Opinion
Case No. CV 14-05886 DDP (JEMx)
12-18-2015
CUONG CUU HUA, Plaintiff, v. PATRICK R. DONAHOE, POSTMASTER GENERAL , U.S. POSTAL SERVICE, Defendants.
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE
[Dkt. No. 43]
Presently before the Court is Defendant's Motion to Dismiss the Second Amended Complaint. (Dkt. No. 43.) After considering the parties' submissions, the Court adopts the following Order.
I. BACKGROUND
Plaintiff Cuong Cuu Hua worked for Defendant United States Postal Service ("USPS") from October 1996 to June 2012. (Compl. ¶¶ 3, 13.) Plaintiff "is of Vietnamese de[s]cent" and "speaks and understands very limited English." (Id. ¶ 3.) Plaintiff worked at the Monterey Park Post Office as a letter carrier. (Id.) Throughout the course of Plaintiff's employment, Plaintiff alleges he dealt with harassment and discrimination at the hands of Donna Sosa (the Postmaster at Monterey Park Post Office), Luis Gonzalez (Plaintiff's first level supervisor), Robert Lindbloom (Plaintiff's supervisor), and Raymond Tan (Plaintiff's supervisor). (Id. ¶ 4.) Plaintiff filed several Equal Employment Opportunity ("EEO") complaints in the USPS EEO Commission. (See generally Compl.)
This Court has issued two prior Orders in this case, both granting Defendants' motions to dismiss with leave for Plaintiff to amend the complaint as to certain claims and defendants. (See Dkt. Nos. 16, 24.) The Order granting Defendants' motion to dismiss the First Amended Complaint states:
For the reasons stated above, Defendants' motion to dismiss is GRANTED as to the named individual defendants, and the individual defendants are DISMISSED WITH PREJUDICE. Defendants' motion to dismiss is GRANTED as to claims alleging discrimination on the basis of race and national origin. Plaintiff's claims of racial and national origin discrimination are DISMISSED WITHOUT PREJUDICE. Plaintiff's cause of action for retaliation may proceed against the USPS Postmaster General.(Order, dkt. no. 24, at 9-10.)
In Plaintiff's current Second Amended Complaint ("SAC"), Plaintiff is represented by counsel and alleges three causes of action against the proper defendant, the current Postmaster General of the USPS: (1) discrimination based on national origin; (2) discrimination based on disability; and (3) retaliation based on Plaintiff's prior EEO complaints. Defendant has again moved to dismiss all claims. (Mot. Dismiss, dkt. no. 43.)
II. LEGAL STANDARD
A 12(b)(6) motion to dismiss requires a court to determine the sufficiency of the plaintiff's complaint and whether it contains a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Under Rule 12(b)(6), a court must (1) construe the complaint in the light most favorable to the plaintiff, and (2) accept all well-pleaded factual allegations as true, as well as all reasonable inferences to be drawn from them. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended on denial of reh'g, 275 F.3d 1187 (9th Cir. 2001); Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998).
In order to survive a 12(b)(6) motion to dismiss, the complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Dismissal is proper if the complaint "lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory." Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008); see also Twombly, 550 U.S. at 561-63 (dismissal for failure to state a claim does not require the appearance, beyond a doubt, that the plaintiff can prove "no set of facts" in support of its claim that would entitle it to relief).
A complaint does not suffice "if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Court need not accept as true "legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003).
III. DISCUSSION
A. National Origin Discrimination
Defendant argues that the Court should dismiss Plaintiff's claim of discrimination based on his national origin. First, Defendant argues that Plaintiff did not exhaust his national origin discrimination claim and so the Court lacks subject matter jurisdiction. (Mot. Dismiss at 4-7.) Second, Defendant argues that if the Court considers the merits of the claim, that Plaintiff has failed to state a claim based on the conclusory facts alleged in the SAC. (Id. at 7-8.)
