Opinion
3:19-cv-00443-YY
08-19-2021
LOU COLASANTI, Plaintiff, v. CITY OF PORTLAND and STATE OF OREGON, Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
Plaintiff Lou Colasanti brings this action against defendants the City of Portland (“the City”) and the State of Oregon (“the State”). The court previously granted defendants' motions to dismiss but with leave to amend. See Opinion and Order (“O&O”), ECF 41. Plaintiff has filed a Second Amended Complaint. Against the City, plaintiff alleges claims for employment discrimination (claim one) and interference with his right to seek reasonable accommodations (claim two) under Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12111-12117, and for disability discrimination under O.R.S. Chapter 659A (claim three). Second Am. Compl. ¶¶ 51-92, ECF 43. Against the State, plaintiff alleges claims for discrimination and interference by a public entity under Title II of the ADA, 42 U.S.C. §§ 12131-12165 (claim four), under Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 701-797 (claim five), and by a state government under O.R.S. 659A.142 (claim six), and for interference under all three statutes. Id. ¶¶ 93-140.
This court has subject matter jurisdiction over the federal claims pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3), and supplemental jurisdiction over the state claims pursuant to 28 U.S.C. § 1367.
Defendants have each filed a second motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The City seeks dismissal of plaintiff's ADA interference claim (claim two), but not claims one or three. City Mot. Dismiss 1, ECF 48. The State seeks dismissal of all claims against it. State Mot. 4-7, ECF 46.
For the reasons below, the City's motion to dismiss (ECF 48) should be DENIED, and the State's motion to dismiss (ECF 46) should be DENIED as to the ADA interference claim but otherwise GRANTED.
I. Relevant Law Regarding Sufficiency of Complaint and Rule 12(b)(6)
To state a claim for relief, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This standard “does not require ‘detailed factual allegations, '” but does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555).
A Rule 12(b)(6) motion tests whether there is a cognizable legal theory or sufficient facts to support a cognizable legal theory. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). In evaluating a motion to dismiss, the court must accept the allegations of material fact as true and construe those allegations in the light most favorable to the non-moving party. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).
II. Background
The factual allegations in the Second Amended Complaint (ECF 43) are largely identical to those in the amended complaint (ECF 3), a summary of which can be found in the prior Findings and Recommendations (ECF 27). Plaintiff has added the following allegations:
Colasanti v. City of Portland, No. 3:19-cv-00443-YY, 2019 WL 8545841 (D. Or. Sept. 23, 2019), report and recommendation adopted, No. 3:19-cv-00443-YY, 2020 WL 972755 (D. Or. Feb. 28, 2020).
(1) The City allowed him to retake a Physical Activity Test during the pre-hire process, Second Am. Compl. ¶ 22, ECF 43,
(2) Department of Public Safety Standards and Training (“DPSST”) Lieutenant Stradely told plaintiff on January 26, 2018, that he would be watching plaintiff's class particularly closely for missteps, id. ¶ 34,
(3) Lieutenant Stradely's comment that people had used health conditions as an “excuse” made plaintiff “feel diminished for having a disability and requesting accommodations and discouraged and intimidated Plaintiff from requesting accommodations for his disability, ” id. ¶ 35,
(4) DPSST Lieutenant Mahuna told plaintiff there were too many other recruits to allow plaintiff to continue his employment if he failed to appeal his dismissal from basic training, id. ¶ 42, and
(5) Christopher Gjovick and Portland Police Bureau (“PPB”) Sergeant William Goff responded “yes” when plaintiff asked them if he was being terminated for physical reasons. Id. ¶ 48. Plaintiff also emphasizes that he provided a letter to the pre-hire examining physician “from his cardiologist who wrote that Plaintiff was physically fit and cleared by his medical provider to serve as an active Police Officer so long as he does not have a Taser used on him during training” because of his heart condition. Id. ¶ 21.
During oral argument, plaintiff offered additional allegations against the City that he would add to the complaint should the court allow him to amend the complaint again. Specifically, plaintiff would allege that he discussed his heart condition with Sergeant Goff at PPB's training center and asked not to be perceived as lazy by the instructors if he fatigued faster than other recruits due to his heart condition, and talked about the letter from his doctor, which stated plaintiff could not be tased. Plaintiff would also allege that he asked Sergeant Goff whether the DPSST academy instructors knew about his heart condition before he attended the Academy.
III. City's Partial Motion to Dismiss (ECF 48)
A. Procedural History
Plaintiff previously alleged claims for employment discrimination and retaliation under Title I of the ADA and O.R.S. Chapter 659A. Am. Compl. ¶¶ 47-88, ECF 3. The City sought dismissal of plaintiff's retaliation claims and plaintiff's prayer for compensatory and noneconomic damages related to that claim. City Mot. 6-16, ECF 7. The court granted the City's motion, dismissing the retaliation claims without prejudice and plaintiff's prayer for damages with prejudice. O&O 4, ECF 41. The court gave plaintiff leave to amend his complaint “to allege that he engaged in the protected activity of requesting an accommodation.” Findings and Recommendations (“F&R”) 2, 19, ECF 27, adopted by O&O, ECF 41. Plaintiff amended his complaint by substituting the retaliation claim with a claim for interference. Compare First Am. Compl. ¶¶ 61-70 (second claim) with Second Am. Compl. ¶¶ 68-75 (second claim). At any rate, the City now moves to dismiss the interference claim. City Mot. Dismiss 1, ECF 48. At oral argument, plaintiff asked for leave to revive his retaliation claim, should the court find, when analyzing the retaliation claim, that he engaged in protected activity.
B. ADA Interference
In his Second Amended Complaint, plaintiff alleges the “City interfered with [his] exercise of his right to seek accommodations for his disability” under ADA § 503(b). Second Am. Compl. ¶ 69, ECF 43. That statute provides:
It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.42 U.S.C. § 12203(b). An ADA interference claim, unaccompanied by a § 503(a) relation claim, is known as an interference-only claim. See Bayer v. Neiman Marcus Grp., Inc., No. 13-CV-04487-MEJ, 2018 WL 2427787, at *7 (N.D. Cal. May 30, 2018).
1. Legal Framework
The parties dispute what a plaintiff must allege to state an ADA interference-only claim in the Ninth Circuit. The City asserts the analysis is identical to the ADA retaliation claim plaintiff previously asserted, which requires that a plaintiff engaged in an activity protected by the ADA, the plaintiff suffered an adverse employment action, and there is a causal link between the two. See City Mot. 2-3, ECF 48; City Reply 1, ECF 58. Plaintiff asserts he has sufficiently alleged that he engaged in protected activities, if that is required, but argues the statute's plain language does not require that a plaintiff engaged in a protected activity. Neither party addresses the question left open by the Ninth Circuit in Brown v. City of Tucson, 336 F.3d 1181, 1191 (9th Cir. 2003), which is whether the employee must establish a causal link between the employee's enjoyment of an ADA right and the employer's conduct. Bayer, 2018 WL 2427787, at *7.
