1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 MARGARET LUNDSTROM, Case No. 22-cv-06227-CRB

9 Plaintiff,

ORDER GRANTING MOTION TO 10 v. DISMISS

11 CONTRA COSTA HEALTH SERVICES, 12 Defendant. 13 14 Pro se Plaintiff Margaret Lundstrom (“Lundstrom”) alleges that her former 15 employer, Defendant Contra Costa Health Services (“CCHS”), violated the Americans 16 with Disabilities Act of 1990 (“ADA”) and the ADA Amendments Act of 2008 17 (“ADAAA”) by discriminating and retaliating against her on the basis of a perceived 18 disability. Compl. (dkt. 1). CCHS moves to dismiss Lundstrom’s complaint for failure to 19 state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that 20 Lundstrom is neither disabled nor a qualified individual under the ADA, and that she has 21 not sufficiently alleged that CCHS’s actions were retaliatory. Mot. (dkt. 5). Lundstrom 22 opposed CCHS’s motion, and CCHS replied. Response to Defendant’s Motion to Dismiss 23 and Memorandum of Law (“Opp’n”) (dkt. 10); Reply (dkt. 16). Finding this case suitable 24 for resolution without oral argument under Civil Local Rule 7-1(b), the Court VACATES 25 the hearing currently set for December 16, 2022, and GRANTS the motion with prejudice. 26 27 I. BACKGROUND 1 A. Lundstrom’s Allegations1 2 Lundstrom worked as a Public Health Nurse Case Manager for CCHS’s 3 CommunityConnect program from May 15, 2017, until December 7, 2021. Compl. ¶ 112; 4 Lundstrom’s Affidavit in Support of Complaint (“Affidavit”) (dkt. 1) ¶¶ 9, 43. In March 5 2020, at the beginning of the global COVID-19 pandemic, Lundstrom volunteered to join 6 CCHS’s “COVID team,” mainly working from home until the CommunityConnect team 7 was “fully deployed” in July 2020. Affidavit ¶ 10. 8 Lundstrom returned to in-person work in April 2020,2 by which point CCHS 9 management had implemented a policy requiring daily temperature checks and mask- 10 wearing for employees during work hours. Id. ¶ 11. In April or May 2020, Lundstrom 11 opted to work from home again. Id. ¶ 12. Between that time and December 2020, 12 Lundstrom’s supervisors informed her that, in order to work, healthcare workers like her 13 were required to undergo continuous testing. Id. ¶ 13. In that time period, Lundstrom felt 14 that CCHS’s COVID-19 policies reflected that CCHS “considered [her] a continual health 15 risk, as though at every moment [she] presented a contagious risk to others . . . .” Id. 16 In a meeting with her colleagues on January 7, 2021, Lundstrom acknowledged that 17 she did not intend to get the COVID-19 vaccine. Id. ¶ 14. In March 2021, after taking a 18 course offered by the Center for Disease Control (“CDC”) on infection control in nursing 19 homes, Lundstrom started to “deeply question” CCHS’s COVID-19 policies. Id. ¶ 15–16. 20 Lundstrom went on leave to “process this information.”3 Id. ¶ 16. During her leave, 21 Lundstrom was “redeployed” to CCHS’s vaccine branch. Id. 22 In May 2021, Lundstrom contacted her union representatives to inquire about why 23

