Opinion
CIVIL 22-00504 HG-WRP
12-13-2022
DYLAN CUNNINGHAM, Plaintiff, v. UNIVERSITY OF HAWAII, Defendant.
FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFF'S APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AND DISMISS THE COMPLAINT WITH PREJUDICE
Wes Reber Porter United States Magistrate Judge
Before the Court is Plaintiff Dylan Cunningham's Application to Proceed in District Court Without Prepaying Fees or Costs (Application), filed on December 5, 2022. See Pl.'s App., ECF No. 3.
After careful consideration of the Application, the record in this action, and the relevant legal authority, the Court FINDS AND RECOMMENDS that the district court GRANT Plaintiff's Application and DISMISS the Complaint with prejudice.
Within fourteen days after a party is served with the Findings and Recommendation, pursuant to 28 U.S.C. § 636(b)(1), a party may file written objections in the United States District Court. A party must file any objections within the fourteen-day period to preserve appellate review of the Findings and Recommendation.
DISCUSSION
I. The Court RECOMMENDS that the District Court GRANT Plaintiff's Application
Courts may authorize the commencement of any suit without prepayment of fees by a person who submits an affidavit that the person is unable to pay such fees. See 28 U.S.C. § 1915(a)(1). For purposes of determining whether to grant an application to proceed without prepayment of fees, “an affidavit is sufficient which states that one cannot because of his poverty pay or give security for the costs and still be able to provide himself and dependents with the necessities of life.” Adkins v. E.I. Du Pont De Nemours & Co., Inc., 335 U.S. 331, 339 (1948) (internal quotations omitted).
Here, Plaintiff's Application states that he receives approximately $1,005 in income per month. See Pl.'s App., ECF No. 3, at 1. Further, Plaintiff states that he has $194.66 in savings and has over $846 in monthly expenses. See id. at 2. Based on the information provided in Plaintiff's Application, the Court finds that Plaintiff has demonstrated that he is unable to pay court fees at this time and RECOMMENDS that the district court GRANT his Application. See 28 U.S.C. § 1915.
II. The Court RECOMMENDS that the District Court DISMISS Plaintiff's Complaint With Prejudice
The Court must subject each civil action commenced pursuant to Section 1915(a) to mandatory screening and order the dismissal of any claim that it finds frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief. See 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (stating that 28 U.S.C. § 1915(e) “not only permits but requires” the court to dismiss a § 1915(a) complaint that fails to state a claim); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (holding that the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners). To state a claim, 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). The Court must set aside the plaintiff's conclusory factual allegations, accept as true the plaintiff's non-conclusory factual allegations, and determine whether these allegations state a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint that lacks a cognizable legal theory or alleges insufficient facts under a cognizable legal theory fails to state a claim. See UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013). Because Plaintiff is appearing pro se in this action, the Court must construe the Complaint liberally, in the light most favorable to Plaintiff, and accept all non-conclusory allegations of material fact as true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (stating that pleadings filed pro se “must be held to less stringent standards than formal pleadings drafted by lawyers”).
In his Complaint, Plaintiff alleges that his former employer, Defendant University of Hawaii, violated the Americans with Disabilities Act of 1990 (“ADA”) and the ADA Amendments Act of 2008 (“ADAAA”) by discriminating and retaliating against him based on a perceived disability. See Compl., ECF No. 1. Specifically, Plaintiff alleges that Defendant regarded Plaintiff as having COVID-19 and/or had a record of Plaintiff having COVID-19 and terminated Defendant for not complying with Defendant's COVID-19 policy requiring vaccination, testing, or a medial or religious exemption. See id. ¶¶ 178-80.
Plaintiff alleges that he was employed by Defendant beginning in January 2020 as an agricultural research technician. See id. ¶ 38. Plaintiff alleges that Defendant required all employees to be fully vaccinated against COVID-19, to submit to regular testing, or to have a medical or religious exemption beginning in August 2021. See id. ¶¶ 58-59. Further, Plaintiff alleges that he received an email on September 13, 2021, from Defendant stating that employees that did not comply with the COVID-19 policy would first be given a verbal warning and would be subject to progressive disciplinary actions. See id. ¶¶ 66-68.
When Plaintiff arrived at his place of employment on September 14, 2021, he was asked by his supervisor to provide verification of his vaccination status or a current negative COVID-19 test, which Plaintiff did not provide. See id. ¶ 69. Plaintiff was given a verbal warning and asked to leave the premises. See id. ¶ 70. One day later, Plaintiff received notification from Defendant that he was being placed on leave without pay because of his noncompliance with Defendant's COVID-19 policy and that further noncompliance may result in progressive disciplinary action including termination. See id. ¶¶ 84-85.
Plaintiff returned to his place of employment on September 22, 2021, and was asked again by his supervisor to provide verification of his vaccination status or a current negative COVID-19 test, which Plaintiff did not provide. See id. ¶ 91. Plaintiff was asked to leave the premises. See id. That same day, Plaintiff received a second notification from Defendant regarding his noncompliance. See id. ¶ 92.
