1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 STEPHEN MICHAEL WEST, Case No. 22-cv-07649-CRB

9 Plaintiff,

ORDER GRANTING MOTION TO 10 v. DISMISS

11 SCOTT LABORATORIES, INC., 12 Defendant.

13 In this case, pro se Plaintiff Stephen West (“West”) alleges that his former 14 employer, Defendant Scott Laboratories, Inc. (“Scott Labs”), violated the Americans with 15 Disabilities Act of 1990 (“ADA”) and the ADA Amendments Act of 2008 (“ADAAA”) by 16 discriminating and retaliating against him based on a perceived disability. Compl. (dkt. 1). 17 Scott Labs moves to dismiss West’s complaint for failure to state a claim under Rule 18 12(b)(6) of the Federal Rules of Civil Procedure. Mot. (dkt. 11). West opposes and 19 requests leave to amend. Opp’n (dkt. 12). Scott Labs replies. Reply (dkt. 13). The Court 20 finds this matter suitable for resolution without oral argument pursuant to Civil Local Rule 21 7-1(b), and GRANTS Scott Labs’ motion to dismiss with prejudice. 22 I. BACKGROUND 23 A. Plaintiff’s Allegations 24 West worked for Scott Labs as a Senior Service Technician, providing field service 25 technical assistance since September 2018. Compl. ¶ 35; West’s Affidavit in Support of 26 Complaint (“Affidavit”) (dkt. 1-1) ¶ 10. On July 12, 2021, Tyler Smith (“Smith”), Scott 27 Labs’ Parts and Service Manager, emailed West to ask him to enroll in Scott Labs’ 1 was not interested. Id. 2 On September 7, 2021, Smith informed West that West needed to comply with 3 Scott Labs’ policy, which required every employee who interacts with customers face-to- 4 face to complete at-home COVID-19 tests. Id. ¶ 12; id. Ex. A-2. West replied to Smith 5 the following day, requesting information about, among other matters, the safety and 6 ingredients of the COVID-19 tests. Id. ¶ 13; id. Ex. A-3. 7 On September 9 or 10, 2021, Max Levine (“Levine”), COO of Scott Labs, called 8 West and “offered an ultimatum”: West was to comply with the COVID-19 testing policy 9 or be terminated. Id. ¶ 14. Levine called West again on September 13, 2021 to ask West 10 to consent to testing. Id. ¶ 15. Because West “had not received the necessary safety 11 information” that he had previously requested from Smith, he did not consent. Id. 12 On September 14, 2021, Levine, Smith, and Evelyn Padilla (“Padilla”), a Scott Labs 13 employee, called West to terminate his employment for not submitting to Scott Labs’ 14 COVID-19 testing policy. Id. ¶ 16. Later that day, Padilla emailed West a letter 15 reiterating the explanation for West’s termination, and stating that West’s employment 16 with Scott Labs was terminated, effective immediately. Id. Ex. A-4. 17 West subsequently filed a complaint with the U.S. Equal Employment Opportunity 18 Commission (“EEOC”). Id. ¶ 17. On September 19, 2022, West received a Notice of 19 Right to Sue from EEOC, which stated that he could bring suit under the ADA within 20 ninety (90) days of receipt of the notice. Id. ¶ 18; id. Ex. A-6. 21 B. Procedural History 22 West timely filed suit against Scott Labs on December 5, 2022. Compl. at 1. He 23 summarizes his discrimination and retaliation claims under the ADA and ADAAA as 24 follows: Defendant discriminated and retaliated against plaintiff based 25 upon disability. When the plaintiff objected, the defendant sought to impose non-job-related medical treatments and 26 accommodations without first conducting an individualized assessment to determine if he was a direct threat. 27 Id. ¶ 9. West further states that he is proceeding “under both the ‘regarded as’ and the 1 ‘record of’ prongs of the ADA” because Scott Labs’ COVID-19 testing policy regarded 2 him as having a disability.1 Id. ¶¶ 52–53. He alleges that Scott Labs violated the ADA 3 and ADAAA by imposing COVID-19 testing and terminating his employment. Id. ¶¶ 53, 4 56–57. Scott Labs now moves to dismiss the complaint, arguing that: (1) West fails to 5 state a claim for disability discrimination under the ADA; and (2) West fails to state a 6 claim for retaliation under the ADA. Mot. at 4–10. Scott Labs also requests judicial 7 notice of EEOC policy regarding the ADA compliance of COVID-19 tests.2 Request for 8 Judicial Notice (“RJN 1”) (dkt. 11-2). West opposes the motion to dismiss, and requests 9 leave to amend. Opp’n at 13. Scott Labs replies and requests judicial notice of the Center 10 for Disease Control’s (“CDC”) explanation on how to use COVID-19 tests at home.3 11 Reply; Request for Judicial Notice (“RJN 2”) (dkt.13-1). 12 After Scott Labs replied, West filed an amended complaint on March 2, 2023. Am. 13 Compl. (dkt. 14). This filing was improper because it did not comply with Rule 15 of the 14 Federal Rules of Civil Procedure.4 Accordingly, the Court disregards West’s amended 15 16 1 West does not appear to assert a failure-to-accommodate claim. If he did, such claim would fail. As explained in Section III.A, West does not have a disability under the ADA. 17 Accordingly, Scott Labs is not required to make reasonable accommodations for West pursuant to the ADA.