Plaintiff responds that his previous EEOC complaints did exhaust his national origin discrimination claim and that his complaint does allege sufficient facts for such a claim. (Opp'n at 3-6.)
As explained by this Court in its prior Order, a plaintiff alleging a violation of Title VII must exhaust administrative remedies by filing a timely complaint with the EEOC prior to filing suit in federal district court. 42 U.S.C. § 2000e-5(f)(1); Love v. Pullman Co., 404 U.S. 522, 523 (1972); Sommatino v. United States, 255 F.3d 704, 707-08 (9th Cir. 2001). One purpose of the exhaustion requirement is to provide notice to the charged party of the complainant's issues. B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1099 (9th Cir. 2002), as amended (Feb. 20, 2002).
Due to the remedial purpose of Title VII and the lack of legal training of those initiating complaints, courts in the Ninth Circuit construe a claimant's charge liberally. E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994); Green v. Los Angeles Cnty. Superintendent of Schs., 883 F.2d 1472, 1475-76 (9th Cir. 1989). Even so, the EEOC must still be afforded a chance to consider disputes before initiation of federal action where the "claims are not so closely related that agency action would be redundant." Brown v. Puget Sound Elec. Apprenticeship & Training Trust, 732 F.2d 726, 730 (9th Cir. 1984).
The jurisdictional scope of a Title VII claimant's federal action is therefore limited to "the scope of both the EEOC charge and the EEOC investigation." Farmer Bros. Co., 31 F.3d at 899. Thus, new claims of discrimination that were not included in an EEOC charge may only be considered by a federal court if they are "like or reasonably related to the allegations of the EEOC charge." Brown, 732 F.2d at 729; see also B.K.B., 276 F.3d at 1100. In determining whether an allegation under Title VII is like or reasonably related to allegations contained in a previous EEOC charge, "the court inquires whether the original EEOC investigation would have encompassed the additional charges." Green, 883 F.2d at 1476; see also Sommatino, 255 F.3d at 708.
This Court's prior Order dismissing the First Amended Complaint held that Plaintiff's claims of race and national origin discrimination were not exhausted because the claims were "not like or reasonably related to, and are not reasonably expected to grow out of the investigation into, his exhausted EEOC charges." (Order, dkt. no. 24, at 9.) This Court found that none of Plaintiff's EEOC complaints alleged race or national origin discrimination and nothing in the complaints would indicate to the EEOC that such a claim could have been raised. (Id.) The EEOC complaints instead alleged "retaliation and disability discrimination in the form of letters of warning, being ordered to leave work, being placed on suspension or emergency placement, being restricted from speaking to other postal workers, and being issued notice of termination." (Id. at 8 n.5.)
Plaintiff's Opposition and SAC do not point to any new EEOC complaint or part of the EEOC complaints that were not before the Court in its prior Order. Plaintiff's argument here is that these three sentences included in an EEOC complaint should have put the EEOC on notice that there was a national origin discrimination claim so as to exhaust the claim now:
She did not allow my shop steward to read through so called a bundle of unknown document[s] as well. [. . .] I have [a] reasonable double [sic] that I am not being treated with respect and dignity. [. . .] This is my first time being treated like a slave by this management.(Opp'n at 4 (citing Ex. 1 p.29 to Def. Mot. Dismiss).) These same allegations are included in Plaintiff's SAC. (SAC ¶ 8.) Plaintiff argues that these statements "speak of a claim of national origin and in being Vietnamese and needed an interpreter and being taken advantage of by Postmaster, MS. SOSA." (Opp'n at 4.)
Plaintiff further argues that Defendant should be estopped from arguing that such an inference should have been drawn by the EEOC because "it was the USPS's own EEO department who was responsible to frame the issues for an non-English speaking employee." (Id. at 4-5.) According to Plaintiff, the underlying issue in all the EEOC complaints is Plaintiff's problems communicating with USPS management. (Id. at 5.) Lastly, referring to the relations between Plaintiff and USPS management, Plaintiff states that "[i]t can only be presumed all of this aggressive activity was a result of national origin discrimination." (Id. at 6.)
