California Cases January 08, 2021: Mattioda v. Bridenstine

Case Description

ORDER ON MOTION TO DISMISS FIRST AMENDED COMPLAINT

Re: Dkt. No. 18

Plaintiff Andrew Mattioda alleges that he was subjected to disability-based discrimination, harassment, reprisal, and other actions between May 2011 and March 2019, during his employment as a scientist for Defendant National Aeronautics and Space Administration ("NASA") at its Ames Research Center ("Ames"). Dkt. 16 ("First Amended Complaint" or "FAC") ¶¶ 6, 10. Before filing this lawsuit, Plaintiff filed four Equal Employment Opportunity ("EEO") complaints with NASA. Exs. A, C, D, and E to Dkt. 17-1 ("Scharf Decl.").

In this case, Plaintiff asserts multiple causes of action for violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791, et seq ., specifically: (1) disability discrimination and harassment, (2) failure to engage in the interactive process, (3) reprisal, and (4) failure to provide reasonable accommodation. See FAC ¶¶ 141 et seq . Defendant Jim Bridenstine ("Bridenstine") is the NASA agency head. Id . ¶ 2. Now before the Court is Defendants' motion to dismiss the FAC under Federal Rules of Civil Procedure 8(a), 12(b)(1), and 12(b)(6). Dkt. 18. All parties have consented to the jurisdiction of a magistrate judge. Dkt. 9, 12; see also Case No. 20-cv-3745 at Dkt. 14; Dkt. 20-cv-3849 at Dkt. 12; 20-cv-4457 at Dkt. 17.

Pursuant to Civil Local Rule 7-1(b), the Court deems this matter suitable for determination without oral argument. After considering the parties' submissions, the case file, and relevant law, and for the reasons discussed below, Defendants' motion to dismiss the FAC is GRANTED IN PART and DENIED IN PART.

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I. BACKGROUND

This discussion of the background facts is based on the allegations of the FAC. Since August 2007, Plaintiff has been employed as a Space and Planetary Scientist with the Astrochemistry Laboratory at the NASA Ames Research Center. FAC ¶ 6. Plaintiff alleges that he has been diagnosed with disorders of his hips and spine and that he has experienced life-long ear infections. Id . ¶ 7.

A. Plaintiff's EEO Complaints

On August 21, 2015, Plaintiff contacted NASA's Office of Diversity and Equal Opportunity ("EEO") concerning his claims of discrimination and harassment based on disability, as well as reprisal for protected activity. Id . ¶ 52; see also Scharf Decl. ¶ 3 and Exs. A, B. The EEO's Notice of Acceptance of Claim delineated this first EEO complaint as follows:

Based on your disabilities (physical) and in retaliation for prior protected activity, you were discriminated against and subjected to harassment when:

a. your requests for accommodation were denied in 2011 and continually thereafter;

b. on July 23, 2015, your supervisor rejected your request to reconsider the "Meets Expectations" rating you received for your performance of Critical Element #2 in your 2014 - 2015 performance evaluation; and

c. you have been subjected to on-going harassment, isolation and professional humiliation and adverse rumors and innuendo on the part of your supervisors.

Id . ¶ 7 and Ex. F. Plaintiff received a right to file a formal administrative complaint of employment discrimination on November 6, 2015, and he did so on November 16, 2015. FAC ¶ 57; Scharf Decl. ¶ 3 and Ex. A.

Plaintiff filed a second formal EEO complaint on August 22, 2016. Scharf Decl. ¶ 4 and Ex. C. The EEO's Notice of Acceptance of Claim delineated this second EEO complaint as follows:

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1. Because of your race (Native American), disabilities (physical) and in retaliation for prior EEO activity, you were discriminated against when, on April 27, 2016, you was required to provide justification before you were permitted to access your own grant funds when similarly situated employees were treated more fairly.

2. Because of your disabilities (physical) and in retaliation for prior EEO activity, you were subjected to harassment (hostile work environment) which includes but is not limited to the following:

a. On May 12, 2016, your supervisor added a caveat to your premium travel accommodation request and your funding was monitored; and

b. On May 25, 2016, you were temporarily transferred from the Space Science and Astrobiology Division to the Planetary Systems Branch.

Id . ¶ 8 and Ex. G.

Plaintiff filed a third formal EEO complaint on March 18, 2017. Id . ¶ 5 and Ex. D. The EEO's Notice of Acceptance of Claim delineated this third EEO complaint as follows:

1. Because of your disabilities (physical) and in retaliation for prior EEO activity (filed formal complaints), from February 11, 2011 through February 15, 2017, you were subjected to on-going acts of harassment (hostile work environment), including but not limited to threats to terminate you and ostracism resulting from your request for reasonable accommodation.

2. Because of your disabilities (physical) and in retaliation for prior EEO activity (filed formal complaints) you were discriminated against when on February 17, 2017, you were required to include your reasonable accommodation travel funds in your work package to NASA Headquarters.

Id . ¶ 9 and Ex. H.

Plaintiff filed a fourth formal EEO complaint on October 2, 2017. Id . ¶ 6 and Ex. E. The EEO's Notice of Acceptance of Claim delineated this fourth EEO complaint as follows:

Because of your disability (physical) and retaliation for participating in prior protected EEO activity (filed three formal complaints of discrimination), you allege you were discriminated against when, on August 8, 2017, you were not selected for the position of Senior Scientist, Laboratory Astrophysics in the Science Directorate, Senior Technical (ST) 1330-00, advertised under Vacancy Announcement No. AR17N0002.

Id . ¶ 10 and Ex. I.

