United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF'S COMPLAINT BE DISMISSED WITHOUT LEAVE TO AMEND
OBJECTIONS DUE WITHIN THIRTY DAYS
STANLEY A. BOONE, Magistrate Judge.
On April 16, 2015, Plaintiff Nigel Marin ("Plaintiff") filed the First Amended Complaint in this action. (ECF No. 12.) For the reasons set forth below, the Court finds that Plaintiff's First Amended Complaint fails to state any cognizable claim and should be dismissed without leave to amend.
District courts may dismiss a claim sua sponte under Federal Rule of Civil Procedure 12(b)(6) if the Court gives notice of its intention to dismiss and afford plaintiffs an opportunity to at least submit a written memorandum in opposition to such motion. Lee v. City of Los Angeles, 250 F.3d 668, 683 n.7 (9th Cir. 2001) (quoting Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987); Wong v. Bell, 642 F.2d 359, 362 (9th Cir. 1981)). Under Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id . (quoting Twombly, 550 U.S. at 570). "[A] complaint [that] pleads facts that are merely consistent with' a defendant's liability... stops short of the line between possibility and plausibility of entitlement to relief.'" Id . (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Id . "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id . (quoting Twombly, 550 U.S. at 555).
Plaintiff's complaint names Carolyn W. Colvin, the Commissioner of the Social Security Administration, as Defendant. Plaintiff's claim arises from his employment with the Social Security Administration.
Plaintiff's complaint alleges that an EEOC claim is pending, which raises three issues: Defendant's denial of a November 8, 2014 request for reasonable accommodation, Plaintiff's allegation that Plaintiff was not allowed to have a union representative with him at an August 28, 2013 meeting, and Plaintiff's allegation that management "disrespected" Plaintiff's doctor's recommendation that Plaintiff be taken off work. (First Am. Compl., at pg. 2:4-11.) Plaintiff further alleges that he filed a motion to amend his EEOC claim to include additional claims asserted in the complaint filed in this action.
Plaintiff alleges that he worked as a Claim representative with the Social Security Administration. Plaintiff alleges that he suffers from dyslexia, bipolar disorder, ADHA, depression, and high blood pressure. Plaintiff further alleges that these conditions cause him to suffer from fatigue, headaches, and a feeling of being overwhelmed emotionally while dealing with the public.
Plaintiff alleges that the Social Security Administration became aware of his conditions on August 1, 2012, when he was transferred from Philadelphia to Fresno. On August 26, 2013, Plaintiff submitted a medical note which stated that he should be taken off work for six months and 21 days to recover from depression and high blood pressure. However, Plaintiff was told to return to work on September 4, 2015.
Plaintiff alleges that, on August 27, 2013, Shanice Earl-Johnson (Acting Office Manager), Alfred Ballon (Area Assistant Director), and Tuan Nguyen (Area Director) met to discuss Plaintiff's request for medical leave. Plaintiff alleges that he was asked to attend a meeting without knowing the purpose of the meeting. Plaintiff asked that his union representative, Sylvia Norman, attend the meeting. Plaintiff contends that he had the right to "union representation" under "the Weingarten case." Plaintiff stated that he would attend the meeting "contingent upon Mrs. Norman being present." (First Am. Compl., at pg. 4:12-13.) Plaintiff further alleges that Mrs. Earl-Johnson "effectively lied to the EEOC Investigator that Plaintiff canceled the meeting." (First Am. Compl., at pg 4:13-14.)
On August 29, 2014, Plaintiff submitted a "FMLA 380-E" and claimed that he had accumulated sufficient sick leave to leave until September 18, 2013. During a phone discussion, Mrs. Earl-Johnson ordered Plaintiff back to work. Plaintiff also alleges that Mrs. Earl-Johnson again refused to allow a union representative to be present during the phone discussion.
On September 3, 2013, Plaintiff sent an e-mail to Mrs. Earl-Johnson complaining about his treatment. Plaintiff alleges that Mrs. Earl-Johnson lied to an EEOC investigator by claiming she never received Plaintiff's e-mail. Plaintiff reported to work on September 5, 2013. Plaintiff "attempted to mitigate his harm by leaving work that day" and "returned the next day, but immediately request[ed] to leave work because he felt distressed." (First Am. Compl., at pg: 7:12-14.) On September 7, 2015, Plaintiff was told that he did not have to report to work until a decision was reached on his request for leave.
Plaintiff alleges that "several conference calls took places[sic] which consisted of question[sic] not pertaining to the interactive process." (First Am. Compl., at pg. 7:18-19.) Plaintiff claims he was "threatened" by Mr. Ballon when Mr. Ballon told Plaintiff that he must make a decision as to which date Plaintiff was invoking ...