Cuong Cuu Hua v. Megan J Brennan et al, No. 2:2014cv05886 - Document 48 (C.D. Cal. 2015)
Court Description: ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE 43 by Judge Dean D. Pregerson ( MD JS-6. Case Terminated ) (lc)
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Cuong Cuu Hua v. Megan J Brennan et al Doc. 48 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CUONG CUU HUA, 12 Plaintiff, 13 14 15 16 v. PATRICK R. DONAHOE, POSTMASTER GENERAL , U.S. POSTAL SERVICE, Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 14-05886 DDP (JEMx) ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE [Dkt. No. 43] 17 Presently before the Court is Defendant’s Motion to Dismiss 18 19 the Second Amended Complaint. 20 the parties’ submissions, the Court adopts the following Order. 21 I. 22 (Dkt. No. 43.) After considering BACKGROUND Plaintiff Cuong Cuu Hua worked for Defendant United States 23 Postal Service (“USPS”) from October 1996 to June 2012. (Compl. ¶¶ 24 3, 13.) 25 understands very limited English.” 26 the Monterey Park Post Office as a letter carrier. 27 Throughout the course of Plaintiff’s employment, Plaintiff alleges 28 he dealt with harassment and discrimination at the hands of Donna Plaintiff “is of Vietnamese de[s]cent” and “speaks and (Id. ¶ 3.) Plaintiff worked at (Id.) Dockets.Justia.com 1 Sosa (the Postmaster at Monterey Park Post Office), Luis Gonzalez 2 (Plaintiff’s first level supervisor), Robert Lindbloom (Plaintiff’s 3 supervisor), and Raymond Tan (Plaintiff’s supervisor). 4 Plaintiff filed several Equal Employment Opportunity (“EEO”) 5 complaints in the USPS EEO Commission. (Id. ¶ 4.) (See generally Compl.) 6 This Court has issued two prior Orders in this case, both 7 granting Defendants’ motions to dismiss with leave for Plaintiff to 8 amend the complaint as to certain claims and defendants. 9 Nos. 16, 24.) 10 The Order granting Defendants’ motion to dismiss the First Amended Complaint states: 11 For the reasons stated above, Defendants’ motion to dismiss is GRANTED as to the named individual defendants, and the individual defendants are DISMISSED WITH PREJUDICE. Defendants’ motion to dismiss is GRANTED as to claims alleging discrimination on the basis of race and national origin. Plaintiff’s claims of racial and national origin discrimination are DISMISSED WITHOUT PREJUDICE. Plaintiff’s cause of action for retaliation may proceed against the USPS Postmaster General. 12 13 14 15 16 (See Dkt. (Order, dkt. no. 24, at 9-10.) 17 In Plaintiff’s current Second Amended Complaint (“SAC”), 18 Plaintiff is represented by counsel and alleges three causes of 19 action against the proper defendant, the current Postmaster General 20 of the USPS: (1) discrimination based on national origin; (2) 21 discrimination based on disability; and (3) retaliation based on 22 Plaintiff’s prior EEO complaints. 23 dismiss all claims. 24 II. 25 Defendant has again moved to (Mot. Dismiss, dkt. no. 43.) LEGAL STANDARD A 12(b)(6) motion to dismiss requires a court to determine the 26 sufficiency of the plaintiff's complaint and whether it contains a 27 “short and plain statement of the claim showing that the pleader is 28 entitled to relief.” Fed. R. Civ. P. 8(a)(2). 2 Under Rule 1 12(b)(6), a court must (1) construe the complaint in the light most 2 favorable to the plaintiff, and (2) accept all well-pleaded factual 3 allegations as true, as well as all reasonable inferences to be 4 drawn from them. 5 979, 988 (9th Cir. 2001), amended on denial of reh’g, 275 F.3d 1187 6 (9th Cir. 2001); Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 7 1998). 8 9 See Sprewell v. Golden State Warriors, 266 F.3d In order to survive a 12(b)(6) motion to dismiss, the complaint must “contain sufficient factual matter, accepted as 10 true, to ‘state a claim to relief that is plausible on its face.’” 11 Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. 12 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 13 “[t]hreadbare recitals of the elements of a cause of action, 14 supported by mere conclusory statements, do not suffice.” 15 678. 