Estell v. McHugh

          ORDER RE: MOTION TO DISMISS RE: DKT. NO. 18

          MARIA-ELENA JAMES United States Magistrate Judge.

         INTRODUCTION

         Plaintiff Quo Vat Estell (“Plaintiff”) brings this action against Defendant John McHugh^[1](“Defendant”) as Secretary of the United States Army^[2] (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.

         BACKGROUND^[3]

         Plaintiff 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. ¶ 20.

         On 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.

         Plaintiff 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.^[4] 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.

         Plaintiff 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.

         LEGAL STANDARDS

         A. Rule 12(b)(1)

         Federal 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.

         Federal 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”).

         B. Rule 12(b)(6)

         Rule 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).

         A court 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 a ...