24 1 The Court takes these allegations from the complaint and assumes them to be true for the 25 purposes of this motion. 2 Lundstrom’s statement that she returned to in-person work in April 2020 conflicts with her prior 26 statement that she mainly worked remotely until July 2020. See Affidavit ¶¶ 10–11. Neither the complaint nor the affidavit clarifies this inconsistency. 27 3 Lundstrom states that she took “FMLA time-off from CCHS to process” what she learned in the March 2021 course, but she does not specify whether she took time off from work entirely or went 1 CCHS “was refusing to approve medical accommodations.” Id. ¶ 17. A union 2 representative informed Lundstrom that CCHS was not required to provide such 3 accommodations, and this response reinforced Lundstrom’s belief that CCHS’s COVID-19 4 policies were discriminatory. Id. 5 On June 7, 2021, when Lundstrom was set to return to work in CCHS’s vaccine 6 branch after her leave, Lundstrom informed her supervisor that she refused to administer 7 the “experimental” COVID-19 vaccines to patients because it was her “ethical duty to 8 refuse to administer[] experimental ‘vaccination’ per the American Nurses Association 9 Code of Ethics for Nurses.” Id. ¶ 20. In response, CCHS’s Personnel/Payroll Director, 10 Dorette McCollumn (“McCollumn”), told Lundstrom that she could use more accruals and 11 remain on leave until July 5, 2021. Id. 12 Lundstrom resumed her work as a CommunityConnect Case Manager on July 6, 13 2021. Id. ¶ 21. Lundstrom was informed that, because she was unvaccinated, she was 14 required to undergo weekly testing and provide a temperature reading before entering the 15 building.4 Id. Although Lundstrom felt that CCHS’s weekly testing requirement for 16 unvaccinated workers was discriminatory, she took weekly, self-purchased saliva tests. Id. 17 ¶¶ 21, 23. 18 After testing herself twice for COVID-19 in August 2021, Lundstrom decided to 19 “officially claim all [her] rights protected by the ADA and start documenting [her] 20 opposition to [CCHS’s] discriminatory policy . . . .” Id. at ¶¶ 25–26. Lundstrom mailed a 21 “Notice of Discrimination and Harassment Based Upon Disability” to McCollumn, who 22 forwarded the notice to Ann Elliott, CCHS’s Director of Human Resources. Id. ¶ 26. On 23 October 1, 2021, Lundstrom met with Ann Elliott and with Barbara Elliott, CCHS’s ADA 24 Program Manager. Id. ¶ 29. Lundstrom inquired as to why she was “being regarded as 25 having an infectious disease without an individualized assessment.” Id. During the 26 discussion, Barbara Elliott informed Lundstrom that if she did not receive the COVID-19 27 1 vaccine by October 4, 2021, she would face unpaid suspension and eventual termination. 2 Id. 3 On October 12, 2021, Lundstrom was suspended for ten days without pay for 4 refusing to comply with CCHS’s vaccination requirement. Id. ¶ 32–33. 5 On November 10, 2021, Lundstrom returned to work and was informed that she 6 was required to test for COVID-19 every week. Id. ¶ 38. In response, Lundstrom insisted 7 that “there was no individual assessment to deem [her] a direct threat.” Id. 8 On November 15, 2021, Lundstrom received notice that if she did not comply with 9 CCHS’s COVID-19 vaccination requirement, she would be dismissed from her position. 10 Id. ¶ 40. On November 16, 2021, Lundstrom’s supervisor informed her that her 11 employment was ending and that she was not allowed to join a meeting on that day. Id. ¶ 12 41. Lundstrom’s access to her work email was also revoked. Id. 13 On November 24, 2021, Lundstrom attended a disciplinary hearing with ADA 14 Advocate Rie Beckett and CCHS Personnel Officer Jo-Anne Linares (“Linares”). Id. ¶ 42. 15 Lundstrom asserted, inter alia, that she should not be terminated because she was “being 16 regarded as having an infectious disease without having an individualized assessment.” Id. 17 On December 6, 2021, Linares informed Lundstrom that she would be dismissed on 18 December 7, 2021, for failure to provide proof of COVID-19 vaccination and an approved 19 exemption, as required by the California Department of Public Health’s State Public 20 Health Officer Order and the Contra Costa County’s COVID-19 Mandatory Vaccination 21 Policy. Id. ¶ 43; Ex. A-16 (dkt. 1-16). CCHS terminated Lundstrom’s employment on 22 December 7, 2021. Compl. ¶ 14. 23 Lundstrom filed suit against CCHS on August 8, 2022. Compl. at 1. She 24 summarizes her discrimination and retaliation claims under the ADA and ADAAA as 25 follows: 26 Defendant’s policies and procedure demonstrate that it discriminated against plaintiff based upon perceived disability. 27 When plaintiff objected and gave notice to the defendant that she was a qualified individual with [a] disability who was being impose accommodations; including but not limited to: medical 1 examinations, medical interventions including mask-wearing; without first conducting an individualized assessment to 2 determine if she was a direct threat. Defendant used policies and procedures to harass, isolate, segregate, limit, classify, deny 3 equal access and impose non-job-related medical exams and inquiries upon plaintiff. Defendant also retaliated against 4 plaintiff by interfering with her rights, imposing punitive measures including isolation and medical examinations, 5 withholding her pay, and ultimately terminating her employment, which is prohibited under the ADA and ADA- 6 AA.5 7 Id. ¶ 27. 8 B. CCHS’s Motion to Dismiss 9 CCHS moves to dismiss the complaint, advancing three arguments. See generally 10 Mot. First, CCHS argues that the ADA does not apply to Lundstrom. Id. at 6–9. Second, 11 CCHS argues that its COVID-19 prevention protocols were not retaliatory. Id. at 9–12. 12 Third, CCHS argues that leave to amend should not be granted. Id. at 12–13. 13 II. LEGAL STANDARD 14 A complaint may be dismissed for failure to state a claim for which relief may be 15 granted. Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) applies when a complaint lacks either a 16 “cognizable legal theory” or “sufficient facts alleged” under such a theory. Godecke v. 17 Kinetic Concepts, Inc.,

