Hubbard v. Day and Zimmerman Hawthorne Corporation, No. 3:2012cv00681 - Document 32 (D. Nev. 2015)

Court Description: ORDER denying Defendant's 24 Motion for Summary Judgment. Signed by Judge Miranda M. Du on 3/20/2015. (Copies have been distributed pursuant to the NEF - KR)
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Hubbard v. Day and Zimmerman Hawthorne Corporation Doc. 32 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 VALERIE D. HUBBARD, Case No. 3:12-cv-00681-MMD-VPC Plaintiff, 10 ORDER v. 11 12 DAY & ZIMMERMANN HAWTHORNE CORPORATION, a foreign corporation, Defendant. 13 14 15 I. SUMMARY 16 Before the Court is Defendant Day & Zimmermann Hawthorne Corporation’s 17 Motion for Summary Judgment (“Motion”). (Dkt. no. 24.) The Court has reviewed 18 Plaintiff’s opposition (dkt. no. 25) and Defendant’s reply (dkt. no. 26). For the reasons 19 stated herein, the Motion is denied. 20 II. BACKGROUND 21 This dispute arises out of alleged employment discrimination under the 22 Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 1210, et seq. The following 23 facts are undisputed.1 24 Defendant operates the Hawthorne Army Depot (“the Depot”), a live munitions 25 storage facility, pursuant to a contract with the United States Army. (Dkt. no. 24-2 at 2.) 26 27 28 The facts are taken primarily from Plaintiff’s deposition testimony (dkt. no. 24-4), and from the Complaint (dkt. no. 1) and certain exhibits attached to the parties’ briefs that are not disputed. 1 1 For safety and security reasons, Defendant employs a full-time staff of security guards 2 to protect the Depot at all times. (Id.; dkt. no. 24-4 at 7-8, 19.) Defendant’s disciplinary 3 policy calls for termination of those employees who are deemed to be a “no-call, no- 4 show” (i.e., failure to report at their assigned work location and assigned time). (Dkt. no. 5 24-2 at 2; dkt. no. 24-4 at 10.) However, employees who are asked to report back to the 6 Depot’s clinic (“Clinic”) due to medical concerns are given two chances to report to the 7 Clinic before they are terminated. (Dkt. no. 24-2 at 2-3.) According to Defendant, it gives 8 two opportunities because it “recognizes that an employee with medical concerns may 9 have other matters on their mind.” (Id.) 10 Plaintiff Valerie D. Hubbard was employed with Defendant as a security guard at 11 the Depot from November 2008 to November 9, 2009.2 (Dkt. no. 24-4 at 25, 64.) She 12 worked the graveyard shift. (Id.) On June 16, 2009, Plaintiff had a hysterectomy to treat 13 early stages of uterine cancer. (Dkt. no. 24-4 at 32-33.) Plaintiff requested and was 14 given time off work before the surgery. (Id. at 29.) Her physician, Dr. Beckman, advised 15 her that she would need to take hormone supplements for the rest of her life since there 16 was a chance that she may experience emotional issues after the complete 17 hysterectomy. (Id. at 34-35.) In her postoperative visit on August 11, 2009, Dr. Beckman 18 noted that she had no complaints with her supplements. (Dkt. no. 24-7.) Plaintiff 19 returned to work on August 12, 2009. (Dkt. no. 24-4 at 38-41.) She felt fine at that time 20 and was able resume her regular job duties. (Id.) 21 About a month later, in September, Plaintiff started to experience emotional 22 problems, including anger issues and difficulty with concentration. (Dkt. no. 24-4 at 4, 23 42-43.) She was concerned about her ability to perform her job safely given that her 24 responsibilities involved providing security and she was provided with a firearm during 25 her shift. (Dkt. no. 24-4 at 42-43.) Plaintiff’s emotional health deteriorated such that on 26 the evening of October 20, 2009, “it seemed like [she] broke,” she “felt like [she] wanted 27 28 2 Plaintiff had been previously employed with Defendant, but was terminated and then rehired in November 2008. (Dkt. no. 24-4 at 24.) 2 1 to commit suicide, and [she] did not know what was wrong with [her].” (Id. at 5, 44-45.) 2 Plaintiff discussed her concerns with one of her supervisors, Richard Bryant, who 3 referred her to human resources to explore her options, which she did. (Dkt. no. 24-4 at 4 47-52.) 5 The next morning, October 21, 2009, she saw Dr. Beckman and he suggested 6 the emotional issues she was experiencing “were possibly” related to her menopausal 7 status and her supplements. (Id. at 53; dkt. no. 24-7.) Dr. Beckman changed her 8 medication and noted that he did not see any medical reason for her not to work. (Dkt. 9 no. 24-7.) 