According to Defendant, Plaintiff requested hearings on all four EEO complaints, but after discovery was completed and the agency filed a motion for summary judgment, Plaintiff withdrew his request for hearing before the EEOC. Dkt. 18 at 5.

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B. District court litigation

Plaintiff filed four complaints in this District, on June 2, 2020; June 5, 2020; June 23, 2020; and July 6, 2020. See generally Dkt. 10. On September 3, 2020, the Court consolidated the cases. Dkt. 15. As directed by the Court, Plaintiff filed a consolidated complaint on September 14, 2020. See FAC. In the FAC, Plaintiff alleges that beginning in March 2011, he experienced harassment, discrimination, failure to engage in the iterative process/provide a reasonable accommodation, and reprisal. See id . ¶¶ 10-140. Defendant, the NASA agency head, is the proper defendant in this Rehabilitation Act case against NASA. See SAI v . Smith , No. 16-cv-01024-JST, 2018 WL 534305, at *7 (N.D. Cal. Jan. 24, 2018).

Now before the Court is Defendant's motion to dismiss the FAC. Dkt. 18. Plaintiff opposes. Dkt. 21.

II. LEGAL STANDARDS

A. Rule 8(a)(2)

Federal Rule of Civil Procedure 8(a)(2) requires that the complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Courts have power to dismiss a complaint for egregious violations of Rule 8(a)'s "short and plain" requirement. See Cafasso v . U . S . ex rel . v . Gen . Dynamics C4 Systems , Inc ., 637 F.3d 1047, 1058 (9th Cir. 2011) and cases cited therein.

B. Rule 12(b)(1)

Defendants argue that the FAC should be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) to the extent contains allegations outside the scope of Plaintiff's EEO charges and investigation. Dkt. 18 at 11-15. If a court's subject matter jurisdiction is challenged, the party asserting that a federal court has subject matter jurisdiction bears the burden of establishing it. Kokkonen v . Guardian Life Ins . Co . of Amer ., 511 U.S. 375, 377 (1994).

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C. Rule 12(b)(6)

Under Rule 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. In ruling on a motion to dismiss, the court may consider only "the complaint, materials incorporated into the complaint by reference, and matters of which the court may take judicial notice." Metzler Inv . GmbH v . Corinthian Colls ., Inc ., 540 F.3d 1049, 1061 (9th Cir. 2008). In deciding whether the plaintiff has stated a claim, the court must assume the plaintiff's allegations are true and draw all inferences in the plaintiff's favor. Usher v . City of L . A ., 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis . Sec . Litig ., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted).

To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must 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). This "facial plausibility" standard requires the plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v . Iqbal , 556 U.S. 662, 678 (2009).

Leave to amend must be granted unless it is clear that the complaint's defects cannot be cured by amendment. Lucas v . Dep't of Corr ., 66 F.3d 245, 248 (9th Cir. 1995).

III. DISCUSSION

A. Materials That Can Be Considered

As a preliminary matter, the Court must rule on the admissibility of the extra-record materials that both parties have submitted in connection with the motion to dismiss. When adjudicating a factual challenge to the court's subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), a court may consider evidence outside the pleadings, including affidavits submitted by the parties. See Safe Air for Everyone v . Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). When adjudicating a motion to dismiss brought pursuant to Rule 12(b)(6), the Court's consideration of extra-pleading materials is more limited. Normally, the Court cannot consider matters outside of the pleadings without converting the motion into a motion for summary judgment. See Fed. R. Civ. P. 12(b)(6); 12(d); see also Ramirez v . United Airlines , Inc ., 416 F.

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Supp. 2d 792, 795 (N.D. Cal. 2005). However, the Ninth Circuit has held courts may consider materials submitted with and attached to the complaint. U . S . v . Corinthian Colleges , 655 F.3d 984, 999 (9th Cir. 2011). A court may also consider unattached evidence on which the complaint "necessarily relies" if: "(1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the document." Id . The Court may also "take judicial notice of documents on which allegations in the complaint necessarily rely, even if not expressly referenced in the complaint, provided that the authenticity of those documents is not in dispute." Tercica , Inc . v . Insmed Inc ., No. C 05-5027 SBA, 2006 WL 1626930, at *8 (N.D. Cal. June 9, 2006) (citation omitted). In addition, courts may take judicial notice of matters of public record, including "records and reports of administrative bodies." Anderson v . Holder , 673 F.3d 1089, 1094 n.1 (9th Cir. 2012); see also Coto Settlement v . Eisenberg , 593 F.3d 1031, 1038 (9th Cir. 2010). "In the context of employment discrimination cases in particular, it is well established that courts may consider the administrative record of a plaintiff's claims before the EEOC as judicially noticeable matters of public record." Lacayo v . Donahue , No. 14-cv-04077-JSC, 2015 WL 993448, at *9 (N.D. Cal. Mar. 3, 2015) (citations omitted).

Both parties have submitted extrinsic evidence concerning Plaintiff's EEO proceedings. All these materials are either referenced in the complaint or matters of public record and properly considered in either a 12(b)(1) or 12(b)(6) motion to dismiss. The Court overrules Plaintiff's objection that because Defendant's Rule 12(b)(1) motion is "irrelevant," the evidence offered to attack the FAC is "neither relevant nor appropriate." See Dkt. 21 at 3. As for the 12(b)6 motion, the FAC necessarily relies on the administrative records, they are matters of public record, and Plaintiff has not offered any reason to doubt the authenticity of the documents. Indeed, Plaintiff himself has submitted extrinsic evidence of his EEO complaints in opposition to the motion to dismiss ( see Dkt. 21-1 (exhibits to Juratovac Decl.)) and made arguments based on that evidence ( see Dkt. 21 at 7-8), thereby effectively conceding that the Court may properly consider the record of Plaintiff's administrative complaints.