Plaintiff also argues in his opposition that a supervisor called Plaintiff "an animal" on May 1, 2012. (Opp'n at 6.) Plaintiff's position is that this is "an equivalent name calling as 'gook.'" (Id.) Plaintiff admits that this was not pled in the SAC, but even if it had been, the Court does not find that this statement is sufficient at this stage to make a claim for national origin discrimination, and the statement was not alleged to be in an EEOC complaint and so is not exhausted either.
However, all of these allegations do not change the Court's prior holding that the EEOC did not have notice of such a claim. The language relied on by Plaintiff quoted above does not include any allegation about Plaintiff's national origin or discrimination that is based on Plaintiff's national origin. There is no mention that Plaintiff is Vietnamese or that the actions taken against Plaintiff had anything to do with Plaintiff being from Vietnam. The EEOC had no reason to presume any discrimination based on Plaintiff's national origin. Therefore, the Court dismisses with prejudice Plaintiff's claim of national origin discrimination because the claim is not exhausted.
B. Disability Discrimination
Defendant argues first that Plaintiff's allegations are improperly brought under the Americans with Disabilities Act ("ADA") because Plaintiff is a federal government employee, so any disability discrimination claim by him against the federal government must be brought under the Rehabilitation Act. (Mot. Dismiss at 9.) Further, Defendant claims that even converting the ADA claim to a claim under the Rehabilitation Act, the claim is still time barred. (Id. at 9-10.) Lastly, Defendant argues that the claim is unsupported by factual allegations sufficient to state a claim. (Id. at 10-11.)
Plaintiff admits that he should have brought his claim under the Rehabilitation Act. (Opp'n at 6.) However, Plaintiff asks the Court for leave to amend so he can correct this mistake. Id. Plaintiff further argues that his claim is timely and there are sufficient facts to support the claim. (Id. at 6-8.) Plaintiff states that the claim alleged now relates back to the facts alleged in the original complaint. (Id. at 7-8)
1. Correct Cause of Action
As Plaintiff acknowledges, this claim for disability discrimination must be brought under the Rehabilitation Act; thus, the claim should be dismissed for this reason alone. See 29 U.S.C. § 791 (Rehabilitation Act); Boyd v. U.S. Postal Serv., 752 F.2d 410, 412-13 (9th Cir. 1985). To determine if the dismissal should be with or without prejudice, the Court examines below Defendant's other arguments regarding timeliness and sufficiency of the pleading.
2. Time Bar
According to Defendant, Plaintiff's disability discrimination claim is only timely if it relates back to Plaintiff's original complaint. (Mot. Dismiss at 10.) Plaintiff does not dispute that his disability discrimination claim was raised for the first time in this SAC, which would not be timely absent relation back to the original complaint. (Opp'n at 7.) Thus, the crucial question is whether the claim for disability discrimination relates back to the allegations in the original pleading. See Fed. R. Civ. Pro. 15(c)(1)(B).
Plaintiff's original pro se complaint raised claims for retaliation under Title VII of the Civil Rights Act, referring to his EEO complaints in 2009 and 2011, as well as a claim of wrongful termination. (Compl., dkt. no. 1, pp. 6-10.) Plaintiff argues that his current disability discrimination claim relates back to his wrongful termination on June 11, 2012. (Opp'n at 7.) Plaintiff alleges he was injured on November 14, 2011, took a leave from work until April 24, 2012, and then resumed work with the need for accommodation because "he could not stand for longer than 2 hours, or walk more than 2 hours a day." (Id. at 8.)
