United States District Court, N.D. California
ORDER RE: MOTION TO DISMISS RE: DKT. NO. 18
MARIA-ELENA JAMES United States Magistrate Judge.
Quo Vat Estell (“Plaintiff”) brings this action
against Defendant John McHugh(“Defendant”) as
Secretary of the United States Army (the “Army”),
alleging the Army discriminated against her based on her
disability and failed to accommodate her disability. Pending
before the Court is Defendant’s Motion to Dismiss
pursuant to Federal Rule of Civil Procedure
(“Rule”) 12(b)(1) and 12(b)(6). Mot., Dkt. No.
18. Plaintiff filed an Opposition (Dkt. No. 24), and
Defendant filed a Reply (Dkt. No. 25). The parties have
consented to this Court’s jurisdiction. Dkt. Nos. 13,
22. The Court previously found this matter suitable for
disposition without oral argument and vacated the hearing on
the Motion. See Dkt. No. 26. Having considered the
parties’ positions, relevant legal authority, and the
record in this case, the Court GRANTS IN PART and DENIES IN
PART Defendant’s Motion for the following reasons.
is employed by the U.S. Army as a Human Resources Assistant.
First Am. Compl. (“FAC”) ¶ 9, Dkt. No. 9.
She alleges she is disabled due to Systemic Lupus
Erythematosus (“SLE”). Id. ¶ 17.
Due to her disability, Plaintiff experiences sensitivity to
light, and in the past, the Army accommodated her sensitivity
by modifying her position so that she would not have to work
in areas directly under fluorescent lights. Id.
¶ 18. Plaintiff alleges she could perform the essential
functions of her job with this accommodation. Id.
November 8, 2013, Plaintiff’s doctor took her off work
from that date until January 14, 2014. Id. ¶
21. Plaintiff alleges the Army refused to honor this and
other requests for accommodation, subsequently refusing her
entry to the building and refusing to allow her to return to
work on January 14, 2014 when she was medically cleared to do
so. Id. ¶¶ 22-25. Plaintiff eventually
returned to work on March 12, 2014. Id. ¶ 24.
further alleges that between 2013 and 2014, the Army took the
following adverse employment actions against her because of
her disability: (1) repeatedly warning and disciplining her
for being tardy or missing work due to her disability; (2)
refusing to complete disability paperwork; (3) refusing
Plaintiff entrance to the building where she worked; (4)
giving Plaintiff a negative performance review; and (5)
disparaging Plaintiff to her co-workers. Id. ¶
31. On February 10, 2014, Plaintiff contacted an Army Equal
Employment Opportunity (“EEO”) counselor relating
to the Army’s failure to accommodate her disability.
Reding Decl. ¶ 2, Dkt. No. 18-1 & Ex. A (EEO
Counselor’s Report) at 1. The Department of Defense
(“DOD”) sent Plaintiff a Notice of Right to File
a Formal EEO Complaint of Discrimination on March 26, 2014.
Id. ¶ 3 & Ex. B (Notice). Plaintiff signed
her Formal EEO Complaint on April 13, 2014. Id.
¶ 4 & Ex. C (Formal EEO Complaint). In the EEO
Complaint, Plaintiff alleges she was discriminated against
because of her history of physical disability with
fluorescent lights and sun sensitivity, as well as her prior
EEO involvement. Id., Ex. C at 3-6. She further
alleges her supervisor, Captain Spohr, engaged in various
discriminatory and retaliatory actions between November 13,
2013 and January 31, 2014. Id., Ex. C at 2-5. On
April 28, 2014, the DOD informed Plaintiff it had accepted
her discrimination claims for investigation. Id.
¶ 5 & Ex. D (DOD Letter). The DOD letter informed
Plaintiff that the investigation must be completed within 180
days, and that she “may file a civil action”
“if the Army has not issued a final decision on this
complaint, after 180 days from the date the formal complaint
was filed.” Id., Ex. D.
filed her original complaint in this Court on October 24,
2015. Dkt. No. 1. Her FAC, filed February 4, 2016, sets forth
a claim under the Family and Medical Leave Act of 1993, 29
U.S.C. § 2601, et seq. (“FMLA”), and two
claims under the Rehabilitation Act of 1973, 29 U.S.C. §
791, et seq. (a failure to accommodate claim and a disability
discrimination claim). See FAC.
district courts are courts of limited jurisdiction;
“[t]hey possess only that power authorized by
Constitution and statute, which is not to be expanded by
judicial decree.” Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994) (citation omitted).
Accordingly, “[i]t is to be presumed that a cause lies
outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting
jurisdiction.” Id.; Chandler v. State Farm
Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir.
2010). she alleges the existence of the Formal Complaint in
her FAC; exhausting her administrative remedies is essential
to her claim; and the documents attached to the Reding
Declaration are all part of Plaintiff’s administrative
record. The Court accordingly may consider the documents
attached to the Reding Declaration without converting
Defendant’s Motion into a motion for summary judgment.
Rule of Civil Procedure 12(b)(1) authorizes a party to move
to dismiss a lawsuit for lack of subject matter jurisdiction.
A jurisdictional challenge may be facial or factual. Safe
Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004). Where the attack is facial, the court determines
whether the allegations contained in the complaint are
sufficient on their face to invoke federal jurisdiction,
accepting all material allegations in the complaint as true
and construing them in favor of the party asserting
jurisdiction. Warth v. Seldin, 422 U.S. 490, 501
(1975). Where the attack is factual, however, “the
court need not presume the truthfulness of the
plaintiff’s allegations.” Safe Air for
Everyone, 373 F.3d at 1039. In resolving a factual
dispute as to the existence of subject matter jurisdiction, a
court may review extrinsic evidence beyond the complaint
without converting a motion to dismiss into one for summary
judgment. Id.; McCarthy v. United States,
850 F.2d 558, 560 (9th Cir. 1988) (holding that a court
“may review any evidence, such as affidavits and
testimony, to resolve factual disputes concerning the
existence of jurisdiction”).
8(a) requires that a complaint contain a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint
must therefore provide a defendant with “fair
notice” of the claims against it and the grounds for
relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal quotations and citation omitted).
may dismiss a complaint under Rule 12(b)(6) when it does not
contain enough facts to state a claim to relief that is
plausible on its face. Id. 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “The plausibility standard is not akin to a
‘probability requirement, ’ but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 557). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and