When Plaintiff returned to his place of employment on September 30, 2021, he was asked for a third time by his supervisor to provide verification of his vaccination status or a current negative COVID-19 test, which Plaintiff did not provide. See id. ¶¶ 95-96. Plaintiff was again asked to leave the premises. See Id. ¶ 97. Plaintiff received an email from Defendant that same day explaining that Plaintiff could submit a vaccination exemption request. See id. ¶¶ 98-101. Plaintiff received two emails the next day from Defendant stating that Plaintiff was being placed on leave without pay pending an investigation into his third incident of noncompliance with Defendant's COVID-19 policy and including a written reprimand regarding Plaintiff's first and second incidents of noncompliance with Defendant's COVID-19 policy. See id. ¶¶ 102-03.
Plaintiff returned to his place of employment on October 13, 2021, and was asked for a fourth time by his supervisor to provide verification of his vaccination status or a current negative COVID-19 test, which Plaintiff did not provide. See id. ¶ 126. Plaintiff was again asked to leave the premises. See Id. Plaintiff received an email from Defendant regarding his fourth incident of noncompliance stating that Plaintiff was being placed on leave without pay for ten days. See Id. ¶¶ 128, 135. Defendant reiterated that Plaintiff could submit a vaccination exemption request, but Plaintiff replied that he was not requesting an exemption. See id. ¶¶ 131-34.
Plaintiff returned to his place of employment on November 4, 2021, and was asked for a fifth time to provide verification of his vaccination status or a current negative COVID-19 test, which Plaintiff did not provide. See id. ¶¶ 139-40. Plaintiff received an email from Defendant regarding his fifth incident of noncompliance stating that Plaintiff was being placed on leave without pay pending an investigation and that Plaintiff may be subject to termination. See id. ¶ 142. Plaintiff received notification on November 12, 2021, of Defendant's intent to terminate him, and was terminated effective November 29, 2021. See id. ¶¶ 154-56.
Throughout this time, Plaintiff corresponded with Defendant regarding questions he had related to Defendant's COVID-19 policy and Plaintiff's decision not to obtain a vaccine, submit to testing, or request an exemption. See Id. ¶¶ 72-82, 86-90, 93-94, 104-17, 130-35, 143-53. The U.S. Equal Employment Opportunity Commission issued a Determination and Notice of Rights to Plaintiff on September 8, 2022, stating that it would not proceed further with its investigation and made no determination about whether further investigation would establish violations of the statute. See Determination and Notice of Rights, ECF No. 1-2. Plaintiff filed this action on December 5, 2022. See Compl., ECF No. 1.
A. Plaintiff's Discrimination Claim
Under the ADA, to state a claim for disability discrimination, a plaintiff must plausibly allege that: (1) they are disabled; (2) they are qualified for the job (i.e., able to perform the job's essential functions); and (3) they were subjected to an adverse employment action because of their disability. See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999). The ADA defines a “disability” as a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. See 42 U.S.C. § 12102(1)(A)-(C). To satisfy the “disabled” element of a disability discrimination claim, a plaintiff may allege that they are disabled, they had a record of disability, or their employer regarded them as disabled. See Id. Here, Plaintiff alleges that Defendant regarded him as disabled and had a record of him as disabled. See Compl., ECF No. 1, ¶¶ 177-78, 205, 209-10, 252-56, 260-62.
As to Plaintiff's “regarded as” theory, Plaintiff alleges that Defendant regarded him “as disabled with a contagious disease with an impaired immune system.” Compl., ECF No. 1, ¶¶ 21, 210 (alleging that Defendant “sought to impose the policy's provisions upon the plaintiff based upon the pure speculation, stereotype and generalization that he was infected or may in the future come infected with a deadly, contagious disease (e.g. “Covid-19”)”). The Court finds that Plaintiff's “regarded as” theory fails to state a claim. Under the ADA, being regarded as disabled does not apply to impairments that are “transitory and minor,” or impairments with an actual or expected duration of six months or less. See 42 U.S.C. § 12102(3)(b). “Federal courts generally agree that a COVID-19 infection is not a disability.” Lundstrom v. Contra Costa Health Srvs., 2022 WL 17330842, at *5 (N.D. Cal. Nov. 29, 2022) (citing Roman v. Hertz Local Edition Corp., 2022 WL 1541865, at *7 (S.D. Cal. May 16, 2022), McCone v. Exela Techs., Inc., 2022 WL 801772, at *4 (M.D. Fla. Jan. 14, 2022) (holding that a COVID-19 infection does not meet the ADA's definitions of “disability”); Thompson v. City of Tualatin, 2022 WL 742682, at *2 (D. Or. Mar. 11, 2022) (holding that “being perceived as having COVID-19 is not a cognizable disability under the ADA”)); see also Anderson v. L. Keeley Constr., 2022 WL 3585596, at *2 (E.D. Mo. Aug. 22, 2022) (finding that the plaintiff's complaint alleging ADA discrimination based on having COVID-19 failed to state a claim for relief); Worrall v. River Shack, 2022 WL 3371345, *3-5 (N. D Tex. Aug. 15, 2022) (finding that the plaintiff's alleged COVID-19 infection was “transitory and minor” and not a disability within the meaning of the ADA and collecting cases). The Court finds these cases persuasive and agrees that COVID-19 is “transitory and minor” and therefore not a disability under the ADA. Accordingly, being regarded as having COVID-19 is also not a disability under the ADA. The Court finds that Plaintiff has not plausibly alleged that Defendant regarded him as having a disability.