Accordingly, the Court will consider the documents referenced in the complaint and

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judicially noticeable matters of public record with respect to the motion to dismiss. However, in doing so, the Court notices only the existence of the administrative proceedings and the agency's findings and does not credit the truth of any fact recounted or matter asserted in the documents. See Lacayo v . Donahue , 2015 WL 993448, at *10.

B. Failure to Exhaust Administrative Remedies

1. Subject Matter Jurisdiction

Plaintiff sues under the Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq ), which prohibits federal departments and agencies (among others) from discriminating against employees solely based on disability. 29 U.S.C. § 791, 793, 794. The remedies, procedures, and rights available under Title VII of the Civil Rights Act of 1964, including sections 706(f)-(k) and 717 (42 U.S.C. §§2000e-5(f)-(k) and 2000e-16), are available to federal employees in actions against a federal agency employer under section 501 of the Rehabilitation Act. 29 U.S.C. § 794a(a)(1).

"To preserve her right to maintain a suit alleging employment discrimination against an agency of the United States, a claimant must exhaust her administrative remedies by filing a claim of discrimination with the allegedly offending agency in accordance with published procedures." Leorna v . U . S . Dept . of State , 105 F.3d 548, 550 (9th Cir. 1997) (citing Brown v . Genl . Servs . Admin ., 425 U.S. 820 832 (1976)); see also Leong v . Potter , 347 F.3d 1117, 1121 (9th Cir. 2003). To bring a claim under the Rehabilitation Act, a federal employee must first contact an EEO counselor within forty-five days of the alleged discrimination. 29 C.F.R. § 1614.105(a)(1). The agency then investigates, and the claimant may later file a formal EEO complaint. 29 C.F.R. § 1614.105(c), (d). If the latter is not resolved after the agency issues its final decision, the claimant may either file directly in federal court within 90 days ( see 29 C.F.R. § 1614.407(a)) or appeal through the EEOC within 30 days ( see 29 C.F.R. § 1614.401(a), 1614.402(a)). If at any time, the employee's complaint sits idle within the administrative process for more than 180 days, the employee has an immediate right to file a civil action in federal court but must do so within 90 days. See 29 C.F.R. § 1614.407(b)(d). These time limits "are subject to waiver, estoppel and equitable tolling." 29 C.F.R. § 1614.604(c).

Defendant argues that the exhaustion requirement is jurisdictional and that claims in the

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FAC that exceed the scope of the EEO proceedings should be dismissed for lack of subject matter jurisdiction. Dkt. 18 at 11-15. Plaintiff responds that the exhaustion requirement is a claim processing requirement and is not jurisdictional in nature. Dkt. 21 at 1-3. Defendant does not address Plaintiff's argument in its reply. See Dkt. 22.

The Ninth Circuit previously held that an employee's "substantial compliance" with the administrative complaint process is a requirement for exhaustion that precludes district court jurisdiction. See Sommatino v . United States , 255 F.3d 704, 708 (9th Cir. 2001). However, the Supreme Court recently held that Title VII's requirement that a party file an EEOC charge before suing in district court "is not of a jurisdictional cast" but is instead "a processing rule, albeit a mandatory one." Fort Bend Cty ., Tex . v . Davis , 139 S. Ct. 1843, 1850-51 (2019). Subsequently, courts in this District have held that in light of Fort Bend , "the administrative complaint requirement for Title VII claims by federal employees is not jurisdictional." Williams v . Wolf , No. 19-cv-00652-JCS, 2019 WL 6311381, at *6 (N.D. Cal. Nov. 25. 2019); see also Pringle v . Wheeler , No. 19-cv-07432-WHO, 2020 WL 4673954, at *5 (N.D. Cal. Aug. 12, 2020); Burnes v . Chavez , No. 19-CV-03420-LHK, 2020 WL 2306488, at *3 (N.D. Cal. May 8, 2020); dela Cruz v . Brennan , No. 19-cv-01140-DMR, 2020 WL 1233886, at *4 (N.D. Cal. Mar. 13, 2020).

The Court finds the analysis of these cases persuasive and concludes that the requirement of exhaustion of EEO administrative remedies is not jurisdictional. Accordingly, Defendant's motion to dismiss the FAC pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction is DENIED. However, the charge-filing requirement remains a "mandatory processing rule," and a plaintiff "must allege compliance with that requirement ... in order to state a claim on which relief may be granted." Williams , 2019 WL 6311381, at *6 (quoting Fort Bend , 139 S. Ct. at 1851) (internal quotation marks omitted). The Court therefore proceeds to consider Defendant's administrative exhaustion arguments together with Defendant's other arguments under Rule 12(b)(6).

2. Compliance with Pre-suit Filing Requirements

Plaintiff alleges in the FAC that he exhausted his administrative remedies because on four occasions, he filed EEO charges and permitted the agency to engage in more than 180 days of

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investigation before bringing this matter to court. FAC ¶¶ 61, 96, 111, 132. However, as discussed in Section III. A. above, in evaluating whether Plaintiff complied with the mandatory processing rule before filing suit, the Court may look beyond the face of the FAC to public records concerning Plaintiff's EEO complaints.