10 After her appointment with Dr. Beckman, Mr. Bryant contacted her to relay that 11 she should not come to work that evening but should report to the Clinic in the morning 12 for a “Fitness for Duty” evaluation.3 (Id. at 54.) Plaintiff agreed with Mr. Bryant’s request 13 since she did not believe she could do her job at that time because of her emotional 14 state. (Id.) 15 On October 22, 2009, Plaintiff reported to the Clinic and was seen by the Clinic 16 doctor. (Id. at 56-57.) Plaintiff gave the doctor the background information about her 17 mental state and the change in her hormone supplements. (Id.) The doctor told her to 18 take time off since he did not believe, based on his observation of her mental state at 19 that time, she could perform her duties. (Id.) Plaintiff was given the Clinic service 20 provider form (“First Notice”) directing her to provide her doctor’s note to the Clinic on or 21 before October 26, 2009. (Dkt. no. 24-8.) The First Notice further stated that a release 22 form would be sent to Dr. Beckman and Plaintiff would be “off work until further notice.” 23 /// 24 25 26 27 28 3 According to Plaintiff, if a supervisor believed that an employee should be examined to determine whether the employee is fit for duty, the supervisor would send the employee to the clinic where a doctor, who is employed with Defendant as an independent contractor, would examine the employee to determine whether or not the employee is fit to work. (Dkt. no. 24-4 at 10-12.) Mr. Bryant completed a “Fitness for Duty” form on October 21, 2009, stating that Plaintiff relayed that “she was going to request a leave of absence due to a medical condition resulting from recent surgery, causing extreme mood swings, making it difficult for her to work.” (Dkt. no. 25-1 at 53.) 3 1 (Id.) After leaving the Clinic on October 22, 2009, Plaintiff made an appointment to see 2 Dr. Beckman on November 4, 2009. (Dkt. no. 24-4 at 60, 63.) 3 Plaintiff did not report to the clinic on October 26, 2009.4 (Dkt. no. 24-4 at 60-62.) 4 Defendant sent Plaintiff a second Clinic service provider form dated October 27, 2009 5 (“Second Notice”) via certified mail, which she received at the end of October. (Id.; dkt. 6 no. 24-9.) The Second Notice informed Plaintiff that she would need to provide her 7 doctor’s note to the clinic on or before November 3, 2009. (Dkt. no. 24-9.) It further 8 indicated: “failed to check in with clinic on 10-26-09. Must check in by 11-3-09 with Dr. 9 note.” (Id.) Plaintiff contacted the Clinic the day she received the Second Notice. (Dkt. 10 no. 24-4 at 61.) According to Plaintiff, she did not report to the Clinic by November 3, 11 2009, because the clinic administrator told her not to worry about the date. (Id. at 62; 12 dkt. no. 25-1 at 19.) 13 At her scheduled appointment with Dr. Beckman on November 4, 2009, Plaintiff 14 asked Dr. Beckman to release her to return to work. (Dkt. no. 25-1 at 23, 55.) By that 15 time, Plaintiff was responding to the new medication and was “feeling a little better.” (Id. 16 at 23; dkt. no. 24-7 at 2.) Dr. Beckman released her to return to work starting on 17 November 5, 2009. (Dkt. no. 25-1 at 23, 55.) Plaintiff contacted Defendant’s clinic on the 18 same day after her appointment with Dr. Beckman. (Id. at 23.) However, on November 19 9, 2009, Plaintiff was informed Defendant has terminated her employment for violating 20 its “no-call, no-show” policy. (Id. at 24-25; dkt. no. 24-4 at 64.) 21 The Complaint asserts under the “first claim for relief’ disability discrimination 22 under the ADA based on Defendant’s alleged failure to provide reasonable 23 accommodation and termination of Plaintiff’s employment “for exercising her rights 24 25 26 27 28 4 Plaintiff testified that she was not given any paperwork on October 22, 2009 (dkt. no. 25-1 at 17), but it appears that she recanted during her deposition. Plaintiff later testified that she read the paperwork that the Clinic staff gave her on October 22, 2009, and her friend who accompanied her to the Clinic also read the paperwork. (Dkt. no. 24-4 at 59.) Plaintiff also acknowledged that she knew, based on past experience that if taken off work after a Fitness for Duty exam, the employee has to report back to the Clinic at some future date. (Id. at 59-60.) 4 1 under the Act and because of her disability.” (Dkt. no. 1 at 3.) Defendant construes the 2 Complaint as alleging disability discrimination and seeks summary judgment on this 3 basis. Plaintiff’s response contends that her Complaint also alleges retaliation. 