(§ 503(a)), the claim is not susceptible to burden-shifting. 336 F.3d 1181, 1191 (9th Cir. 2003) (quoting Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001)); see Bachelder, 259 F.3d at 1125 (“In order to prevail on her [FMLA interference] claim, therefore, Bachelder need only prove by a preponderance of the evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her. She can prove this claim, as one might any ordinary statutory claim, by using either direct or circumstantial evidence, or both.”); see also Garity v. APWU Nat'l Lab. Org., 828 F.3d 848, 858 n.9 (9th Cir. 2016) (recognizing Brown declined to apply Title VII's burden-shifting to interference-only claims). The City argued that McDonnel Douglas burden-shifting applied in its briefing, but walked this position back at oral argument. Indeed, in Brown v. City of Tucson, the Ninth Circuit held that when a plaintiff alleges only ADA interference, not interference (§ 503(b)) and retaliation
In his briefing, plaintiff asked the court to adopt the Seventh Circuit's approach in Frakes v. Peoria Sch. Dist. No. 150, 872 F.3d 545 (7th Cir. 2017). Pl. Resp. City 12-14, ECF 55. Frakes requires plaintiffs to allege they “engaged in activity statutorily protected by the ADA.” 872 F.3d at 550-51. However, plaintiff changed course at oral argument by arguing § 503(b) can be violated without first engaging in protected activity.
“Statutory interpretation begins with the plain meaning of the statute's language.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 732 (9th Cir. 2007) (quoting Botosan v. Paul McNally Realty, 216 F.3d 827, 831 (9th Cir. 2000). Statutes must “be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 U.S. 303, 314 (2009) (simplified).
Again, ADA § 503(b) provides:
It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.42 U.S.C. § 12203(b). The plain language of § 503(b) prohibits three separate categories of conduct: (1) interference “with any individual in the exercise or enjoyment of” an ADA right, (2) interference “with any individual . . . on account of his or her having exercised or enjoyed” an ADA right, and (3) interference “with any individual . . . on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of” an ADA right. See id.
Thus, under the first prong of § 503(b), a plaintiff need not allege he was engaged in protected activity for a defendant to interfere with the exercise or enjoyment of that right. Whereas the second prong requires an individual to have “exercised or enjoyed” an ADA right, the first prong does not. An individual need not have exercised or enjoyed an ADA right for a defendant to interfere with the exercise or enjoyment of that right. For the first prong to retain any meaning, see Corley, 556 U.S. at 314, it cannot be interpreted just like the second. Thus, under the first prong of § 503(b), plaintiff need not allege he was engaged in protected activity.
This interpretation does not break new ground. In Breimhorst v. Education Testing Service, the court advanced this line of reasoning when finding students with disabilities stated an interference claim without having first engaged in a protected activity. No. C-99-CV-3387, 2000 WL 34510621, at *7 (N.D. Cal. Mar. 27, 2000) (“The plain words of the statute . . . preclude a party from intimidating or coercing another party not to exercise his rights under the ADA, as well as barring interference against a person who has exercised his rights under the ADA.”). The plaintiffs alleged an administrator's policy of flagging tests of students who received reasonable test-taking accommodations as having taken the tests under “special conditions” intimidated them from requesting such accommodations. See Id. Several other courts have likewise allowed a § 503(b) claim to proceed when the plaintiffs had not engaged in protected activity. E.g., Bingham v. Oregon Sch. Activities Ass'n, 24 F.Supp.2d 1110, 1118-19 (D. Or. 1998) (finding plaintiff showed a likelihood of success on the merits of § 503(b) claim when school policy “clearly operates to dissuade disabled student-athletes from exercising their rights to petition the courts for redress”); Doe v. Kohn Nast & Graf, P.C., 866 F.Supp. 190, 197 (E.D. Pa. 1994) (finding lawyer stated a § 503(b) claim when his law firm asked him to leave after learning he planned to sue the firm for refusing to renew his employment contract after discovering he was HIV positive, but before the lawyer took any protected action).
This analysis comports with the Ninth Circuit's recent, unpublished opinion in Annenberg v. Clark Cty. Sch. Dist., 818 Fed.Appx. 674, 678 (9th Cir. 2020). There, the Ninth Circuit held the plaintiff “must, at a minimum, identify a right to which she was entitled under the ADA and allege that the District interfered with that right in some way.” Id. (citing 42 U.S.C. § 12203(b)).
The City relies on a handful of cases, most notably the Ninth Circuit's decision in Brown and the Seventh Circuit's decision in Frakes, for the position that plaintiff must allege he engaged in protected activity to state an ADA interference claim. Brown is binding and instructive, but it does not foreclose an interference claim premised on the first prong of § 503(b). In Brown, the Ninth Circuit held that the interpretation of § 503(b) should be guided by the treatment of similar interference provisions found in the Fair Housing Act, 42 U.S.C. § 3617, the Family and Medical Leave Act, 29 U.S.C. § 2615(a)(1), and National Labor Relations Act, 29 U.S.C. § 158(a)(1). Those provisions are “broadly applied to reach all practices which have the effect of interfering with the exercise of rights” covered by the statutes. See Brown, 336 F.3d at 1191 (quoting United States v. City of Hayward, 36 F.3d 832, 835 (9th Cir. 1994)). All the same, the Ninth Circuit counseled courts to “tread carefully” because interference claims raise some of the same “countervailing concerns” as retaliation claims:
On the one hand, we worry that employers will be paralyzed into inaction once an employee has lodged a complaint under Title VII, making such a complaint tantamount to a ‘get out of jail free' card for employees engaged in job misconduct. On the other hand, we are concerned about the chilling effect on employee complaints resulting from an employer's retaliatory actions.Id. at 1192 (quoting Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000)). The court found these concerns to be more acute in the context of the ADA's interference provision because it “protects a broader class of persons against less clearly defined wrongs.” Id. “Clearly, anti-interference provisions such as those contained in the FHA and ADA cannot be so broad as to prohibit ‘any action whatsoever that in any way hinders a member of a protected class.'” Id. (quoting Mich. Prot. & Advoc. Serv. v. Babin, 18 F.3d 337, 347 (6th Cir. 1994)).
The plaintiff in Brown, a detective, had engaged in protected activities by requesting and receiving the accommodation of being “excused from nighttime call-out duty” and filing a complaint against her supervisor. Id. at 1182; id. at 1187 (“Brown was engaged in activity protected by the ADA when she lodged a complaint against Sgt. Holliday”); id. at 1193 (“Brown already had been granted her accommodation”). Although the Brown court reproduced ADA § 503(b) in full, it did not say under which prong of the statute it was operating. The conduct could have implicated the first two categories of prohibited conduct, as the employer threatened the plaintiff after she had engaged in protected activities. See 336 F.3d at 1182-85, 1187. Thus, Brown does not hold that all plaintiffs must be engaged in a protected activity for a defendant's conduct to trigger only § 503(b)'s first prong.