(b)(5)(A); see, e.g., Allen v. Pac. Bell,

1113, 1114 (9th Cir. 2003) (“to establish a prima facie case under the [ADA] . . . [employee] must first demonstrate that: (1) he is disabled within the meaning of the ADA . 19 . . .”). 2 The Court GRANTS Scott Labs’ RJN 1. The contents of the policy are not “subject to 20 reasonable dispute because [they] . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). 21 Courts “may take judicial notice of undisputed matters of public record,” and EEOC policy is instructive in the instant action. See Harris v. County of Orange,

, 1132 22 (9th Cir. 2012). 3 The Court DENIES Scott Labs’ RJN 2. While the CDC’s explanation is not “subject to 23 reasonable dispute,” it is not instructive here. See Fed. R. Evid. 201(b)(2). Scott Labs requests judicial notice of this explanation to demonstrate that COVID-19 tests are “non- 24 invasive.” Reply at 4. However, the Court need not reach that question because EEOC policy establishes that Scott Labs’ testing policy fully complied with the ADA. See RJN 1 25 Ex. A. 4 Relevant here, FRCP 15(a)(1) allows a party to amend its pleading within 21 days of 26 serving the original complaint or 21 days after service of a motion under Rule 12(b). Fed. R. Civ. P. 15(a)(1). West satisfied neither provision in filing his amended complaint. 27 First, because Scott Labs was served on January 17, 2023, West filed his amended complaint forty-four (44) days after service, and thus the filing was not proper pursuant to 1 complaint.5 2 II. LEGAL STANDARD 3 A complaint may be dismissed for failure to state a claim for which relief may be 4 granted. Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) applies when a complaint lacks either a 5 “cognizable legal theory” or “sufficient facts alleged” under such a theory. Godecke v. 6 Kinetic Concepts, Inc.,

(9th Cir. 2019). Whether a complaint 7 contains sufficient factual allegations depends on whether it pleads enough facts to “state a 8 claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009) 9 (quoting Bell Atl. Corp. v. Twombly,

(2007)). A claim is facially 10 plausible “when the plaintiff pleads factual content that allows the court to draw the 11 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 12 U.S. at 678. However, “[t]hreadbare recitals of the elements of a cause of action, 13 supported by mere conclusory statements, do not suffice” to survive a Rule 12(b)(6) 14 motion. Id. (citing Twombly,

). When evaluating a motion to dismiss, the 15 Court “must presume all factual allegations of the complaint to be true and draw all 16 reasonable inferences in favor of the nonmoving party.” Usher v. City of Los Angeles, 17

(9th Cir. 1987). But the Court is “not bound to accept as true a legal 18 conclusion couched as a factual allegation.” Papasan v. Allain,

(1986); 19 Clegg v. Cult Awareness Network,

, 754–55 (9th Cir. 1994). 20 If a court dismisses a complaint for failure to state a claim, it should “freely give 21 leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). But leave to amend 22

23 filed his amended complaint twenty-three (23) days after service, and thus the filing was 24 not proper pursuant to FRCP 15(a)(1)(B). See Proof of Service (dkt. 11-5); Am. Compl. Moreover, because the Court did not grant leave and there is no indication that Scott Labs 25 consented to the filing, the amended complaint is not proper pursuant to FRCP 15(a)(2). 5 Although a court may grant leave to amend even when a plaintiff does not request it, see 26 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc.,