(9th Cir. 2019). Whether a complaint 18 contains sufficient factual allegations depends on whether it pleads enough facts to “state a 19 claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009) 20 (quoting Bell Atl. Corp. v. Twombly,

(2007)). A claim is facially 21 plausible “when the plaintiff pleads factual content that allows the court to draw the 22 23 24 5 It is unclear whether Lundstrom intends to assert a failure-to-accommodate claim. However, any such claim would fail. Although the ADA’s definition of disability includes an individual 25 who is “regarded as disabled,” the ADA only requires employers to accommodate employees where the employee alleges that they have an actual disability or a record of a disability, and not 26 where the employee solely alleges that their employer regards them as disabled. See

(h). The Ninth Circuit has explained that such a rule is desirable because “it seems odd to 27 give an impaired but not disabled person a windfall because of her employer’s erroneous perception of disability.” Kaplan v. City of N. Las Vegas,

(9th Cir. 2003). 1 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 2 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere 3 conclusory statements, do not suffice” to survive a 12(b)(6) motion. Id. (citing Twombly, 4

). When evaluating a motion to dismiss, the Court “must presume all 5 factual allegations of the complaint to be true and draw all reasonable inferences in favor 6 of the nonmoving party.” Usher v. City of Los Angeles,

(9th Cir. 7 1987). However, the Court is “not bound to accept as true a legal conclusion couched as a 8 factual allegation.” Papasan v. Allain,

(1986); Clegg v. Cult Awareness 9 Network,

, 754–55 (9th Cir. 1994). 10 If a court dismisses a complaint for failure to state a claim, it should “freely give 11 leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). But leave to amend 12 “is not to be granted automatically.” In re W. States Wholesale Nat. Gas Antitrust Litig., 13

(9th Cir. 2013). A court has discretion to deny leave to amend due to 14 “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to 15 cure deficiencies by amendment previously allowed, undue prejudice to the opposing party 16 by virtue of allowance of the amendment, [and] futility of amendment.” Leadsinger, Inc. 17 v. BMG Music Publ’g,

(9th Cir. 2008) (citing Foman v. Davis,

(1962)). To determine whether amendment would be futile, courts examine 19 whether the complaint can be amended to cure the defect requiring dismissal “without 20 contradicting any of the allegations of [the] original complaint.” Reddy v. Litton Indus., 21 Inc.,

, 296–97 (9th Cir. 1990). 22 Courts must construe pro se pleadings liberally and hold such pleadings to a less 23 stringent standard than those drafted by attorneys. Boag v. MacDougall,

, 24 365 (1982) (per curiam); Hughes v. Rowe,

(1980) (“It is settled law that the 25 allegations of [a pro se litigant’s complaint] ‘however inartfully pleaded’ are held ‘to less 26 stringent standards than formal pleadings drafted by lawyers . . . .’” (quoting Haines v. 27 Kerner,

(1972))). A court should dismiss a pro se complaint if “it is 1 Akhtar v. Mesa,

(9th Cir. 2012). 2 III. DISCUSSION 3 As explained below, the Court holds that dismissal without leave to amend is 4 warranted for both of Lundstrom’s claims. The Court addresses Lundstrom’s 5 discrimination and retaliation claims in turn. 6 A. Discrimination Claim 7 In her first cause of action, Lundstrom alleges that CCHS unlawfully discriminated 8 against her by “denying [her] access to her workplace, classifying her as unvaccinated, 9 [and] suspending her employment, all due to [CCHS’s] perception of [her] as a person 10 with a disability.” Compl. ¶ 74. CCHS argues that COVID-19, a temporary illness, is not 11 a disability under the ADA, and that, without a recognized disability or perceived 12 disability, Lundstrom cannot state a discrimination claim under the ADA. Mot. at 6–7. In 13 response, Lundstrom reiterates that her “claimed disability” was “being regarded as 14 disabled and being recorded as disabled,” and asserts that she neither “claimed that the 15 disability she is regarded as having is ‘COVID-19’” nor claimed that she had COVID-19 16 or any other disease.6 Opp’n at 4–5. 17 To state a claim for disability discrimination under the ADA, a plaintiff must allege 18 that (1) they are disabled; (2) they are qualified for the job (i.e., able to perform the job’s 19 essential functions); and (3) they were subjected to an adverse employment action because 20 of their disability. Nunes v. Wal-Mart Stores, Inc.,