4 III. LEGAL STANDARD 5 The purpose of summary judgment is to avoid unnecessary trials when there is 6 no dispute as to the facts before the court. Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 7 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the 8 pleadings, the discovery and disclosure materials on file, and any affidavits “show there 9 is no genuine issue as to any material fact and that the movant is entitled to judgment 10 as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is 11 “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder 12 could find for the nonmoving party and a dispute is “material” if it could affect the 13 outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 14 242, 248-49 (1986). Where reasonable minds could differ on the material facts at issue, 15 however, summary judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 16 439, 441 (9th Cir. 1995). “The amount of evidence necessary to raise a genuine issue of 17 material fact is enough ‘to require a jury or judge to resolve the parties’ differing 18 versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 19 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). In 20 evaluating a summary judgment motion, a court views all facts and draws all inferences 21 in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & 22 Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 23 The moving party bears the burden of showing that there are no genuine issues 24 of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In 25 order to carry its burden of production, the moving party must either produce evidence 26 negating an essential element of the nonmoving party’s claim or defense or show that 27 the nonmoving party does not have enough evidence of an essential element to carry its 28 ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 5 1 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56’s 2 requirements, the burden shifts to the party resisting the motion to “set forth specific 3 facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The 4 nonmoving party “may not rely on denials in the pleadings but must produce specific 5 evidence, through affidavits or admissible discovery material, to show that the dispute 6 exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do 7 more than simply show that there is some metaphysical doubt as to the material facts.” 8 Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). “The 9 mere existence of a scintilla of evidence in support of the plaintiff’s position will be 10 insufficient.” Anderson, 477 U.S. at 252. 11 IV. DISCUSSION 12 A. Disability Discrimination 13 Title I of the ADA prohibits “discriminat[ion] against a qualified individual on the 14 basis of disability in regard to . . . discharge of employees . . . and privileges of 15 employment.” 42 U.S.C. § 12112(a) (2009). To establish a prima facie case of 16 discrimination under the ADA, a plaintiff must show that she “(1) is disabled; (2) is 17 ‘qualified’ and (3) suffered an adverse employment action because of [her] disability.” 18 Jefferson v. Time Warner Cable Enters. LLC, 584 F.App’x. 520, 522 (9th Cir. 2014); 19 Allen v. Pac. Bell, 348 F.3d 1113, 1114 (9th Cir. 2003). If a plaintiff satisfies her burden, 20 the burden then shifts to the defendant to offer a legitimate business reason for the 21 employment termination. Snead v. Metropo. Property & Casualty Ins. Co., 237 F.3d 22 1080, 1093 (9th Cir. 2001). Once a defendant articulates a legitimate reason for the 23 termination, the burden shifts to the plaintiff to show that the reason is a pretext for 24 discrimination. Id. 25 Defendant contends Plaintiff cannot satisfy any of the three elements to establish 26 her prima facie case, and it has articulated a legitimate reason for Plaintiff’s termination. 27 Plaintiff disputes the contention that she did not suffer a covered disability and claimed 28 the reason offered for her termination is a pretext for discrimination. 6 1. 1 Covered Disability 2 Congress enacted the ADA Amendment Act of 2008 (“ADAAA”) to expand “the 3 class of individuals who are entitled to protection under the ADA.” Rohr v. Salt River 4 Project Agric. Improvement and Power Dist., 555 F.3d 850, 853 (9th Cir. 2009). The 5 definition of “’disability’ was to be broadly construed and coverage will apply to the 6 ‘maximum extent’ permitted by the ADA and the ADAAA.” Id. at 861. 