16 legal theory or sufficient facts to support a cognizable legal 17 theory.” 18 1104 (9th Cir. 2008); see also Twombly, 550 U.S. at 561-63 19 (dismissal for failure to state a claim does not require the 20 appearance, beyond a doubt, that the plaintiff can prove “no set of 21 facts” in support of its claim that would entitle it to relief). However, Id. at Dismissal is proper if the complaint “lacks a cognizable Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 22 A complaint does not suffice “if it tenders ‘naked 23 assertion[s]’ devoid of ‘further factual enhancement.’” 24 U.S. at 678 (quoting Twombly, 550 U.S. at 556). 25 facial plausibility when the plaintiff pleads factual content that 26 allows the court to draw the reasonable inference that the 27 defendant is liable for the misconduct alleged.” 28 need not accept as true “legal conclusions merely because they are 3 Iqbal, 556 “A claim has Id. The Court 1 cast in the form of factual allegations.” Warren v. Fox Family 2 Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). 3 III. DISCUSSION 4 A. 5 Defendant argues that the Court should dismiss Plaintiff’s National Origin Discrimination 6 claim of discrimination based on his national origin. 7 Defendant argues that Plaintiff did not exhaust his national origin 8 discrimination claim and so the Court lacks subject matter 9 jurisdiction. (Mot. Dismiss at 4-7.) First, Second, Defendant argues 10 that if the Court considers the merits of the claim, that Plaintiff 11 has failed to state a claim based on the conclusory facts alleged 12 in the SAC. (Id. at 7-8.) 13 Plaintiff responds that his previous EEOC complaints did 14 exhaust his national origin discrimination claim and that his 15 complaint does allege sufficient facts for such a claim. 16 3-6.) 17 (Opp’n at As explained by this Court in its prior Order, a plaintiff 18 alleging a violation of Title VII must exhaust administrative 19 remedies by filing a timely complaint with the EEOC prior to filing 20 suit in federal district court. 21 Pullman Co., 404 U.S. 522, 523 (1972); Sommatino v. United States, 22 255 F.3d 704, 707–08 (9th Cir. 2001). 23 exhaustion requirement is to provide notice to the charged party of 24 the complainant’s issues. 25 1091, 1099 (9th Cir. 2002), as amended (Feb. 20, 2002). 26 42 U.S.C. § 2000e-5(f)(1); Love v. One purpose of the B.K.B. v. Maui Police Dep’t, 276 F.3d Due to the remedial purpose of Title VII and the lack of legal 27 training of those initiating complaints, courts in the Ninth 28 Circuit construe a claimant’s charge liberally. 4 E.E.O.C. v. Farmer 1 Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994); Green v. Los Angeles 2 Cnty. Superintendent of Schs., 883 F.2d 1472, 1475-76 (9th Cir. 3 1989). 4 consider disputes before initiation of federal action where the 5 “claims are not so closely related that agency action would be 6 redundant.” 7 Trust, 732 F.2d 726, 730 (9th Cir. 1984). 8 9 Even so, the EEOC must still be afforded a chance to Brown v. Puget Sound Elec. Apprenticeship & Training The jurisdictional scope of a Title VII claimant’s federal action is therefore limited to “the scope of both the EEOC charge 10 and the EEOC investigation.” 11 Thus, new claims of discrimination that were not included in an 12 EEOC charge may only be considered by a federal court if they are 13 “like or reasonably related to the allegations of the EEOC charge.” 14 Brown, 732 F.2d at 729; see also B.K.B., 276 F.3d at 15 determining whether an allegation under Title VII is like or 16 reasonably related to allegations contained in a previous EEOC 17 charge, “the court inquires whether the original EEOC investigation 18 would have encompassed the additional charges.” 19 1476; see also Sommatino, 255 F.3d at 708. 20 Farmer Bros. Co., 31 F.3d at 899. 1100. In Green, 883 F.2d at This Court’s prior Order dismissing the First Amended 21 Complaint held that Plaintiff’s claims of race and national origin 22 discrimination were not exhausted because the claims were “not like 23 or reasonably related to, and are not reasonably expected to grow 24 out of the investigation into, his exhausted EEOC charges.” 