with "Bipolar 2 Disorder, mixed and depression." (Id. ¶ 43.) On...

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