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Anello v. Berryhill

United States District Court, N.D. California

August 30, 2019

MARIA JESUS ANELLO, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          ORDER GRANTING MOTION TO DISMISS THIRD AMENDED COMPLAINT RE: DKT. NO. 65

          DONNA M. RYU, UNITED STATES MAGISTRATE JUDGE

         Pro se Plaintiff Maria Jesus Anello filed a third amended complaint against her former employer, the United States Social Security Administration (“SSA”), alleging claims stemming from her employment and 2011 retirement. [Docket No. 73.] The government now moves to dismiss the third amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) and for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). [Docket No. 74.] The court held a hearing on August 8, 2019. For the following reasons, the motion is granted and the third amended complaint is dismissed. Ms. Anello's claims for discrimination based on national origin and retaliation are dismissed with prejudice. The remaining claims for disability discrimination, failure to accommodate her disability, and hostile work environment/harassment based on disability are dismissed without prejudice, and Ms. Anello is granted leave to file a fourth and last amended complaint alleging those claims by no later than September 13, 2019. No. further amendments will be permitted.

         I. BACKGROUND

         A. Allegations in the Third Amended Complaint[1]

         Ms. Anello makes the following allegations in the third amended complaint (“TAC”): Ms. Anello worked for the SSA at its Santa Rosa Field Office. She does not specify her position. TAC 1, ¶ 4. She alleges that the essential functions of her position were as follows:

• [A]nswering the phones, research, filing, printing information for claimants, calculate benefits, working at the front desk, etc. . . .[.] TAC 3 ¶ 12 (ellipses in original).
• “[T]raining my coworkers on the procedures for locking, inspecting, ordering, and mailing the applications for Social Security Cards to Wilkes-Barre Data Center, with required procedures and confirmation. Transferring the earnings from fraudulent Social Security Numbers, to the new and correct SS numbers for individuals with the necessary proofs, following up with the correct procedures, I also corrected records and processed non receipts of benefits, and placed in pay or retained payments for prisoners, with different rules for Disability, Social Security Supplemental Income, or for concurrent benefits. This included faxing and calling the different prisons to have beneficiaries placed correctly in pay if released or suspending benefits. I also entered the wages for working beneficiaries so they would not have overpayments or underpayments, documenting and sending back the paperwork with prepaid envelopes. I corrected mistakes with names, birthdates, and gender for SSN applications, and changing the sex of record and last names of same sex marriages, among many other things. I followed up with different tasks and processes, and responded promptly to all the requests from different agencies, beneficiaries, coworkers and managers, using all automated programs like PCACS, MDWs, POS inputs, 2.8, SS5s, File Requests, NDREDs, Bene Verifications, Wages Earnings, Eview, Mail, Phone messages, Reconsiderations etc. TAC 3 ¶ 13.

         On March 30, 2010, Ms. Anello requested a reasonable accommodation “due to a preexisting heart condition, ” which was “permanent atrial fibrillation with a history of strokes and having had one open heart surgery.” Id. at 2 ¶ 1. “[M]onths in advance of [a] remodeling, ” Ms. Anello requested “turning [her] desk around in the way it was for 9 years” to accommodate her heart condition. After her desk had been “installed facing the wrong direction, ” the response she received was “to install a small mirror.” Id. at 2 ¶¶ 2, 3.

         Ms. Anello alleges that the mirror did not effectively accommodate her heart condition, and instead “increased [her] anxiety, and ultimately damaged [her] left fingers, hand, elbow, and neck.” She alleges, “[i]f the accommodations that I had requested had been provided, I would have been able to perform the essential functions of my job without undue hardship to the agency, and without getting injured.” Id. at 2 ¶ 4.

         On August 2, 2010, Ms. Anello “suffered a work related injury ‘sprain of left hand/wrist', later developing ramifications to [her] elbow's ulnar nerve, and neck, [and] after months of painful nerve tests, therapies, 86 doctor visits, medications, which produced terrible secondary effects, on May 26th 2011 [she] was found to have Reflex Sympathetic Dystrophy/Complex Regional Pain Syndrome (RSD/CRPS).” Id. at 2 ¶ 6.

