McCarthy v. Brennan

230 F.Supp.3d 1049

Kian R. MCCARTHY, Plaintiff,

v.Megan J. BRENNAN, Defendant.

Case No. 15–cv–03308–JSC

United States District Court, N.D. California.

Signed January 27, 2017

Jason M. Erlich, McCormack & Erlich, LLP, San Francisco, CA, for Plaintiff.

Pamela T. Johann, Wendy M. Garbers, United States Attorney's Office Northern District of California, San Francisco, CA, for Defendant.

ORDER RE: MOTION TO DISMISS SECOND AMENDED COMPLAINT

JACQUELINE SCOTT CORLEY, United States Magistrate Judge

Plaintiff Kian McCarthy, who worked as a letter carrier for 24 years, brings this action against his former employer, the United States Postal Service, arising from the termination of his employment.¹ The Second Amended Complaint ("SAC") alleges causes of action for disability discrimination, retaliation, failure to accommodate a disability and engage in the interactive process, and impermissible disclosure of confidential medical records, all under the Rehabilitation Act. (Dkt. No. 42 at 9–14.² ) Now pending before the Court is Defendant's motion to dismiss the SAC. (Dkt. No. 44.) After considering the parties' submissions, and having had the benefit of oral argument on January 26, 2017, the Court DENIES Defendant's motion.

BACKGROUND

I. Complaint Allegations

The Court discussed the factual background of this case in a previous order and incorporates that discussion here. (See Dkt. No. 25 at 2–4.) However, as this is the first iteration of the pleadings that Plaintiff has filed with the benefit of counsel and the substance of the claims has changed at least in part, the Court reiterates the factual allegations here.

Plaintiff suffers from Asperger's disorder, a medical condition and mental disability classified as an "autism spectrum disorder," which causes communication deficits, inappropriate responses in conversations, misreading nonverbal interactions, sensitivity to change, and intense focus on inappropriate items, among other things. (Dkt. No. 42 ¶ 16.) Medical professionals have also noted that Plaintiff "may suffer" from a variety of other mental disabilities related to his autism, including Obsessive Compulsive Disorder, Avoidant Personality Disorder, Depression, and General Anxiety Disorder. (Id. ¶ 17.) His condition "ha[s] waxed and waned over the years" but his symptoms "are most pronounced in stressful or confrontational situations, like workplace interactions with supervisors or co-workers. (Id. ) "To the untrained eye," Plaintiff's mental disability can appear "to reflect disinterest, confusion, or distrust" and manifests itself in social discomfort and unusual behavior. (Id. )

Plaintiff began working as a letter carrier for the Post Office in 1986. (Id. ¶ 14.) He worked out of the Sausalito branch office until he was terminated in January 2011. (Id. ¶ 15.) Throughout his career, Plaintiff served as shop steward for the letter carrier's union and received compliments and commendations from customers and residents for his work. (Id. ) From 2001 until his termination, Plaintiff's supervisor at the Sausalito branch was Myra "Jackie" Suarez. (Id. ¶ 19.) Ms. Suarez "repeatedly demonstrated discriminatory animus towards persons with mental disabilities." (Id. ) The Post Office knew about Suarez's animus and did nothing to stop it. (Id. )

In April 1998, the Post Office sent Plaintiff to a Fitness for Duty Examination. (Id. ¶ 20.) The examining physician, Dr. Stephen Raffle, concluded that Plaintiff did not "represent[ ] a safety hazard to himself or others" but was "unfit" for duty. (Id. ¶ 20.) Dr. Raffle believed that Plaintiff had trouble completing his job tasks in a timely manner because "he is so preoccupied with the details of the job" and his "perfectionism interferes with task completion." (Id. ¶ 34.) He also diagnosed Plaintiff with Obsessive Compulsive Disorder, noting that people who suffer from that disorder "have a great deal of difficulty constructively taking criticism because of their need for orderliness, parsimony and perfectionism often paralyses [sic] them in their actions." (Id. ) Dr. Raffle's unfit-for-duty determination was overturned after two other reviewers disagreed with it. (Id. ) Dr. Raffle's Fitness for Duty Exam report contained highly sensitive, personal, and confidential information about Plaintiff's medical history and mental health status. (Id. ¶ 21.) Summarizing the report, the Post Office's Associate Medical Director recommended that Plaintiff "seek treatment from a psychiatrist prior to returning to work" and "do a job that does not require postal vehicle driving or deadlines." (Id. ¶ 24.) The Post Office did not provide such accommodation; instead, in September 1998 the Post Office notified Plaintiff of his termination from employment. (Id. ) In response, Plaintiff requested a second Fitness for Duty Exam. (Id. ) Dr. Roger Freed conducted the exam in October 1998 and found Plaintiff fit for duty. (Id. ) The Post Office then conducted a third Fitness for Duty Exam, which would be binding; in March 1999 Dr. Kenneth Gottlieb found Plaintiff fit for duty. (Id. )

