This action was referred to the undersigned based on the consent of the parties. See Dckt. No. 18; see also E.D. Cal. L.R. 305; 28 U.S.C. § 636(c). Defendants now move to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim. Dckt. No. 14. For the reasons stated herein, defendants' motion to dismiss will be granted in part and denied in part.
On December 31, 2010, plaintiff Matthew Bonzani, M.D., a former anesthesiologist at the Sacramento VA Medical Center in Sacramento, California, filed a disability discrimination complaint against defendants Eric K. Shinseki, Secretary of Veterans Affairs (the "Secretary"); Scott Hundahl. M.D., also a doctor at the Sacramento VA Medical Center; and ten unnamed doe defendants, pursuant to the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. ("Rehabilitation Act"), the Family Medical Leave Act ("FMLA"), and 5 U.S.C. § 2302. Compl., Dckt. No. 1.
The complaint alleges that in April 2009, plaintiff exacerbated an injury in his knee, that he was required by his doctor to have surgery on his knee, and that he had to take four weeks off work to recuperate. Id. ¶¶ 17, 18. Plaintiff alleges that after he returned to work in July 2009, his supervisor, Dr. Hundahl, yelled at plaintiff on more than one occasion, and told plaintiff that his absence caused working conditions to deteriorate. Id. ¶¶ 19, 20. Plaintiff further alleges that from July 2009 to March 2010, Dr. Hundahl required plaintiff to work extra on-call shifts, failed to return plaintiff's emails and phone calls, and would not agree to meet with plaintiff. Id. ¶¶ 21, 22. The complaint also alleges that plaintiff was excluded from the interviewing and hiring process for an open Staff Anesthesiologist position in the fall of 2009, and that in December 2009, plaintiff resigned from the Chief of Anesthesiology position because Dr. Hundahl's "cold shoulder treatment and other obstructions" made plaintiff unable to perform that role and requested that he be reassigned to the open Staff Anesthesiologist position. Id. ¶¶ 23, 24. Finally, plaintiff alleges that in January 2010, he was notified in writing by Dr. Hundahl that plaintiff's contract would expire on March 18, 2010 and it would not be renewed and that when plaintiff asked Dr. Hundahl why his contract would not be renewed, Dr. Hundahl told him it was because plaintiff took too long to recuperate from his knee surgery and he took too much sick leave. Id. ¶¶ 14, 25.
Defendants move to dismiss plaintiff's complaint pursuant to Rules 12(b)(1) and 12(b)(6), arguing that (1) plaintiff's Rehabilitation Act claim against defendant Hundahl and the unnamed doe defendants must be dismissed since the Secretary is the only proper defendant for a claim brought under the Rehabilitation Act; (2) plaintiff's Rehabilitation Act claim under Section 504, 29 U.S.C. § 794 ("Section 504"), should be dismissed as to all defendants because Section 501, 29 U.S.C. § 791 ("Section 501"), is his exclusive remedy; (3) plaintiff's FMLA claim against all defendants must be dismissed since plaintiff has not exhausted his administrative remedies for his FMLA claim and the complaint fails to state a plausible FMLA claim; and (4) plaintiff's third claim for relief, pursuant to 5 U.S.C. § 2302(b)(12), must be dismissed as to all defendants since the Civil Service Reform Act ("CSRA") is plaintiff's exclusive remedy for that cause of action. Def.'s Mot. to Dismiss, Dckt. No. 14.
Plaintiff opposes the motion, arguing that: (1) both Section 501 and Section 504 of the Rehabilitation Act are applicable here, and that individuals can be held liable under Section 504; (2) plaintiff's FMLA claim is legally sufficient because plaintiff has exhausted his administrative remedies under the FMLA and because plaintiff has adequately stated a FMLA claim; and (3) plaintiff has exhausted his administrative remedies with regard to his third claim. Pl.'s Opp., Dckt. No. 23.
A. Standards of Review -- Federal Rules of Civil Procedure 12(b)(1) & 12(b)(6) "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute . . . . " Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). Rule 12(b)(1) allows a party to seek dismissal of an action where federal subject matter jurisdiction is lacking. "When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001).
A party may seek dismissal for lack of jurisdiction "either on the face of the pleadings or by presenting extrinsic evidence." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). In a factual challenge, the court may consider evidence demonstrating or refuting the existence of jurisdiction. Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008). "In such circumstances, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quoting Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987)).
To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "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. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
Here, plaintiff proceeds pro se. Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir.1985). However, the court's liberal interpretation of a pro se litigant's pleading may not supply essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir.1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d at 1388, and matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986). A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
B. Plaintiff's Rehabilitation Act Claim
1. Section 501 of the Rehabilitation Act Is Plaintiff's Exclusive Remedy Defendants move to dismiss plaintiff's claim under Section 504 of the Rehabilitation Act, arguing that Section 501 of that Act is his exclusive remedy. Dckt. No. 14-1 at 6.*fn1
Defendants are correct that, in the Ninth Circuit, it is well established that Section 501 is the exclusive remedy for a federal employee claiming discrimination on the basis of disability. Boyd v. U.S. Postal Serv., 752 F.2d 410, 413 (9th Cir. 1985) ("[S]section 501 is the exclusive remedy for discrimination in employment by [a federal employer] on the basis of handicap."). Although Section 501 and Section 504 both prohibit disability discrimination, Section 501 "obligates federal employers to provide reasonable accommodation for the handicapped and to develop and implement affirmative action plans for handicapped employees," and creates a private right of action therefore, while "Section 504, in contrast, prohibits exclusion of 'otherwise qualified individuals' on the basis of their disability from both federally funded government activities or programs and federally funded non-governmental agencies." Johnston v. Horne, 875 F.2d 1415, 1418 (9th. Cir. 1989) (citing Boyd, 752 F.2d. at 412 and Mantolete v. Bolger,767 F.2d 1416, 1421 (9th Cir. 1985)). A handicapped individual may bring a private cause of action under Section 504 for disability discrimination against an activity or program that receives federal funds, but Section 504 "does not create a private cause of action for handicap discrimination against a federal employer by a federal employee . . . . Section  is the exclusive remedy for handicap discrimination claims by federal employees."*fn2 Johnston, 875 F.2d at 1420 (citing Boyd, 752 F.2d at 413-14).
Because the Ninth Circuit has held that Section 501 is the exclusive remedy for disability discrimination claims by federal employees, plaintiff's claims under Section 504 of the ...