, 247 (9th Cir. 1990), the Court declines to do so here because the amended complaint does not cure the 27 deficiencies in the original complaint. Instead, West restates the exact same claims under the ADA that he made in his initial filing. See Am. Compl. ¶¶ 80–191. Therefore, based 1 “is not to be granted automatically.” In re W. States Wholesale Nat. Gas Antitrust Litig., 2

(9th Cir. 2013). A court has discretion to deny leave to amend due to 3 “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to 4 cure deficiencies by amendments previously allowed, undue prejudice to the opposing 5 party by virtue of allowance of the amendment, [and] futility of amendment.” Leadsinger, 6 Inc. v. BMG Music Publ’g,

(9th Cir. 2008) (citing Foman v. Davis, 371

, 182 (1962)). 8 Finally, courts must construe pro se pleadings liberally and hold such pleadings to a 9 less stringent standard than those drafted by attorneys. Boag v. MacDougall,

364, 365 (1982) (per curiam); Hughes v. Rowe,

(1980) (“It is settled law that 11 the allegations of [a pro se litigant’s complaint] ‘however inartfully pleaded’ are held ‘to 12 less stringent standards than formal pleadings drafted by lawyers . . . .’” (quoting Haines v. 13 Kerner,

(1972))). A court should dismiss a pro se complaint if “it is 14 absolutely clear that the deficiencies of the complaint could not be cured by amendment.” 15 Akhtar v. Mesa,

(9th Cir. 2012). 16 III. DISCUSSION 17 The Court discusses first (A) West’s discrimination claim and then (B) his 18 retaliation claim. As explained below, the Court dismisses both claims with prejudice. 19 A. Discrimination Claim 20 West alleges first that Scott Labs unlawfully discriminated against him by 21 implementing a COVID-19 policy that perceived him as having a disability. Compl. ¶ 53 22 (“regarded as having a disability by the ‘Covid-19 Policy.’”). Scott Labs counters that 23 COVID-19, a temporary illness, is not a disability under the ADA, and that, without a 24 disability, West cannot state a discrimination claim under the ADA. Mot. at 4–8. In 25 response, West reiterates that “defendant’s ‘Covid policy’ regarded him as disabled and 26 defendant made a record of this perceived disability,” which is that West was “perpetually 27 disabled by a deadly, contagious disease until and unless he was mitigated for this 1 To state a claim for disability discrimination under the ADA, a plaintiff must allege 2 that: (1) they are disabled; (2) they are qualified for the job (i.e., able to perform the job’s 3 essential functions); and (3) they were subjected to an adverse employment action because 4 of their disability. Nunes v. Wal-Mart Stores, Inc.,

(9th Cir. 1999). 5 Regarding the first element of a discrimination claim, the ADA defines a “disability” as a 6 physical or mental impairment that substantially limits one or more major life activities, a 7 record of such an impairment, or being regarded as having such an impairment. 42 U.S.C. 8 § 12102(1)(A)–(C). Thus, to satisfy the “disabled” element of a disability discrimination 9 claim, a plaintiff may allege that they are disabled, that they had a record of disability, or 10 that their employer regarded them as disabled. See id. 11 Here, West alleges that Scott Labs both regarded him as disabled and had a record 12 of him as disabled. Compl. ¶¶ 53, 80, 116–18. Both prongs fail. 13 First, West’s “regarded as” theory—that Scott Labs perceived him as “infected or 14 may in the future become infected with a deadly, infectious disease”—does not satisfy the 15 ADA. See Compl. ¶ 86. Under the statute, being regarded as disabled does not apply to 16 impairments that are “transitory and minor,” or impairments with an actual or expected 17 duration of six or fewer months.

