Federico v. DeJoy

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Lucille A Federico, No. CV-22-00706-PHX-DJH 10 Plaintiff, ORDER 11 v. 12 Louis DeJoy, 13 Defendant. [14] 15 Defendant Louis DeJoy (“Defendant”) has filed a Third Motion to Dismiss 16 (Doc. 38) under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1) with respect to 17 Plaintiff Lucille A. Federico’s (“Plaintiff”) Third Amended Complaint (“TAC”) 18 (Doc. 35).1 The Court must determine whether Plaintiff has pled sufficient facts to state a 19 claim for employment discrimination. Additionally, the Court must decide whether it has 20 jurisdiction over Plaintiff’s claim that Defendant failed to accommodate her disability. For 21 the following reasons, the Court will grant Defendant’s Third Motion to Dismiss and 22 dismiss this action with prejudice. 23 I. Background 24 Plaintiff is an Arizona resident over the age of forty (40) and former employee of 25 the United States Postal Service (“USPS”). (Doc. 35 at ¶¶ 5, 6). Defendant is the 26 Postmaster General of USPS. (Id. at ¶¶ 4–5, 20–28). Plaintiff alleges Defendant 27 discriminated against her based on her age and disability. 28 1 The matter is fully briefed. Plaintiff filed a Response (Doc. 49) and supplemental exhibits thereto (Docs. 51-1; 51-2; 51-3; 51-4; 51-5). Defendant filed a Reply (Doc. 55). 1 A. Plaintiff’s Employment at USPS 2 Plaintiff has been on “leave without pay” from USPS since October of 2012. 3 (Doc. 38-1 at 2). Neither party indicates when Plaintiff began her employment with USPS. 4 Plaintiff alleges that her “workplace injuries that resulted in her physical disability were 5 accepted by the U.S. Department of Labor – Injury Compensation,” and that she was on 6 worker’s compensation from October 2012 to January 2020. (Docs. 35 at ¶ 8; 51-3 at 9). 7 1. Plaintiff’s Proposed Modified Job Assignment 8 In light of Plaintiff’s injuries, USPS sent Plaintiff an “Offer of Modified 9 Assignment” (Doc. 38-3) (the “Modified Job Offer”)2 on October 3, 2019, proposing 10 Plaintiff could work as a mail processing clerk at a “waste mail area/tour office.” 11 (Id. at 7–8). USPS explained that the Modified Job Offer was predicated upon a “second 12 opinion exam” performed on Plaintiff on August 12, 2019. (Id. at 6). USPS indicated that 13 the duties of Plaintiff’s proposed modified assignment would be to “[a]nswer phones” and 14 “check and dispose of waste mail.” (Id.) USPS further stated that the physical 15 requirements of the job did not include any “wrist repetitive movements” or “above 16 shoulder reach.” (Id.) 17 Plaintiff alleges her doctors reviewed the Modified Job Offer and found it unsuitable 18 because it was “outside of her physical limitations.” (Doc. 35 at ¶ 11). Plaintiff specifically 19 alleges that the “essential functions” of a job she could perform include “tasks within her 20 range of motion and not requiring repetitive wrist or shoulder motion.” (Id. at 12). 21 2. The USPS’ Efforts to Separate Plaintiff from Employment 22 On April 28, 2021, USPS sent Plaintiff a “Retirement Counseling Letter/Intent to 23 Separate – Disability” (Doc. 38-1) (the “Separation Letter”).3 (Doc. 35 at ¶¶ 9–10). [24] 2 This document is referred to in the TAC at ¶ 11 and is attached to Defendant’s Motion to 25 Dismiss. Accordingly, the Court will consider it for the purposes of this Order under the “incorporation by reference doctrine.” See Davis v. HSBC Bank Nevada, N.A., 691 F.3d 26 1152, 1159 (9th Cir. 2012). 27 3 This document is referred to in the TAC at ¶ 9 and is attached to Defendant’s Motion to Dismiss. Accordingly, the Court will consider it for the purposes of this Order under the 28 “incorporation by reference doctrine.” See Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1159 (9th Cir. 2012). 1 Therein, USPS recounted a brief history of its interactions with Plaintiff: [2] - On October 3, 2019, USPS issued Plaintiff the Modified Job Offer; [3] - On October 7, 2019, Plaintiff refused the Modified Job Offer; [4] - On November 6, 2019, the United States Department of Labor [5] (“DOL”) sent Plaintiff a letter explaining that her Modified Job Offer 6 was “a permanent job offer” that was determined to be suitable; 7 - On January 21, 2020, USPS sent Plaintiff a letter explaining that because she had failed to report for duty, her “compensation was [8] discontinued by DOL;” and [9] - On September 29, 2020, USPS sent Plaintiff a letter directing her to 10 “provide documentation in support of [Plaintiff’s] continued 11 absence.” [12] (Doc. 38-1 at 2). The Separation Letter concluded with USPS allowing Plaintiff [13] “21 calendar days . . . to provide acceptable documentation” indicating whether she would [14] be able to return to work within 90 days. (Docs. 35 at ¶ 9; 38-1 at 2). [15] On June 30, 2021, USPS sent Plaintiff a “Notice of Separation – Disability” [16] (Doc. 38-2) (the “Separation Notice”).4 Therein, USPS gave Plaintiff notice that it [17] “proposed to separate” Plaintiff from her employment effective August 6, 2021. [18] (Docs. 35 at ¶¶ 12; 38-2 at 2). [19] On October 7, 2021, Plaintiff filed an Equal Employment Opportunity Affidavit [20] (Doc. 51-1) (the “Affidavit”) with USPS.5 In the Affidavit, Plaintiff provided details of [21] her medical conditions including “carpel tunnel syndrome” and “shoulder impingement.” [22] (Docs. 35 at ¶ 15; 51-1 at 3). Plaintiff only provided one reference in the Affidavit about [23] what her job at USPS was—that is, a “Mail Processing Clerk.” (Doc. 51-1 at 1). Plaintiff [24] 4 This document is referred to in the TAC at ¶ 12 and is attached to Defendant’s Motion to 25 Dismiss. Accordingly, the Court will consider it for the purposes of this Order under the “incorporation by reference doctrine.” See Davis v. HSBC Bank Nevada, N.A., 691 F.3d 26 1152, 1159 (9th Cir. 2012). 27 5 This document is referred to in the TAC at ¶ 15 (misnumbered) and is attached to Plaintiff’s Response. Accordingly, the Court will consider it for the purposes of this Order 28 under the “incorporation by reference doctrine.” See Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1159 (9th Cir. 2012). 1 provided the Court with the Affidavit as part of the supplemental exhibits to her Response 2 to Defendant’s Third Motion to Dismiss (See Docs. 51-1; 51-2; 51-3; 51-4; 51-5) but did 3 not attach the Affidavit to her TAC. These supplemental exhibits also include doctors’ 4 notes concerning her medical conditions. (Id.) 5 B. Procedural History 6 Plaintiff has filed multiple deficient complaints with this Court alleging 7 employment discrimination claims against Defendant.6 In its May 11, 2023 Order 8 (Doc. 34) (the “May Order”), the Court granted Defendant’s Second Motion to Dismiss 9 (Doc. 27) as to Plaintiff’s Second Amended Complaint (Doc. 26) and granted Plaintiff 10 leave to amend. (See generally Doc. 34). Accordingly, Plaintiff filed her TAC, re-alleging 11 the following claims: Count One for disability discrimination claim under the 12 Rehabilitation Act of 1973, 29 U.S.C. §§ 701–794 (Doc. 35 at ¶¶ 11–13, 20–22); Count 13 Two for age discrimination claim under the Age Discrimination in Employment Act of 14 1967, 29 U.S.C. §§ 621–634 (“ADEA”) (id. at ¶¶ 10, 23–25); and Count Three for 15 constructive discharge (id. at ¶¶ 15, 26–28). Defendant again seeks to dismiss all of 16 Plaintiff’s claims. 17 II. Legal Standards 18 Defendant’s Third Motion to Dismiss is predicated on Rules 12(b)(6) and 12(b)(1).7 19 A. Rule 12(b)(6): Failure to State a Claim 20 Rule 12(b)(6) provides a complaint may be dismissed “based on the lack of a 21 cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 22 theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990); see also 23 Fed. R. Civ. P. 12(b)(6). However, the Court should “accept as true all well-pleaded 24 allegations of material fact, and construe them in the light most favorable to the non25 moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). This [26] 6 The May Order provides extensive background on Plaintiff’s previous complaints that 27 the Court will not repeat here. (Doc. 34 at 2–4). 28 7 Unless where otherwise noted, all Rule references are to the Federal Rules of Civil Procedure. 1 acceptance is not an unbounded ceiling; to survive a motion to dismiss, the non-moving 2 party still must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 3 U.S. 662 , 668 (2009). Plausibility means “factual content that allows the court to draw the 4 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 5 Additionally, the complaint must contain more than “labels and conclusions” or merely “a 6 formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 7 U.S. 544 , 555 (2007). Employment discrimination claims like the ones contended in 8 Plaintiff’s TAC fall under these same standards. See Swierkiewicz v. Sorema, N.A., 534 9 U.S. 506, 511 (2017) (stating “the ordinary rules for assessing the sufficiency of a 10 complaint apply.”). 11 B. Rule 12(b)(1): Lack of Jurisdiction 12 Rule 12(b)(1) provides a complaint may be dismissed when the movant shows the 13 court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Rule 12(b)(1) 14 jurisdictional attacks may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 15 1035, 1039 (9th Cir. 2004). In a facial attack, “the challenger asserts that the allegations 16 contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Id. 17 By contrast, in a factual attack, “the challenger disputes the truth of the allegations that, by 18 themselves, would otherwise invoke federal jurisdiction.” Id. In facial attacks, the non19 moving party’s allegations are taken as true and “all inferences are to be drawn in [its] 20 favor.” Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Courts within the Ninth 21 Circuit have construed a moving party’s statutory analysis in a subject-matter jurisdiction 22 argument as a facial attack. See Ctr. for Biological Diversity v. Zinke, 399 F. Supp. 3d 940 , 23 945 (D. Ariz. 2019) (using a facial attack framework to determine subject-matter 24 jurisdiction and judicial reviewability under the Endangered Species Act and the 25 Administrative Procedure Act); see also Wolfe, F.3d 358 at 362 (using a facial attack 26 framework to determine subject matter jurisdiction under various state and federal 27 statutes). [28] 1 III. Discussion 2 Defendant moves to dismiss Plaintiff’s TAC in its entirety. Defendant argues that 3 Plaintiff has not pled facts sufficient to support her claims for discrimination and 4 constructive discharge under Rule 12(b)(6). (Doc. 38 at 7–8). Defendant also argues the 5 Court lacks subject-matter jurisdiction over Plaintiff’s disability discrimination claim 6 under Rule 12(b)(1) to the extent Plaintiff seeks to rely on a failure to accommodate theory. 7 (Id. at 6–7). Defendant further contends that Plaintiff relies on facts from supplemental 8 exhibits that are beyond the TAC, which “cannot serve as a basis for denying Defendant’s 9 Motion.” (Doc. 55 at 5) 10 Plaintiff argues that “a complaint need not contain[] detailed factual allegations” to 11 survive a motion to dismiss. (Doc. 49 at 1) (underline in original). Plaintiff contends her 12 disability discrimination claim can survive if USPS has “an obligation to engage in a good 13 faith interactive process” to find a modified job assignment for her. (Id. at 3). Plaintiff 14 alleges that the USPS modified job offer was not within her physical limitations based on 15 her doctors’ reports. (Docs. 35 at 11-16; 49 at 2–3). Plaintiff ends her Response with a 16 request for leave to amend her complaint should the Court dismiss the TAC. (Doc. 49 at 5). 17 As a threshold matter, the Court will first decide whether Plaintiff’s supplemental 18 exhibits can be considered in its review of Defendant’s Motion. Finding the exhibits are 19 proper, the Court will then consider the sufficiency of Plaintiff’s claims. The Court will 20 start with Plaintiff’s age discrimination and disability discrimination claims before turning 21 to her constructive discharge claim. The Court will analyze Plaintiff’s request for leave to 22 amend her complaint at the end of each claim. 23 A. Documents Outside of the Four Corners of the Complaint 24 To begin, the Court must determine whether it can properly consider the 25 supplemental exhibits attached to Plaintiff’s Response. Defendant objects that the Court 26 cannot because these documents were not attached to Plaintiff’s TAC. (Doc. 55 at 5). 27 Plaintiff does not address Defendant’s objection, but her claims rely on material beyond 28 the four corners of the TAC. (Docs. 35 at 11–16; 49 at 2–3). 1 A court’s review of a motion to dismiss under Rule 12(b)(6) is typically “limited to 2 review” of only the complaint itself. Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). 3 However, an exception known as “incorporation by reference” permits a court to review 4 sources outside of the complaint. Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308 , 5 322 (2007) (stating courts must consider “the complaint in its entirety, as well as other 6 sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in 7 particular, documents incorporated into the complaint by reference . . . .”) (emphasis in 8 original). The Ninth Circuit has clarified that for “a district court’s decision to incorporate 9 by reference documents outside pleadings,” the district court “may, but is not required to 10 incorporate documents by reference.” Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152 , 11 1159 (9th Cir. 2012). A court may incorporate such documents when the “contents are 12 alleged in a complaint and whose authenticity no party questions.” Id. at 1160 . 13 As to the first step, Plaintiff’s TAC claims necessarily rely on the content of the 14 supplemental exhibits. For example, the TAC states that Plaintiff has “a significant history 15 and record of medical treatment due to the on-the-job injuries to plaintiff’s wrists and 16 shoulders.” (Doc. 35 at ¶ 7). These allegations come directly from her doctor’s detailed 17 medical history in the supplemental exhibits. (Doc. 51-4 at 3–20). The TAC also alleges 18 that Plaintiff “submitted claims and treatment” to USPS while referencing the Affidavit 19 case number. (Doc. 35 at ¶ 15). Plaintiff attached this Affidavit as one of the supplemental 20 exhibits to her Reply. (Doc. 51-1). As to the second step, neither party questions the 21 authenticity of the supplemental exhibits. Defendant does not allege that the documents 22 are inaccurate, misleading, or forged. (See Doc. 55 at 4–5). Thus, the Court will consider 23 Plaintiff’s supplemental exhibits in its reasoning. 