What is more, the facts in Brown did not provide the Ninth Circuit with much of an opportunity to define “what constitutes ‘interference'-or even ‘coercion' or ‘intimidation'- within the terms of § 503(b).” See Id. at 1192. The court required that the plaintiff suffer a “distinct and palpable injury, ” which could consist of either the giving up of the ADA right, or some other injury which resulted from refusal to give up the rights, or from the threat itself. See Id. at 1193 (citing Walker v. City of Lakewood, 272 F.3d 1114, 1123 (9th Cir. 2001)). And ultimately, the court held “the plain language of § 503(b) clearly prohibits a supervisor from threatening an individual with transfer, demotion, or forced retirement unless the individual foregoes a statutorily protected accommodation.” Id.
Following Brown, it was unclear “whether an employee [could] prevail on a 503(b) interference-only claim by showing that the employer has interfered with the enjoyment of a statutorily-protect right, or whether the employee also must establish there is a causal link between the employee's enjoyment of such a right and the employer's conduct.” Bayer, 2018 WL 2427787, at *7. To date, the Ninth Circuit has yet to articulate the “precise legal standard” applicable to ADA interference-only claims and has left open the possibility that a plaintiff need not show “a causal link between the protected conduct and the adverse action.” See Bayer v. Neiman Marcus Grp., Inc., 843 Fed.Appx. 74, 75, 75 n.1 (9th Cir. 2021) (cited pursuant to Ninth Circuit Rule 36-3). Several district courts in the Ninth Circuit have required a causal link. E.g., Tankersley v. MGM Resorts Int'l, No. 2:20-cv-00995-RFB-DJA, 2021 WL 1234505, at *3 (D. Nev. Mar. 31, 2021) (citing Brown and requiring the plaintiff establish “he was subjected to interference, coercion or threats in relation to the exercise or enjoyment of that right”) (emphasis added); Armstrong v. Newsom, No. 94-CV-02307 CW, 2021 WL 933106, at *7 (N.D. Cal. Mar. 11, 2021) (citing Brown and requiring “the threat, intimidation, or coercion has a nexus to the exercise or enjoyment of an ADA right”) (emphasis added). Without this causal-link requirement, any conduct that “tends to chill” the exercise or enjoyment of ADA rights would violate the statute. See Brown, 336 F.3d at 1191 (quoting Cal. Acrylic Indus., Inc. v. NLRB, 150 F.3d 1095, 1099 (9th Cir. 1998)).
(1) she engaged in activity statutorily protected by the ADA; (2) she was engaged in, or aided or encouraged others in, the exercise or enjoyment of ADA protected rights; (3) the defendants coerced, threatened, intimidated, or interfered on account of her protected activity; and (4) the defendants were motivated by an intent to discriminate. 872 F.3d at 550-51. Aware of the potential overreach of the interference provision, the Seventh Circuit requires the plaintiff to establish a causal link between a plaintiff's protected activities and the defendant's alleged wrongful coercive or intimidating conduct. See Frakes, 872 F.3d at 550-51. To establish an ADA interference claim under Frakes, a plaintiff must show that
2. Interference “in the exercise or enjoyment of”
The Second Amended Complaint states an interference-only claim under the first prong of § 503(b), i.e., the “in the exercise or enjoyment of” prong. As explained above, to state a claim under this provision, plaintiff must identify an ADA-protected right, must allege the City interfered with the exercise or enjoyment of that right, and must allege he suffered a distinct and palpable injury as a result. Also, assuming it is required, plaintiff must allege a causal link between the interference and the exercise or enjoyment of the activity protected by the ADA.
Plaintiff asserts the City interfered with the exercise of his right to seek accommodations for his heart condition by telling him not to talk about it. Second Am. Compl. ¶ 69, ECF 43. Requesting an accommodation is a protected activity. Coons v. Secretary of U.S. Dept. of Treasury, 383 F.3d 879, 887 (9th Cir. 2004). Plaintiff alleges that on January 16, 2018, he disclosed his heart condition to Sergeant Goff and Sergeant Goff told plaintiff, “Keep this to yourself.” Second Am. Compl. ¶ 26, ECF 43. He also alleges that on January 25, 2018, Sergeant Goff told plaintiff he “did not want Plaintiff to mention his heart condition to him again.” Id. ¶ 33. These statements sufficiently allege interference because they would deter a reasonable employee from participating in a protected activity. See Bachelder, 259 F.3d at 1124 (“employer actions that deter employees' participation in protected activities constitute ‘interference' or ‘restraint' with the employees' exercise of their rights”).
Plaintiff also has alleged a distinct and palpable injury: the giving up of his right to seek reasonable accommodation. See Brown, 336 F.3d at 1193. Finally, the allegations meet any causal-link requirement. Instructing an employee not to speak about or bring up his disability necessarily implies he cannot ask for a reasonable accommodation for that disability.
As discussed in the next section, plaintiff's additional allegations allude to a reluctance to ask for accommodations and instead focus on the perceptions of his peers and supervisors. Although the effect of this reluctance was that plaintiff failed to request a reasonable accommodation and thereby failed to engage in a protected activity, it may illustrate the forcefulness of the City's interference with plaintiff's exercise of his right to request accommodations.
3. Interference “on account of his or her having exercised or enjoyed”
An interference-only claim under § 503(b)'s “on account of” prong requires, in addition to the above elements, for the plaintiff to have engaged in a protected activity. See 42 U.S.C. § 12203(b). Plaintiff asserts he was engaged in the activity of requesting a reasonable accommodation. Pl. Resp. City 17-22, ECF 55.
An accommodation is “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” 29 C.F.R. § Pt. 1630, App. § 1630.2(o). The ADA's implementing regulations define reasonable accommodation to mean:
(i) Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or
(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; or
(iii) Modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.29 C.F.R. § 1630.2(o)(1). Examples of reasonable accommodations include “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 29 C.F.R. § 1630.2(o)(2)(ii).
A request for reasonable accommodation “does not need to be phrased in terms of ‘demand for accommodation.'” Roloff v. SAP America, 432 F.Supp.2d 1111, 1119 (D. Or. 2006); see also Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000) (en banc), vacated on other grounds, U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) (“An employee requesting a reasonable accommodation should inform the employer of the need for an adjustment due to a medical condition using ‘plain English' and need not mention the ADA or use the phrase ‘reasonable accommodation.'”) (internal quotation omitted).
“[O]nce an employee requests an accommodation or an employer recognizes the employee needs an accommodation but the employee cannot request it because of a disability, the employer must engage in an interactive process with the employee to determine the appropriate reasonable accommodation.” Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (discussing Barnett, 228 F.3d at 1112). The employer need not speculate as to the extent of the employee's disability or the desire for an accommodation. Wessels v. Moore Excavation, Inc., No. 3:14-CV-01329-HZ, 2016 WL 1589894, at *18 (D. Or. Apr. 18, 2016) (citing Kelley v. Amazon.com, Inc., No. 12-CV-5132-TOR, 2013 WL 6119229, at *6 (E.D. Wash. Nov. 21, 2013), aff'd, 652 Fed.Appx. 524 (9th Cir. 2016)); Kelley, 2013 WL 6119229, at *6 (rejecting the plaintiff's position that Kimbro v. Atl. Richfield Co., 889 F.2d 869, 876 (9th Cir. 1989) stands “for the proposition that an employer must affirmatively investigate potential work-related limitations upon learning of an employee's disability”).
