United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Defendants City of Phoenix and the City of Phoenix Library Department (the "Library") have filed a motion to dismiss pursuant to Rule 12(b)(6). Doc. 18. The motion is fully briefed. For the reasons that follow, the Court will grant in part and deny in part the motion.
Plaintiff Vicki Jo Hodges is a part-time employee of the Library (Doc. 18 at 2), and has worked as a library assistant since July 16, 2007. Doc. 8, ¶ 14. Plaintiff is blind. Id., ¶ 13. Plaintiff contends that beginning in March 2010, her hours were decreased from the 20 hours per week she had previously been working. Id., ¶¶ 17-18. She further contends that all other part-time library assistants work 24 to 30 hours per week, while her hours do not exceed 16. Id., ¶¶ 19-21. Plaintiff alleges that she has never been trained on Polaris, the Library's "online integrated library system, " and that all other Library staff members have received such training. Id., ¶ 23. Plaintiff claims that the Library has also failed to train her on QuestionPoint, which is a software program used "to receive and respond to online inquiries submitted by Library patrons[.]" Id., ¶ 24. She contends that both Polaris and QuestionPoint are compatible with the screen-reading software she utilizes and that she "could be trained on both systems with reasonable accommodation(s)." Id., ¶ 26. If she received this training, she claims, she would be able to work additional hours. Id., ¶ 27.
Plaintiff also contends that she "has requested other reasonable accommodations such as braille signs on rows of shelves and adaptations to the library's RFID (radio frequency identification system) so that she can use it non-visually, " but that the Library has failed to provide these accommodations. Id., ¶¶ 27-28. She finally alleges that the Library failed to grant her an exception to its policy that "no employee may arrive at his/her work area more than thirty minutes prior to scheduled start time, " an accommodation which she asserts is necessary "due to her dependence on Dial-a-Ride transportation to work." Id., ¶ 33.
Plaintiff asserts claims under Titles I and II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 794 et seq. See id. Defendants' motion to dismiss does not challenge Plaintiff's claim under Title I of the ADA. Doc. 18 at 18.
II. Legal Standard.
When analyzing a complaint for failure to state a claim to relief under Rule 12(b)(6), the well-pled factual allegations are taken as true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Legal conclusions couched as factual allegations are not entitled to the assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore are insufficient to defeat a motion to dismiss for failure to state a claim, In re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). To avoid a Rule 12(b)(6) dismissal, the complaint must plead enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This plausibility standard "is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n]' - that the pleader is entitled to relief.'" Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
Plaintiff concedes that the City of Phoenix Library Department is a non-jural entity not subject to suit. Doc. 22 at 4. The Court will therefore dismiss the Library.
A. Title II Claim.
Title II of the ADA states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Defendants argue that Plaintiff's claim under Title II of the ADA must be dismissed because the Ninth Circuit has held that Title II is not applicable to claims of employment discrimination, which must be brought under Title I. Doc. 18 at 7. Defendants are correct. In Zimmerman v. Oregon Department of Justice, 170 F.3d 1169, 1173 (9th Cir. 1999), the Ninth Circuit exhaustively analyzed the applicability of Title II to employment discrimination claims. The court concluded that "Congress unambiguously expressed its intent for Title II not to apply to employment." Id.
Although the Library fits the statutory definition of a "public entity, " Zimmerman made clear that employment discrimination is not covered by either the first clause ("services, programs, or activities of a public entity") or the second clause ("subjected to discrimination by any such entity") of Title II. See id. at 1174-76 (concluding that "employment by a public entity is not commonly thought of as a service, program, or activity of a public entity, '" and that the second clause of Title II prohibits discrimination "only in a public entity's outputs, '" rather than "inputs, " such as employment).
Plaintiff advances Barker v. Riverside County Office of Education, 584 F.3d 821 (9th Cir. 2009), as distinguishing Zimmerman. In Barker, the court held that the plaintiff's claim under Title II could proceed because she alleged "that she was retaliated against and subsequently lost her job because she advocated for disabled students who were receiving inadequate public services - educational services provided by a public school - which are covered under Title II[.]" Barker, 584 F.3d at 828. The court did not hold that Title II applied to employment claims, but that the plaintiff's claims could proceed because she alleged discrimination related to ...