24 Having clarified the propriety of reviewing the supplemental exhibits, the Court will 25 now examine the sufficiency of Plaintiff’s TAC. 26 B. Age Discrimination Claim 27 Defendant seeks to dismiss Count Two of Plaintiff’s TAC for age discrimination 28 under Rule 12(b)(6). (Doc. 35 at ¶¶ 10, 13, 23–25). As discussed in the May Order, to 1 state a prima facie case for age discrimination under the ADEA, a plaintiff must show that: 2 “(1) she was at least 40 years old; (2) she was performing her job satisfactorily; (3) [she 3 was] discharged; and (4) [she was] either replaced by a substantially younger employee 4 with equal or inferior qualifications or discharged under circumstances otherwise giving 5 rise to an inference of age discrimination.” (Doc. 34 at 8 (quoting Sheppard v. David Evans 6 & Assoc., 694 F.3d 1045, 1049 (9th Cir. 2012) (internal quotations omitted)). 7 Defendant argues that Plaintiff’s age discrimination claim did not cure the 8 deficiencies identified in the May Order and should be dismissed. (Doc. 38 at 8). 9 Defendant also argues that Plaintiff has not alleged any facts that she was discriminated 10 against “because of her age.” (Doc. 55 at 4) (emphasis in original). Plaintiff alleges that 11 the Separation Letter was intended to compel employees over the age of 40 to “accept the 12 diminished benefits available through retirement for fear of losing such benefits due to 13 termination.” (Doc. 35 at ¶ 10). Plaintiff also alleges that USPS singled out employees, 14 such as Plaintiff, based on the “federally protected characteristic[] of age.” (Id.) 15 1. Plaintiff Fails to State a Claim for Relief 16 The Court agrees with Defendant that Plaintiff’s TAC fails to cure the pleading 17 deficiencies identified in the May Order as to age discrimination. Plaintiff’s TAC needed 18 to allege sufficient facts to establish prima facie elements two and four. (Doc. 34 at 8–9). 19 It does not. Under element two, Plaintiff has not shown in the TAC she was performing 20 her job satisfactorily. In fact, the documents referred to in the TAC show Plaintiff has not 21 shown up to work since October of 2012, making it difficult to believe she was performing 22 her job at all, much less satisfactorily. (See Doc. 38-1 at 1). Plaintiff does not appear to 23 dispute her absence from work. (See Doc. 35). As stated in the May Order, Plaintiff’s 24 failure to “plead facts she was performing her job satisfactorily” is sufficient to dismiss her 25 claim. (Doc. 34 at 8 (quoting Drevaleva v. U.S. Dept. of Veterans Affs., 2018 WL 6305612 26 at *3 (N.D. Cal. Dec. 3, 2018)). 27 Under element four, Plaintiff neither alleges that she was replaced by a substantially 28 younger employee with equal or inferior qualifications nor sufficiently claims that she was 1 discharged under circumstances otherwise giving rise to an inference of age discrimination. 2 Plaintiff simply re-alleges in her TAC that USPS “knowingly and intentionally” engaged 3 in a course of conduct designed to force employees over the age of 40 into termination 4 while not treating employees under the age of 40 to the same course of conduct. 5 (Doc. 35 at ¶ 13). Yet Plaintiff introduces no specific facts to allege how USPS engaged 6 in said course of conduct. (See Doc. 35). Although Plaintiff alleges that USPS compelled 7 her to either accept the modified job offer or retire and lose her benefits, Plaintiff does not 8 point to any specific facts to demonstrate that USPS compelled her termination because of 9 her age. (Id.) In sum, Plaintiff’s age discrimination claim will be dismissed because 10 Plaintiff has not sufficiently amended it in compliance with the May Order’s directives. 11 2. Any Amendment Would be Futile 12 Plaintiff has requested leave to amend her complaint. (Doc. 49 at 5–6). Rule 15(a) 13 of the Federal Rules of Civil Procedure allows a plaintiff to amend her complaint by leave 14 of the court at any time, and such leave “shall be freely given when justice so requires.” 15 Fed. R. Civ. P. 15(a). Courts apply this policy with “extreme liberality.” 16 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). However, 17 courts can exercise discretion to deny a motion for leave to amend if the amendment: (1) 18 would cause the opposing party undue prejudice; (2) is sought in bad faith; (3) constitutes 19 an exercise in futility; or (4) creates undue delay. Ascon Props., Inc. v. Mobil Oil Co., 866 20 F.2d 1149 , 1160 (9th Cir. 1989). For example, leave to amend should be denied as futile 21 when a plaintiff could not amend a complaint “to state a viable claim without contradicting 22 the complaint’s original allegations.” B&G Foods N. Am., Inc. v. Embry, 638 F. Supp. 3d 23 1122, 1134 (E.D. Cal. 2022). 24 Plaintiff cannot now allege in an amended complaint that she was performing her 25 job satisfactorily by stating that she was, in fact, present at work. Such an allegation would 26 be a contradiction of her TAC. Any other statement Plaintiff could make concerning 27 “performing her job satisfactorily” would have to contradict her uncontested absence from 28 work, so her leave to amend should be denied. Alternatively, leave to amend should be 1 denied as Plaintiff has had four chances to cure any deficiencies in her complaint and has 2 not done so. See Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1004 (9th Cir. 2010) 3 (stating that leave to amend should be denied “if the plaintiff had several opportunities to 4 amend its complaint and repeatedly failed to cure deficiencies.”). And the May Order gave 5 Plaintiff specific instances of deficiencies that remain uncured. Plaintiff should not be 6 given leave to amend due to her “repeated failure to cure deficiencies by amendments 7 previously allowed.” Foman v. Davis, 371 U.S. 178, 182 (1962). The Court, therefore, 8 will not give the Plaintiff another chance. Under either reason chain of reasoning, the Court 9 will dismiss Plaintiff’s age discrimination claim with prejudice. 10 C. Disability Discrimination Claim 11 Next, Defendant seeks to dismiss Count One of Plaintiff’s TAC for disability 12 discrimination for three reasons: (1) Plaintiff has not pled sufficient facts to establish a 13 discrimination claim under the Rehabilitation Act; (2) the Court does not have 12(b)(1) 14 subject matter jurisdiction over Plaintiff’s failure to accommodate claim under the Federal 15 Employees’ Compensation Act, 5 U.S.C. §§ 8101– 8193, (“FECA”); and (3) Plaintiff has 16 not pled sufficient facts to establish a failure to accommodate claim under the 17 Rehabilitation Act. The Court will address each of Defendant’s arguments in turn. 18 1. Discrimination Claims Under the Rehabilitation Act 19 Defendant argues that Plaintiff’s Count One fails to allege sufficient facts to support 20 a disability discrimination claim under the Rehabilitation Act. (See Doc. 35 at ¶¶ 11– 21 13, 20–22). Standards for violation of the Rehabilitation Act are the same standards set 22 forth in the Americans with Disability Act of 1990, 29 U.S.C. § 791 (f), (“ADA”). 23 See Zukle v. Regents of Univ. of Cal., 166 F.3d 1041 , 1045 n.11 (9th Cir. 1999) (“There is 24 no significant difference in analysis of the rights and obligations created by the ADA and 25 the Rehabilitation Act.”). The ADA prohibits an employer from discriminating “against a 26 qualified individual on the basis of disability . . . .” 42 U.S.C. § 12112 (a). 27 To establish a prima facie case for physical disability under the ADA, and in turn 28 the Rehabilitation Act, a plaintiff must show that “(1) she is disabled, (2) she is qualified 1 to perform the essential functions of her position, and (3) she suffered an adverse 2 employment action because of her disability.” Ogden v. Pub. Util. Dist. No 2 of Grant 3 Cnty., 722 F. App’x 707 , 708 (9th Cir. 2018). Defendant contends Plaintiff fails to meet 4 all three elements. (Doc. 38 at 9–12). The Court finds she has shown elements one and 5 three, but has not shown element two. [6] a. Plaintiff shows the first element of her physical disability 7 claim under the ADA [8] As to the first element, Defendant argues Plaintiff has not shown that she “suffers [9] from a disability within the meaning of the Rehabilitation Act.” (Doc. 35 at ¶ 10). The [10] ADA defines an individual with a disability as someone with “(A) a physical or mental [11] impairment that substantially limits one or more major life activities of such individual; [12] (B) a record of such an impairment; or (C) being regarded as having such an impairment.” [13] 42 U.S.C. § 12102 (1). The ADA further defines major life activities to “include, but are [14] not limited to” lifting, walking, or bending among other enumerated activities. [15] Id. § 12102(2)(A). [16] Plaintiff’s doctor contends that she is not able to spend any hours lifting or walking, [17] which are major life activities. (Docs. 51-1 at 16; 51-4 at 4). Plaintiff’s doctor further [18] provides a record of Plaintiff’s decades-long history concerning her wrist impairment [19] beginning around 1998. (Doc. 51-4 at 8–9). Thus, Plaintiff qualifies as an individual with [20] a disability according to the ADA. [21] b. Plaintiff shows the third element of her physical disability [22] claim under the ADA [23] As to the third element, Plaintiff characterizes the USPS Separation Letter as an [24] adverse action that either involuntarily separated or terminated Plaintiff from her [25] employment. (Doc. 35 at ¶¶ 9, 11, 15). The ADA “prohibits adverse employment [26] decisions motivated—even in part—by animus toward a plaintiff’s disability.” Harris v. [27] Treasure Canyon Calcium Co., 132 F. Supp. 3d 1228 , 1236–37 (D. Idaho 2015) (citing [28] 1 Head v. Glacier Nw. Inc., 413 F.3d 1053, 1065 (9th Cir. 2005)). Involuntary separation or 2 termination of an employee constitutes an adverse action in ADA discrimination claims. 3 See Capili v. Finish Line, Inc., 2018 WL 2047614 , at *5 (N.D. Cal. May 2, 2018) 4 (recognizing involuntary separation as an adverse action); see also Kennedy v. Applause, 5 Inc., 90 F.3d 1477, 1481 (9th Cir. 1996) (recognizing termination as an adverse action). 6 Defendant argues Plaintiff’s allegations that she suffered an adverse employment 7 action due to her disability are “sweeping” and “conclusory.” (Doc. 38 at 11–12). 8 However, the Court disagrees. When accepting Plaintiff’s allegations as true, the Court 9 finds it is enough that Plaintiff cites to the Separation Letter to establish she suffered an 10 “involuntary adverse action.” (Doc. 35 at ¶ 9). Additionally, Plaintiff points out that the 11 Separation Notice and Affidavit expressly referenced her disability. (See Docs. 35 at ¶¶ 7– 12 12; 38-1; 38-2). Together, these three documents give rise to at least a plausible inference 13 that she suffered an adverse action due to her disability. The Court therefore finds that 14 Plaintiff has met element three. 15 c. Plaintiff does not meet the second element of her physical disability claim under the ADA. [16] 17 As to the second element, Defendant argues Plaintiff has not shown she is “qualified 18 to perform the essential functions of her job with or without an accommodation.” 19 (Doc. 35 at 10). The Court agrees. Plaintiff herself concedes she cannot perform the 20 essential functions of any position either with or without accommodation: 21 If Plaintiff Federico is held to traditional [sic] ADA analysis which compels she establish that she was a qualified person 22 with a disability who with reasonable accommodation could perform the essential functions of a Clerk, this she is not able 23 to do. If the analysis is limited to the modified position offered, it is her belief that this too is a position/assigment [sic] in which 24 she cannot perform the essential functions of the position with accommodation. [25] 26 (Doc. 49 at 3). The Court will hold Plaintiff to her word. In any event, Plaintiff has not 27 shown up to work for at least eight years. (See Doc. 38-1 at 1). And a plaintiff “who does 28 not come to work cannot perform any of [her] job functions, essential or otherwise.” 1 Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1239 (9th Cir. 2012); see also 2 e.g., Monk v. Dejoy, 2023 WL 2870363 , at *6 (N.D. Cal. Apr. 10, 2023) (finding the 3 plaintiff’s refusal to show up to work “[i]n and of itself” results in the dismissal of the 4 plaintiff’s disability discrimination claims.). Indeed, USPS justified the Separation Notice 5 on Plaintiff’s displayed “inability to perform [her] duties for over 8 years.” (Doc. 27-1 at 6 2). 7 In sum, although Plaintiff has shown she is disabled under the ADA and has suffered 8 an adverse employment action, she has not demonstrated that she is qualified to perform 9 the essential functions of her job with or without an accommodation. Plaintiff has therefore 10 failed to establish a prima facie case for disability discrimination under the Rehabilitation 11 Act. 12 d. Any Amendment Would be Futile 13 Furthermore, Plaintiff cannot amend her claim to establish she is qualified to 14 perform the essential functions of her job without directly contradicting her concession that 15 she is not. Therefore, any leave to amend her disability discrimination claim would be 16 futile. See B&G Foods, 638 F. Supp. 3d at 1134. Alternatively, Plaintiff has already had 17 three opportunities to amend her claim. The May Order showed Plaintiff specific instances 18 of deficiencies that remain uncured. See Telesaurus VPC, F.3d 998, 1004; see also supra 19 III(B). The Court will not give Plaintiff an additional opportunity to amend her complaint 20 after already allowing three opportunities. Plaintiff’s disability discrimination claim will 21 be dismissed with prejudice. 22 2. Failure to Accommodate Claims under the Rehabilitation Act 23 The Court will now address Plaintiff’s failure to accommodate claim. Defendant 24 alleges this Court either lacks subject-matter jurisdiction under Rule 12(b)(1) or, 25 alternatively, that Plaintiff has not met her burden to state the relevant elements under 26 Rule 12(b)(6). (Doc. 38 at 12–14). 27 a. The Court has Jurisdiction to Hear Plaintiff’s Claim 28 The Court begins with Defendant’s jurisdictional challenge. 1 Allstate Ins. Co. v. Hughes, 358 F.3d 1089, 1093 (9th Cir. 2004) (asserting that a court “has 2 a continuing obligation to assess its own subject-matter jurisdiction.”). Defendant argues 3 that decisions regarding suitability of job offers are “exclusively committed to the 4 Secretary of Labor under FECA” and are “not subject to judicial review.” (Doc. 38 at 13– 5 15). Defendant relies on Section 8128(b) of FECA for support, which states that “[t]he 6 action of the Secretary . . . allowing or denying a payment under this subchapter is (1) final 7 and conclusive for all purposes and with respect to all questions of law and fact; and (2) 8 not subject to review by another official of the United States or by a court by mandamus 9 or otherwise.” 5 U.S.C. § 8128 (b). Plaintiff takes no position on the matter, other than 10 conceding that “the modified job offer at issue” is “subject to the precedent cited by the 11 Postal Service.” (Doc. 49 at 3–4) 12 Defendant’s argument is novel to the Ninth Circuit.8 So, the Court looks to out-of13 circuit authority for guidance. The Western District for the District Court of Texas dealt 14 with the same jurisdictional challenge under FECA in Montana v. Donahoe, 2011 WL 15 3862213 (W.D. Tex. Sept. 1, 2011). The facts in Montana are substantially similar to the 16 facts in this case. The Montana plaintiff was a USPS worker who suffered injuries on-the17 job and was unable to lift more than 10 (ten) pounds. Id. at *1. Like Plaintiff, USPS 18 provided the Montana plaintiff with modified job offers that were approved by the DOL 19 as a suitable accommodation. The Montana plaintiff declined the modified offers without 20 proposing a reasonable alternative. Id. at *2–3. When the Montana plaintiff alleged USPS 21 did not provide her with a suitable job offer based on her disability, USPS argued that the 22 court lacked authority to review job offers approved by the DOL. Id. 23 The Montana court ultimately held that “[a] FECA claimant may appeal . . . the 24 suitability of an alternate position.” Id. at *8. In so doing, the court cited to Benton v. 25 United States, 960 F.2d 19 (5th Cir. 1992) for the proposition that the text of Section 8128 26 is plain and unambiguous and “prohibits review of decisions made by the Secretary of 27 Labor or a designee concerning payment, nothing more.” Montana at *5 (citing Benton, 28 8 The Court has researched, though not exhaustively, and cannot find any case law in the Ninth Circuit on this particular issue. [1] 960 F.2d, at 22 ) (emphasis added). The Montana court further explored FECA’s statutory 2 language and reasoned that “[b]ecause [p]laintiff [was] not challenging a decision by the 3 Secretary about compensation she was paid under FECA, § 8128 does not deprive this 4 Court of jurisdiction to consider Plaintiff’s Claim for reasonable accommodation under the 5 Rehabilitation Act.” Id. Thus, the Montana court held that a failure to accommodate claim 6 under the Rehabilitation Act is subject to judicial review. 7 This Court is persuaded by the holdings in Montana and Benton because both 8 comply with the general principle that courts should begin—and end—with statutory 9 language if the text provides a clear answer to its inquiry. See BedRoc Ltd., LLC v. United 10 States, 541 U.S. 176, 183 (2004) (stating that the court’s “inquiry begins with the statutory 11 text, and ends there as well if the text is unambiguous.”). Indeed, FECA’s statutory 12 prohibition against judicial review is narrowly tailored to the Secretary of Labor’s 13 decisions to “allowing or denying a payment” of compensation. See 5 U.S.C. § 8128 (b); 14 Benton, 960 F.2d at 22 (5th Cir.1992) (per curiam) (“§ 8128(b) prohibits review only of 15 compensation decisions wholly within the discretion of the Secretary of Labor”). The term 16 “compensation” in this context is unambiguous, and the DOL does not have carte blanche 17 for all its decisions to be safe from judicial review. Therefore, the Court has jurisdiction 18 to review the suitability of Plaintiff’s job offer notwithstanding the DOL’s letter finding 19 Plaintiff’s Modified Job Offer was a reasonable accommodation. [20] b. Plaintiff Fails to State a Failure to Accommodate Claim 21 Under the Rehabilitation Act [22] Having clarified that the Court has subject-matter jurisdiction to hear Plaintiff’s [23] failure to accommodate claim, the Court will address Defendant’s argument whether [24] Plaintiff has alleged sufficient facts to state a claim for relief under Rule 12(b)(6). The [25] Rehabilitation Act requires public entities to make “reasonable accommodations to the [26] known physical . . . limitations of an otherwise qualified individual with a disability . . . .” [27] 42 U.S.C. § 12112 (5)(A) (emphasis added). In the Ninth Circuit, “a failure-to28 accommodate claim ‘is analytically distinct from a claim of disparate treatment or impact 1 under the ADA.’” Dunlap v. Liberty Nat. Prod., Inc., 878 F.3d 794, 798 (9th Cir. 2017) 2 (quoting Johnson v. Bd. of Trustees of Boundary Cty. Sch. Dist., 666 F.3d 561, 567 (9th 3 Cir. 2011)). 4 To state a failure to accommodate claim, a plaintiff must show that: (1) she is 5 disabled; (2) she is a qualified individual who can perform the essential functions of her 6 job with or without reasonable accommodation; and (3) a reasonable accommodation is 7 possible. See Monk, 2023 WL 2870363 , at *6; see also Zukle v. Regents of the Univ. of 8 Cal., 166 F.3d 1041, 1045 (9th Cir. 1999). When an employee notifies her employer of a 9 need for an accommodation after first proving she is a “qualified individual,” this triggers 10 the employer’s “duty to engage in an ‘interactive process’ through which the employer and 11 employee can come to understand the employee’s abilities and limitations, the employer's 12 needs for various positions, and a possible middle ground for accommodating the 13 employee.” Snapp v. United Transportation Union, 889 F.3d 1088, 1095 (9th Cir. 2018). 14 This interactive process is “at the heart of the accommodation process.” Id. Discrimination 15 results from “denying an available and reasonable accommodation.” Id. 16 The first two elements for failure to accommodate claims are identical to the first 17 two elements for disability discrimination claims. See supra Sections III(C)(1)(a); 18 III(C)(1)(b). The Court has already settled that Plaintiff has shown she has a disability 19 under element one yet has not shown she is a qualified individual under element two. Id. 20 Therefore, Plaintiff’s failure to accommodate claim fails for the same reasons stated above. 21 Id. Even more, Plaintiff fails to meet element three. Plaintiff argues in her Response that 22 it is Defendant’s obligation to engage in a “good faith interactive process” to identify a 23 reasonable accommodation. (Doc. 49 at 3). Not so. To state a failure to accommodate 24 claim, element three requires that a plaintiff “must show” that a “reasonable 25 accommodation is possible.” Monk, 2023 WL 2870363 , at *6. 26 In light of these glaring deficiencies, the Court need not reach Plaintiff’s allegations 27 regarding Defendant’s interactive process to conclude that Plaintiff has failed to establish [28] 1 a prima facie case for failure to accommodate under the Rehabilitation Act.9 2 c. Any Amendment Would be Futile 3 Similarly stated above, Plaintiff cannot amend her complaint by suddenly alleging 4 she is a qualified individual without directly contradicting her concession that she is not. 5 See supra Sections III(C)(1)(c) and III(B). As such, any amendment would be futile. See 6 B&G Foods, 638 F. Supp. 3d at 1134. Neither should she be allowed a fourth attempt to 7 amend her complaint. Id. Thus, under either chain of reasoning, Plaintiff’s failure to 8 accommodate claim is dismissed with prejudice. 9 D. Constructive Discharge Claim 10 Having dismissed Plaintiff’s age discrimination and disability discrimination claims 11 with prejudice, the Court will turn to Plaintiff’s constructive discharge claim. As stated in 12 the May Order, “courts have held that, like constructive discharge under Arizona law, 13 constructive discharge under federal law is not a standalone claim” and so “Plaintiff cannot 14 prevail on a constructive discharge claim without successfully pleading a discrimination 15 claim. (Doc. 34 at 11 (citing See Udd. v. City of Phx., 2020 WL 1536326 at *30 (D. Ariz. 16 Mar. 31 , 2020)). Because the Court has dismissed Plaintiff’s age and disability 17 discrimination claims, her constructive discharge claim cannot survive on its own. 18 (See id.). Accordingly, Plaintiff’s constructive discharge must also be dismissed with 19 prejudice. 20 IV. Conclusion 21 Even when accepting Plaintiff’s allegations as true, Plaintiff has not stated any 22 employment discrimination claim for which relief can be granted. Plaintiff’s Count One 23 for disability discrimination must be dismissed with prejudice because Plaintiff failed to 24 establish she is qualified to perform the essential functions of any position either with or 25 without accommodation—nor can she without contradicting her express concession she is [26] 9 In any event, Plaintiff has not set forth any other allegations showing how Defendant 27 failed to engage in a good faith interactive process. The record shows Defendant frequently responded to Plaintiff in a timely fashion and consistently communicated with Plaintiff 28 about any decisions or alternative employment options for Plaintiff to pursue. (See Docs. 51-3 at 1–5, 16, 18, 21–29; 51-4 at 1, 21; 51-5 at 7–8, 16–17). not able to. Plaintiff's Count Two for age discrimination must be dismissed with prejudice 2 || because Plaintiff failed to establish she was performing her job satisfactorily—nor can she 3 || without contradicting the fact she was absent from her job for 8 years. Last, □□□□□□□□□□□ Count Three for constructive discharge must be dismissed with prejudice because it cannot || standalone absent a viable discrimination claim. 6 Accordingly, 7 IT IS ORDERED that Defendant Louis DeJoy’s Third Motion to Dismiss 8 || (Doc. 38) is GRANTED. For the reasons stated herein, Plaintiff Lucille Federico’s Counts 9|| are dismissed with prejudice, 10 IT IS FURTHER ORDERED that, in light of Counsel for Plaintiff's representation 11 |} that he is suspended from practice until April 15, 2024, Plaintiff's Motion for Stay || (Doc. 56) is GRANTED. This matter shall be stayed until April 15, 2024. 13 IT IS FINALLY ORDERED that the Clerk of Court is kindly directed to enter judgment in accordance with the terms of this Order on April 16, 2024, and close this 15 || matter. 16 Dated this 18th day of March, 2024. [17] 18 fe SL 13 norable'Diang4. Hurmetewa 0 United States District Fudge [28] -18-