The general rule is that the employee must make a specific, initial request for accommodation to trigger the interactive process. Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1188 (9th Cir. 2001) (citing Barnett, 228 F.3d at 1112). An employer's recognition of the need for an accommodation, however, may trigger the interactive process “even if the employee does not specifically make the request.” Id. This exception to the general rule only applies “when the employer (1) knows that the employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation.” Id. (internal quotation marks omitted). Plaintiff does not argue the exception applies here. Instead, plaintiff asserts he requested accommodations and the city interfered with his exercise of this protected activity.
The court previously dismissed plaintiff's ADA retaliation claim, finding “Plaintiff has not alleged that he made a specific, timely request for accommodation.” O&O 3, ECF 41. Plaintiff alleged how he disclosed his heart condition to his peers and supervisors, but he never made “an initial, specific accommodation request.” F&R 12, ECF 27. And although he made “two specific requests-to complete his probationary status and to retake the midterm-they were not timely. He made both requests after failing the midterm.” Id.
Here, at oral argument, plaintiff identified eight requests and interactions that he claims qualify as requests for accommodation, several of which were addressed in the previous Findings and Recommendations. The first two concern plaintiff's request to retake the pre-hire Oregon Physical Abilities Test (“OR-PAT”) and the provision of a doctor's note stating plaintiff cannot be tased because of his heart condition. The next four interactions are between plaintiff and his direct supervisor at the City, PPB Sergeant Goff. The seventh and eight requests are plaintiff's untimely requests to complete his probationary status and to retake the midterm, which fail to trigger the interactive process for the reasons previously addressed. See F&R 11-12, ECF 27.
a. OR-PAT and Taser Requests
Plaintiff asserts his request to retake the OR-PAT constitutes a request for accommodation. Second Am. Compl. ¶ 22, ECF 43. However, all officers-in-training can retake the OR-PAT until they pass it. See OAR 259-008-0085(21)(a)(E) (requiring “successful completion”) (previously codified at OAR 259-008-0085(19)(a)(E) (2017)). This request is not a request for accommodation because there was no requirement to grant an exception. The request did not require “modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed” or affect the enjoyment of “equal benefits and privileges of employment.” See 29 C.F.R. § 1630.2(o)(1)(ii)-(iii).
Plaintiff also relies on a letter provided to the pre-hire examining physician “from his cardiologist who wrote that Plaintiff was physically fit and cleared by his medical provider to serve as an active Police Officer so long as he does not have a Taser used on him during training” due to his heart condition. Second Am. Compl. ¶ 21, ECF 43. However, plaintiff does not allege that being tased was a requirement of basic training or that he or any other officer-in-training was tased or asked to be tased, even voluntarily. Like the request to retake the OR-PAT, this request was not a request for accommodation because it did not require a modification to the work environment or to the way the position is customarily performed, and it is unrelated to any benefits and privileges of employment. See 29 C.F.R. § 1630.2(o)(1)(ii)-(iii). Plaintiff's representation during oral argument that being tased was within the “realm of possibility” is not an adequate factual predicate to satisfy the Rule 12(b)(6) standard. Even assuming the request not to be tased during training could otherwise qualify as an initial, specific request for accommodation, this was not a request that the City could grant. The complaint alleges the State, through DPSST, conducts and coordinates basic training, and does not allege the City had any control over how the State administered the training. Second Am. Compl. ¶ 13, ECF 43.
b. Interactions with PPB Sergeant Goff
The third through sixth interactions are between plaintiff and Sergeant Goff. Although the third, fourth, and fifth interactions are not alleged in the Second Amended Complaint, plaintiff asserts he would allege them if given another opportunity to amend.
In the third and fourth interactions, plaintiff would allege that he discussed his heart condition with Sergeant Goff at PPB's training center, before he left for basic training with DPSST. Plaintiff claims they discussed two things. First, plaintiff told Sergeant Goff about the letter from his doctor clearing plaintiff to work so long as he was not tased during training. Second, plaintiff asked not to be perceived as lazy by the instructors if he fatigued faster due to his heart condition while in the PPB academy. But again, because plaintiff does not allege that being tased was a requirement of basic training, that interaction would not have put Sergeant Goff on notice that plaintiff needed to be accommodated. Plaintiff's request not to be perceived as lazy also is not a request for reasonable accommodation. True, an instructor at a police academy might perceive an officer-in-training who fatigued quickly to be lazy. A request not to be perceived as lazy is a request to modify or adjust that perception. But this is not a legally cognizable request. Unlike the examples of accommodations listed in the ADA's implementing regulations, see 29 C.F.R. § 1630.2(o)(2)(i)-(ii), whether an employer perceives an employee as lazy has no bearing on whether the individual is qualified to perform the essential functions of the position or the enjoyment of equal privileges and benefits of employment.
In the fifth interaction, plaintiff would allege that he told Sergeant Goff he fatigued quickly during physical exercise and asked whether the DPSST academy instructors knew about his heart condition. This interaction is not a request for accommodation for two reasons. First, mere disclosure of one's disability is not a request for accommodation. See Manning v. Tacoma Pub. Sch., No. C06-5078 RBL, 2007 WL 2495138, at *14 (W.D. Wash. Aug. 30, 2007) (finding the plaintiff's disclosure of her dyslexia was not a vigorous assertion of her rights under the ADA and was therefore not a protected activity); Lackey v. Heart of Lancaster Reg'l Med. Ctr., No. CV 15-415, 2016 WL 5461185, at *8 (E.D. Pa. Sept. 29, 2016) (finding the plaintiff had not engaged in protected activity under the ADA when she disclosed her panic attacks but presented no evidence that she requested an accommodation as a matter of law). Second, plaintiff provides no authority suggesting the City had any obligation to seek accommodations on his behalf with the State. In the Ninth Circuit, the employer's duty to engage in the interactive process when the employee fails to request a reasonable accommodation is only triggered when “the employee cannot request it because of a disability.” Zivkovic, 302 F.3d at 1089; see also Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1188 (9th Cir. 2001).
The City moves to dismiss this part of plaintiff's claims on the basis that only plaintiff can ask for accommodations. City Mot. 7, ECF 48. But “courts may not dismiss only some of the claim's allegations if the claim otherwise survives.” Redwind v. Western Union, LLC, 18-cv-02094, 2019 WL 3069864, at *4 (D. Or. June 21, 2019); see Floyd Blinsky Trucking, Inc. v. Navistar, Inc., No. C15-5467 BHS, 2020 WL 7043299, at *2 (W.D. Wash. Dec. 1, 2020) (“‘A motion to dismiss under Rule 12(b)(6) doesn't permit piecemeal dismissals of parts of claims; the question at this stage is simply whether the complaint includes factual allegations that state a plausible claim for relief.'”). Moreover, making a motion on the penultimate page of a brief forsakes both the spirit and letter of Local Rule 7-1(b), which requires that “[e]very motion must concisely state the relief sought and be stated in a separate section under the heading ‘Motion.' Motions may not be combined with any response, reply, or other pleading.”