After this time, Plaintiff claims, he was suspended and then fired, which shows "a direct causal connection between [his] disability beginning in November, 2011, which continued up to his termination, including the filing of a grievance, an EEO Complaint concerning going to the post office business premises to present medical certification of his disability." (Id.) Thus, according to Plaintiff, because the same facts underlie his wrongful termination and his disability discrimination claims, the disability discrimination claim in the SAC should be held to relate back to Plaintiff's original complaint. Further, Plaintiff points out that he raised his disability discrimination claim in his prior EEOC complaints, so the USPS had several ways to be on notice of his claim. (Id.)
Defendant argues that there is no connection between the allegations in the two pleadings. (Mot. Dismiss at 10.) Defendant claims that the disability discrimination cause of action "would rely on operative facts related to whether Plaintiff was disabled and whether he was otherwise qualified, including whether he could perform the essential functions of his position, under the applicable statutory standards." (Id.) This is "irrelevant to the original Complaint's claims for retaliation and wrongful termination, which do not depend on any proof related to a disability." (Id.)
The Court holds that the disability discrimination claim does relate back to Plaintiff's original complaint. The original complaint, filed when Plaintiff was pro se, is sparse on factual allegations but does allege that Plaintiff suffered retaliation based on activity that resulted in EEOC complaints and wrongful termination in 2012. Under Rule 15, the amendment to the pleading must "assert[] a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading." Fed. R. Civ. Pro. 15(c)(1)(B). Here, arguably Plaintiff's disability discrimination claim arises out of the same occurrences attempted to be set out in Plaintiff's original complaint. Plaintiff argues that his termination, the other disciplinary actions taken against him, and his EEOC complaints include conduct related to disability discrimination. Therefore, Plaintiff's claim relates back to the original pleading.
3. Failure to State a Claim
Defendant argues that if this Court considers Plaintiff's disability discrimination claim on the merits, then the claim should be dismissed because the SAC "fails to plead facts that, if true, would establish a claim for disability discrimination." (Mot. Dismiss at 11.) Defendant argues that Plaintiff's allegations do not "show that he was terminated or subjected to any other adverse actions because of his disability." (Id.)
Plaintiff argues, as described above, that his termination and the other adverse employment actions against him are related to disability discrimination. The SAC alleges that Plaintiff has a disability caused by an injury on May 24, 2011, to his left foot. (SAC ¶ 19.) Plaintiff also injured his knee on November 14, 2011, resulting in a leave of absence from work from November 14, 2011, to April 24, 2012. (Id. ¶ 20.) Plaintiff alleges that he was required to provide proof of his continued eligibility for disability during January 2012 but that supervisors at USPS prevented him from entering the premises, leading to Plaintiff filing an EEOC complaint. (Id. ¶ 21.) After that, Plaintiff returned to work on "a limited basis" until May 15, 2012, when Plaintiff was suspended. (Id. ¶ 20.)
However, the SAC then goes on for several paragraphs about a mediation, a settlement allowing Plaintiff to return to the post office, and several incidents where Plaintiff was alleged to have acted out against USPS supervisors and was disciplined, none of which are connected to his disability at all as pled. (Id. ¶¶ 22-30.) Plaintiff allegedly "spoke in a loud manner and lunged at Mr. GONZALEZ," one of Plaintiff's supervisors. (Id. ¶ 24.) Mr. Gonzalez allegedly reminded Plaintiff of the settlement outcome of the EEO complaint, but also reminded Plaintiff that he had to follow instructions and not talk back or lunge threateningly. (Id. ¶ 25.) Further, Ms. Sosa, another supervisor, alleged that Plaintiff "made a gesture to her of masturbation" in the parking lot, which led to an investigation at which Plaintiff alleged he did not understand what was going on but resulted in his "30 day emergency suspension as being 'injurious to self and others.'" (Id. ¶ 26.) All of this, Plaintiff alleges, eventually resulted in Plaintiff's termination on June 11, 2012. (Id. ¶ 28.)