(9th Cir. 1999). 21 The ADA defines a “disability” as a physical or mental impairment that substantially limits 22 one or more major life activities, a record of such an impairment, or being regarded as 23 having such an impairment.

(1)(A)–(C). Thus, to satisfy the “disabled” 24 element of a disability discrimination claim, a plaintiff may allege that they are disabled, 25 26 6 Although Lundstrom denies that the “disability” that CCHS allegedly regarded her as having is COVID-19, Lundstrom’s descriptions of the perceived disability in the complaint—alleging that, 27 in the context of the COVID pandemic, she was “perceived as disabled with a contagious disease” and labeled as having impaired immune and respiratory systems—strongly implies that CCHS 1 they had a record of disability, or their employer regarded them as disabled. See

2 Lundstrom alleges that CCHS regarded her as disabled and had a “record of” her as 3 disabled. Compl. ¶¶ 15, 17–20, 27, 43. 4 Lundstrom’s “regarded as” theory—that CCHS perceived her as “disabled with a 5 contagious disease,” and impaired immune and respiratory systems—fails. See Compl. 6 ¶¶ 18–19. Under the ADA, being regarded as disabled does not apply to impairments that 7 are “transitory and minor,” or impairments with an actual or expected duration of six 8 months or less.

(3)(b). Federal courts generally agree that a COVID-19 9 infection is not a disability. See, e.g., Roman v. Hertz Local Edition Corp., No. 20-cv- 10 2462-BEN (AGS),

, at *7 (S.D. Cal. May 16, 2022); see also, e.g., 11 McCone v. Exela Techs., Inc., No. 21-cv-912-CEM-DCI,

, at *4 (M.D. 12 Fla. Jan. 14, 2022) (holding that a COVID-19 infection does not meet the ADA’s 13 definitions of “disability”); Thompson v. City of Tualatin, No. 21-cv-01587-MO, 2022

, at *2 (D. Or. Mar. 11, 2022) (holding that being perceived as having COVID- 15 19 is not a cognizable disability under the ADA because most COVID-19 cases last fewer 16 than twenty days). The Court agrees that having COVID-19 is generally “transitory” and 17 therefore not a disability under the ADA. Being perceived of as having COVID-19 is 18 therefore also not a disability under the ADA. 19 Lundstrom’s “record of” theory of disability also fails. To state a claim for 20 disability discrimination based on a record of a disability, a plaintiff must plausibly allege 21 that she has “a history of an impairment that substantially limited one or more major life 22 activities when compared to most people in the general population, or was misclassified as 23 having had such an impairment.”

(k)(2). Here, Lundstrom claims that 24 CCHS “made a record of [her] disability” by misclassifying her as “substantially limited 25 with impaired immune and respiratory systems affecting her ability to perform major life 26 activities in the workplace.” Compl. ¶ 29. CCHS’s alleged misclassification was that 27 Lundstrom had COVID-19, or something akin to COVID-19.

But a record that an 1 § 1630.2(k)(2). 2 Amendment of Lundstrom’s discrimination claim would be futile. See Leadsinger, 3 Inc.,

. Thus, the Court GRANTS CCHS’s motion to dismiss Lundstrom’s 4 disability discrimination claim with prejudice. 5 Having concluded that Lundstrom cannot establish a disability that triggers the 6 ADA’s protections, the Court need not reach CCHS’s argument concerning the second 7 element of a disability discrimination claim: that Lundstrom was not a qualified individual 8 because she posed a direct threat to her coworkers, patients, and clients. See Mot. at 8–9. 9 This argument appears to have merit, however. See Together Emps. v. Mass Gen. 10 Brigham, Inc.,