In the sixth interaction, plaintiff sought advice from Sergeant Goff about failing the OR-PAT, and explained he failed the test because of his heart condition. Id. ¶ 33. Because all officers-in-training could retake the OR-PAT, this interaction would not have put Sergeant Goff on notice that plaintiff needed an accommodation.
In sum, even considering the allegations plaintiff proffered during oral argument, plaintiff fails to allege he engaged in a protected activity. Plaintiff only alleges he disclosed his disability and made requests unrelated to reasonable accommodations. Thus, he fails to state an interference-only claim under § 503(b)'s “on account of” prong, and he is not entitled to revive his retaliation claim. Even so, plaintiff states an interference-only claim under § 503(b)'s “in the exercise or enjoyment of” prong.
IV. State's Motion to Dismiss (ECF 46)
A. Procedural History
Previously, in his claims against the State, plaintiff alleged violations of Title II of the ADA, Section 504 of the Rehabilitation Act, and O.R.S. 659A.142(5)(a). The court construed these allegations as asserting a claim for failure to accommodate and, because plaintiff sought money damages, applied the test for deliberate indifference. See F&R 14, 16-18, ECF 27. The court then granted the State's motion to dismiss, finding plaintiff failed to adequately allege he put the State on notice of his need for accommodation, which is the first element of the test for deliberate indifference in the context of a failure-to-accommodate claim. See Id. at 16 (citing Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1138-39 (9th Cir. 2001), as amended on denial of reh'g en banc (Oct. 11, 2001)). Plaintiff was given leave to amend his complaint to allege a claim for discrimination in public services. Id. at 19.
The Second Amended Complaint alleges, in conclusory fashion, that the State engaged in discriminatory acts or practices such as establishing testing criteria and methods that unnecessarily restrict participation by individuals with disabilities, refusing to modify its overly restrictive testing criteria, intimidating and interfering with plaintiff's attempts to request accommodations, refusing to modify its policies, and being motivated to exclude people with disabilities from being selected over individuals without disabilities. Second Am. Compl. ¶¶ 96-100, 116-19, 133-35, ECF 43. Plaintiff also alleges that the State's conduct showed deliberate indifference to his rights. Id. ¶¶ 102, 121. However, plaintiff then incorporates by reference many factual allegations set forth earlier in the complaint. This court held oral argument because it was unclear what legal theories plaintiff meant to assert against the State.
At oral argument, plaintiff clarified that he asserts four distinct legal theories. Under 42 U.S.C. § 12132, he asserts (1) exclusion from participation in or denial of benefits, (2) intentional discrimination or deliberate indifference, and (3) disparate impact. He also asserts interference. He seeks monetary damages and declaratory and injunctive relief separately under each theory.
The State moves to dismiss all claims against it, arguing that the Second Amended Complaint does not rectify the shortcomings of plaintiff's amended complaint (ECF 3), and does not support the claim that the State either interfered with plaintiff's ADA rights or that its testing criteria has the effect of excluding people with disabilities. State Mot. 2, 4-6, ECF 46; State Reply 2-5, ECF 61.
The discrimination claims are discussed first, followed by the interference claims.
B. Discrimination Claims
1. Relevant Law
Title II of the ADA “forbids any ‘public entity' from discriminating based on disability.” Fry v. Napoleon Cmty. Sch., 137 S.Ct. 743, 749 (2017). Title II provides:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.42 U.S.C. § 12132.
Section 504 of the Rehabilitation Act similarly prohibits any federally funded “program or activity” from discriminating based on disability. Fry, 137 S.Ct. at 749. Section 504 provides:
No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .29 U.S.C. § 794(a). Oregon law applies the same prohibition to state governments:
It is an unlawful practice for state government to exclude an individual from participation in or deny an individual the benefits of the services, programs or activities of state government or to make any distinction, discrimination or restriction because the individual has a disability.O.R.S. 659A.142(5)(a).
ADA and Rehabilitation Act claims are analyzed together because the statutes provide identical “remedies, procedures and rights.” Vos v. City of Newport Beach, 892 F.3d 1024, 1036 (9th Cir. 2018); T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 467 (9th Cir. 2015) (analyzing ADA Title II and Rehabilitation Act § 504 claims together because the statutes are “almost identical”). Further, the standard for establishing a prima facie case under the Oregon disability statute is the same as the analogous ADA provision. See O.R.S. 659A.139(1); Wheeler v. Marathon Printing, Inc., 157 Or.App. 290, 301 n.6 (1998) (noting that the Oregon statutory scheme for workplace discrimination against disabled persons “contain[s] language significantly similar to the ADA”). Thus, the same analysis applies to all three claims.
To prove that a public program or service violated Title II of the ADA, a plaintiff must show “(1) he is a ‘qualified individual with a disability'; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.” Updike v. Multnomah Cty., 870 F.3d 939, 949 (9th Cir. 2017) (quoting Duvall, 260 F.3d at 1135). Discrimination can take three forms: (1) intentional discrimination, i.e., disparate treatment, (2) disparate impact, or (3) failure to provide a reasonable accommodation. See McGary v. City of Portland, 386 F.3d 1259, 1266 (9th Cir. 2004) (distinguishing disparate treatment and disparate impact claims from reasonable accommodation claims); J.V. v. Albuquerque Pub. Sch., 813 F.3d 1289, 1295 (10th Cir. 2016) (so stating). Where, as here, a disability action seeks monetary relief, a plaintiff must also prove a fourth element--intentional discrimination--met by allegations that satisfy the “deliberate indifference” standard. Duvall, 260 F.3d at 1138-39.
For purposes of the State's motion, there is no dispute that plaintiff is a qualified individual with a disability and that DPSST is a department of the State that receives federal assistance. State Mot. 2, 3, 5, ECF 12.
It follows that a plaintiff need not prove intentional discrimination when alternatively seeking only injunctive relief. See Duvall, 260 F.3d at 1138-39. (dismissing discrimination claims for injunctive relief for lack of standing but analyzing the same under the deliberate indifference standard).
2. Analysis
Under the above framework, the first question is whether plaintiff has adequately pleaded deliberate indifference. He has not, as discussed below. Therefore, his discrimination claims for money damages fail. The next question is whether plaintiff has standing to seek injunctive relief, and whether he is entitled to any declaratory relief. Although plaintiff's requests for declaratory relief are either moot or superfluous, he has standing to seek injunctive relief. Thus, the final questions are whether plaintiff has adequately pleaded his claims for exclusion from participation in or denial of benefits and disparate impact. He has not, for the reasons that follow.
a. Deliberate Indifference
A plaintiff sufficiently alleges deliberate indifference by pleading two elements: (1) notice of the need for accommodation, and (2) a failure to act. See Duvall, 260 F.3d at 1139. A plaintiff can allege notice by pleading that: (1) the plaintiff “alerted the public entity to [the plaintiff's] need for accommodation, ” (2) “the need for accommodation [was] obvious, ” or (3) the need for accommodation was “required by statute or regulation.” Id. at 1139. The failure to act, meanwhile, “must be a result of conduct that is more than negligent” and “involve[] an element of deliberateness.” Id. Failure that is merely “attributable to bureaucratic slippage” does not amount to deliberate indifference. Id.
i. Notice
Previously, the court found plaintiff “failed to allege that the State was on notice that he was requesting accommodations for the purpose of the written midterm.” O&O 3, ECF 41 (citing F&R 18, ECF 27). Plaintiff failed to allege that he alerted the State to his additional need for accommodation, that this need for accommodation was obvious, or that an accommodation was required by statute or regulation. See F&R 17-18, ECF 27. Plaintiff's amendments fail to cure these deficiencies.
