NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TATYANA EVGENIEVNA No. 19-16395
DREVALEVA,
D.C. No. 3:18-cv-03748-WHA
Plaintiff-Appellant,
v. MEMORANDUM*
DEPARTMENT OF VETERANS
AFFAIRS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted November 9, 2020**
Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.
Tatyana Evgenievna Drevaleva appeals pro se from the district court’s
judgment dismissing her employment action alleging federal and state law claims.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for
*
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).
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Cervantes
v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th Cir. 2011). We may
affirm on any basis supported by the record. Thompson v. Paul, 547 F.3d 1055,
1058-59 (9th Cir. 2008). We affirm in part, reverse in part, and remand.
The district court properly dismissed Drevaleva’s claim that she was
discriminated against in violation of the Americans with Disabilities Act (“ADA”)
because the federal government is excluded from the coverage of the ADA. See 42
U.S.C. § 12111(5)(B) (stating that “[t]he term ‘employer’ does not include the
United States [or] a corporation wholly owned by the government of the United
States”).
Dismissal of Drevaleva’s Age Discrimination in Employment Act
(“ADEA”) claim was proper because Drevaleva failed to allege facts sufficient to
show that Drevaleva was discriminated against on the basis of her age. See
Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1050 (9th Cir. 2012) (setting
forth requirements for stating an ADEA claim).
The district court properly dismissed Drevaleva’s constitutional and state
law claims because federal employees are limited to using federal employment
laws to redress employment discrimination. See White v. Gen. Servs. Admin., 652
F.2d 913, 916-17 (9th Cir. 1981) (Title VII provides the exclusive judicial remedy
for claims of discrimination in federal employment); see also Ahlmeyer v. Nev. Sys.
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of Higher Educ., 555 F.3d 1051, 1054 (9th Cir. 2009) (the ADEA provides the
exclusive remedy for age discrimination); Vinieratos v. U.S., Dep’t of Air Force,
939 F.2d 762, 773 (9th Cir. 1991) (Title VII provides the exclusive channel
through which Rehabilitation Act claims may be heard in federal court).
The district court dismissed Drevaleva’s Title VII claim because Drevaleva
failed to allege facts sufficient to establish a prima facie case of sex discrimination
on the basis of her fertility issues. However, Federal Rule of Civil Procedure 8(a),
not the McDonnell Douglas framework, provides the appropriate pleading standard
for reviewing a Rule 12(b)(6) motion in an employment discrimination action. See
Austin v. Univ. of Or., 925 F.3d 1133, 1136-37 (9th Cir. 2019) (citing Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 511 (2002)). Drevaleva alleged that her supervisors
fraudulently concealed available leave options when she requested time off to
travel to Russia to continue her in vitro fertilization procedures in Russia, imposed
additional requirements on her application for leave without pay that were
inconsistent with the agency’s policies, and failed to provide a full explanation of
the reason for her leave to the medical staff responsible for approving the leave
request. At this early stage in the proceedings, these allegations are sufficient to
warrant proceeding to summary judgment. See Buckey v. County of Los Angeles,
968 F.2d 791, 794 (9th Cir. 1992) (review on a motion to dismiss is based on the
contents of the complaint, and factual allegations are taken as true); see also Costa
3 19-16395
v. Desert Palace, Inc., 299 F.3d 838, 855 (9th Cir. 2002) (the McDonnell Douglas
framework is a legal proof structure that is only relevant at the summary judgment
stage of a discrimination action). We therefore reverse the district court’s
dismissal of Drevaleva’s sex discrimination claim and remand for further
proceedings on this claim.
The district court dismissed Drevaleva’s Rehabilitation Act claim based on
the finding that an affidavit submitted by defendant Dunkelberger demonstrated
that Drevaleva’s requested accommodation for her alleged impairment in
reproductive functioning was denied for the legitimate reason of Drevaleva’s
failure to follow the proper procedure for requesting leave. However, Drevaleva
alleged that she was denied leave for her alleged disability and terminated even
though she made a proper request that was approved by her supervisor. Liberally
construed, these allegations, in conjunction with those discussed above with
respect to Drevaleva’s Title VII claim, are sufficient to warrant proceeding to
summary judgment. See Buckey, 968 F.2d at 794. We therefore reverse the
district court’s dismissal of Drevaleva’s Rehabilitation Act claim and remand for
further proceedings on this claim.
The district court did not abuse its discretion by denying Drevaleva’s first
post-judgment Federal Rule of Civil Procedure 60(b) motion because Drevaleva
failed to demonstrate any basis for such relief. See Sch. Dist. No. 1J, Multnomah
4 19-16395
Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262, 1263 (9th Cir. 1993) (setting forth
standard of review and grounds for reconsideration under Rule 60).
The district court properly concluded that it lacked jurisdiction to entertain
Drevaleva’s second Rule 60(b) motion to vacate, which was filed after the notice
of appeal became effective, thereby depriving the district court of its jurisdiction.
See Fed. R. App. P. 4(a)(4)(B)(ii) (notice of appeal becomes effective when the
order disposing of the last remaining tolling motion is entered); see also Williams
v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004) (vacating for lack of jurisdiction an
order denying a Rule 60(b) motion where the motion was filed after the notice of
appeal and movant did not follow the procedure for seeking a remand of the case
back to district court).
The district court did not abuse its discretion in denying Drevaleva’s motion
to appoint counsel. See Bradshaw v. Zoological Soc. of San Diego, 662 F.2d 1301,
1318 (9th Cir. 1981) (setting forth standard of review and the three factors relevant
to the exercise of the district court’s discretion).
We do not consider matters not specifically and distinctly raised in the
opening brief, or arguments and allegations raised for the first time on appeal. See
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
In sum, we reverse the dismissal of Drevaleva’s sex discrimination claim
and failure-to accommodate claim, and remand for further proceedings as to these
5 19-16395
claims only. We affirm the dismissal of all other claims. In light of our
disposition, the district court should reconsider whether the appointment of counsel
is warranted.
All remaining pending motions and requests are denied.
The parties shall bear their own costs on appeal.
AFFIRMED in part; REVERSED in part; and REMANDED.
6 19-16395
Tatyana Drevaleva v. United States Department of Ve
Combined Opinion