, 431–33 (D. Mass. 2021) (holding that plaintiff 11 healthcare employees who were not vaccinated against COVID-19 were not “qualified 12 individuals” because they posed a direct threat to other employees’ safety, and that the 13 defendant hospital reasonably concluded that unvaccinated employees posed a direct threat 14 to patients and others). 15 B. Retaliation Claim 16 In her second cause of action, Lundstrom alleges that CCHS “began unceasingly to 17 retaliate against [her] despite [her] reasonable good faith belief that she was exercising 18 protected opposition to discrimination and claiming rights protected under the ADA . . . .” 19 Compl. ¶ 105. Specifically, Lundstrom alleges that CCHS engaged in unlawful retaliation 20 by placing her on unpaid personal leave, threatening to terminate her employment for 21 remaining unvaccinated, and eventually terminating her “because of a perceived disability 22 and as a result of classifying [her] as ‘unvaccinated.’” Compl. ¶ 112. 23 The ADA provides that “[n]o person shall discriminate against any individual 24 because such individual has opposed any act or practice made unlawful by this chapter or 25 because such individual made a charge, testified, assisted, or participated in any manner in 26 an investigation, proceeding, or hearing under this chapter.”

(a). To 27 establish a prima facie case of retaliation under the ADA, an employee must show that (1) 1 (3) there was a causal link between the protected activity and the adverse employment 2 action. Pardi v. Kaiser Permanente Hosp., Inc.,

(9th Cir. 2004). 3 Lundstrom’s claim fails because she has not plausibly alleged that there was a causal 4 connection between her alleged protected activity and her termination.7 5 The core of Lundstrom’s retaliation claim is that her required compliance with 6 CCHS’s testing, mask-wearing, and COVID-19 vaccination policies violated the ADA 7 because she repeatedly opposed those policies. Compl. ¶¶ 105, 114. However, as 8 Lundstrom and CCHS both note in their pleadings, CCHS’s COVID-19 policies were in 9 place before Lundstrom opposed the testing, mask-wearing, and vaccination requirements. 10 Affidavit ¶¶ 13–16; Mot. at 11. CCHS did not enact those policies in response to 11 Lundstrom’s actions. Thus, it is unreasonable to infer that there was a causal connection 12 between Lundstrom’s criticism of CCHS’s policies and her termination. See O’Hailpin v. 13 Hawaiian Airlines, Inc., No. 22-00007 JAO-KJM,

, at *11 (D. Haw. Feb. 14 2, 2022) (“Plaintiffs are unlikely to establish a prima facie case of retaliation . . . because 15 the adverse employment actions . . . appear to be unconnected to their [accommodation] 16 requests. Indeed, the vaccine policy was established, as well as the consequences for 17 failing to comply[,] . . . before Plaintiffs submitted their [accommodation] requests.”); 18 Together Emps., 573 F. Supp. 3d at 444–45 (finding that plaintiffs likely could not show a 19 causal connection between protected activity and an adverse employment action where 20 defendant asserted that “plaintiffs [were] subject to unpaid leave and potential termination 21 not because they requested exemption, but because they were not approved and remain[ed] 22 noncompliant with the Vaccination Policy”). 23 24 7 Lundstrom has also failed to plausibly allege that her opposition to CCHS’s COVID-19 policies was protected ADA activity. Protected activity is generally defined as an action that requests an 25 ADA remedy or that challenges a violation of the ADA.

(a). Lundstrom alleges that she raised ADA concerns about CCHS’s COVID-19 policies by opposing what she believed 26 to be “discriminatory policies and procedures.” Compl. ¶¶ 27, 114. But she has not plausibly alleged that CCHS’s policies violated the ADA, or that her unwillingness to abide by them was a 27 request for an ADA remedy, as she was not disabled. But see Speaks v. Health Sys. Mgmt., Inc., No. 22-cv-00077-KDB-DCK,

, at *6 n.9 (W.D.N.C. Aug. 17, 2022) (construing 1 Because CCHS’s COVID-19 mitigation and vaccination policies existed before 2 |} Lundstrom opposed those policies, “it is not reasonable to infer that there was a causal 3 |} connection between her criticism of the policy and her termination.” See Speaks, 2022 4 || WL 3448649, at *6. Amendment of Lundstrom’s retaliation claim would be futile. See 5 || Leadsinger, Inc.,

. Thus, the Court GRANTS CCHS’s motion to dismiss 6 || the retaliation claim with prejudice. 7 || IV. CONCLUSION 8 For the foregoing reasons, the Court GRANTS the motion to dismiss with 9 |} prejudice. 10 IT IS SO ORDERED. 11 Dated: November 29 2022 x CHARLES R. BREYER 12 United States District Judge 13

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