To show compliance with Title VII's claim presentment requirements, the allegations of a plaintiff's judicial complaint must be "like or reasonably related to" the allegations made in the EEO complaint, such that they would fall within "the scope of an [EEO] investigation which [could] reasonably be expected to grow out of the [administrative] charge." Sosa v . Hiraoka , 920 F.2d 1451, 1456 (9th Cir. 1990) (citations, internal quotations marks, and emphasis omitted). A court evaluating the similarity between an administrative complaint and a complaint filed in district court may consider "such factors as the alleged basis of the discrimination, dates of discriminatory acts specified within the charge, perpetrators of discrimination named in the charge, and any locations at which discrimination is alleged to have occurred." Vasquez v . City of Los Angeles , 349 F.3d 634, 644 (9th Cir. 2004) (citation omitted). "In addition, the court should consider plaintiff's civil claims to be reasonably related to allegations in the charge to the extent that those claims are consistent with the plaintiff's original theory of the case." Pringle , 2020 WL 4673954, at *5 (citation omitted). "Procedural technicalities" should not be employed to impede the claimant from obtaining a judicial hearing on the merits. Id . (citation omitted).

Defendant argues that the following claims in the FAC are barred by Plaintiff's failure to exhaust administrative remedies: (1) claims based on incidents occurring after August 2017, which is the last date mentioned in Plaintiff's EEO complaints; (2) claims against management officials who were not identified in Plaintiff's EEO complaints; and (3) claims against Dr. Lee (who was named in the EEO complaints) that are based on discrete incidents not mentioned in the EEOC complaints. Dkt. 18 at 13-15.

a. Claims occurring after August 8 , 2017

Defendant argues that claims based on incidents occurring after August 8, 2017, which is "the final date of allegations accepted by the agency," are barred because they exceed the scope of the EEO investigations. Dkt. 18 at 15; see also id . at 10-11 (citing FAC ¶¶ 107-109 and 133-140).

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In response, Plaintiff argues that he may properly assert claims that "can reasonably be expected to grow from any charge of discrimination," including "facts and allegations occurring not only before, but also after, the filing of the EEO complaint." Dkt. 21 at 8.

In Sosa , which Plaintiff cites in support of this proposition, the Ninth Circuit held that a claim could proceed based on its relationship to an earlier administrative charge even though "[t]he EEOC could not have investigated the claim ... because [the plaintiff] did not discover the inequality until the same month the EEOC issued its reasonable cause determination." 920 F.2d at 1457. However, another court in this District has noted that "Ninth Circuit authority appears to be somewhat inconsistent on the question of claims based on similar conduct arising after an investigation concluded." Williams , 2019 WL 6311381, at *7. The court in Williams contrasted Sosa with Vasquez , in which the Ninth Circuit affirmed dismissal of a claim based on an incident that occurred after the EEOC issued its right to sue letter, stating that "[t]he EEOC could not have investigated that incident because it had not yet happened at the time the EEOC was conducting its investigation." Id . (citing Vasquez , 349 F.3d at 645). The court in Williams conducted a careful analysis of these authorities, in which it noted that Vasquez involved a litigation claim that was dissimilar to the Plaintiff's administrative claim, and discussed Ninth Circuit authority articulating practical reasons as to when a second filing would serve no purpose. The Williams court concluded that "Ninth Circuit precedent provides that even facts occurring after the administrative agency has completed its investigation can fall within the scope of an earlier administrative complaint so long as they are sufficiently similar to the claims raised therein." Williams , 2019 WL 6311381, at *8 (emphasis added).

The court in Pringle applied this principle in holding that a plaintiff had exhausted administrative remedies for claims concerning denial of leave in 2019 that occurred after the administrative action he filed in 2016 ended. 2020 WL 4673954, at *6. The court found that "the 2019 allegations are consistent with [plaintiff]'s original theory of the case because it involves the same actors and similar conduct." Id . The court acknowledged that its decision "would allow [plaintiff] to pursue claims for leave denials that occurred more than three years after his [] 2016 EEO Complaint" but noted that "the dates of discriminatory acts specified within the charge" are

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only one of the factors I must weigh here" and found that "[o]n balance," the facts that "[t]he perpetrators of discrimination named in the charge are the same and the claims are consistent with [the] original theory of the case ... shows that there is substantial similarity between his administrative complaint and his Title VII claims." Id .

Here, Defendant identifies paragraphs 107-109 and 133-140 of the FAC as being based on incidents that occurred after the last incident alleged in Plaintiff's EEO complaints. Dkt. 18 at 10-11. Applying the foregoing legal principles, the Court rules as follows regarding the paragraphs of the FAC challenged by Defendant:

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b. Claims against management officials not named in EEO complaints

Defendant argues that Plaintiff's claims against certain management officials are barred because Plaintiff's EEO charges did not include any allegations against those individuals. Dkt. 18 at 13-14; see also id . at 9-10 (citing ¶¶ 20, 51, 53, 74, 81, 82, 87, 94, 99, 106, 116).

As a general rule, Title VII plaintiffs may sue only those named in the EEOC charge, because only those parties had an opportunity to respond to the charges during the EEOC's investigation. Sosa , 920 F.2d at 1458. Based on an employee's charge against one supervisor, "the EEOC would have no reason to investigate" employees who had responsibilities outside the named employee's authority. Vasquez , 349 F.3d at 645. However, courts have developed a number of exceptions to this rule in Title VII cases and allowed suit against unnamed defendants where, for example: (1) the unnamed persons "were involved in the acts giving rise to the EEOC

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claims"; (2) "where the EEOC or defendants themselves should have anticipated that the claimant would name those defendants in a Title VII suit"; (3) the respondent named in the EEOC charge is a principal or agent of the unnamed party or if they are substantially identical parties; (4) if the EEOC could have inferred that the unnamed party violated Title VII; or (5) if the unnamed party had notice of the EEOC conciliation efforts and participated in the EEOC proceedings. Sosa , 920 F.2d at 1458-59 (internal quotation marks and citations omitted).

