Mattioda v. Nelson

98 F.4th 1164

Andrew MATTIODA, Plaintiff-Appellant, v. Clarence William NELSON II; National Aeronauticsand Space Administration, Defendants-Appellees.

No. 22-15889

United States Court of Appeals, Ninth Circuit

Argued and Submitted September 13, 2023 San Francisco, California

Filed April 22, 2024

Appeal from the United States District Court for the Northern District of California, Susan G. Van Keulen, Magistrate Judge, Presiding, D.C. No. 5:20-cv-03662-SVK

Erika A. Heath (argued), Duckworth & Peters LLP, San Francisco, California; Richard D. Schramm, Berliner Cohen LLP, San Jose, California; for Plaintiff-Appellant.

Adrienne Zack (argued), Assistant United States Attorney; Michelle Lo, Chief, Civil Division; Stephanie M. Hinds, United States Attorney; United States Department of Justice, Office of the United States Attorney, San Francisco, California; James A. Scharf, Assistant United States Attorney, United States Department of Justice, Office of the United States Attorney, San Jose, California; for Defendants-Appellees.

Before: J. Clifford Wallace, Danny J. Boggs,^* and Danielle J. Forrest, Circuit Judges.

OPINION

FORREST, Circuit Judge:

Dr. Andrew Mattioda, a scientist with the National Aeronautics and Space Administration (NASA), has physical disabilities related to his hips and spine that he alleges require him to purchase premium-class airlines tickets for flights over an hour long. He sued NASA and its Administrator (collectively referred to as NASA) under the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., alleging, among other things, that he suffered a hostile work environment after informing his supervisors of his disabilities and requesting upgraded airline tickets for work travel as a reasonable accommodation and that he was discriminated against due to his disability by being passed over for a promotion. The district court dismissed Dr. Mattioda's hostile-work-environment claim for failure to state a claim and granted summary judgment for NASA on Dr. Mattioda's disability-discrimination claim based on the denied promotion.

Dr. Mattioda appeals from both orders, and we affirm in part, reverse in part, and remand for further proceedings. We agree that the district court erred in dismissing Dr. Mattioda's hostile-work-environment claim and hold, consistent with our sister circuits, that this claim may be asserted under the Rehabilitation Act. However, we affirm the district court's order granting summary judgment for NASA on the disability discrimination claim.

I. BACKGROUND

Because much of the background is relevant to the district court's Federal Rule of Civil Procedure 12(b)(6) dismissal, we primarily refer to Dr. Mattioda's allegations in his operative complaint. See Wilson v. Craver, 994 F.3d 1085, 1089-90 (9th Cir. 2021) ("The [c]ourt is obliged to accept all factual allegations in the complaint as true and construe them" favorably to the plaintiff. (alterations adopted) (citation omitted)). To the extent we rely on evidence presented at summary judgment, we view such evidence in the light most favorable to Dr. Mattioda. Alexander v. Nguyen, 78 F.4th 1140, 1144 (9th Cir. 2023).

A. Dr. Mattioda's Employment at NASA

Dr. Mattioda began working for NASA in 2000. He suffers from, among other things, a degenerative defect in his hips and Scheurermann's disease of the spine, which causes uneven vertebrae growth and scoliosis. Since 2007, his orthopedist has written reasonable-accommodation letters stating that Dr. Mattioda must fly in premium class for flights longer than an hour because he needs to avoid prolonged sitting and be able to change positions frequently and stretch due to physical disabilities affecting his hips and spine. By 2011, after multiple surgeries, Dr. Mattioda had informed the NASA Ames Research Center, where he worked, about all his disabilities and orthopedic limitations.

Thereafter, from 2011 to 2018, Dr. Mattioda's experience at NASA was plagued by: (a) derogatory comments from his supervisors; (b) supervisors who inhibited his work opportunities; (c) unwarranted negative job reviews; and (d) resistance to his accommodation requests. In 2011, Dr. Mattioda approached his supervisor, Dr. Timothy Lee, about an upcoming work trip and advised Dr. Lee of his physical disabilities and premium-class travel request. After Dr. Lee learned of the cost for the requested travel upgrade, he "openly discussed" Dr. Mattioda's disabilities in front of others, "compared [his] disabilities to Dr. Lee's own hip issues," and asked why Dr. Mattioda could not "just tough it out or suck it up and travel coach."

