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Channel v. Wilkie

United States District Court, E.D. California

November 4, 2019

TASHIA CHANNEL, Plaintiff,
v.
ROBERT WILKIE, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff is proceeding in this matter pro se, and pre-trial proceedings are accordingly referred to the undersigned pursuant to Local Rule 302(c)(21). Defendants' motion to dismiss the operative Third Amended Complaint, ECF No. 32, came on for hearing on November 30, 2019. Plaintiff appeared on her own behalf, and Assistant United States Attorney Kelli L. Taylor appeared for the remaining defendants: Maria Almes, David Stockwell, and Robert Wilkie. ECF No. 43. For the reasons that follow, the undersigned recommends the motion to dismiss be GRANTED in part and DENIED in part.

         I. BACKGROUND

         A. Procedural History

         Plaintiff Tashia Channel filed this case on August 31, 2018. ECF No. 1. The initial complaint was rejected on screening because it failed to comply with Fed.R.Civ.P. 8. ECF No. 6 at 3. The court informed plaintiff that the exact nature of what happened to her was not apparent from the complaint, which contained 123 pages of documents and no clear allegations reflecting violations of federal law. Id. Plaintiff was given an opportunity to amend. Id. at 6.

         On October 22, 2018, plaintiff filed her First Amended Complaint, which the court found appropriate for service on defendants Robert Wilkie, David Stockwell, and Maria Almes. ECF Nos. 7 and 8. Defendants moved to dismiss. ECF No. 19. On April 4, 2019 the undersigned recommended dismissal with prejudice of plaintiff's claims under the Family Medical Leave Act and the Americans with Disabilities Act, and leave to amend the remaining claims including those under the Rehabilitation Act. ECF No. 25. The court provided instructions for amendment, including discussion of Rule 8 pleading standards and the requirement that the new complaint be a stand-alone document including all necessary facts and clearly identifying individual causes of action with factual support. Id. at 8-9. Plaintiff prematurely filed a Second Amended Complaint while the Findings and Recommendations were pending before the district judge. ECF No. 26. The Findings and Recommendations were adopted on June 12, 2019. ECF No. 31.

         Plaintiff filed the operative Third Amended Complaint (“TAC”) on July 8, 2019. ECF No. 32.

         B. Allegations of the Complaint

         Plaintiff Channel presents seven enumerated causes of action in her TAC, some of which are duplicative and all of which are difficult to decipher. Claims One and Three allege disability discrimination in the forms of disparate treatment and failure to accommodate, in violation of statutes including the Rehabilitation Act; Claim Two alleges age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”) and 42 U.S.C. §1983; Claim Four alleges retaliation in violation of the No-FEAR Act, 5 U.S.C. § 2302(b)(1)(B), (D), and related favoritism; Claim Five alleges retaliation for filing grievances pursuant to 18 U.S.C. § 245, and related defamation; Claim Six alleges a hostile work environment in violation of Title VII of the Civil Rights Act of 1964; and Claim Seven alleges wrongful termination. ECF No. 32 at 1-2, 19-24.

         Plaintiff is a former employee of the Northern California Health Care System operated by the Department of Veterans Affairs. The claims arise from plaintiff's experience with her immediate supervisor, defendant Almes, after Almes became Chief of Voluntary Services at the Northern California Health Care System in late 2009. ECF No. 32 at 5-16. The TAC alleges as follows. Almes made changes to the duties and responsibilities of plaintiff's position, which led plaintiff to file a grievance some time in 2009. Id. at 6-7, 18. Plaintiff left Voluntary Services for medical reasons at some point in 2009. Id. Though plaintiff was cleared by her health care provider to return to work in September of 2009, she did not return until November of 2011, which was the fault of her employer. Id. at 7-8. Upon return, plaintiff's work duties were reduced, and she was subjected to harassment and discrimination by Almes. Id. at 8, 18.

         This harassment and discrimination regularly took the form of denied requests for leave, denied (or ignored) requests for workplace accommodations, and exclusion from employee events. Id. at 8-10, 13. Almes retroactively altered several of plaintiff's timecards (changing approved sick or medical leave to unapproved, removing holiday pay, and adding absences), which resulted in monetary losses and severe stress. Id. at 9-10, 12, 15, 19. In November 2012, Almes filed a police report accusing plaintiff of stealing gift cards. Id. at 10-11. In July 2012, plaintiff was intentionally excluded from an employee appreciation lunch. Id. at 10. In August 2013, Almes followed plaintiff and verbally berated her. Id. at 12, 39.

         Plaintiff filed an Equal Employment Opportunity (“EEO”) complaint sometime in 2013 and received a decision from the EEO Administrative Judge on September 1, 2017. Id. at 7, 14.

         C. The Claims

         As discussed above, plaintiff brings claims of discrimination, hostile work environment, and retaliation under a wide variety of federal statutes including the Rehabilitation Act, Title VII, the No-FEAR Act, and the Age Discrimination in Employment Act. ECF No. 32 at 1-2. Plaintiff alleges that the treatment she suffered from defendant Almes was due to hostility based on her disability and age. Plaintiff alleges that defendants Stockwell and Wilkie are liable for Almes's discrimination as her supervisors. Plaintiff seeks general, compensatory, and special damages. Id. at 24-25.

         II. MOTION TO DISMISS

         Defendants move for dismissal on the grounds that (a) the Rehabilitation Act claims are administratively unexhausted and plaintiff's factual allegations fail to state a claim; (b) the complaint fails to state an age discrimination claim under the Age Discrimination in Employment Act; (c) the complaint fails to state a retaliation or disparate treatment claim under the No-FEAR Act; (d) the defamation claim is administratively unexhausted and barred by sovereign immunity; (e) plaintiff lacks standing to bring a false statement claim under the criminal code (18 U.S.C. 245); (f) the complaint fails to state a hostile work environment claim under Title VII; and (7) the complaint fails to state sufficient facts for a constructive discharge claim. ECF No. 43 at 14, 16, 18-19, 2, 24-25, 27. The motion also contends that defendants Almes and Stockwell must be dismissed because the only proper defendant is the head of the agency (Wilkie) or the United States itself. Id. at 28.

         II. ANALYSIS

         A. Dismissal Standards

         1. Rule 12(b)(1) Standards

         To invoke a federal court's subject-matter jurisdiction, a plaintiff needs to provide only “a short and plain statement of the grounds for the court's jurisdiction.” Fed.R.Civ.P. 8(a)(1). The plaintiff must allege facts, not mere legal conclusions, in compliance with the pleading standards established by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Harris v. Rand, 682 F.3d 846, 850-51 (9th Cir. 2012). Assuming compliance with those standards, the plaintiff's factual allegations will ordinarily be accepted as true unless challenged by the defendant. See 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1363, at 107 (3d ed.2004).

         Under Rule 12(b)(1), a “facial” attack accepts the truth of the plaintiff's allegations but asserts that they “are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor, the court determines whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction. Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013).

         2. Rule 12(b)(6) Standards

         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the Complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). ‚ÄúDismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal ...


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