At oral argument, plaintiff identified five requests and interactions that he claims qualify as requests for accommodation, which are discussed in turn.
On January 24, 2018, plaintiff emailed DPSST Instructor Lieutenant Donald Sedlacek. He wrote, “due to my serious health condition. . . I can fatigue at a fast rate.” Second Am. Compl ¶ 31, ECF 43. This is not a request for anything, much less for an accommodation.
On January 25, 2018, plaintiff sought Sergeant Goff's advice about failing the OR-PAT and explained that the failure was due to his heart condition. Id. ¶ 33. As explained above, requests to retake the OR-PAT are not requests for accommodation because all officers were permitted to retake the test. Further, Sergeant Goff is a City employee, and plaintiff has not alleged facts plausibly linking Sergeant Goff to the State.
On January 26, 2018, plaintiff told Lieutenant Sedlacek he had a heart condition and was concerned about a speech Lieutenant Stradley made about the OR-PAT. Id. Plaintiff asked Lieutenant Sedlacek about telling his instructors about his condition, but Lieutenant Sedlacek told plaintiff to keep his condition to himself. Id. Although this interaction is relevant to the interference claim, as explained below, mere disclosure of one's disability is not an accommodation request. See Manning, 2007 WL 2495138, at *14; Lackey, 2016 WL 5461185, at *8.
Finally, after failing the written midterm, plaintiff requested accommodations from Lieutenant Sedlacek, Director Gabliks, Sergeant Goff, Mr. Herb, and Mr. Leloff. Second Am. Compl ¶¶ 40, 45, ECF 43. However, as explained in the prior Findings and Recommendations, requesting accommodations after the fact does not weigh into the discrimination determination. See F&R 17, ECF 27.
ii. Failure to Act
The State could not have failed to act because it was not on notice that it needed to act. But even assuming plaintiff somehow alleges notice sufficiently, the allegations that plaintiff fatigued quickly are simply too far removed from plaintiff's need for accommodation in written testing that any reasonable State actor could be said to have intentionally failed to act on that need. Indeed, plaintiff alleges he “performed well on all academic examinations” before the midterm while a “number of his classmates scored significantly lower.” Id. ¶ 39.
As plaintiff has again failed to plead deliberate indifference adequately, his claims for legal relief (i.e., intentional discrimination, and exclusion from participation in or denial of benefits and disparate impact to the extent he seeks legal relief) should be dismissed.
b. Equitable Relief
Plaintiff seeks declaratory and injunctive relief under Title II of the ADA in the form of a declaration that the State violated his “statutory rights, reinstatement, and an injunction prohibiting further discrimination and retaliation and requiring defendant State to modify its policies and procedures and prohibit further exclusion from participation in or denial of the benefits of the services, programs, or activities of the public entity.” Second Am. Compl ¶ 104 (claim four), ECF 43. Under the Rehabilitation Act and O.R.S. 659A.142, plaintiff seeks a declaration that the State violated his “statutory rights, reinstatement, and an injunction prohibiting further discrimination and retaliation.” Id. ¶¶ 124 (claim five), 138 (claim six). The State argues plaintiff's claims for equitable relief should be dismissed as moot. See State Mot. 2, 6-7, ECF 46. As discussed below, plaintiff has standing to seek injunctive relief, but his claims for declaratory relief are either moot or superfluous.
i. Injunctive Relief
Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” See U.S. Const. art. III, § 2, cl. 1. This case or controversy requirement constitutes the “irreducible constitutional minimum of standing.” Krottner v. Starbucks Corp., 628 F.3d 1139, 1141 (9th Cir. 2010) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560(1992)). To satisfy the Article III standing requirement, a plaintiff must show that
(1) it has suffered an ‘injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.Krottner, 628 F.3d at 1139 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)). “Apart from this, standing for injunctive relief requires that a plaintiff show a ‘real and immediate threat of repeated injury.'” Updike, 870 F.3d at 947 (O'Shea v. Littleton, 414 U.S. 488, 496 (1974)).
Although neither party addresses this later standing requirement, the court has “both the power and the duty to raise the adequacy of [plaintiff's] standing sua sponte.” Bernhardt v. Cty. of Los Angeles, 279 F.3d 862, 868 (9th Cir. 2002); D'Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th Cir. 2008) (“federal courts are required sua sponte to examine jurisdictional issues such as standing”) (quoting Bernhardt, 279 F.3d at 686).
“The doctrine of mootness, which is embedded in Article III's case or controversy requirement, requires that an actual, ongoing controversy exist at all stages of federal court proceedings.” Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 862 (9th Cir. 2017) (citation omitted). The doctrine of mootness can be described as “standing set in a time frame.” Id. (citation omitted). On a motion to dismiss, “a plaintiff need only show that the facts alleged, if proven, would confer standing.” Id. (citing Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002)). “The party asserting mootness bears the heavy burden of establishing that there remains no effective relief a court can provide.” Id. (citation omitted).
“The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted.” Id. (citation omitted). “An action ‘becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.'” Id. (quoting Chafin v. Chafin, 568 U.S. 165, 172 (2013)). Put another way, the plaintiff must show he is “realistically threatened by a repetition of the violation.” Gest v. Bradbury, 443 F.3d 1177 (9th Cir. 2006) (emphasis in original) (citation omitted).
Here, the State argues injunctive relief is unavailable because plaintiff does not allege that he is enrolled in the Academy or that he is employed or seeking employment with another law enforcement agency that would require his enrollment in the Academy. The State asserts any request for injunctive relief at this point is “purely speculative.” State Reply 5, ECF 61. Plaintiff counters that through this action, the court may enter an injunction requiring the City to reinstate plaintiff. Pl. Resp. State 24, ECF 54. If reinstated, plaintiff would again be required to attend the Academy.
Plaintiff's requests for injunctive relief are not moot. The State is correct that the Second Amended Complaint contains no allegations that plaintiff is now seeking employment that would lead to his re-enrollment in the Academy. But plaintiff is seeking reinstatement as a form of relief against the City. See Second Am. Compl. ¶¶ 61, 71, 87, ECF 43. That relief would place plaintiff back in the Academy through O.R.S. 181A.490. This is not speculative. Instead, it hinges on the merits of plaintiff's claims against the co-defendant in this lawsuit. The State further asserts “there is simply nothing to enjoin” because there is no basis for assuming what DPSST might do if plaintiff was re-enrolled in the Academy. State Reply 5, ECF 61. But whether there is something to enjoin depends on the merits of plaintiff's claims.
