The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Presently before the court is defendant's motion to dismiss plaintiff's Second Amended Complaint on the grounds that: (1) plaintiff has not met her burden to demonstrate a waiver of defendant's sovereign immunity as to plaintiff's claims brought pursuant to 42 U.S.C. §§ 1981 and 1983 and the Americans With Disabilities Act ("ADA"); and (2) as to the remainder of plaintiff's claims, the Second Amended Complaint fails to state a claim on which relief can be granted. (Dkt. Nos. 15, 16.) The court heard this matter on its law and motion calendar on June 10, 2010. (Dkt. No. 20.) Assistant United States Attorney J. Earlene Gordon appeared on behalf of defendant. Plaintiff, who is proceeding without counsel, appeared on her own behalf.
The undersigned has fully considered the parties' briefs, oral arguments, and the appropriate portions of the record in this case. For the reasons that follow, the undersigned grants defendant's motion to dismiss, in part, and dismisses the remainder of plaintiff's claims in accordance with plaintiff's request made at the June 10, 2010 hearing.
I. VOLUNTARY DISMISSAL OF CLAIMS
At the June 10, 2010 hearing, plaintiff expressly stated that she no longer wished to pursue several of her claims and requested that the following claims be dismissed without prejudice: claims brought pursuant to 42 U.S.C. §§ 1981 and 1983; claims brought pursuant to the ADA; and claims of discrimination on the basis of her age, sex, and religion. Accordingly, the undersigned will dismiss those claims without prejudice, see Fed. R. Civ. P. 41(a)(1)(A)(I), and will not address defendant's motion to dismiss as it relates to those claims. Plaintiff's remaining claims are for: (1) retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2 et seq.; and (2) violation of Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791.
Plaintiff is a former employee of the United States Postal Service ("USPS"), who has suffered various on-the-job injuries spanning from 1992 through 2007. Although her Second Amended Complaint alleges facts dating as far back as 1992, at the June 10, 2010 hearing, plaintiff stated that her claims arise out of events occurring after approximately June 25, 2007.*fn1
Because the Second Amended Complaint is not entirely clear as to which facts are actually relevant to plaintiff's claims, the undersigned recounts the allegations in the Second Amended Complaint below in perhaps more detail than would otherwise ordinarily be warranted. The undersigned informs plaintiff, as he did at the hearing, that any subsequent amended complaint should be "cleaned up" such that it is clear to defendant and the court which facts are relevant to the present dispute and form the basis of plaintiff's claims.
Plaintiff was employed in 1992 by USPS at the Mountain View, California facility as a letter carrier. (Second Am. Compl. at 4.) In August 1992, plaintiff suffered an on-the-job injury, consisting of a left knee strain, right hip contusion, and lumbar strain. (Id.) Plaintiff filed a claim with the Department of Labor's Office of Workers' Compensation Programs ("OWCP"), was placed on limited duty, and intermittently missed work over the subsequent two years. (Id.)
In May 1994, plaintiff injured her right shoulder and neck while on the job and filed another worker's compensation claim. (Id.) Plaintiff was off of work for two and one-half years while participating in vocational rehabilitation and training through OWCP. (Id.) Her treating physician ultimately determined that as a result of plaintiff's injuries, plaintiff was permanently unable to perform the duties of her position as a mail carrier. (Id.)
In 1996, during her rehabilitation process, plaintiff was offered a modified duty position as an Express Mail Analyst in San Francisco, working four hours per day. (Id.) At the time of this job offer, plaintiff's medical restrictions included "limited squatting, kneeling, bending, reaching above the shoulders, twisting, and lifting over five pounds." (Id. at 5.) Plaintiff ultimately completed an approved OWCP vocational rehabilitation plan. (Id.)
In March 2000, plaintiff accepted a permanent position as a "Postal Vision Coordinator/Editor/Trainer." (Id.) Plaintiff was placed into USPS Corporate Relations, which is now referred to as Public Affairs and Communication, located in San Francisco, California. (Id.) Plaintiff performed work as a Postal Vision Coordinator until 2005, when her treating physician advised her that she could increase her work hours. (Id.) Also in 2005, USPS agreed to move Postal Vision operations to Sacramento, California, and plaintiff worked some days in San Francisco and some days in Sacramento. (Id. at 5-6.)
In May 2007, plaintiff was contacted by the Postal Inspection Service in connection with an allegation that she had falsified her manager's signature payroll time sheets. (Id. at 6.) Through an investigative interview process, plaintiff learned for the first time that her position as a Postal Vision Coordinator was an "ad-hoc position (as needed)." (Id.) The investigation also revealed that plaintiff had not had a supervisor since 2005, and "action was immediately begun" to relocate plaintiff's position to San Francisco. (Id.)
As of June 1, 2007, plaintiff began commuting to San Francisco, which consisted of a daily commute of 225 miles per day. (Id.) Plaintiff was informed, on July 3, 2007, that personnel changes, lack of available supervision, and budgetary constraints made it impossible to continue her "ad hoc assignment." (Id.)
Meanwhile, on June 22, 2007, plaintiff had suffered another on-the-job injury, and her request for treatment was approved by the agency. (Id.) Her treating physician issued a medical report, dated June 25, 2007, in which he concluded that plaintiff's commute had contributed to the aggravation of her prior cervical condition. (Id.) Plaintiff filed another worker's compensation claim with OWCP. (Id.) Before plaintiff received additional treatment, OWCP withdrew the previously granted authorization for medical treatment. (Id. at 7.) In a letter dated August 8, 2007, however, OWCP advised plaintiff that authorization for her treatment had been reinstated and would continue until August 25, 2007. (Id.) Plaintiff alleges that she was without medical treatment from June 25, 2007 to August 8, 2007. (Id.)
Additionally, defendant had sent a letter to OWCP, dated July 2, 2007, contesting plaintiff's 2007 worker's compensation claim. (Id.) OWCP advised defendant that "[t]he information submitted is insufficient to make a decision on this case," and advised defendant to continue plaintiff's regular pay for the period of her disability, not to exceed 45 days.*fn2 (Id.) On August 6, 2007, defendant advised plaintiff by letter that her pay had been continued from the time of her injury through August 5, 2007, and provided her with a form "to claim compensation for the remainder of your disability from work." (Id.) Additionally, the Mountain View compensation unit was directed to continue plaintiff's pay for up to a maximum of 45 days with proper medical certification. (Id. at 9.) Plaintiff alleges that defendant did not provide her ...