7 The ADA contains three definitions of disability. 42 U.S.C. § 12102(1). Plaintiff is 8 proceeding under the first definition — that she has “a physical or mental impairment 9 that substantially limits one or more . . . major life activities.” 42 U.S.C. § 12102(1)(A). 10 Under the ADA, “major life activities” cover working as well as “the operation of a major 11 bodily function,” which includes endocrine functions. 29 C.F.R. § 1630.2(i)(1)(i)-(ii). “An 12 impairment need not prevent, or significantly or severely restrict, the individual from 13 performing a major life activity in order to be considered substantially limiting.” 29 C.F.R. 14 § 1630.2(j)(1)(ii). Moreover, “the threshold issue of whether an impairment ‘substantially 15 limits’ a major life activity should not demand extensive analysis.” 29 C.F.R. § 16 1630.2(j)(1)(iii). 17 The Complaint alleges that the “medical procedure [hysterectomy] caused a 18 hormonal imbalance in Plaintiff resulting in mood swings, emotional issues and failure to 19 comprehend and focus all of which substantially limit Plaintiff’s daily life activities.” (Dkt. 20 no. 1, ¶ 3.) In her response to interrogatories, Plaintiff stated that the hysterectomy 21 “caused a change in her mood balance, an endocrine function, which in turn caused 22 lack of control over emotions, adversely affected Plaintiff’s comprehension and ability to 23 interact with others, with extreme mood swings, and caused insomnia with resulting 24 fatigue.” (Dkt. no. 24-12 at 4.) She further claims that “[t]his is a chronic condition.”5 (Id.) 25 /// 26 27 28 5 Plaintiff testified that she stopped taking hormone supplements about six months after her termination because they were affecting her mood making her “emotional” and feel “withdrawn.” (Dkt. no. 24-4 at 35-37.) She did not start to feel better until early 2011. (Id.) 7 1 Defendant argues that Plaintiff does not have a disability because the medical 2 evidence does not support her claim that she experienced symptoms of hormonal 3 imbalance. Defendant cites to the evidence that (1) Dr. Beckman only told Plaintiff she 4 “may” have problems after her hysterectomy, (2) he released her to return to work on 5 August 12, 2009, and (3) he told her on October 21, 2009 that her medication “could” be 6 the cause of her problems or that her problems could “possibly” be related to her 7 hysterectomy, but he could not be sure.6 Defendant contends that one is left to 8 speculate as to what Plaintiff’s disability might be since Dr. Beckman determined she 9 did not have any physical disability and Plaintiff only offers her statement as to her 10 emotional instability. Defendant’s argument is unavailing. 11 Defendant’s proffered evidence does not show that Dr. Beckman found Plaintiff 12 did not experience emotional impairment. In fact, Dr. Beckman adjusted Plaintiff’s 13 medication on October 22, 2012, because of Plaintiff’s symptoms.7 Plaintiff testified that 14 she began to experience mood swings in September, after she had been released to 15 work for several weeks, and her emotional impairment worsened such that by October 16 21, 2009, she had suicidal thoughts and did not believe she should continue to work. 17 Defendant’s proffered records from Dr. Beckman do not dispute that Plaintiff 18 experienced these impairment. 19 Plaintiff has offered evidence through her testimony that she has a physical 20 impairment that affects major life activities, including working and the operation of her 21 endocrine system. “At the summary judgment stage, ‘precedent does not require 22 comparative or medical evidence to establish a genuine issue of material fact regarding 23 24 25 26 27 28 6 Defendant appears to suggest that just because a physician is not certain as to the reason for the symptoms that a patient experiences, the symptoms themselves cannot be disabling. This is absurd. Science does what it can, but not all of the mysteries of the human body have been solved. Sometimes a doctor cannot determine what causes a disabling symptom, but that does not mean the symptom does not exist. 7 Defendant does not and cannot argue that because Plaintiff’s mental impairment could be treated with hormone supplements that she therefore does not have a disability. This is because the ADAAA requires courts to determine disability “without regard to the ameliorative effects of mitigating measures” such as medication. 