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PJ Dayacamos v. City and County of San Francisco

United States District Court, N.D. California

July 25, 2017

PJ DAYACAMOS, Plaintiff,
v.
CITY AND COUNTY OF SAN FRANCISCO, Defendant.

          ORDER OF SERVICE

          JACQUELINE SCOTT CORLEY United States Magistrate Judge

         Plaintiff PJ Dayacamos, proceeding pro se and in forma pauperis, alleges she was terminated by Defendant, the City and County of San Francisco (“CCSF”), in retaliation for complaining that Defendant failed to provide reasonable accommodation for her disability. (Dkt. No. 1.) The Court previously granted Plaintiff's Application to Proceed In Forma Pauperis. (Dkt. No. 4.) Pending before the Court is review of the Complaint pursuant to 28 U.S.C. § 1915. (Dkt. No. 1.) After careful review, the Court finds that the Complaint adequately states an Americans with Disability Act (“ADA”) retaliation claim and orders service of the Complaint by the Marshal.

         LEGAL STANDARD

         Under 28 U.S.C. § 1915, the Court has a continuing duty to dismiss any case in which a party is proceeding in forma pauperis if the Court determines that the action is (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. A complaint is frivolous for Section 1915 purposes where there is no subject matter jurisdiction. See Castillo v. Marshall, 207 F.3d 15, 15 (9th Cir. 1997) (citation omitted); see also Pratt v. Sumner, 807 F.2d 817, 819 (9th Cir. 1987) (recognizing the general proposition that a complaint should be dismissed as frivolous on Section 1915 review where subject matter jurisdiction is lacking). Regarding dismissals for failure to state a claim, Section 1915(e)(2) parallels the language of Federal Rules of Civil Procedure 12(b)(6). Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000). The complaint therefore must allege facts that plausibly establish the defendant's liability. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). When the complaint has been filed by a pro se plaintiff, as is the case here, courts must “construe the pleadings liberally ... to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). Upon dismissal, pro se plaintiffs proceeding in forma pauperis must be given leave to “amend their complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Franklin v. Murphy, 745 F.2d 1221, 1228 n.9 (9th Cir. 1984) (internal citations and quotation marks omitted).

         COMPLAINT ALLEGATIONS

         Plaintiff began working for the CCSF in 1989 as a 9183 Transit Operator (Bus Driver). (Complaint ¶ 1.) In 1999, Plaintiff was involved in an accident and sustained head, neck, shoulder, back/spine, hip, and knee injuries. (Id.) Plaintiff underwent physical therapy for two years but never regained full function of her back, legs, hips, or shoulders. (Id.) In 2004, Plaintiff began working as a 1424 Clerk Typist and receptionist with the Department of Environment (“DOE”) as a result of the CCSF's ADA transfer policy. (Complaint ¶ 2.) On her first day of work Plaintiff requested an ergonomically appropriate work station to meet her documented ADA needs. (Id.) Plaintiff's employer denied the equipment for about a year, forcing Plaintiff to experience physical pain and take time off work despite the adjustments she tried to make herself in the absence of any accommodation. (Complaint ¶ 3.)

         In 2008, Plaintiff was told that her work station would undergo reconstruction and that as a result, she would receive an ergonomically appropriate work space to accommodate her ADA needs, specifically a work station with a desk, chair, and two-way access/egress. (Complaint ¶ 4.) Shawn Rosenmoss, a CCSF employee and the DOE Fundraising Coordinator, was in charge of the construction and did not reconstruct Plaintiff's desk to fit her ADA needs. (Complaint ¶¶ 4, 5.)

         Instead, Shawn cut up Plaintiff's old desk and rearranged the parts to make a smaller work area. (Complaint ¶ 5.) When Plaintiff complained that her new desk was not ADA compliant, Shawn told her that “an ADA compliant workstation ‘wasn't in keeping' with her ‘vision.'” (Id.) Instead of raising Plaintiff's desk according to ADA specifications, Shawn used step tools from her home to fashion makeshift stairs. (Complaint ¶ 6.) Shawn told Plaintiff that “the project ‘ran out of money'” and that her desk “was not a ‘priority.'” (Id.)

         In 2009, Plaintiff fell while trying to exit her work station via the makeshift stairs, injured her neck, back, and knees, and had to take time off of work. (Complaint ¶ 7.) In 2010, Joe Salem, the DOE Senior Budget Officer, told Plaintiff he would install ADA compliant stairs for her work station. (Complaint ¶ 8.) The final stairs were built in August 2010 but were not ADA compliant. (Id.) Plaintiff fell again in August 2010, tore the ligaments in her arm/shoulder, and re-injured her knee and back. (Complaint ¶ 9.) She was out of work for three months. (Id.)

         Following the accident in August 2010, DOE informed Plaintiff that she could no longer use her work station because it did not comply with the ADA. (Complaint ¶ 10.) DOE moved Plaintiff to another area that was also not ADA compliant. (Id.)

         On August 10, 2012, Plaintiff received a letter from DOE informing her that she would be laid off on October 5, 2012 because her position had been eliminated due to lack of funding. (Complaint ¶ 11.) DOE hired a new receptionist to replace Plaintiff shortly thereafter. (Id.) Plaintiff was “bumped into a succession of other CCSF positions” that continued to fail to accommodate her disability. (Complaint ¶ 12.)

         In August 2015, CCSF gave Plaintiff an “ultimatum.” (Complaint ¶ 12.) She could either be medically separated at 59 (before reaching retirement age of 60) or quit and “vest” in her retirement. (Id.) Plaintiff quit. (Id.) Plaintiff alleges that her “termination was clearly retaliation for years of legitimate complaints against DOE for failing to accommodate [her] disability.” (Complaint ¶ 11.)

         Plaintiff is permanently disabled and cannot work. (Complaint ¶ 13.) Plaintiff has been denied medical disability retirement and lives off of $1, 000 per month. (Id.) Plaintiff has exhausted all of her administrative remedies and filed this civil suit pursuant to a right to sue letter she received from the Equal Employment Opportunity Commission dated February 7, 2017.

         PLAINTIFF'S ...


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