Applying the foregoing legal principles, the Court rules as follows regarding the paragraphs of the FAC that Defendant argues are barred because Plaintiff's EEO charges did not include any allegations against the individuals identified in those paragraphs ( see Dkt. 18 at 9-10):

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c. Claims against Dr. Lee for incidents not identified in EEO charges

Although Dr. Lee was specifically named in Plaintiff's EEO charges, Defendant argues that the FAC includes claims against Dr. Lee that should be barred because they involve new incidents that were not raised in the previous EEO complaints. Dkt. 18 at 14; see also id . at 10 (citing ¶¶ 44, 55, 56, 60, 113, 117, 122, 123). The Court rules as follows regarding those paragraphs:

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d. Conclusion re Exhaustion of Administrative Remedies

For the reasons discussed above, Defendant's motion to dismiss Plaintiff's claims pursuant to Rule 12(b)(1) on the basis of lack of subject matter jurisdiction is DENIED. Defendant's motion to dismiss Plaintiff's claims pursuant to Rule 12(b)(6) on the grounds of failure to exhaust administrative remedies is GRANTED IN PART and DENIED IN PART as indicated in the charts above. Where the motion to dismiss has been granted on the grounds of failure to exhaust administrative remedies, no leave to amend is granted. Although leave to amend should be freely given, it should be denied where amendment would be futile. Carrico v . City & Cnty . of S . F ., 656 F.3d 1002, 1008 (9th Cir. 2011). Plaintiff cannot correct his failure to exhaust administrative remedies by filing an amended complaint.

C. Failure to State a Claim

Defendant argues that even if Plaintiff exhausted his administrative remedies, the FAC should nevertheless be dismissed because each claim in the FAC fails to state a cause of action. Dkt. 18 at 17-24.

1. Claims for disability discrimination

Defendant argues that Plaintiff's discrimination claims should be dismissed because: (1) they include allegations about discrete events that occurred prior to July 7, 2015 and for which Plaintiff did not file an EEO claim; and (2) as to the timely discrimination claims, Plaintiff failed to plead facts giving rise to a plausible claim for discrimination. Dkt. 18 at 17-18.

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a. Timeliness

As discussed above, to bring a claim under the Rehabilitation Act, a federal employee must first contact an EEO counselor within forty-five days of the alleged discrimination. 29 C.F.R. § 1614.105(a)(1). "The limitations-period analysis is always conducted claim by claim" and "begins running on any separate underlying claim of discrimination when that claim accrues." Green v . Brennan , 136 S. Ct. 1769, 1782 (2016); see also Nat'l R . R . Passenger Corp . v . Morgan , 536 U.S. 101, 113-115 (2002). "This requirement is not jurisdictional, but a federal employee who fails to contact an EEO counselor for pre-complaint processing risks dismissal of any subsequent complaint." Williams , 2019 WL 6311381, at *8 (citations omitted).

The parties agree that Plaintiff first contacted an EEO counselor on August 21, 2015. Dkt. 18 at 3; Dkt. 21 at 7. According to Defendant, this means that Plaintiff cannot base his discrimination claim on any conduct that occurred more than 45 days before August 21, 2015, i . e ., before July 7, 2015. Dkt. 18 at 17. Both Plaintiff's first EEO complaint and the FAC in this case describe conduct dating back to 2011. See , e . g ., Scharf Decl. ¶ 2 and Ex. A; FAC ¶¶ 10-47. Plaintiff characterizes these allegations of the first EEO complaint as "continuous violations spanning many years." Dkt. 21 at 7. Plaintiff argues that the existence of past acts and his knowledge of those acts does not bar him from filing charges about related discrete acts, "so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed." Id . He also argues that he is not barred from using "prior acts as background evidence to support a timely claim." Id . (citing Morgan , 536 U.S. at 102).

Morgan concerned the timely filing requirements of Title VII, which require that a charge be filed within 180 days "after the alleged unlawful employment practice occurred." Morgan , 536 U.S. at 109. The Supreme Court stated that "[a] discrete retaliatory or discriminatory act 'occurred' on the day that it 'happened.'" Id . at 110. The court rejected an argument that "the term 'practice' converted related discrete acts into a single unlawful practice for purposes of timely filing." Id . Accordingly, the court held that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges" and "[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act." Morgan , 536

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U.S. at 113. However, the Court noted the following limitations on this principle:

The existence of past acts and the employee's prior knowledge of their occurrence ... does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim.

Id . at 113.

Applying Morgan 's holdings in another Title VII case, the Ninth Circuit concluded that "[a] discriminatory practice, though it may extend over time and involve a series of related acts, remains divisible into a set of discrete acts, legal action on the basis of each of which must be brought within the statutory limitations period." Lyons v . England , 307 F.3d 1092, 1108 (9th Cir. 2002). Subsequently, the Ninth Circuit has held that Morgan "applies with equal force to the Rehabilitation Act." Ervine v . Desert View Regional Med . Ctr . Holdings , LLC , 753 F.3d 862, 869 (9th Cir. 2014) (citation omitted).

Although Plaintiff's opposition to the motion to dismiss refers to the allegations of the first EEO complaint as "continuous violations" (Dkt. 21 at 7), the Supreme Court's decision in Morgan substantially limited the notion of continuing violations to situations involving a pattern or practice that is pervasive throughout the workplace. Williams , 2019 WL 6311381, at *9-10 (citations omitted). There is no allegation that such a situation existed in this case.