Although neither party addressed it, plaintiff has also shown a real and immediate threat of repeated injury, as the State does not represent that it has altered any policies or procedures in response to plaintiff's allegations. See Updike, 870 F.3d at 947-48 (finding this requirement was not met when the plaintiff failed to show the “wrongful conduct will likely not occur again” after the defendant changed its procedures, and accounting for the assumption the plaintiff would conform his activities within the law such that he would not be arrested and detained in the future). Plaintiff has standing to pursue his claims for injunctive relief.
ii. Declaratory Relief
Valid requests for declaratory relief target prospective conduct. They are used to “afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding, ” Bilbrey by Bilbrey v. Brown, 738 F.2d 1462, 1470 (9th Cir. 1984), or for parties to obtain an adjudication of their rights before actual injuries or losses have occurred. Albert v. Fair Assocs., No. 12-11812, 2013 WL 275329, at *9 (E.D. Mich. Jan. 24, 2013).
Requests for retrospective declaratory relief are either moot or superfluous. Claims seeking only retrospective declaratory relief are moot because the “case or controversy” is no longer live. Green v. Branson, 108 F.3d 1296, 1299 (10th Cir. 1997); McQuillion v. Schwarzenegger, 369 F.3d 1091, 1095 (9th Cir. 2004) (relying on Green). A case is live if it continues to touch the legal relations of parties having adverse legal interest in the outcome. DeFunish v. Odegaard, 416 U.S. 312, 317 (1974); Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1128-29 (9th Cir. 2005). “This ‘legal interest' must be more than simply the satisfaction of a declaration that a person was wronged.” Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir. 1994) (citing Ashcroft v. Mattis, 431 U.S. 171, 172-173 (1997)) superseded on other grounds as recognized in Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1278 (10th Cir. 2001); Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir. 2011) (“a plaintiff must be seeking more than a retrospective opinion that he was wrongly harmed by the defendant”).
Claims seeking retrospective declaratory relief are superfluous when they are intertwined with a claim for money damages. “[C]ourts have declined to award such relief where ‘the issuance of a declaratory judgment would have much the same effect as a full-fledged award of damages or restitution by the federal court.'” Mendia v. Garcia, 165 F.Supp.3d 861, 894 (N.D. Cal. 2016) (quoting Green v. Mansour, 474 U.S. 64, 73 (1985)) (alterations omitted); McQuillion, 369 F.3d at 1095 (“declaratory judgment without the possibility of prospective effect would be superfluous”); see also Nat'l Audubon Soc'y, Inc. v. Davis, 307 F.3d 835, 848 n.5 (9th Cir. 2002), opinion amended on denial of reh'g, 312 F.3d 416 (9th Cir. 2002) (“[W]e consider declaratory relief retrospective to the extent that it is intertwined with a claim for monetary damages that requires us to declare whether a past constitutional violation occurred. In such a situation, however, declaratory relief is superfluous in light of the damages claim.”).
Here, plaintiff seeks “a declaration that Defendant State violated Plaintiff's statutory rights.” Second Am. Compl. ¶¶ 104, 124, 137 (emphasis added), ECF 43. Plaintiff's request for declaratory relief is therefore superfluous or moot-the request is moot if plaintiff seeks an opinion that he was wrongly harmed, and it is superfluous if it is intertwined with his requests for legal relief. Plaintiff's claims for declaratory relief must be dismissed.
3. Excluded from Participation or Denied the Benefits
Plaintiff fails to state a denial-of-benefits claim. The Second Amended Complaint alleges, in conclusory fashion, that:
(1) the “State's actions and omissions as described above violated Plaintiff's rights under the Rehabilitation Act by excluding him or denying him the benefits of Defendant State's DPSST courses, classes, programs, and activities because of his disability, ” Second Am. Compl. ¶ 114, ECF 43,
(2) the “State has established testing criteria, methods that unnecessarily restricts participation by individuals with disabilities, such as Plaintiff, ” id. ¶ 116, and
(3) the “State refused to modify its policies and practices to allow Plaintiff to fully and equally participate in its services.” Id. ¶ 117.
With regard to the “acts and omissions as described above, ” id. ¶ 114, the court is at a loss to uncover any facts plausibly supporting these legal conclusions. When pressed to describe this claim during oral argument, paintiff invoked Updike and asserted that once he disclosed his disability to the State-and no matter if he requested accommodations-the State had a duty to assess him and make sure he received the benefits of the Academy on an equal basis with other officers-in-training. On the contrary, Updike refutes this position.
There, a deaf man, whose primary language was American Sign Language, was arrested and booked in the county detention center for domestic disturbance. 870 F.3d at 943. The plaintiff repeatedly requested specific accommodations to enable effective communication throughout the booking process, during his short detention, and at his arraignment. See Id. at 943-46, 954-58. Moreover, one of the services provided by the county during its pretrial release interview was “an assessment of the language needs of an individual.” Id. at 945.
The County's employees knew that Updike was deaf but did not provide Updike with an ASL interpreter, TTY device, or closed captioning for television, despite his repeated requests for these accommodations. . . . At no time was Updike assessed to determine to what extent he would need accommodation to ensure that he could communicate effectively with others during his time in custody and under pretrial supervision. Yet “[w]hen an entity is on notice of the need for
accommodation, it is required to undertake a fact-specific investigation to determine what constitutes a reasonable accommodation.”Id. at 957 (quoting A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1207 (9th Cir. 2016)) (emphasis added). Updike thus affirms the requirement that plaintiff had to put the State on notice of his need for accommodation. See Zivkovic, 302 F.3d at 1089; Brown, 246 F.3d at 1188; Duvall, 260 F.3d at 1139; Wessels, 2016 WL 1589894, at *18. As explained in the deliberate indifference analysis above, plaintiff has not adequately pleaded that he requested accommodations from the State.
4. Disparate Impact
“[T]o challenge a facially neutral government policy on the ground that it has a disparate impact on people with disabilities, the policy must have the effect of denying meaningful access to public services.” K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1102 (9th Cir. 2013) (citing Crowder v. Kitagawa, 81 F.3d 1480, 1484 (9th Cir.1996)). The analysis progresses in two steps. Courts first consider the nature of the benefit allegedly denied and then ask whether the defendant's policy provides meaningful access to the benefit. Doe v. CVS Pharmacy, Inc., 982 F.3d 1204, 1210-11 (9th Cir. 2020), cert. granted in part, No. 20-1374, 2021 WL 2742790 (U.S. July 2, 2021) (citing Alexander v. Choate, 469 U.S. 287 (1985)).
Plaintiff recites the Title VII standard for analyzing claims of disparate impact. See Pl. Resp. State 23, ECF 54. However, Title VII governs employment disputes, and because plaintiff alleges he was an employee of the City and not the State, his claim is not properly analyzed under Title VII.