(3)(b). Federal courts have 18 consistently held that COVID-19 is “transitory and minor” and therefore not a disability 19 under the ADA. See, e.g., Linne v. Alameda Health Sys., No. 22-cv-375687,

375687, at *2 (N.D. Cal. Jan. 24, 2023) (holding that employees cannot bring claims for 21 being regarded as having an impairment because of workplace COVID-19 policies); 22 Johnson v. Mount Sinai Hosp. Group, No. 22-cv-2936,

, at *6 (E.D. 23 N.Y. Feb. 22, 2023) (holding that COVID-19 is “transitory and minor” and thus does not 24 fall under the ADA); Lundstrom v. Contra Costa Health Servs., No. 22-cv-06227, 2022

, at *5 (N.D. Cal. Nov. 29, 2022) (holding that “federal courts generally 26 agree that a COVID-19 infection is not a disability” (collecting cases)); Sambrano v. 27 United Airlines, Inc., No. 21-11159,

, at *29 n.51 (5th Cir. Feb. 17, 2022) 1 definition of disability” (case citation)). Because COVID-19 is generally “transitory” and 2 not a disability under the ADA, being perceived as having COVID-19 is not a disability 3 under the ADA.6 See

(3)(b). 4 Second, West’s “record of” theory also fails to satisfy the ADA. To state a claim 5 for disability discrimination based on a record of a disability, a plaintiff must plausibly 6 allege that they have “a history of an impairment that substantially limited one or more 7 major life activities when compared to most people in the general population, or was 8 misclassified as having had such an impairment.”

(k)(2). Here, West 9 alleges that Scott Labs “made a record of impairment by imposing its policy,” and that it 10 misclassified West as having or being “vulnerable” to contracting COVID-19. Compl. ¶¶ 11 115, 117. But a record that an employee has a condition that is not a disability does not 12 satisfy the ADA requirements for disability discrimination. See

(k)(2). 13 There simply is nothing to suggest that Scott Labs ever classified West as having an 14 impairment that substantially limited one or more major life activities. See

15 Because West does not have a disability under the ADA, he fails to satisfy the first 16 element necessary for stating a viable discrimination claim, and thus his claim fails. See 17 Nunes,

. The Court therefore need not address his other arguments on this 18 claim.7 19 20 6 As West states, based on guidance by the Department of Health and Human Services and Department of Justice, the court in Matias v. Terrapin House, Inc. held that certain forms 21 of COVID-19 “may be considered a disability under the ADA.” No. 21-cv-02288,

, at *4 (E.D. Pa. Sept. 16, 2021); Opp’n at 2. Here, West does not allege, and 22 there is nothing in the complaint to suggest, that Scott Labs perceived him as having such a form of COVID-19. Thus, the Court finds that his claimed disability is a transitory form of 23 COVID-19 that is not a disability under the ADA. 7 West’s additional arguments likely lack merit. West argues that Scott Labs determined 24 that he was a “direct threat” without conducting an “individualized assessment” as required by the ADA. Opp’n at 6; see

(r). However, Scott Labs’ determination 25 likely satisfies the ADA. See Affidavit Ex. A-4; Together Emps. v. Mass Gen. Brigham, Inc.,

, 433 (D. Mass. 2021) (holding that it was reasonable for 26 defendant to determine that unvaccinated employees pose a direct threat to hospital patients). West’s final arguments—that Scott Labs’ COVID-19 testing policy was a non- 27 job related medical inquiry prohibited by

(b), and that the policy violated medical privacy rights pursuant to

(c)—also fail because, 1 Because West does not allege that he has a disability protected by the ADA, he 2 cannot state a discrimination claim. Accordingly, because “it is absolutely clear that the 3 deficiencies of the complaint could not be cured by amendment,” the Court GRANTS 4 Scott Labs’ motion to dismiss West’s disability discrimination claim with prejudice. See 5 Akhtar,

. 6 B. Retaliation Claim 7 West alleges next that Scott Labs retaliated against him “by imposing punitive 8 measures and adverse employment actions,” including terminating his employment. 9 Compl. ¶¶ 144, 153. Scott Labs argues that West “did not engage in protected activity,” 10 and, alternatively, there was no “causal link between his protected activity and his 11 termination.” Mot. at 10. In response, West reiterates that he “was within a protected 12 class and engaged in protected activity” because he invoked his rights under the ADA, and 13 that the COVID-19 policy “was the direct and proximate cause of [Scott Labs’] decision to 14 terminate” his employment. Opp’n at 12. 15 The ADA provides that “[n]o person shall discriminate against any individual 16 because such individual has opposed any act or practice made unlawful by this chapter or 17 because such individual made a charge, testified, assisted, or participated in any manner in 18 an investigation, proceeding, or hearing under this chapter.”