This incident was the first in a "series of harassing comments and events." For example, Dr. Lee told Dr. Mattioda that he believed another scientist was "doing all the work for" Dr. Mattioda and that he did not "respect [Dr. Mattioda] or [his] work." And during a meeting with colleagues, Dr. Lee criticized Dr. Mattioda's work to the point that one of the meeting attendees told Dr. Mattioda after the meeting that he felt Dr. Lee was acting "aggravated or angry at" Dr. Mattioda. In another meeting years later, Dr. Mattioda suggested that he could oversee a colleague's work, and Dr. Lee nearly shouted at him. Additionally, at a NASA holiday party, Dr. Lee told Dr. Mattioda "not to get his 'hopes up' " for a promotion for which Dr. Mattioda's name had been submitted.

Dr. Lee also made comments about Dr. Mattioda to other NASA employees. On one occasion, Dr. Mattioda's coworker "insisted on photographing" Dr. Mattioda giving a presentation because Dr. Lee had stated that he did not believe Dr. Mattioda was involved with the project. This same coworker told Dr. Mattioda that Dr. Lee had expressed that he did not respect Dr. Mattioda's work, thought Dr. Mattioda was lazy, and thought Dr. Mattioda was "using his medical and disability issues to avoid work." Other colleagues told Dr. Mattioda that Dr. Lee disparaged Dr. Mattioda so often that they considered such comments "background noise."

In addition to openly criticizing Dr. Mattioda, Dr. Lee inhibited Dr. Mattioda's work opportunities. For instance, he declined to support Dr. Mattioda's nomination for a promotion but supported other candidates. He failed to authorize a spot for Dr. Mattioda's Postdoctoral Program candidate, who would have supported Dr. Mattioda's work. He lied to Dr. Mattioda by stating that Dr. Mattioda could not virtually present at a conference to which he was unable to travel. And he declined to involve Dr. Mattioda in projects and required Dr. Mattioda to submit an itemized travel request for a project that Dr. Lee did not require from another colleague.

Dr. Mattioda alleges that he also had problems with another supervisor, Dr. Jessie Dotson. Dr. Mattioda requested a travel upgrade as an accommodation from Dr. Dotson in 2011. Dr. Dotson improperly told Dr. Mattioda that he would have to use his own grant money to pay for the upgrade.¹ Dr. Dotson also warned Dr. Mattioda that he could "lose [his] job" if he kept requesting travel accommodations. She was also resistant to other accommodation requests from Dr. Mattioda, telling him she could not "find any magic pots of" money and requiring him to go through steps not required of others to receive his requests.

Dr. Dotson also mishandled her performance reviews of Dr. Mattioda. In a May 2013 performance review, Dr. Mattioda expressed concern that his disability-related inability to travel would impact his career. Dr. Dotson told Dr. Mattioda "not to worry" but then lowered one of Dr. Mattioda's ratings, which affected his yearly bonuses, for this reason. During another review, Dr. Dotson showed Dr. Mattioda an unexplained list of "proposal success rates," and informed Dr. Mattioda that he was the lowest on the list. At another review, Dr. Dotson questioned whether Dr. Mattioda was "still committed to being a high-profile scientist at NASA," criticized him for not traveling, and lowered his performance rating for not submitting a particular proposal that she had previously counseled him was the "right thing to do." Thereafter, Dr. Dotson acknowledged Dr. Mattioda's failure to submit the proposal should have had no impact on his performance rating, but she denied Dr. Mattioda's request to reconsider his performance rating and also required Dr. Mattioda to sign her rejection letter.

Dr. Mattioda's other harassment-based allegations include that his supervisors disclosed his disabilities and Equal Employment Opportunity (EEO) activity to other employees, and otherwise inhibited his opportunities at NASA. And that in June 2016, NASA transferred Dr. Mattioda to a different division "[t]o help calm the waters and to provide [Dr. Mattioda] with a safe space."

B. Denied Promotion

In November 2016, a senior scientist position became available at NASA (ST Position). Dr. Lee and other NASA employees emailed about the position, and a human resources (HR) manager emailed Dr. Eugene Tu, a Center Director at NASA, asking for approval to appoint Dr. Scott Sandford directly. Dr. Tu also supported Dr. Sandford's appointment, but he wanted "to have a brief discussion on all the upcoming ST positions (including this one) and which ones we are expecting to compete or fill directly" and expressed that he thought they "need[ed] to take a look at the diversity of our ST positions."

Dr. Tu then sent out a letter explaining that the open position would follow NASA's "procedural framework for merit staffing of ST positions," which includes convening a panel "of three or more senior leaders . . . to assist in the selection process." The designated selection panel consisted of Dr. Steven Zornetzer, as chair, and Drs. Max Bernstein, Steve Howell, and Lee, as voting members. An equal opportunity (EO) officer and an HR manager served as non-voting member and staff, respectively, on the panel. Dr. Mark Fonda ultimately replaced Dr. Howell. And Dr. Lee recused himself a week...