25 (Order, dkt. no. 24, at 9.) 26 Plaintiff’s EEOC complaints alleged race or national origin 27 discrimination and nothing in the complaints would indicate to the 28 EEOC that such a claim could have been raised. This Court found that none of 5 (Id.) The EEOC 1 complaints instead alleged “retaliation and disability 2 discrimination in the form of letters of warning, being ordered to 3 leave work, being placed on suspension or emergency placement, 4 being restricted from speaking to other postal workers, and being 5 issued notice of termination.” 6 (Id. at 8 n.5.) Plaintiff’s Opposition and SAC do not point to any new EEOC 7 complaint or part of the EEOC complaints that were not before the 8 Court in its prior Order. 9 three sentences included in an EEOC complaint should have put the Plaintiff’s argument here is that these 10 EEOC on notice that there was a national origin discrimination 11 claim so as to exhaust the claim now: 12 13 14 She did not allow my shop steward to read through so called a bundle of unknown document[s] as well. [. . .] I have [a] reasonable double [sic] that I am not being treated with respect and dignity. [. . .] This is my first time being treated like a slave by this management. 15 (Opp’n at 4 (citing Ex. 1 p.29 to Def. Mot. Dismiss).) 16 allegations are included in Plaintiff’s SAC. 17 argues that these statements “speak of a claim of national origin 18 and in being Vietnamese and needed an interpreter and being taken 19 advantage of by Postmaster, MS. SOSA.” 20 These same (SAC ¶ 8.) Plaintiff (Opp’n at 4.) Plaintiff further argues that Defendant should be estopped 21 from arguing that such an inference should have been drawn by the 22 EEOC because “it was the USPS’s own EEO department who was 23 responsible to frame the issues for an non-English speaking 24 employee.” 25 issue in all the EEOC complaints is Plaintiff’s problems 26 communicating with USPS management. 27 to the relations between Plaintiff and USPS management, Plaintiff 28 states that “[i]t can only be presumed all of this aggressive (Id. at 4-5.) According to Plaintiff, the underlying 6 (Id. at 5.) Lastly, referring 1 activity was a result of national origin discrimination.” 2 (Id. at 6.)1 3 However, all of these allegations do not change the Court’s 4 prior holding that the EEOC did not have notice of such a claim. 5 The language relied on by Plaintiff quoted above does not include 6 any allegation about Plaintiff’s national origin or discrimination 7 that is based on Plaintiff’s national origin. 8 that Plaintiff is Vietnamese or that the actions taken against 9 Plaintiff had anything to do with Plaintiff being from Vietnam. There is no mention 10 The EEOC had no reason to presume any discrimination based on 11 Plaintiff’s national origin. 12 prejudice Plaintiff’s claim of national origin discrimination 13 because the claim is not exhausted. Therefore, the Court dismisses with 14 B. 15 Defendant argues first that Plaintiff’s allegations are 16 improperly brought under the Americans with Disabilities Act 17 (“ADA”) because Plaintiff is a federal government employee, so any 18 disability discrimination claim by him against the federal 19 government must be brought under the Rehabilitation Act. 20 Dismiss at 9.) 21 ADA claim to a claim under the Rehabilitation Act, the claim is 22 still time barred. Disability Discrimination (Mot. Further, Defendant claims that even converting the (Id. at 9-10.) Lastly, Defendant argues that 23 24 1 25 26 27 28 Plaintiff also argues in his opposition that a supervisor called Plaintiff “an animal” on May 1, 2012. (Opp’n at 6.) Plaintiff’s position is that this is “an equivalent name calling as ‘gook.’” (Id.) Plaintiff admits that this was not pled in the SAC, but even if it had been, the Court does not find that this statement is sufficient at this stage to make a claim for national origin discrimination, and the statement was not alleged to be in an EEOC complaint and so is not exhausted either. 7 1 the claim is unsupported by factual allegations sufficient to state 2 a claim. 