29 C.F.R. §§ 1630.2(j)(1)(vi) and 1630.2(j)(5)(i). 8 1 the impairment of a major life activity. . . . Rather, . . . a plaintiff's testimony may suffice 2 to establish a genuine issue of material fact.’” Rohr, 555 F.3d at 858-59 (quoting Head 3 v. Glacier Nw. Inc., 413 F.3d 1053, 1058 (9th Cir. 2005)). The Court agrees with Plaintiff 4 that her testimony, which is not contradicted by Dr. Beckman’s records, is sufficient to 5 create a genuine issue of material fact as to whether she has a covered disability under 6 the ADA. 2. 7 “Qualified” Individual 8 Defendant next argues that Plaintiff is not a “qualified” individual under the ADA 9 because she admits that she was not able to perform the essential functions of her job. 10 Defendant asserts that the Court must view Plaintiff’s ability to perform her essential job 11 duties at the time she requested accommodation, not at a later time.8 12 “An individual is qualified if with or without reasonable accommodation, she can 13 perform the essential functions of the employment position.” Samper v. Providence St. 14 Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012). “If a disabled person cannot 15 perform a job's ‘essential functions' (even with a reasonable accommodation), then the 16 ADA's employment protections do not apply.” Bates v. United Parcel Service, Inc., 511 17 F.3d 974, 989 (9th Cir. 2007) (quoting Cripe v. City of San Jose, 261 F.3d 877, 884-85 18 (9th Cir. 2001). 19 Defendant cites to Plaintiff’s testimony about her mental state before she was 20 taken off work on October 20, 2009, to argue that she admittedly was unable to perform 21 her job duties. Plaintiff did testify that as of the morning of October 21, 2009, she did not 22 believe she would have been able to perform one of the essential functions of her job, 23 which was to be an armed guard. (Dkt. no. 2404 at 45.) However, on that date, Plaintiff 24 was told not to show up for her shift but to report for a Fitness for Duty exam on October 25 22, 2009. After the exam, Plaintiff was taken off work and was told to consult with her 26 physician and report back to the Clinic. By November 4, 2009, the day after the second 27 28 Despite this argument, Defendant cites to Plaintiff’s testimony that she continued to experience emotional impairment until early 2011. 8 9 1 deadline for Plaintiff to report to the Clinic, Plaintiff was feeling better and she felt the 2 change in her medication had helped her. In fact, Dr. Beckman confirmed that the 3 medication was beginning to work and released her to return to work starting on 4 November 5, 2009. Viewing the evidence in the light most favorable to Plaintiff as the 5 non-moving party, her testimony and Dr. Beckman’s release for her to return to work on 6 November 5, 2009, create a genuine issue of material fact as to whether she was 7 qualified, with or without reasonable accommodation, to perform her essential job 8 functions. A reasonable jury may conclude that Plaintiff could perform the essential 9 functions of her job on November 5, 2009, had Defendant accommodated Plaintiff by 10 extending her leave until then. 11 3. Causation and Plaintiff’s Employment Termination 12 Defendant argues that Plaintiff cannot show that her employment was terminated 13 because of disability. The facts relating to this argument are intertwined with 14 Defendant’s cursory claim that it had legitimate, non-pretextual reason for Plaintiff’s 15 termination. Because all three arguments rely on Plaintiff’s termination, the Court will 16 address these issues collectively. The Court finds that the parties’ dispute as to the 17 reason for Plaintiff’s employment termination creates a genuine issue of material fact 18 that precludes summary judgment. 19 Defendant claims Plaintiff’s employment was terminated because she did not 20 report to the Clinic after being given the Second Notice to report on or before November 21 3, 2009. The Second Notice stated: “failed to check in with clinic on 10-26-09. Must 22 check in by 11-3-09 with Dr. note.” (Dkt. no. 24-9.) Plaintiff admitted she did not report 23 to the Clinic. However, Plaintiff testified she called the Clinic the day she received the 24 Second Notice and spoke to the clinic administrator, Patty Cohen, to explain that she 25 had not seen her personal doctor yet. (Dkt. no. 25-1 at 20.) Ms. Cohen told her to go to 26 her doctor’s appointment and bring the note from her doctor. (Dkt. no. 24-4 at 62.) 