FILED
NOT FOR PUBLICATION
OCT 25 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES H. BRYAN, individually and on No. 14-35235
behalf of all others similarly situated,
D.C. No. 3:13-cv-05934-RBL
Plaintiff-Appellant,
v. MEMORANDUM*
WAL-MART STORES, INC., a Delaware
corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted October 4, 2016
Seattle, Washington
Before: W. FLETCHER, GOULD, and N.R. SMITH, Circuit Judges.
James H. Bryan appeals the district court’s grant of Wal-Mart’s motion to
dismiss. We affirm the ruling of the district court.
1. When ruling on a Federal Rule of Civil Procedure 12(b)(6) motion, a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
district court should only consider the pleadings, documents incorporated into the
complaint (when the authenticity of the documents is not disputed and the
plaintiff’s complaint necessarily relies on the documents), and matters of public
record. See Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001).
However, the introduction of other material does not automatically convert the
motion to dismiss into a motion for summary judgment when the record does not
suggest reliance on the extraneous materials. See N. Star Int’l v. Ariz. Corp.
Comm’n, 720 F.2d 578, 582 (9th Cir. 1983). The district court did not convert the
motion to dismiss into a motion for summary judgment, because the record does
not suggest the district court relied on documents outside the pleadings or
documents not properly incorporated into the complaint.
2. We review de novo a district court’s dismissal of a complaint for failure
to state a claim under Rule 12(b)(6). Dougherty v. City of Covina, 654 F.3d 892,
897 (9th Cir. 2011). We may affirm the district court on any basis supported by the
record, “even if the district court did not reach the issue or relied on different
grounds or reasoning.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th
Cir. 1998). To survive a Rule 12(b)(6) motion, a complaint must contain sufficient
factual matter, accepted as true, “to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
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plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Under 42 U.S.C. § 12112(a), “[n]o covered entity shall discriminate against
a qualified individual on the basis of disability in regard to . . . [the] discharge of
employees.” (emphasis added). Such discrimination includes using “selection
criteria that screen out or tend to screen out an individual with a disability or a
class of individuals with disabilities.” Id. § 12112(b)(6). To survive a motion to
dismiss a disparate impact claim, Bryan must allege a disability, the use of
selection criteria, and factual allegations that allow the court to draw a reasonable
inference that the selection criteria screens out or tends to screen out Bryan on the
basis of his disability. See id.
In his complaint, Bryan alleged facts sufficient to show he has a disability.
However, § 12112 is not so broad as to provide a disparate impact claim to any
terminated employee who also has a disability. Bryan must allege facts on which
this court could reasonably infer he was terminated on the basis of his
disability—he must establish a causal nexus. Bryan presents only a conclusory
allegation that his pharmacy license was suspended due to his disability. A review
of the documents (which both parties agree the court may consider to determine
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this motion to dismiss) reveals that Bryan’s pharmacy license was actually
suspended due to his history of adverse board action by the board of pharmacy.
Wal-Mart implemented a neutral policy dismissing all employees with any history
of adverse board action. Because this case concerns a neutral policy affecting all
those with any history of adverse board action, Bryan would have to allege a nexus
between the policy, the forgery charges that resulted in his adverse board action,
and his disability. Without establishing this causal nexus, this court cannot
reasonably infer that Wal-Mart’s neutral policy screens out or tends to screen out
Bryan on the basis of his disability.
AFFIRMED.
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