3 (Id. at 10-11.) Plaintiff admits that he should have brought his claim under 4 the Rehabilitation Act. 5 Court for leave to amend so he can correct this mistake. 6 Plaintiff further argues that his claim is timely and there are 7 sufficient facts to support the claim. 8 states that the claim alleged now relates back to the facts alleged 9 in the original complaint. 10 11 1. (Opp’n at 6.) However, Plaintiff asks the (Id. at 6-8.) Id. Plaintiff (Id. at 7-8) Correct Cause of Action As Plaintiff acknowledges, this claim for disability 12 discrimination must be brought under the Rehabilitation Act; thus, 13 the claim should be dismissed for this reason alone. 14 § 791 (Rehabilitation Act); Boyd v. U.S. Postal Serv., 752 F.2d 15 410, 412-13 (9th Cir. 1985). 16 be with or without prejudice, the Court examines below Defendant’s 17 other arguments regarding timeliness and sufficiency of the 18 pleading. 19 20 2. See 29 U.S.C. To determine if the dismissal should Time Bar According to Defendant, Plaintiff’s disability discrimination 21 claim is only timely if it relates back to Plaintiff’s original 22 complaint. 23 his disability discrimination claim was raised for the first time 24 in this SAC, which would not be timely absent relation back to the 25 original complaint. 26 whether the claim for disability discrimination relates back to the 27 allegations in the original pleading. 28 15(c)(1)(B). (Mot. Dismiss at 10.) Plaintiff does not dispute that (Opp’n at 7.) 8 Thus, the crucial question is See Fed. R. Civ. Pro. 1 Plaintiff’s original pro se complaint raised claims for 2 retaliation under Title VII of the Civil Rights Act, referring to 3 his EEO complaints in 2009 and 2011, as well as a claim of wrongful 4 termination. 5 that his current disability discrimination claim relates back to 6 his wrongful termination on June 11, 2012. 7 Plaintiff alleges he was injured on November 14, 2011, took a leave 8 from work until April 24, 2012, and then resumed work with the need 9 for accommodation because “he could not stand for longer than 2 10 11 (Compl., dkt. no. 1, pp. 6-10.) hours, or walk more than 2 hours a day.” Plaintiff argues (Opp’n at 7.) (Id. at 8.) After this time, Plaintiff claims, he was suspended and then 12 fired, which shows “a direct causal connection between [his] 13 disability beginning in November, 2011, which continued up to his 14 termination, including the filing of a grievance, an EEO Complaint 15 concerning going to the post office business premises to present 16 medical certification of his disability.” 17 to Plaintiff, because the same facts underlie his wrongful 18 termination and his disability discrimination claims, the 19 disability discrimination claim in the SAC should be held to relate 20 back to Plaintiff’s original complaint. 21 out that he raised his disability discrimination claim in his prior 22 EEOC complaints, so the USPS had several ways to be on notice of 23 his claim. 24 (Id.) Thus, according Further, Plaintiff points (Id.) Defendant argues that there is no connection between the 25 allegations in the two pleadings. 26 Defendant claims that the disability discrimination cause of action 27 “would rely on operative facts related to whether Plaintiff was 28 disabled and whether he was otherwise qualified, including whether (Mot. Dismiss at 10.) 9 1 he could perform the essential functions of his position, under the 2 applicable statutory standards.” 3 original Complaint’s claims for retaliation and wrongful 4 termination, which do not depend on any proof related to a 5 disability.” 6 (Id.) This is “irrelevant to the (Id.) The Court holds that the disability discrimination claim does 7 relate back to Plaintiff’s original complaint. 8 complaint, filed when Plaintiff was pro se, is sparse on factual 9 allegations but does allege that Plaintiff suffered retaliation 10 based on activity that resulted in EEOC complaints and wrongful 11 termination in 2012. 12 must “assert[] a claim or defense that arose out of the conduct, 13 transaction, or occurrence set out — or attempted to be set out — 14 in the original pleading.” 