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Tommie Ewing v. Patrick R. Donahoe

December 7, 2011

TOMMIE EWING, PLAINTIFF,
v.
PATRICK R. DONAHOE, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, DEFENDANT.



FINDINGS & RECOMMENDATIONS

On December 1, 2011, the court held a hearing on defendant Patrick Donahoe's motion to dismiss. Plaintiff appeared in pro per. Lynn Trinka Ernce appeared on behalf of defendant. Upon consideration of the motion on file in this action, discussion with plaintiff and counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

In the operative first amended complaint ("FAC"), plaintiff, a veteran, claims he applied for a position as a Custodian with the United States Postal Service ("USPS") in West Sacramento on August 19, 2005. FAC at 3, ¶ 8. After undergoing a pre-employment physical examination on September 9, 2005, plaintiff received notice that he was medically unsuitable for employment. Id., ¶¶ 9-10.

On October 14, 2005, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging disability discrimination. FAC at 4, ¶ 15. On November 2, 2005, plaintiff and Post Office Management Official Brandi Jentgen entered into a settlement agreement, which included a job offer. Id., ¶ 15. By letter dated February 10, 2006, the job offer was rescinded by the USPS. Id.

On March 22, 2006, plaintiff filed an informal complaint with the EEOC alleging disability discrimination. FAC at 4, ¶ 15. On April 13, 2006*fn1 , plaintiff filed a formal complaint with the EEOC. Id. While his complaint was pending with the EEOC, plaintiff received a letter from counsel for USPS dated December 15, 2008 concerning possible settlement of the case. Id. During a telephonic conference on January 22, 2009 between plaintiff, counsel for USPS and an administrative law judge, the USPS offered plaintiff $5,000 and job reinstatement, which plaintiff accepted. Id. at 5. By letter dated January 26, 2009, however, the USPS withdrew its offer. Id. at 5. On May 27, 2009, the EEOC entered summary judgment in favor of the USPS. Id. at 6.

Plaintiff initiated this action on February 22, 2010 and is proceeding on an amended complaint entered November 16, 2010.*fn2 Therein, plaintiff sets forth thirteen causes of action: (1) discrimination based on disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; (2) failure to accommodate in violation of the ADA; (3) failure to engage in good faith interactive process in violation of the ADA: (4) discrimination based on disability, in violation of California's Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code 12900 et seq.; (5) failure to accommodate disability in violation of FEHA; (6) failure to engage in good faith interactive process in violation of FEHA; (7) violations of the Confidentiality of Medical Information Act ("CMIA"), Cal. Civ. Code § 56.20 et seq.; (8) wrongful termination; (9) intentional infliction of emotional distress ("IIED"); (10) breach of contract; (11) breach of the implied covenant of good faith and fair dealing; (12) promissory fraud; and (13) violations of the Rehabilitation Act, 29 U.S.C. §§ 701-796. Plaintiff seeks damages in the amount of $700,000.00.

On October 12, 2011, defendant filed a motion to dismiss the first twelve causes of action. Plaintiff opposes the motion.

STANDARDS

Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson, 551 U.S. 89, 127 S.Ct. at 2200 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

DISCUSSION

A. Claims 1 through 3

In claims one through three, plaintiff brings suit against the USPS for various ADA violations. Defendant seeks dismissal of these claims for lack of jurisdiction.

Plaintiff's ADA-related claims are premised on 42 U.S.C. § 12112, which in relevant part provides: "No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). However, Title I of the ADA does not govern alleged discriminatory acts of the federal government. Relevant here, the term "covered entity" includes an "employer." Id. § 12111(2). In defining the term "employer," Congress expressly excluded the federal government: "The term 'employer' does not include-... (i) the United States, a corporation wholly owned by the government of the United States, or an Indian tribe." Id. § 12111(5)(B).

In persuasive dictum in a decision ultimately addressing the applicability of Title II of the ADA to the federal government, the Ninth Circuit stated the same conclusion regarding ...


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