A plaintiff must plead specific facts that show (1) the plaintiff had a disability; (2) the plaintiff could perform his or her job with reasonable accommodations; and (3) the plaintiff was discriminated against because of this disability. See Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1229 (9th Cir. 2003) (describing elements of claim under the Americans with Disabilities Act, which is the same standard for injuries under the Rehabilitation Act).
None of the allegations in the SAC relate to Plaintiff's foot or knee disability. It is insufficient for Plaintiff to plead that his work was terminated "due to the retaliatory conduct of the management of POST OFFICE, as well as the fact that he was disabled and on limited duty due to injuries to his ankle and knee from November, 2011 until his removal on June 11, 2012." (Id. ¶ 30.) Plaintiff has to support his legal allegations by pleading underlying factual allegations that connect his disability to an adverse employment action. This is Plaintiff's third complaint, this time represented by counsel. The fact that Plaintiff has been unable to allege facts that would satisfy these elements demonstrates that leave to amend would be futile in this case as there are no facts that connect Plaintiff's disability to any adverse employment action or discrimination. Therefore, Plaintiff's second cause of action for disability discrimination is dismissed with prejudice. /// ///
C. Retaliation
Defendant argues that the SAC fails to allege sufficient facts to support a retaliation claim, and what facts are alleged in the SAC do not show the needed "but for" causation between the protected activity and the termination of Plaintiff's employment. (Mot. Dismiss at 11-13.)
Plaintiff responds that there is a clear case for retaliation here: Plaintiff filed several EEOC complaints, and then he was fired. (Opp'n at 8-9.) This is further connected to his disability because Plaintiff returned from a six month absence due to his disability right before Plaintiff incurred disciplinary action and then termination. (Id. at 9.)
A claim of retaliation under Title VII requires a plaintiff to show: "(1) he engaged in a protected activity; (2) he suffered an adverse employment decision; and (3) there was a causal link between the protected activity and the adverse employment decision." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002). In Villiarimo, the court found that the plaintiff had engaged in protected activity under Title VII because the plaintiff had filed an internal complaint about sexual harassment at work. Id. However, the court held that the plaintiff had not shown the necessary "but for" causation between this protected activity and his termination from work because all he alleged was that his termination was after he filed the complaint. Id. at 1064-65.
Here, the Court holds that the SAC does not allege a case for retaliation. Plaintiff filed numerous EEOC complaints about his treatment at the USPS, and he suffered adverse employment actions leading up to suspension and termination. However, Title VII only protects against retaliation for certain protected conduct, as does the Rehabilitation Act. Making employment complaints unrelated to disability, race, national origin, sex, gender, color, or religious discrimination is not a protected activity under Title VII or the Rehabilitation Act. Plaintiff has failed to specifically allege facts (and not just legal conclusions) in the SAC that constitute discrimination on the basis of Plaintiff's disability or other protected class. Plaintiff would need to plead that these alleged instances of discrimination were raised in his EEOC complaints and thus causally connected to his employment termination, which Plaintiff alleges was caused by his filing the EEOC complaints.
The SAC states that Plaintiff was fired "due to retaliation for his prior EEO activity, complaints, and in particular, MR. HUA'S win at the April 26, 2012 mediation." (SAC ¶ 43.) This statement does not provide indication of what discrimination based on a protected class Plaintiff complained about, and the preceding paragraphs in the SAC do not indicate that any of the EEOC complaints were related to disability discrimination or national origin discrimination, the only two protected classes in the SAC's causes of action. Because none of the complaints are tied to any colorable claim of discrimination on the basis of disability or national origin discrimination, there is no causal connection between any discrimination and the adverse employment action. Therefore, the Court holds that Plaintiff's retaliation cause of action is dismissed with prejudice. /// ///
IV. CONCLUSION
For the reasons stated above, Defendant's Motion to Dismiss is GRANTED. Plaintiff's Second Amended Complaint is DISMISSED WITH PREJUDICE. IT IS SO ORDERED. Dated: December 18, 2015
/s/_________
DEAN D. PREGERSON
United States District Judge