         Ms. Anello requested the following accommodation of her condition:

[A] break to take my pain medication every 90 minutes if needed (medication couldn't be taken more often than every 90 minutes . . .), the timing of my medication was not like clockwork, it depended on many variables, like the amount and frequency of computer keying. I requested short respite times to perform other essential functions like answering the phones, research, filing, printing information for claimants, calculate benefits, working at the front desk, etc….[.]

Id. at 3 ¶ 12. She alleges that she provided medical documentation to support her request for a reasonable accommodation of her condition. Id. at 2 ¶ 6. However, her request was “wrongfully denied, ” which “injur[ed] [her]” and forced her to use her accumulated leave, and eventually “caus[ed] [her] condition to worsen to the point where [she] later . . . had to file for FERS disability.” Id. at 2 ¶ 8. Ms. Anello alleges that her employer “refused to accept” the requested accommodation and “demanded that [she] produce additional medical documentation, which effectively disregarded [her] accommodation request.” Id. at 2 ¶ 9. She makes the following allegation about the SSA's response to her request:

[T]he agency decided that the accommodation that they would have to give in order to provide me with breaks to take my medication included restrictions for both hands-which went beyond what I was asking for-and the agency then claimed I could not be accommodated. Their increasing demands for medical documentation was intended, in my belief, to force me out of employment rather than accommodate me, thus discriminating against me for being disabled.

Id. at 2-3 ¶ 9.

         According to Ms. Anello, she was a qualified individual with a disability, entitled to a reasonable accommodation, and was “able to perform the essential functions of [her] position, ” id. at 2 ¶ 7, as she had been doing from May 26, 2011 until June 29, 2011, her last day of work. Id. at 3 ¶ 10. She further alleges that her physician-recommended reasonable accommodation would not have caused “undue hardship to the agency.” Id. at 3 ¶ 10.

         Ms. Anello further alleges that she was subject to a hostile work environment, which she describes as follows:

The harassment that I received was prohibited discrimination due to my disability, including physical intimidation and extreme hostility by Assistant Manager Paul Sampson, and created a Hostile Work Environment. He is a large and imposing man and he would be really derogative, he physically blocked me on June 28th 2011, to get to my desk for pain medication while I was crying in pain, blocked me a second time when I tried to get permission from another manager, then he mocked me when my Supervisor arrived telling her: ‘there she is . . . crying again'. His discriminatory attitude towards me included physical posturing, increased volume and harsh tone of voice, the making of facial expressions, he would glower and look down at me and physically intimidated me. Paul's face would contort when talking to me, and with hostility, he would scowl at me. Mr. Sampson told me that I was never going to be promoted while he was at the Santa Rosa District Office. He wrote on my SF-50 that the agency would appeal any award of unemployment compensation benefits, refused to cancel my ‘Voluntary Retirement' even after receiving a letter from Chief Executive, President Obama . . . and OPM confirming the annulment, voidance, and repeal of the Voluntary Retirement.
Mr. Sampson blocked my Reasonable Accommodation request to have my desk changed, as well as refusing to process my Workers Compensation claim, Voluntary Leave Transfer Program request, Family Leave and so on.

Id. at 4 ¶¶ 14, 15 (first ellipses in original).

         Based on these allegations, Ms. Anello appears to bring the following claims for relief: 1) discrimination based on national origin, Hispanic; 2) discrimination based on disability; 3) failure to accommodate her disability, based on the denials of her requests to change the position of her desk and permit her to take breaks to take medication; 4) hostile work environment/harassment based on disability; and 5) “reprisal for EEO” and her workers compensation claim. Id. at 5-6.

         B. Procedural History

         On November 20, 2017, Ms. Anello filed a complaint which did not formally plead individual claims for relief but in which she alleged that she suffered discrimination and retaliation during her employment by the SSA. The court liberally construed the complaint to allege claims for 1) disability discrimination; 2) failure to accommodate disability; 3) employment discrimination based on national origin (Spanish); and 4) retaliation.

         The government moved to dismiss the complaint. [Docket No. 17.] Following a hearing on August 9, 2018, the court granted the motion and dismissed the complaint. Anello v. Berryhill, No. 18-cv-00070-DMR, 2018 WL 3845617 (Aug. 13, 2018). The court granted Ms. Anello leave to file an amended complaint by September 4, 2018 alleging claims for disability discrimination, failure to accommodate disability, national origin disability, retaliation, and age discrimination. Id. at *4-6. ...


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