27 /// 28 /// 10 1 According to Plaintiff, Ms. Cohen told her “[d]on’t worry about that date.”9 (Id.; dkt. no. 2 25-1 at 19.) She testified that based on this conversation, she did not report to the Clinic 3 but went to her doctor’s appointment on November 4, 2009, and then contacted the 4 Clinic after this appointment. Defendant argues that Plaintiff twice received notice that 5 she must report to the Clinic, but she failed to report as instructed in violation of its “no 6 call, no show” policy. Plaintiff’s testimony shows she thought she complied with the 7 Second Notice by contacting the Clinic and was told not to worry about the deadline 8 since she had not seen Dr. Beckman yet to be able to provide the Clinic with the 9 required note from him. Defendant also offered termination letters sent to other 10 employees who violated its “no call, no show” policy. (Dkt. no. 24-10.) One of these 11 letters, the letter dated July 28, 2009,10 suggests that Defendant made more attempts to 12 contact the employee who missed a Clinic appointment than merely sending a second 13 notice. (Id. at 5 (letter states in part: “We have made several attempts to contact you 14 regarding your missed appointments. All attempts have been unsuccessful.”) In 15 Plaintiff’s case, she did not physically report to the Clinic, but she did contact the clinic 16 administrator. Under these circumstances, a reasonable jury may find that Plaintiff did 17 comply with the Second Notice and Defendant’s reason for terminating her employment 18 is a pretext. 19 B. 20 In response to the Motion, Plaintiff contends that she also asserts a claim for 21 retaliation, citing to the allegation that she was terminated for exercising her rights under 22 the ADA. The Court agrees with Defendant that the Complaint fails to allege a claim for 23 retaliation. 24 /// 25 26 27 28 Retaliation 9 Plaintiff testified that Ms. Cohen instructed her not to report to the Clinic, but after further examination, she admitted that Ms. Cohen did not specifically say: “Don’t show up.” (Dkt. no. 25-1 at 19; dkt. no. 24-4 at 62.) Plaintiff testified that Ms. Cohen did say: “Don’t worry about that date [November 3, 2009].” (Dkt. no. 24-4 at 62.) 10 It is not clear whether the letter was sent in 2009 or 2007 because of the conflicting years in the letter. (Dkt. no. 24-10 at 5.) 11 1 Fed. R. Civ. P. 8’s notice pleading standard requires a plaintiff to “give the 2 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell 3 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and citation 4 omitted). While Rule 8 does not require detailed factual allegations, it demands more 5 than “labels and conclusions” or a “formulaic recitation of the elements of a cause of 6 action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). 7 The Complaint asserts a single claim for relief under the heading “First Claim for 8 Relief.” The paragraphs under this heading allege disability discrimination. The 9 allegation that Plaintiff relies on is embedded in a paragraph where she alleges 10 disability discrimination based on her termination and Defendant’s failure to provide 11 reasonable accommodation. (See dkt. no. 1, ¶ 18.) Plaintiff’s Complaint does not 12 include any reference to retaliation, let alone detailed factual allegations to support this 13 claim. Plaintiff fails to give fair notice to satisfy Rule 8’s requirement that she is also 14 asserting a separate claim for retaliation.11 Plaintiff cannot now seek to expand her 15 Complaint to assert a retaliation claim. 16 V. CONCLUSION 17 The Court notes that the parties made several arguments and cited to several 18 cases not discussed above. The Court has reviewed these arguments and cases and 19 determines that they do not warrant discussion as they do not affect the outcome of the 20 Motion. 21 22 23 It is therefore ordered that Defendant’s Motion for Summary Judgment (dkt. no. 24) is denied. DATED THIS 20th day of March 2015. 24 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 25 26 27 28 The Court need not address Plaintiff’s argument that she properly exhausted her administrative remedies as to her retaliation claim. However, the fact that she did not allege retaliation in her U.S. Equal Employment Opportunity Commission (“EEOC”) charge further underscores the need for her Complaint to give fair notice to Defendant that she is seeking to assert a claim that was not raised before the EEOC. 11 12