15 arguably Plaintiff’s disability discrimination claim arises out of 16 the same occurrences attempted to be set out in Plaintiff’s 17 original complaint. 18 other disciplinary actions taken against him, and his EEOC 19 complaints include conduct related to disability discrimination. 20 Therefore, Plaintiff’s claim relates back to the original pleading. 21 22 3. The original Under Rule 15, the amendment to the pleading Fed. R. Civ. Pro. 15(c)(1)(B). Here, Plaintiff argues that his termination, the Failure to State a Claim Defendant argues that if this Court considers Plaintiff’s 23 disability discrimination claim on the merits, then the claim 24 should be dismissed because the SAC “fails to plead facts that, if 25 true, would establish a claim for disability discrimination.” 26 (Mot. Dismiss at 11.) 27 allegations do not “show that he was terminated or subjected to any 28 other adverse actions because of his disability.” Defendant argues that Plaintiff’s 10 (Id.) 1 Plaintiff argues, as described above, that his termination and 2 the other adverse employment actions against him are related to 3 disability discrimination. 4 disability caused by an injury on May 24, 2011, to his left foot. 5 (SAC ¶ 19.) 6 resulting in a leave of absence from work from November 14, 2011, 7 to April 24, 2012. 8 required to provide proof of his continued eligibility for 9 disability during January 2012 but that supervisors at USPS The SAC alleges that Plaintiff has a Plaintiff also injured his knee on November 14, 2011, (Id. ¶ 20.) Plaintiff alleges that he was 10 prevented him from entering the premises, leading to Plaintiff 11 filing an EEOC complaint. 12 returned to work on “a limited basis” until May 15, 2012, when 13 Plaintiff was suspended. 14 (Id. ¶ 21.) After that, Plaintiff (Id. ¶ 20.) However, the SAC then goes on for several paragraphs about a 15 mediation, a settlement allowing Plaintiff to return to the post 16 office, and several incidents where Plaintiff was alleged to have 17 acted out against USPS supervisors and was disciplined, none of 18 which are connected to his disability at all as pled. 19 30.) 20 GONZALEZ,” one of Plaintiff’s supervisors. 21 Gonzalez allegedly reminded Plaintiff of the settlement outcome of 22 the EEO complaint, but also reminded Plaintiff that he had to 23 follow instructions and not talk back or lunge threateningly. 24 ¶ 25.) 25 Plaintiff “made a gesture to her of masturbation” in the parking 26 lot, which led to an investigation at which Plaintiff alleged he 27 did not understand what was going on but resulted in his “30 day 28 emergency suspension as being ‘injurious to self and others.’” (Id. ¶¶ 22- Plaintiff allegedly “spoke in a loud manner and lunged at Mr. (Id. ¶ 24.) Mr. (Id. Further, Ms. Sosa, another supervisor, alleged that 11 1 (Id. ¶ 26.) All of this, Plaintiff alleges, eventually resulted 2 in Plaintiff’s termination on June 11, 2012. (Id. ¶ 28.) 3 A plaintiff must plead specific facts that show (1) the 4 plaintiff had a disability; (2) the plaintiff could perform his or 5 her job with reasonable accommodations; and (3) the plaintiff was 6 discriminated against because of this disability. 7 City of N. Las Vegas, 323 F.3d 1226, 1229 (9th Cir. 2003) 8 (describing elements of claim under the Americans with Disabilities 9 Act, which is the same standard for injuries under the 10 See Kaplan v. Rehabilitation Act). 11 None of the allegations in the SAC relate to Plaintiff’s foot 12 or knee disability. 13 his work was terminated “due to the retaliatory conduct of the 14 management of POST OFFICE, as well as the fact that he was disabled 15 and on limited duty due to injuries to his ankle and knee from 16 November, 2011 until his removal on June 11, 2012.” 17 Plaintiff has to support his legal allegations by pleading 18 underlying factual allegations that connect his disability to an 19 adverse employment action. 20 this time represented by counsel. 21 unable to allege facts that would satisfy these elements 22 demonstrates that leave to amend would be futile in this case as 23 there are no facts that connect Plaintiff’s disability to any 24 adverse employment action or discrimination. 