United States District Court, N.D. California
ORDER ON MOTION TO DISMISS FOURTH AMENDED COMPLAINT
RE: DKT. NO. 88
DONNA
M. RYU UNITED STATES MAGISTRATE JUDGE.
Pro se
Plaintiff Maria Jesus Anello filed a fourth amended complaint
against her former employer, the United States Social
Security Administration (“SSA”), alleging claims
stemming from her employment and 2011 retirement. [Docket No.
85 (Fourth Am. Compl).] The government now moves to dismiss
the fourth 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. 88.] The court held a hearing on
January 9, 2020. For the following reasons, the motion is
granted in part and denied in part. Ms. Anello's
disability discrimination and failure to accommodate claims
are dismissed with prejudice.
I.
BACKGROUND
A.
Allegations in the Fourth Amended Complaint
Ms.
Anello makes the following allegations in the Fourth Amended
Complaint: Ms. Anello started working as a Service
Representative (“SR”) for the SSA at is Santa
Rosa Field Office in August 2001. FAC 2 ¶ 4. After
filing for “[Federal Employee Retirement System
(“FERS”)] disability in July 2011, she
“separated from Service” on January 12, 2012.
Id. at 2 ¶ 4; 5 ¶ 10. Ms. Anello describes
her job responsibilities as follows:
The position is one of direct service to the public. SRs
screen claimants/beneficiaries who come to the local SSA
office for various reasons and either interview them or we
refer interviews involving new claims for benefits to a
Claims Representative, who interviews them. Service
Representatives (SRs) take care of post-entitlement actions
for these office visitors and those who call the office
seeking to have their business taken care of by phone. SRs
also open, handle and respond to incoming U.S. mail from
beneficiaries[ ] to satisfy claimant requests for information
and assistance and review voice mail messages and return
those calls.
Id. at 2 ¶ 2. She alleges that the
“functions of [her] position also included” the
following:
[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 in the 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 Bene
Verifications, Wages Earnings, Eview, Mail, Phone messages,
Reconsiderations, etc.
Id. at 7-8, ¶¶ 15-16.
Ms.
Anello alleges that she had a number of “essential job
function[s].” First, she alleges that “[t]yping
or keyboarding was an essential job function, ” but
that the SR position “is not an intense
keyboarding/data entry position” and that “typing
for hours at a time was not an essential job function.”
Id. at 2 ¶ 2. According to Ms. Anello,
“maybe around 30% of the time I needed to type, mostly
entering Social Security numbers.” Id. at 4
¶ 6. Other essential functions included “answering
the phones, research, filing, printing information for
claimants, calculate benefits, working at the front desk,
etc.” Id. at 6 ¶ 13. Ms. Anello also
alleges that “[a] key essential job function of the
position was knowledge of the entitlement requirements of the
programs that SSA administered and knowledge of the software
programs used to enter claimant program information onto the
system, ” which “was accomplished through
interviews” conducted in person and by telephone.
Id. at 8 ¶ 17. Additionally, Ms. Anello alleges
that the physical requirements of the job were “mainly
the ability to type on the computer to enter the
customer's SSN to retrieve systems data needed to service
and assist the customer.” Id. According to Ms.
Anello, “[t]he SR job required little lifting or
carrying.” Id.[1]
Ms.
Anello alleges that when she was hired, she “had the
following disabilities: permanent atrial fibrillations, open
heart surgery for mitral stenosis, hypothyroidism, and a
history of strokes.” Id. at 2 ¶ 1. On
March 30, 2010, she requested a reasonable accommodation of
her preexisting heart condition in the form of “turning
[her] desk around in the way it was for 9 years, with the
recommendation letters of [her] doctors and the support of
the Union, months in advance of [an office] remodeling with
both desks available at the time.” Id. at 3.
In response, after the desk was “installed facing the
wrong direction, ” Ms. Anello received a “small
mirror.” Id. Ms. Anello alleges that
“[t]he mirror was not an effective accommodation for
[her] heart condition, as it increased [her] anxiety, and
ultimately damaged [her] left fingers, hand, elbow, and neck,
” and that if she had received her requested
accommodation of turning her desk, “[she] would have
been able to perform the essential functions of [her] job
without undue hardship to the agency, and without getting
injured.” Id.
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, various 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 3
¶ 2. Ms. Anello's “physical impairment
severely limited one or more of [her] major life activities .
. .” Id. at 4 ¶ 4. She alleges,
“sometimes I couldn't drive because of the
secondary effects of the medications. I was in constant pain,
sometimes I couldn't be touched, or hugged, the pain was
terrible. Other times the pain started without any stimulus;
it was in those moments I needed to immediately take some
pain medication.” Id.
Prior
to her RSD/CRPS diagnosis, Ms. Anello's doctor provided a
work status report on December 27, 2010, “with modified
activity for work and home to support a reasonable
accommodation of having to rest from strenuously typing every
20 minutes, and hourly 5 minutes rests until
2/28/2011.” Id. at 4 ¶ 6; Fourth Am.
Compl. Ex. 4 (Dec. 27, 2010 Work Status Report). After
receiving the December 27, 2010 Work Status Report, which
provided for 5-minute breaks every hour, Ms. Anello was able
to take her pain medication when needed. She alleges that she
“was mostly aware of when [she] was going to have the
terrible pain, and for that reason [she] was taking [her]
medication every hour and a half, marking it in [her]
calendar.” Fourth Am. Compl. 4 ¶ 6. Other times
“the terrible causalgia pain [would] not follow a
pattern, ” and “would get worst with the stress,
the tension, the irrational demands from management that
wouldn't let [her] finish [her] job.” Id.
Ms. Anello had to ask to take leave, sometimes unpaid, if she
“had extreme causalgia pain, or bloating of [her] left
arm.” Id. at 5 ¶ 8.
Ms.
Anello received three additional Work Status Reports with
restrictions. On May 26, 2011, Ms. Anello's physicians
provided revised restrictions that limited her as follows:
• Repetitive left hand motions continuously no more than
20 minute(s) at one time, for no more than 40 cumulative
minutes per hour.
• Gripping/grasping left hand continuously no more than
5 minute(s) at one time, for no more than 20 cumulative
minutes per hour.
• Lift/carry no more than 5 pounds.
Id. at 5 ¶ 10; Fourth Am. Compl. Ex. 6 at 1
(May 26, 2011 Work Status Report). She received revised
restrictions on June 28, 2011 that further limited repetitive
motions with her left hand, gripping/grasping, and
lifting/carrying, as follows:
• Repetitive left hand motions continuously no more than
5 minute(s) at one time, for no more than 15 cumulative
minutes per hour.
• Gripping/grasping left hand continuously no more than
1 minute(s) at one time.
• Lift/carry no more than 2 pounds.
Fourth
Am. Compl. Ex. 6 at 2 (June 28, 2011 Work Status Report). She
received a final set of restrictions on June 29, 2011 which
stated that she was “placed on modified activity at
work and at home from 6/29/2011 through 9/30/2011” and
that limited motions for both hands:
• Repetitive right hand motions continuously no more
than 10 minute(s) at one time, for no more than 30 cumulative
minutes per hour.
• Repetitive left hand motions continuously no more than
5 minute(s) at one time, for no more than 15 cumulative
minutes per hour.
• Gripping/grasping right hand continuously no more than
5 minute(s) at one time, for no more than 15 cumulative
minutes per hour.
• Gripping/grasping left hand continuously no more than
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