Similarly, the Court finds that Plaintiff's “record of” theory also fails to state a claim. To state a claim for disability discrimination based on a record of a disability, a plaintiff must plausibly allege that she has “a history of an impairment that substantially limited one or more major life activities when compared to most people in the general population, or was misclassified as having had such an impairment.” 29 C.F.R. § 1630.2(k)(2). Plaintiff alleges that Defendant made a record of his impairment by documenting Plaintiff's “vaccination status” and classifying Plaintiff as an “unvaccinated” employee. See Compl., ECF No. 1, ¶¶ 254, 256. Plaintiff alleges that Defendant's policy treated unvaccinated employees as “impaired by a contagious disease and simultaneously assume that they are impaired by a suppressed or weak immune system or respiratory system that makes them vulnerable to ‘Covid-19.'” Id. ¶ 253. For the same reasons discussed above, a record of a condition, like COVID-19, that is not a disability does not qualify for protection under the ADA. See 29 C.F.R. § 1630.2(k)(2) (stating that an individual must have a record of any impairment that substantially limits a major life activity). The Court finds that Plaintiff has not plausibly alleged that Defendant had a record of him having a disability.
B. Retaliation Claim
In Count II, Plaintiff alleges that Defendant “began retaliating against [Plaintiff] by imposing punitive measures and adverse employment actions upon him.” Compl., ECF No. 1, ¶ 282. Specifically, Plaintiff alleges that Defendant retaliated against him by reprimanding him, placing him on leave, threatening to terminate him, and terminating him. See id. ¶¶ 286-87. Under the ADA, “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). Plaintiff must plausibly allege the following to establish a prima facie case of retaliation under the ADA: (1) he engaged in a protected activity, (2) he suffered an adverse employment action, and (3) there was a causal link between the protected activity and the adverse employment action. See Pardi v. Kaiser Permanente Hosp., Inc., 389 F.3d 840, 849 (9th Cir. 2004). Here, the Court finds that Plaintiff has not plausibly alleged a causal connection between his alleged protected activity and any adverse employment action.
Plaintiff alleges that from the moment he gave notice to Defendant that he would not comply with Defendant's COVID-19 policy, Defendant began retaliating against him. See Compl., ECF No. 1, ¶¶ 282, 286-87. However, Plaintiff alleges that Defendant's COVID-19 policy was in place before Plaintiff opposed the testing, vaccination, or exemption request requirements. See Compl., ECF No. 1, ¶¶ 58-61. Accordingly, Defendant did not enact its policy in response to Plaintiff's actions. It is therefore unreasonable to infer that there was a causal connection between Plaintiff's criticism of Defendant policies and his adverse employment actions. See O'Hailpin v. Hawaiian Airlines, Inc., 2022 WL 314155, at *11 (D. Haw. Feb. 2, 2022) (holding that the plaintiffs were unlikely to succeed on the merits of their retaliation claim because “the vaccine policy was established, as well as the consequences for failing to comply with the policy - i.e., the adverse employment actions at issue here - before Plaintiffs submitted their [accommodation] requests”). Because Plaintiff alleges that Defendant's COVID-19 policy, which included consequences for not complying, existed before he opposed the policy, “it is not reasonable to infer that there was a causal connection between [his] criticism of the policy and [his] termination.” Speaks v. Health Sys. Mgmt., Inc., 2022 WL 3448649, at *6 (W.D. N.C. Aug. 17, 2022) (dismissing retaliation claim under ADA where the plaintiff alleged that she was terminated for opposing the defendant's vaccination requirement). The Court finds that Plaintiff's retaliation claim fails because he has not plausibly alleged a causal connection between his alleged protected activity and any adverse employment action.
Based on the Court's review of Plaintiff's Complaint, accepting all of Plaintiff's allegations of material fact as true, the Court finds that Plaintiff's legal claims are without merit. Accordingly, the Court RECOMMENDS that Plaintiff's Complaint be DISMISSED. Further, the Court FINDS that no amendment can cure the defects detailed above and RECOMMENDS that Plaintiff's Complaint be DISMISSED WITH PREJUDICE. See Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“[u]nless it is absolutely clear that no amendment can cure the defect . . ., a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend”); see also Lopez, 203 F.3d at 1127; Thompson, 2022 WL 742682, at *3 (dismissing with prejudice the plaintiff's ADA claims that “she was discriminated against for being regarded as having COVID-19”); Lundstrom, 2022 WL 17330842, at *5 (dismissing with prejudice claim of ADA discrimination and retaliation based on being regarding as and having a record of COVID-19 because amendment would futile).
CONCLUSION
Based on the foregoing, the Court FINDS AND RECOMMENDS that the district court GRANT Plaintiff's Application to Proceed Without Prepayment of Fees and DISMISS Plaintiff's Complaint WITH PREJUDICE.
IT IS SO FOUND AND RECOMMENDED.