25 Plaintiff’s second cause of action for disability discrimination is 26 dismissed with prejudice. 27 /// 28 /// It is insufficient for Plaintiff to plead that (Id. ¶ 30.) This is Plaintiff’s third complaint, 12 The fact that Plaintiff has been Therefore, 1 C. Retaliation 2 Defendant argues that the SAC fails to allege sufficient facts 3 to support a retaliation claim, and what facts are alleged in the 4 SAC do not show the needed “but for” causation between the 5 protected activity and the termination of Plaintiff’s employment. 6 (Mot. Dismiss at 11-13.) 7 Plaintiff responds that there is a clear case for retaliation 8 here: Plaintiff filed several EEOC complaints, and then he was 9 fired. (Opp’n at 8-9.) This is further connected to his 10 disability because Plaintiff returned from a six month absence due 11 to his disability right before Plaintiff incurred disciplinary 12 action and then termination. 13 (Id. at 9.) A claim of retaliation under Title VII requires a plaintiff to 14 show: “(1) he engaged in a protected activity; (2) he suffered an 15 adverse employment decision; and (3) there was a causal link 16 between the protected activity and the adverse employment 17 decision.” 18 1064 (9th Cir. 2002). 19 plaintiff had engaged in protected activity under Title VII because 20 the plaintiff had filed an internal complaint about sexual 21 harassment at work. 22 plaintiff had not shown the necessary “but for” causation between 23 this protected activity and his termination from work because all 24 he alleged was that his termination was after he filed the 25 complaint. 26 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, Id. In Villiarimo, the court found that the Id. However, the court held that the at 1064-65. Here, the Court holds that the SAC does not allege a case for 27 retaliation. 28 treatment at the USPS, and he suffered adverse employment actions Plaintiff filed numerous EEOC complaints about his 13 1 leading up to suspension and termination. However, Title VII only 2 protects against retaliation for certain protected conduct, as does 3 the Rehabilitation Act. 4 disability, race, national origin, sex, gender, color, or religious 5 discrimination is not a protected activity under Title VII or the 6 Rehabilitation Act. 7 facts (and not just legal conclusions) in the SAC that constitute 8 discrimination on the basis of Plaintiff’s disability or other 9 protected class. Making employment complaints unrelated to Plaintiff has failed to specifically allege Plaintiff would need to plead that these alleged 10 instances of discrimination were raised in his EEOC complaints and 11 thus causally connected to his employment termination, which 12 Plaintiff alleges was caused by his filing the EEOC complaints. 13 The SAC states that Plaintiff was fired “due to retaliation 14 for his prior EEO activity, complaints, and in particular, MR. 15 HUA’S win at the April 26, 2012 mediation.” 16 statement does not provide indication of what discrimination based 17 on a protected class Plaintiff complained about, and the preceding 18 paragraphs in the SAC do not indicate that any of the EEOC 19 complaints were related to disability discrimination or national 20 origin discrimination, the only two protected classes in the SAC’s 21 causes of action. 22 colorable claim of discrimination on the basis of disability or 23 national origin discrimination, there is no causal connection 24 between any discrimination and the adverse employment action. 25 Therefore, the Court holds that Plaintiff’s retaliation cause of 26 action is dismissed with prejudice. 27 /// 28 /// (SAC ¶ 43.) This Because none of the complaints are tied to any 14 1 2 IV. CONCLUSION For the reasons stated above, Defendant’s Motion to Dismiss is 3 GRANTED. Plaintiff’s Second Amended Complaint is DISMISSED WITH 4 PREJUDICE. 5 6 IT IS SO ORDERED. 7 8 Dated: December 18, 2015 DEAN D. PREGERSON United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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