Accordingly, to the extent the FAC could be construed as bringing discrimination claims based on discrete adverse actions occurring before July 7, 2015, the motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND. Plaintiff may not present evidence of those events as a continuing violation based on a theory of discrimination, although in some circumstances evidence of past conduct that was not timely presented to the EEO may be presented "as background evidence in support of a timely claim." See Morgan , 536 U.S. at 113; see also Williams , 2019 WL 6311381, at *10. To the extent such evidence may be permissible,

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objections to that evidence arising under the Federal Rules of Evidence, as well as rulings on those objections, are reserved for discovery and trial.

b. Elements of claim for disability discrimination

Defendant argues that as to any timely claims for discrimination, the FAC fails to state a claim "because [such claims] have no factual support." Dkt. 18 at 18. To state a prima facie case of discrimination under the Rehabilitation Act, Plaintiff must demonstrate that (1) he is a person with a disability, (2) who is otherwise qualified for employment, meaning that he can perform the essential duties of this position with or without reasonable accommodation, and (3) suffered discrimination because of his disability. Silveria v . Wilkie , No. 18-cv-07327-EMC, 2020 WL 820377, at *7 (N.D. Cal. Feb. 19, 2020) (citing Walton v . U . S . Marshals Serv ., 492 F.3d 998, 1005 (9th Cir. 2007)). "[A] plaintiff is not required to plead a prima facie case of discrimination or retaliation in order to survive a motion to dismiss," but "courts still look to the elements of the prima facie case "to decide, in light of judicial experience and common sense, whether the challenged complaint contains sufficient factual matter, accepted as true, to state a claim for[]relief that is plausible on its face." Cloud v . Brennan , 436 F. Supp. 3d 1290, 1300-01 (N.D. Cal. 2020) (citations omitted).

Defendant argues that Plaintiff's claim for disability discrimination should be dismissed because he fails to allege that he suffered discrimination because of his disability. Dkt. 18 at 18. According to Defendant, the only facts Plaintiff pleads that show a connection to his disability concern Dr. Dotson's request that Plaintiff provide concurrence from the manager of travel funds for Plaintiff's travel requests, and Dr. Lee's request that Plaintiff include reasonable accommodation funding in his travel fund request. Id . (citing FAC ¶¶ 65, 68, 69, 70, 72, 73, 75-80, 104-105). Defendant argues that these actions do not constitute discrimination but instead "demonstrate management's attempts to work with Plaintiff to ensure that the agency fulfilled his reasonable accommodation requests." Id . Plaintiff's opposition to the motion to dismiss focuses on Defendant's administrative exhaustion argument and does not address Defendant's argument that the acts alleged in the FAC do not constitute discrimination. See Dkt. 21.

Defendant's argument essentially offers an alternative, non-discriminatory interpretation of

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the conduct attributed to Drs. Dotson and Lee. However, Defendant has not identified a missing element of Plaintiff's claim for discrimination. Plaintiff has met the standard of pleading a plausible claim for discrimination, and accordingly Defendant's motion to dismiss Plaintiff's claims for disability discrimination is DENIED.

2. Claims for harassment based on disability

Defendant argues that Plaintiff's claims for harassment based on disability should be dismissed because if such a cause of action exists: (1) Plaintiff's harassment claims include allegations about events that occurred prior to July 7, 2015 and for which Plaintiff did not file an EEO claim; and (2) as to the timely discrimination claims, Plaintiff failed to plead facts giving rise to a plausible claim for harassment. Dkt. 18 at 18-21.

a. Timeliness

As discussed above, in Morgan the Supreme Court held that claims of discrete discriminatory acts must be filed within the appropriate time period. Morgan , 536 U.S. at 113. However, Morgan also noted that "[h]ostile environment claims are different in kind from discrete acts" because "[t]heir very nature involves repeated conduct." Id . at 115. Accordingly, "a hostile work environment claim ... will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period." Id . at 122; see also Lyons v . England , 307 F.3d 1092, 1106-1107 (9th Cir. 2002).

Here, the FAC includes alleged incidents of harassment that occurred after July 7, 2015, which as discussed above is the cut-off date for actions to be included in Plaintiff's first EEO complaint. See , e . g ., FAC ¶¶ 48-57, 65, 70, 72-74, 80, 103, 105, 107. Taking Plaintiff's allegations are true and drawing all inferences in Plaintiff's favor, as the Court must do on a motion to dismiss, the Court finds that the FAC adequately alleges that the harassment that predated July 7, 2015 was part of the same unlawful employment practice as the harassment that occurred after that date. The Court therefore DENIES the motion to dismiss Plaintiff's harassment claims as untimely; however, as discussed in the following section, the Court will dismiss Plaintiff's harassment claims because they fail to plausibly allege all required elements of such a claim.

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b. Elements of a harassment claim

As an initial matter, Defendant argues that "the Ninth Circuit has not determined whether the ADA or Rehabilitation Act gives rise to a claim of harassment." Dkt. 18 at 19 (citations omitted). The parties have not fully briefed this issue. Accordingly, adopting the approach taken by another court in this District, on the present motion to dismiss this Court will "[a]ssume[] without deciding that such a claim exists and that the Ninth Circuit would adopt a test for disability based harassment claim that is similar to the one articulated by the Fifth Circuit." See Anello v . Berryhill , No. 18-cv-00070-DMR, 2019 WL 285197, at *11 (N.D. Cal. Jan. 22, 2019). The Fifth Circuit states that in order to prove a claim of disability-based harassment, the plaintiff must prove: (1) that he belongs to a protected group; (2) that he was subjected to unwelcome harassment; (3) that the harassment complained of was based on his disability or disabilities; (4) that the harassment complained of affected a term, condition, or privilege of employment; and (5) that the employer knew or should have known of the harassment and failed to take prompt, remedial action. Id . at *11 (citing Flowers v . S . Reg'l Physician Servs . Inc ., 247 F.3d 229, 235-36 (5th Cir. 2001)). "Moreover, the disability-based harassment must be sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment." Id . at 236 (quotation marks omitted).