(a). To 19 establish a prima facie case of retaliation under the ADA, an employee must show that (1) 20 they engaged in a protected activity, (2) they suffered an adverse employment action, and 21 (3) there was a causal link between the protected activity and the adverse employment 22 action. Pardi v. Kaiser Permanente Hosp., Inc.,

(9th Cir. 2004). 23 Here, West’s claim fails because he has not demonstrated that there was a causal 24 link between his alleged protected activity and an adverse employment action.8 West 25 26 the COVID-19 pandemic, EEOC’s policy was that “the ADA standard for conducting medical examinations was . . . always met for employers to conduct worksite COVID-19 27 viral screening testing.” RJN 1 Ex. A. 8 In addition, West likely fails to demonstrate that his opposition to Scott Labs’ COVID- 1 states that Scott Labs took two adverse actions: (1) implementing a COVID-19 testing 2 policy and (2) terminating his employment. Compl. ¶¶ 145, 149. 3 First, as West and Scott Labs both observe in their pleadings, Scott Labs enacted its 4 COVID-19 policy before West opposed the testing requirement. Affidavit ¶¶ 11–13; Mot. 5 at 2–3. Scott Labs did not enact this policy in response to West’s objection. Moreover, 6 West does not allege that Scott Labs enacted the policy because of him. See generally 7 Compl. Thus, it is unreasonable to infer that there was a causal connection between 8 West’s criticism of Scott Labs’ policy and the implementation of the policy. See 9 O’Hailpin v. Hawaiian Airlines, Inc.,

, 1311 (D. Haw. 2022) 10 (“Plaintiffs are unlikely to establish a prima facie case of retaliation . . . because the 11 adverse employment actions . . . appear to be unconnected to their [accommodation] 12 requests. Indeed, the vaccine policy was established, as well as the consequences for 13 failing to comply[,] . . . before Plaintiffs submitted their [accommodation] requests.”). 14 Second, West was not terminated for objecting to Scott Labs’ COVID-19 policy. 15 Rather, he was terminated for refusing to comply with it. Affidavit Ex. A-4 (“[Y]our 16 refusal to submit to COVID-19 testing poses a direct threat to your fellow employees and 17 to the Company’s customers with whom you come into contact. Accordingly, your 18 employment with Scott Laboratories is hereby terminated, effective immediately.”). Thus, 19 it is also unreasonable to infer that there was a causal connection between West’s criticism 20 of Scott Labs’ policy and his termination. See Together Emps., 573 F. Supp. 3d at 444–45 21 (finding that plaintiffs likely could not show a causal connection between protected 22 activity and an adverse employment action where defendant asserted that “plaintiffs [were] 23 24 simply alleges that he asked questions about the at-home COVID-19 tests, such as their ingredients and where they were made. Compl. ¶ 41; Ex. A-3. He then refused to comply 25 with Scott Labs’ testing policy.

¶¶ 45–46. Asking questions about and refusing to take an at-home COVID-19 test is not protected activity under the ADA. West did not 26 plausibly allege that Scott Labs’ policy violated the ADA, or that his unwillingness to abide by the policy was a request for an ADA remedy, as he was not disabled. See 27 Lundstrom,

, at *6 n.7. But see Speaks v. Health Sys. Mgmt., Inc., No. 22-cv-00077,

, at *6 n.9 (W.D.N.C. Aug. 17, 2022) (construing pro se 1 || subject to unpaid leave and potential termination not because they requested exemption, 2 || but because they were not approved and remain[ed] noncompliant with the Vaccination 3 || Policy”). 4 Because West cannot plausibly allege that Scott Labs’ policy or his termination 5 || were retaliatory under the ADA, “it is absolutely clear that the deficiencies of the 6 || complaint could not be cured by amendment.” See Akhtar,

. 7 || Accordingly, the Court GRANTS Scott Labs’ motion to dismiss West’s retaliation claim 8 || with prejudice. 9 || IV. CONCLUSION 10 For the foregoing reasons, the Court GRANTS Scott Labs’ motion to dismiss. The 11 Court denies West leave to amend because amendment would be futile. See Leadsinger, 12 ||

. £13 IT IS SO ORDERED. C 14 Dated: March 24, 2023 Co United States District Judge

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