McCarthy v. Brennan, Case No. 15-cv-03308-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. 15-cv-03308-JSC
PartiesKIAN R. MCCARTHY, Plaintiff, v. MEGAN J. BRENNAN, Defendant.
Decision Date14 March 2016

KIAN R. MCCARTHY, Plaintiff,
MEGAN J. BRENNAN, Defendant.

Case No. 15-cv-03308-JSC


March 14, 2016


Re: Dkt. No. 15

Plaintiff Kian McCarthy ("Plaintiff"), proceeding pro se, brings this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans with Disabilities Act ("ADA"), and the Rehabilitation Act of 1973 ("Rehabilitation Act") against his former employer, the United States Postal Service ("Post Office"), through Postmaster General Megan J. Brennan ("Defendant"). (Dkt. No. 1.) Plaintiff alleges that Defendant's actions—specifically, instructing Plaintiff to attend a Fitness for Duty Examination ("Fitness Exam") and later terminating his employment by issuing him a Notice of Removal ("Removal Notice")—were adverse employment actions constituting race, gender, age, and disability discrimination in violation of Title VII; disparate treatment disability discrimination and failure to accommodate in violation of the ADA and the Rehabilitation Act; and retaliation for protected activity. (Dkt. No. 1 at 1-5.)

Now pending before the Court is Defendant's motion to dismiss. (Dkt. No. 15.) After carefully considering the parties' pleadings, and having had the benefit of oral argument on March 10, 2016, the Court GRANTS Defendant's motion, with leave to amend.

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The following background is based on the allegations of the Complaint and the documents attached thereto, which include Plaintiff's description of his claims and a portion of the administrative record of Plaintiff's EEOC claims.1

I. Factual Background

Plaintiff worked for Defendant for approximately 24 years. (Dkt. No. 1 at 11.) At the time of the incidents at issue in this case, Plaintiff worked as a letter carrier in Sausalito, California. (Id. at 28.) Plaintiff is a Caucasian male and was 56 years old at the time of the alleged adverse employment actions. (Id. at 29.)

The events alleged in the Complaint date back to 1998. That year, a Post Office psychiatrist conducted a Fitness Exam of Plaintiff. (Id. at 20.) In a report to Defendant's Medical Unit ("1998 Fitness Exam report"), the staff psychiatrist diagnosed Plaintiff with obsessive-compulsive personality disorder and avoidant personality disorder and stated his belief that Plaintiff's condition was untreatable, permanent, and unlikely to improve with treatment or time. (Id. at 20-21.)

During his employment over the years that followed, Plaintiff filed multiple union grievances and EEO complaints and sent letters to his Post Office supervisors and management. (Id. at 17.) One EEO complaint resulted in mediation in 2005, after which Plaintiff's Supervisor, Jackie Suarez, told Plaintiff's EEO Representative, Mark Mindrup, "I'm going to get Kian McCarthy because he files too many [EEO complaints]." (Id. at 9, 27.) Five years later, in May

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2010, Defendant issued Plaintiff a Letter of Warning and a Seven-Day No-Time-Off Suspension following complaints of Plaintiff's dangerous and reckless driving on the job. (Id. at 29.)

Plaintiff filed another grievance in the summer of 2010 alleging that Supervisor Suarez denied him a leave slip and verbally abused him. (Id.) In response, Supervisor Suarez expressed concern to an HR Manager that Plaintiff's behavior was becoming desperate, delusional, irrational, paranoid, and worse than had been reported in the 1998 Fitness Exam report. (Id.) Accordingly, in August 2010, Supervisor Suarez requested that Plaintiff attend another Fitness Exam because Plaintiff had reported to work with "globs of cream" on his face, cotton sticking out of his ears, and blood stains on himself and in his work vehicle; delivered mail "in a rage"; had experienced two road rage incidents in the Post Office parking lot; and had been the subject of local residents' complaints to police. (Id. at 28-29.) Defendant issued Plaintiff a letter instructing him to attend a Fitness Exam on September 13, 2010. (Id. at 29.) In the 2010 Fitness Exam report that followed, the Post Office psychiatrist concluded that Plaintiff had chronic clinical depression and anxiety and significant interpersonal relation problems but that he was mentally fit for employment with Defendant as a letter carrier. (Id. at 11.) The doctor made a number of treatment recommendations for Plaintiff, including months of weekly mental health care, and recommended workplace support and accommodation for that private mental health treatment. (Id. at 11.) Post Office supervisors read the report. (Id. at 14.)

On December 8, 2010, Defendant—specifically, Supervisor Suarez—issued Plaintiff the Removal Notice. (Id. at 2, 4, 29, 31.) The Removal Notice cited unsatisfactory performance and improper conduct, including continuous usage of unauthorized overtime, two instances where Plaintiff drove his work vehicle at high speeds, and police complaints about Plaintiff's dangerous and reckless driving. (Id. at 29.) Defendant did not put Plaintiff on a 14-day suspension consistent with its typical disciplinary procedure before issuing the Removal Notice. (Id. at 9.)

II. Procedural History

Six days later, on December 14, 2010, Plaintiff filed a formal complaint with the EEOC claiming that Defendant discriminated against him on the bases of race, gender, age, and disability and in reprisal for prior protected EEO activity when they issued the 2010 Fitness Exam order and

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the Removal Notice.2 (Id. at 4, 29.) An administrative law judge denied Plaintiff's claim in July 2013, and the EEOC affirmed in April 2015. (Id. at 29-34.) Plaintiff then filed a request for reconsideration.3 (Id. at 7-9.)

Plaintiff filed this action on July 16, 2015. (Dkt. No. 1.) The Complaint challenges two adverse employment actions included in Plaintiff's 2010 EEO Complaint: the 2010 Fitness Exam order and the Removal Notice. (Id. at 2, 4.) Plaintiff alleged claims for relief for race, gender, age, and disability discrimination as well as reprisal for engaging in prior EEO activity. (Id. at 2.) Defendant's motion to dismiss followed. (Dkt. No. 15.)


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 quotation marks 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 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 required to make only "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

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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).

If a court grants a Rule 12(b)(6) motion, it "should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks and citations omitted).


Defendant moves to dismiss the lion's share of Plaintiff's claims for various reasons.

A. Title VII Claims

The elements of a Title VII discrimination claim are that the plaintiff: (1) belongs to a protected class, (2) performed his job satisfactorily, (3) suffered an adverse employment...

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