The harassment cause of action in the FAC includes an assertion that Defendant engaged in harassment by "failing to treat plaintiff in the same manner as non-disabled employees, continuously and pervasively harassing MATTIODA over many years (including with respect to evaluations and promotions), and directing adverse treatment against him because of his disability conditions." FAC ¶ 142. The Court is not required to accept conclusory allegations as true. See Iqbal , 556 U.S. at 678-79. Moreover, Plaintiff must do more than "simply recite the elements of a cause of action." Starr v . Baca , 652 F.3d 1202, 1216 (9th Cir. 2011).

The FAC alleges a series of remarks by Drs. Lee and Dotson that Plaintiff alleges were harassing. See , e . g ., id . ¶¶ 11, 19, 26, 30, 48. Many, if not all, of these alleged remarks have no readily apparent link to Plaintiff's disability. For example, Plaintiff cites as an "example[] of harassment" a conversation in which Dr. Lee allegedly said he did not respect Plaintiff's work and

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that Dr. Allamondola "is doing all the work for you." FAC ¶¶ 18-20. Another "harassing comment[]" identified by Plaintiff concerns Dr. Lee's statement that Plaintiff should seek labor funding from NASA Headquarters since Plaintiff chose to step down from the Deputy Branch Chief position. Id . ¶ 30. Plaintiff also claims that Dr. Dotson's request that Plaintiff sign a letter rejecting his reconsideration request concerning his performance rating was "harassing because the agency's regulations required Dr. Dotson, not MATTIODA, to sign that form." Id . ¶ 48. In his opposition to the motion to dismiss, Plaintiff does not address the elements of a disability claim or identify where he pleaded facts connecting the allegedly harassing actions and his disability.

Even if Plaintiff had pleaded facts showing a link between the conduct attributed to others and Plaintiff's disability, Plaintiff fails to plead facts establishing a plausible claim that this conduct rose to the level of severe and pervasive conduct. To be actionable harassment, the alleged conduct must be "sufficiently pervasive or severe to alter the conditions of employment and create an abusive working relationship." See Flowers , 247 F.3d at 236. To meet that threshold, a plaintiff must show that "the workplace is permeated with 'discriminatory intimidation, ridicule, and insult.'" Anello , 2019 WL 285197, at *11 (quoting Fowler v . Potter , No. C 06-04716-SBA, 2008 WL 2383073, at *9 (N.D. Cal. June 9, 2008) and Morgan , 536 U.S. 101 at 116)). Courts must "determine whether an environment is sufficiently hostile or abusive by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Anello , 2019 WL 285197, at *11 (quoting Farragher v . City of Boca Raton , 524 U.S. 775, 787-88 (1998)). Again, Plaintiff's opposition to the motion to dismiss does not address or establish whether the FAC plausibly alleges severe and pervasive conduct.

The Court concludes that the FAC fails to adequately allege harassing conduct that is linked to his disability and that is sufficiently pervasive or severe to alter the conditions of employment and create an abusive working relationship. Accordingly, the Court GRANTS WITH LEAVE TO AMEND the motion to dismiss the harassment claims.

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3. Claims for reasonable accommodation

Defendant argues that Plaintiff's claims for failure to provide reasonable accommodation based on disability should be dismissed because: (1) Plaintiff's claims for failure to provide reasonable accommodation include allegations about events that occurred prior to July 7, 2015 and for which Plaintiff did not file an EEO claim; and (2) as to the timely claims, Plaintiff failed to plead facts giving rise to a plausible claim for failure to provide reasonable accommodation. Dkt. 18 at 21-22.

a. Timeliness

A claim for failure to provide reasonable accommodation may include only those discriminatory acts that occurred within 45 days prior to the Plaintiff's EEO report. See Yonemoto v . Shulkin , 725 Fed. Appx. 482, 485 (9th Cir. 2018). Several of Plaintiff's claims for reasonable accommodation are based on incidents that occurred more than 45 days before August 21, 2015, i . e ., before July 7, 2015. See , e . g ., FAC ¶¶ 10, 12, 21, 22-28, 40-41. Accordingly, to the extent the FAC could be construed as bringing claims based on alleged failure to provide reasonable accommodation occurring before July 7, 2015, the motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND.

b. Elements of a claim for failure to provide reasonable accommodation

To state a prima facie case for failure to accommodate a disability, a plaintiff must show that (1) he is disabled, (2) he is a qualified individual who can perform the essential functions of the job position with or without reasonable accommodation, and (3) that a reasonable accommodation is possible. Estell v . McHugh , No. 15-cv-04787-MEJ, 2020 WL 4140819, at *5 (N.D. Cal. Aug. 4, 2016) (citations omitted). A "reasonable accommodation" is defined as "[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position[.]" Silveria , 2020 WL 820377, at *8 (citing 29 C.F.R. § 1630.2(o)(ii)).

Plaintiff's timely claims for failure to accommodate appear to relate to Plaintiff's request for upgraded travel. See FAC ¶¶ 68, 72. Plaintiff concedes in the FAC that at least one of these

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travel accommodation requests was granted. Id . ¶ 69-70, 72-77. Plaintiff's complaint appears to be that he was required to provide additional approvals regarding the funds to be used for upgraded travel. Id . However, "[a]n employer is not obligated to provide an employee the accommodation he requests or prefers, the employer need only provide some reasonable accommodation." Zikovic v . So . Cal . Edison Co ., 302 F.3d 1080, 1089 (9th Cir. 2002). Moreover, "[w]hen accommodation is required to enable the employee to perform the essential functions of the job, the employer has a duty to gather sufficient information from the applicant and qualified experts as needed to determine what accommodations are necessary to enable the applicant to perform the job." Buckingham v . U . S ., 998 F.2d 735, 740 (9th Cir. 1993) (internal quotation marks and citation omitted) (emphasis in original). "An accommodation is not reasonable if it results in undue hardship - that is, when it causes 'more than a de minimis cost to the employer'" or other impacts. Hayes v . Potter , No. C-02-0437 VRW, 2006 WL 8448504, at *5 (N.D. Cal. 2006) (quoting Balint v . Carson City , 180 F.3d 1047, 1054 (9th Cir. 1999)).

