United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
filed the operative Third Amended Complaint
(“TAC”) on July 8, 2019. ECF No. 32.
Allegations of the Complaint
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.
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.
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.
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.
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.
MOTION TO DISMISS
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.
Rule 12(b)(1) Standards
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
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).
Rule 12(b)(6) Standards
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). “Dismissal can be based on the lack of
a cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal ...