DeZure v. The American Board of Pediatrics, Inc.

[6] 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA [10] CHANDANI DEZURE, Case No. 20-cv-09123-NC [11] Plaintiff, ORDER GRANTING 12 DEFENDANT’S MOTION TO v. DISMISS THE SECOND 13 AMENDED COMPLAINT THE AMERICAN BOARD OF 14 PEDIATRICS, INC., Re: ECF 38 15 Defendant. [16] 17 Plaintiff Dr. Chandani DeZure alleges that Defendant the American Board of 18 Pediatrics discriminated against her when it refused to allow her to sit for a board 19 certification examination because she failed to meet ABP’s hours prerequisite. DeZure 20 claims that she was unable to meet the hours requirement because she was pregnant during 21 the relevant period. The Court dismissed the first amended complaint (FAC) with leave to 22 amend, finding that ABP is not subject to the Fair Employment and Housing Act and 23 DeZure did not sufficiently allege retaliation under California’s Unruh Civil Rights Act. 24 DeZure filed a second amended complaint (SAC), and ABP again moved to dismiss. ECF 25 37; ECF 38. The Court must now determine whether DeZure has sufficiently alleged her 26 claims for disparate impact and disparate treatment under the Americans with Disabilities 27 Act and the Unruh Act. After reviewing the briefing, the Court grants ABP’s motion. 1 I. BACKGROUND 2 The Court previously summarized the relevant allegations in this case. See ECF 36. 3 Following the Court’s order dismissing the FAC, DeZure filed a SAC against ABP 4 alleging new claims of disparate impact and retaliation in violation of the ADA and the 5 Unruh Act and disparate treatment in violation of the Unruh Act. ECF 37. On June 25, 6 2021, ABP brought this second motion to dismiss. ECF 38. In her opposition, DeZure 7 dropped her ADA and Unruh Act retaliation claims. ECF 44 at 20. Thus, on this motion 8 to dismiss, the Court only considers the remaining ADA and Unruh Act disparate impact 9 and disparate treatment claims. The Court also ordered the parties to provide supplemental 10 briefing answering on the issue of whether pregnancy qualifies as a disability under the 11 Unruh Act. ECF 49. All parties have consented to the jurisdiction of a magistrate judge 12 under 28 U.S.C. § 636 (c). ECF 9; ECF 10. 13 II. LEGAL STANDARD 14 A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal 15 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To 16 survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as 17 true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 18 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When 19 reviewing a 12(b)(6) motion, a court “must accept as true all factual allegations in the 20 complaint and draw all reasonable inferences in favor of the non-moving party.” Retail 21 Prop. Trust v. United Bd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 22 2014). A court, however, need not accept as true “allegations that are merely conclusory, 23 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. 24 Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). A claim is facially plausible when it “allows 25 the court to draw the reasonable inference that the defendant is liable for the misconduct 26 alleged.” Id. If a court grants a motion to dismiss, leave to amend should be granted 27 unless the pleading could not possibly be cured by the allegation of other facts. Lopez v. 1 III. DISCUSSION 2 A. ADA Disparate Impact 3 1. Individual Discrimination Claim 4 DeZure first alleges that ABP discriminated against her under federal law by 5 adopting criteria to sit for the board certification examination that had a disparate impact 6 on people with disabilities. ECF 37 at ¶¶ 76-82. Title III of the ADA provides that people 7 shall not be “discriminated against on the basis of disability in the full and equal 8 enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of 9 any place of public accommodation.” 42 U.S.C. § 12182 (a). To establish a prima facie 10 case of Title III discrimination, a plaintiff must show that: “(1) she is disabled within the 11 meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a 12 place of public accommodation; and (3) the plaintiff was denied public accommodations 13 by the defendant because of her disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724 , 730 14 (9th Cir. 2007). 15 The Court finds that the SAC fails to state a claim under the ADA because DeZure 16 does not establish that she is disabled. The ADA defines “disability” as “a physical or 17 mental impairment that substantially limits one or more major life activities of [an] 18 individual.” 42 U.S.C. § 12102 . The SAC states that DeZure was “temporarily disabled 19 within the meaning of the ADA due to her pregnancy.” ECF 37 at ¶ 47. Although, 20 “disability” should be broadly construed, it is well-established that pregnancy is not a 21 disability. See e.g. Latowski v. Northwoods Nursing Ctr., 549 Fed. App’x 478, 487 (6th 22 Cir. 2013); Rhett v. Carnegie Ctr. Assocs., 129 F.3d 290, 304 (3d Cir. 1997) (finding that 23 Congress did not intend for pregnancy to be a temporary disability under the ADA); 24 Navarro v. Pfizer Corp., 261 F.3d 90, 97 (1st Cir. 2001) (“while pregnancy itself may not 25 be an impairment, the decided ADA cases tend to classify complications resulting from 26 pregnancy as impairments”); Jeudy v. AG, DOJ, 482 Fed. App’x 517, 520 (11th Cir. 2012) 27 (“while pregnancy is generally not considered a disability, a pregnancy-related impairment 1 the reliance on the pregnancy itself to establish a disability, the SAC does not identify any 2 pregnancy-related impairments as an alternative theory of disability. Thus, because 3 DeZure fails to allege a disability, the SAC fails to state a claim under the ADA. 4 2. Associational Discrimination Claim 5 DeZure also alleges discrimination through her association with her disabled son. 6 ECF 37 at ¶¶ 76-82. The ADA prohibits “excluding or otherwise denying equal jobs or 7 benefits to a qualified individual because of the known disability of an individual with 8 whom the qualified individual is known to have a relationship or association.” 42 U.S.C. 9 § 12112(b)(4). The SAC fails to establish that ABP had “known” of DeZure’s son’s 10 disability at the time of the alleged discrimination. DeZure asserts that she need not make 11 a showing of knowledge. See ECF 44 at 12. The Court finds that this argument directly 12 contradicts the language of the statute. Thus, because DeZure has not alleged ABP’s 13 knowledge of her son’s disability, she fails to state a claim of associational discrimination. 14 In sum, the Court grants ABP’s motion to dismiss the ADA disparate impact claim 15 because DeZure fails to allege that she was disabled under the ADA or that ABP knew of 16 her son’s disability. The Court grants DeZure leave to amend to fix these deficiencies. 17 B. Unruh Act Disparate Impact & Treatment 18 For her second and third claims, DeZure alleges that ABP discriminated against her 19 under state law by adopting criteria that had a disparate impact on people with disabilities 20 and treated her differently than others because of her disability. ECF 37 at ¶¶ 83-96. The 21 Unruh Act provides that “all persons within the jurisdiction of this state are free and equal, 22 and no matter what their sex, race, color, religion, ancestry, national origin, disability, 23 medical condition, genetic information, marital status, sexual orientation, citizen, primary 24 language, or immigration status are entitled to the full and equal accommodations, 25 advantages, facilities, privileges, or services in all business establishments of every kind 26 whatsoever.” Cal. Civ. Code § 51 (b). When interpreting the Unruh Act, “business 27 establishments” should be defined “in the broadest sense reasonably possible.” Burks v. 1 1. ABP as a Business Establishment 2 ABP first argues that none of DeZure’s Unruh Act claims can survive because ABP 3 is not a business establishment as it has a limited membership, no public engagement, and 4 no physical facilities open to the public. The Court disagrees. 5 First, the Court finds that the SAC sufficiently alleges that although the ABP only 6 offers board certification to pediatricians who choose to take its certification exam, 7 “exclusivity in the choice of one’s associates” is not the ABP’s purpose. ECF 37 at ¶ 13; 8 see Curran v. Mount Diablo Council of the Boy Scouts, 147 Cal. App. 3d 712, 731 (1983). 9 The purpose of the ABP is to “guide[]” children and families as they navigate pediatric 10 care, to “engage in open dialog” between pediatricians and the public, and to collaborate 11 with other organizations to “align accreditation and certification.” Id. at ¶ 12. The focus 12 of the ABP is not to provide a private avenue for its members to associate, as demonstrated 13 by the fact that it does not host social gatherings. Id. at ¶ 29. Thus, although ABP 14 membership is limited, its purpose is public. 15 Second, the SAC sufficiently alleges that the ABP performs customary business 16 functions. Although ABP certification is voluntary, it is a “de facto requirement” and “has 17 resulted in 87% of practicing physicians becoming board-certified.” Id. at ¶ 18. This 18 unspoken rule allows ABP to “economically thrive,” bringing in over $33 million in 19 program service revenue in 2019. Id. at ¶ 19, 31. And ABP uses most of this revenue for 20 its own operations and business functions. See id. at ¶ 31. Like any other business that 21 sells a product, once a physician gets certified, they do not pay dues or membership fees to 22 the ABP. Id. at ¶ 29. And board-certified physicians do not participate in the operations 23 or governance of the ABP by virtue of their “membership.” Id. at ¶ 30. By collecting fees 24 and using its revenue to run the organization without input from its members, the ABP 25 functions much like a business. 26 Finally, although the ABP does not have a physical space that it opens to the public, 27 the SAC alleges that it does provide valuable, non-physical resources to the public. The 1 nor to the public. Id. at ¶ 29. Rather, the resource that the ABP shares with the public is 2 its “third-party validation of [a] board-certified physician’s competency.” Id. at ¶ 14. This 3 public resource is an important self-regulation in the absence of government or private 4 oversight. See id. at ¶¶ 14-15. Thus, although the ABP does not open a physical resource 5 to the public, its provision of other resources qualifies it as a business establishment. 6 Accordingly, because it serves a public purpose, conducts business functions, and 7 provides a public resource, ABP is a business establishment under the Unruh Act. 8 2. ADA-Based Unruh Act Claims 9 ABP then argues that DeZure fails to allege intentional discrimination as required 10 for a non-ADA claim under the Unruh Act. ECF 38 at 20. Contrary to ABP’s argument, 11 the SAC appears to derive DeZure’s Unruh Act claims from the alleged ADA violation. 12 See ECF 37 at ¶¶ 83, 85, 90, 92. If DeZure is alleging discrimination under the Unruh Act 13 based on the ADA, she does not need to make a showing of intentional discrimination. See 14 Munson v. Del Taco, Inc., 46 Cal. 4th 661, 678 (2009). However, if based on the ADA, 15 the Unruh Act claims would be deficient for the same reasons the ADA claim is deficient– 16 the SAC fails to show that DeZure is disabled under the ADA. 17 3. Non-ADA Unruh Act Claims 18 If, instead, DeZure’s Unruh Act Claims are not based on the ADA, DeZure must 19 allege intentional discrimination to sufficiently state a claim. See ECF 36 (citing Mei Ling 20 v. City of L.A., No. 2:11-cv-07774-SVW-E, 2012 U.S. Dist. LEXIS 199358 , at *27 (C.D. 21 Cal. Apr. 10, 2012)). Aside from the legal conclusion that ABP acted “with the wrongful 22 intention of injuring Plaintiff,” the SAC does not sufficiently allege that ABP intentionally 23 discriminated against DeZure when it denied her application to sit for the certification 24 examination. ECF 37 at ¶¶ 91, 96. In fact, the SAC does not allege that ABP even knew 25 DeZure was pregnant when it acted. 26 As alleged, the Court finds that the SAC fails to sufficiently allege DeZure’s Unruh 27 Act claims whether they are based on the ADA or not. Thus, these claims are dismissed 1 || IV. CONCLUSION 2 For the foregoing reasons, the Court finds that the SAC: (1) fails to sufficiently 3 || allege disparate impact under the ADA, and (2) fails to sufficiently allege disparate impact 4 || and disparate treatment under the Unruh Act. Accordingly, the Court GRANTS ABP’s 5 || motion to dismiss the SAC and GRANTS DeZure leave to amend. DeZure may amend her 6 || complaint to fix the deficiencies identified in this order. DeZure may not add any new 7 || parties or claims without further leave of Court. DeZure must file her third amended 8 || complaint or notify the Court that she does not wish to amend by November 22, 2021. If 9 || DeZure does not act by November 22, the Court will dismiss the SAC, with prejudice. [10] 11 IT IS SO ORDERED. [12] bbe <——— = 13 |] Dated: November 1, 2021 □ NATHANAEL M. COUSINS 14 United States Magistrate Judge [15] A 16 © 17 1g