Here, Plaintiff's claims for failure to provide reasonable accommodation rely on allegations that Plaintiff was required to provide additional documentation about available funding for his requested travel upgrades. Because cost is a relevant consideration for the agency in determining whether a proposed accommodation is reasonable and not an undue hardship, under the facts of this case, the allegations of the FAC are insufficient to support a claim for failure to provide reasonable accommodation. Accordingly, the Court GRANTS WITH LEAVE TO AMEND the motion to dismiss the claims for failure to provide reasonable accommodation.

4. Claims for reprisal

Defendant argues that Plaintiff's claims for reprisal should be dismissed because: (1) Plaintiff's claims for failure to provide reprisal include allegations about events that occurred prior to July 7, 2015 and for which Plaintiff did not file an EEO claim; and (2) as to the timely claims, Plaintiff failed to plead facts giving rise to a plausible claim for reprisal. Dkt. 18 at 22-24.

a. Timeliness

Under Morgan , claims for reprisal are not subject to the continuing violations doctrine, and instead each retaliatory adverse employment decision concerns a separate actionable unlawful

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employment practice that must be the subject of a timely complaint. Morgan , 536 U.S. at 114. Accordingly, to the extent the FAC could be construed as bringing claims based on alleged acts of reprisal occurring before July 7, 2015, the motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND.

b. Elements of a claim for reprisal

To state a claim for retaliation, a plaintiff must allege: (1) that he engaged in a protected activity; (2) that he was subsequently subjected to an adverse employment action; and (3) that a causal link exists between the two. Silveria , 2020 WL 820377, at *9 (citing Manatt v . Bank of America , 339 F.3d 792, 800 (9th Cir. 2003)).

With respect to Plaintiff's timely claims for reprisal, he identifies several alleged incidents that he contends were retaliation for his prior EEO complaints, such as the following: (1) Dr. Dotson's imposition of additional requirements for Plaintiff's travel requests in May 2016 (FAC ¶ 74); (2) Dr. Lee's exclusion of Plaintiff from a meeting with Dr. Boersma in February 2017 ( id . ¶ 103); (3) Dr. Grossman's "partial response" to Plaintiff's request for funding in December 2017 ( id . ¶ 109); (4) Dr. Lee's direction to exclude Plaintiff from a Lab Astro Tour in May 2017 ( id . ¶ 117); (5) Plaintiff's exclusion from decisions regarding hiring and postdoctoral candidate selection in June and August 2018 ( id . ¶ 135, 138); and (6) Dr. Howell's designation in July 2018 of someone other than Plaintiff as the point of contact for a work package on which Plaintiff was a senior member ( id . ¶ 136).

Other than labeling these incidents as retaliatory, Plaintiff does not plead any facts connecting these incidents to his prior protected EEO activity. Accordingly, the Court GRANTS WITH LEAVE TO AMEND the motion to dismiss the claims for reprisal.

C. Failure to Satisfy Rule 8(a)

Defendant also argues that the FAC fails to satisfy the "short and plain statement" requirement of Rule 8(a)(2). Dkt. 18 at 15. Given the history of this case, which involved consolidation of four separate lawsuits and an order that Plaintiff file a consolidated complaint, the Court concludes that the FAC, which consists largely of a chronological recitation of Plaintiff's factual allegations, complies with the requirements of Rule 8(a). However, in a Second Amended

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Complaint ("SAC"), Plaintiff must consolidate each cause of action and identify supporting paragraphs. For example, whereas the FAC contains four causes of action for reprisal (Counts Three, Six, Nine, and Eleven), the SAC should contain a single cause of action for reprisal that refers to the specific supporting paragraphs. The SAC must similarly consolidate the FAC's multiple causes of action for disability discrimination, harassment, failure to engage in the interactive process, and failure to provide reasonable accommodation into one count for each type of claim, and it must refer to the specific supporting paragraphs for each of those counts.

IV. CONCLUSION

For the foregoing reasons, the Court ORDERS as follows:

1. Defendants' motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction is DENIED.

2. Defendants' motion to dismiss the FAC under Rule 12(b)(6) is DENIED IN PART and GRANTED IN PART.

3. If Plaintiff wishes to attempt to address the deficiencies identified in this order for which he has been granted leave to amend, and if he can do so in compliance with Rule 11 standards, he may file a Second Amended Complaint ("SAC") within 21 days of the date of this order. The SAC must consolidate Plaintiff's duplicative causes of action and provide references to specific supporting paragraphs, as explained in Section III.C. above. The Plaintiff must file as an exhibit to the SAC a redline comparing the FAC and SAC.

4. Following the filing of a SAC, Defendant must file a response within 21 days.

5. If Defendant responds by filing a motion to dismiss the SAC, Plaintiff must file an opposition to that motion within 14 days. Defendant may file a reply within 7 days of the filing of Plaintiff's opposition. The Court will advise the parties if a hearing is necessary.

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6. If Defendant responds by filing an answer to the SAC, he must on the same date file a Notice of Need for Case Management Conference.

SO ORDERED.

Dated: January 8, 2021

/s/ _________
SUSAN VAN KEULEN
United States Magistrate Judge