Anthony Silveria v. Denis McDonough ( 2022 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        JAN 20 2022
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ANTHONY SILVERIA,                               No.    20-17457
    Plaintiff-Appellant,            D.C. No. 3:19-cv-06600-EMC
    v.
    MEMORANDUM*
    DENIS MCDONOUGH, Secretary of the
    Department of Veterans Affairs,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Northern District of California
    Edward M. Chen, District Judge, Presiding
    Submitted January 14, 2022**
    Pasadena, California
    Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,*** District
    Judge.
    Silveria filed an action under the Rehabilitation Act of 1973, 29 U.S.C.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    ***
    The Honorable Robert S. Lasnik, United States District Judge for the
    Western District of Washington, sitting by designation.
    § 701 et seq., against the U.S. Department of Veterans Affairs (“VA”) alleging that
    he experienced a disability-based hostile work environment while working at the
    VA. The VA moved to dismiss the Complaint, arguing that Silveria failed to state
    a hostile work environment claim because he did not adequately allege “verbal or
    physical conduct of a harassing nature.” The district court granted the VA’s
    motion, and we affirm.
    “An employer is liable . . . for conduct giving rise to a hostile environment
    where the employee proves (1) that he was subjected to verbal or physical conduct
    of a harassing nature, (2) that this conduct was unwelcome, and (3) that the
    conduct was sufficiently severe or pervasive to alter the conditions of the victim’s
    employment and create an abusive working environment.” Arizona ex rel. Horne
    v. Geo Grp., Inc., 
    816 F.3d 1189
    , 1206 (9th Cir. 2016) (quoting Kortan v. Cal.
    Youth Auth., 
    217 F.3d 1104
    , 1109-10 (9th Cir. 2000)).1 The first requirement,
    “conduct of a harassing nature,” typically involves “physical touching” or
    “repeated comments and gestures” based on a protected characteristic. 
    Id.
     at 1206-
    07; see also Harris v. Forklift Sys., Inc., 
    510 U.S. 17
    , 21 (1993) (describing a
    1
    We assume without deciding that such a claim can be brought under the
    Rehabilitation Act when the hostile work environment is based on a disability.
    Although Silveria questions whether certain elements of a Title VII hostile work
    environment claim “make[] sense for [hostile work environment] disability
    discrimination claims,” he provides no reason to deviate from Title VII’s
    standards.
    2
    hostile work environment as a “workplace . . . permeated with ‘discriminatory
    intimidation, ridicule, and insult’” (quoting Meritor Sav. Bank, FSB v. Vinson, 
    477 U.S. 57
    , 65 (1986))).
    The factual allegations in the Complaint do not create an inference that
    Silveria experienced “conduct of a harassing nature.” Silveria alleges that his
    managers repeatedly disciplined him while he was on medical leave, including by
    ordering him to return to work, charging him with being absent without official
    leave, and eventually suspending and removing him from his job. According to the
    Complaint, Silveria’s managers continually asserted that he failed to provide
    proper medical documentation and otherwise to comply with the VA’s leave
    request procedures when they disciplined him. These allegations mainly describe a
    series of adverse employment actions—as would more typically be asserted in
    support of a disparate treatment claim for discriminatory discipline or firing—
    without even a suggestion that the actions involved any sort of “intimidation,
    ridicule, and insult.” Meritor Sav. Bank, 
    477 U.S. at 65
    . Indeed, Silveria had
    already challenged the same alleged employment conduct in a previous action
    asserting a disparate treatment claim. That action was dismissed with prejudice,
    and Silveria did not appeal. Silveria v. Wilkie, No. 18-cv-07327, 
    2020 WL 820377
    , at *10 (N.D. Cal. Feb. 19, 2020). Although a plaintiff might be able to
    state a hostile work environment claim in part by alleging differential treatment,
    3
    see, e.g., McGinest v. GTE Serv. Corp., 
    360 F.3d 1103
    , 1108-18 (9th Cir. 2004)
    (considering evidence of a discriminatory denial of overtime pay along with racial
    insults, taunts, and graffiti in evaluating a hostile work environmental claim),
    Silveria has not alleged a hostile work environment here.
    The district court did not err in denying Silveria leave to file a fourth
    amended complaint. As the district court observed, Silveria was provided
    numerous opportunities to amend his various pleadings yet failed to state a claim.
    See William O. Gilley Enters., Inc. v. Atl. Richfield Co., 
    588 F.3d 659
    , 669 n.8 (9th
    Cir. 2009). Silveria “points to no additional facts that . . . [would] cure the[]
    deficienc[y]” that warrants dismissal. Metzler Inv. GMBH v. Corinthian Colls.,
    Inc., 
    540 F.3d 1049
    , 1072 (9th Cir. 2008). Accordingly, “the complaint could not
    be saved by any amendment.” United States v. Corinthian Colls., 
    655 F.3d 984
    ,
    995 (9th Cir. 2011) (quoting Krainski v. Nevada ex rel. Bd. of Regents of Nev. Sys.
    of Higher Educ., 
    616 F.3d 963
    , 972 (9th Cir. 2010)).
    AFFIRMED.
    4