To illustrate, “a law banning elevators in government buildings would be facially neutral but would have the effect of denying people confined to wheelchairs meaningful access to various governmental services.” Fowler v. Sisolak, No. 2:19-cv-01418-APG-DJA, 2020 WL 6270276, at *20 (D. Nev. Oct. 26, 2020); see also, e.g., Crowder, 81 F.3d at 1485 (finding Hawaii's 120-day dog-quarantine policy effectively denied visually impaired individuals with seeing-eye dogs meaningful access to state services).
Here, plaintiff alleges the State “has established testing criteria, methods that unnecessarily restrict[] participation by individuals with disabilities, such as Plaintiff.” Second Am. Compl. ¶¶ 97, 116, 133, ECF 43. The complaint alleges no facts showing that requiring officers-in-training to pass a written test with a score of 75% denies meaningful access to an individual with a heart condition or any physical condition that causes fatigue during high-intensity drills. On the contrary, plaintiff alleges he “performed well on all academic examinations” before the midterm while a “number of his classmates scored significantly lower.” Id. ¶ 39. Although plaintiff alleges several reasons why he did not pass the midterm and had difficulties with the physical testing, see Id. ¶¶ 38, 40, he does not allege any facts to support that the State's testing requirement actually or predictably denies meaningful access for any other individuals with disabilities. See W. Easton Two, LP v. Borough Council of W. Easton, 489 F.Supp.3d 333, 363-64 (E.D. Pa. 2020) (holding plaintiff must show the policy actually or predictably results in discrimination); Machlan v. Neven, No. 3:13-CV-00337-MMD, 2015 WL 1412748, at *20 (D. Nev. Mar. 27, 2015), aff'd, 656 Fed.Appx. 365 (9th Cir. 2016) (granting summary judgment on disparate impact claims in part because the allegations spoke only to the plaintiff's “individual difficulties, ” and offered no proof of an impact on a group of similarly situated persons). Plaintiff's conclusory assertions fail to cannot state a disparate impact claim. See Ashcroft, 556 U.S. at 678.
Although not part of plaintiff's prima facie case, the State's point that obtaining a score of 75% on the written midterm cannot be modified without changing the fundamental nature of the Academy is notable. See Karczewski v. DCH Mission Valley LLC, 862 F.3d 1006, 1010 (9th Cir. 2017) (“If Plaintiff establishes a prima facie case, then Defendant must make the requested modification unless it proves that doing so would alter the fundamental nature of its business.”) (citation omitted); 28 C.F.R. § 35.130(b)(7) (requiring the public entity to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.”). The purpose of the Academy is to produce qualified law enforcement officers. See O.R.S.181A.490; O.R.S.181A.660.
C. Interference Claims
Plaintiff alleges that the State “intimidated and interfered with Plaintiff's attempts to request accommodations thereby preventing him from exercising or fully engaging in his protected rights.” Second Am. Compl. ¶¶ 99, 118, 135, ECF 43. Whereas § 503(b) of the ADA applies to claims under both Titles I and II, see 42 U.S.C. § 12203(b), and thus plaintiff may bring an interference-only claim against the State under the ADA, the Rehabilitation Act and Oregon law contain no parallel interference provision. Therefore, plaintiff's interference claims under the Rehabilitation Act and Oregon law must be dismissed.
As explained in relation to the City's motion above, ADA § 503(b) prohibits three categories of conduct. At oral argument, plaintiff clarified that he intended to assert the same interference theories against the State as he did against the City. These are discussed below.
1. Interference “in the exercise or enjoyment of”
To state a claim under § 503(b)'s “in the exercise or enjoyment of” prong, plaintiff must identify an ADA protected right, and (1) allege the defendant interfered with the exercise or enjoyment of that right, (2) that the plaintiff suffered a distinct and palpable injury as a result, and (3) establish a causal link between the defendant's conduct and the plaintiff's injury, assuming a causal link is required.
Plaintiff alleges the same facts and makes the same arguments to support his claim that the State interfered with his Title II ADA rights as he did to allege that the City interfered with his Title I ADA rights. Compare Pl. Resp. City 12-22, ECF 55, with Pl. Resp. State 11-22, ECF 54. As previously explained, the allegations related to plaintiff's employment claims against the City do not apply to the State. See F&R 14 n.8, ECF 14. This includes allegations concerning PPB Sergeant Goff.
In any event, the Second Amended Complaint also alleges conduct unique to the State. Plaintiff alleges that on January 26, 2018, his class was berated by Lieutenant Stradley for the class's inadequate performance on the OR-PAT. Lieutenant Stradley ended the presentation by telling the class that if they had any questions or concerns, he did “not want to hear them.” Second Am. Compl. ¶ 34, ECF 43. Later the same day, plaintiff disclosed his disability to Lieutenant Sedlacek and asked which staff members needed to know about his condition. Lieutenant Sedlacek told plaintiff he “did not need to go around telling anyone else about the details of his heart condition” and that he “should keep his heart condition to himself because some people in the past had used health conditions as an ‘excuse.'” Id. ¶ 35.
Like the Sergeant Goff's statements discussed above, these statements sufficiently allege interference because they would deter a reasonable individual from requesting reasonable accommodations. See Bachelder, 259 F.3d at 1124. Plaintiff has also met the distinct-and-palpable-injury- and causal-link requirements. Telling an employee not to talk about his disability necessarily implies he cannot ask for a reasonable accommodation for that disability. In following those instructions, plaintiff alleges he gave up his right to seek reasonable accommodation. See Brown, 336 F.3d at 1193.
2. Interference “on account of his or her having exercised or enjoyed”
An interference-only claim under § 503(b)'s “on account of” prong also requires the plaintiff to have engaged in a protected activity. See 42 U.S.C. § 12203(b). Plaintiff fails to state this type of interference claim because, as explained above, the complaint does not sufficiently allege that he requested accommodations for the midterm from the State.
V. Leave to Amend
Plaintiff has requested leave to amend if the court grants any part of the City's motion or the State's motion. Pl. Resp. State 24, ECF 54; Pl. Resp. City 22, ECF 55. Under Federal Rule of Civil Procedure 15(a)(2), “[t]he court should freely give leave when justice so requires.” “Although the rule should be interpreted with ‘extreme liberality,' . . . leave to amend is not to be granted automatically.” Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). The decision of whether to grant leave to amend lies within the sound discretion of the court. Webb, 655 F.2d at 979. “In exercising this discretion, a court must be guided by the underlying purpose of Rule 15 to facilitate decision on the merits, rather than on the pleadings or technicalities.” Id.
The court “may exercise its discretion to deny leave to amend due to ‘undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party. . ., [and] futility of amendment.'” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892-93 (9th Cir. 2010) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
Here, plaintiff has already had the opportunity to amend, and any further amendment would be futile. Even considering the allegations plaintiff asserts he would allege if given another opportunity to amend, plaintiff will be unable to cure the deficiencies.
RECOMMENDATIONS
For the above reasons, the City's motion to dismiss (ECF 48) should be DENIED. Plaintiff's oral motion to revive his retaliation claim against the City should likewise be DENIED. The State's motion to dismiss (ECF 46) should be DENIED as to plaintiff's ADA interference-only claim but should otherwise be GRANTED. Plaintiff should not be provided further leave to amend.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due September 2, 2021. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.