The Post Office made Dr. Raffle's 1998 Fitness for Duty Exam report available to postal supervisors, including Ms. Suarez. (Id. ¶ 21.) In a November 2007 letter to the Letter Carriers' Union and the Postmaster, Ms. Suarez complained about Plaintiff, noting that he "files frivolous, unmerited grievances"; does not perform his letter carrier duties or follow proper procedures; and exhibits strange behavior. (Id. ¶ 21.) Ms. Suarez noted that she "ran across medical files on [Plaintiff] and his behavior is giving me great concern" especially after a murder at another Post Office station, and expressed concern for her and others' safety. (Id. ) Despite knowing about Ms. Suarez's unauthorized access to Plaintiff's medical records, the Post Office took no corrective action against her. (Id. ¶ 22.)

In the spring of 2010 Ms. Suarez held a pep talk with Post Office employees at the Sausalito branch to encourage them not to overrun their overtime budget. (Id. ¶ 25.) She congratulated other employees for timely deliveries but singled out Plaintiff for humiliation, stating in front of the group, "I won't name any names but I will since he's standing right here, [Plaintiff], and I'll deal with the fool later[.]" (Id. )

On May 6, 2010 Ms. Suarez issued Plaintiff a letter of warning for unsafe driving and suspended him for 14 days for unauthorized overtime. (Id. ¶ 26.) On May 20, 2010 Plaintiff wrote a letter to the Post Office's San Francisco District Manager complaining about the incident in which Ms. Suarez called him a fool in front of other employees. (Id. ¶ 27.) In June 2010, Plaintiff attended an EEO mediation session with Sausalito postal managers. (Id. ¶ 28.) The Post Office refused to rescind his 14–day suspension but agreed to counsel other postal employees about making fun of Plaintiff. (Id. )

In July 2010 Plaintiff became ill with kidney stones. (Id. ¶ 29.) Ms. Suarez accused him of faking his pain and would not let him leave work early to see a doctor. (Id. ) Plaintiff ended up on off-work duty for treatment and recovery of kidney stones for several weeks. (Id. ) While he was out, Ms. Suarez drafted a letter to the Post Office's human resources manager, addressing Plaintiff's poor performance but noting that "what worries me are not the grievances, EEOs, and Letters he sends out to the Post Master General ... but the fact that he really believes what he's saying." (Id. ¶ 30.) Ms. Suarez's letter continues that Plaintiff's "[b]ehavior is becoming more desperate and delusional; he is irrational and more paranoid" and notes that there was "something ... not quite right" about him. (Id. ) She expresses fear about working with Plaintiff. (Id. ¶ 31.) She also references Dr. Raffle's 1998 report concluding that Plaintiff was unfit for duty. She complains that the report is "too old to use," and quotes the report itself nearly verbatim, stating that the report concluded that Plaintiff's "condition is untreatable and that his condition [is] permanent, and there is little likelihood that his condition will improve with treatment or time." (Id. ¶ 31.) Again, the Post Office did not address Ms. Suarez's access to the 1998 Fitness for Duty Exam report. (Id. )

The next month, Ms. Suarez wrote a handwritten note to the Post Office's human resources manager stating that she "found the paperwork" on Plaintiff and "can't figure out how after all of this he kept a job." (Id. ¶ 32.) She references Dr. Raffle's 1998 report, noting that the physician "states that [Plaintiff] is not a danger to anyone" but Dr. Raffle "needs to come to Sausalito and work with [Plaintiff] like we have to." (Id. ) Days after Ms. Suarez wrote that note, the Post Office ordered Plaintiff to attend another Fitness for Duty Exam, which he did the next month with Dr. William Bresnick. (Id. ¶ 35.)

All of the four Fitness or Duty Exam reports about Plaintiff indicated that he would have trouble interacting with supervisors, completing tasks in a timely manner, and identifying his own disabling condition or asking for help and assistance because of his disabilities. (Id. ¶ 43.) Plaintiff's physician opined that the Post Office could have used Dr. Bresnick's assessment as a guide to "successfully manage" Plaintiff and "[h]ad they followed his recommendations, ... [Plaintiff's] supervisors could have changed their approach to benefit all[,]" Plaintiff could have improved his work performance and communication with his supervisors. (Id. ) The Post Office did not offer Plaintiff a reasonable accommodation or offer to discuss potential accommodations with him, and instead ridiculed him and treated him as a threat. (Id. )

For example, Ms. Suarez continued to make comments evidencing her discriminatory animus. (Id. ¶ 40.) She responded to the effect of "you're crazy" when Plaintiff requested overtime. (Id. ) Several weeks later, Ms. Suarez suspended Plaintiff and placed him on administrative leave...