Tryals v. Me Elecmetal/Me Global

Filing 6

ORDER granting 2 Plaintiff's Application to Proceed In Forma Pauperis. Plaintiff's Complaint (Doc. 1 ) is dismissed for failure to state a cause of action. Plaintiff shall file a First Amended Complaint within 30 days of the filing of this Order. Clerk shall enter dismissal without prejudice if Plaintiff fails to comply. Signed by Magistrate Judge Eileen S Willett on 11/4/16. (DXD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael Tryals, Plaintiff, 10 11 ORDER v. 12 No. CV-16-03037-PHX-ESW Me Elecmetal/Me Global, 13 Defendant. 14 15 At issue is pro se Plaintiff Michael Tryals’ Application to Proceed in District 16 Court Without Prepaying Fees or Costs (Doc. 2). The Court finds that Plaintiff does not 17 have sufficient means to pay the Court’s fees and will grant the Application. However, 18 as set forth below, upon screening Plaintiff’s Complaint (Doc. 1) pursuant to 28 U.S.C. § 19 1915(e)(2), the Court finds that Plaintiff has not satisfied the pleading requirements of the 20 Federal Rules of Civil Procedure and fails to state a cause of action. The Court therefore 21 dismisses the Complaint (Doc. 1) without prejudice and grants Plaintiff leave to file a 22 First Amended Complaint consistent with the findings of the Court set forth herein. 24 I. LEGAL STANDARDS A. Statutory Screening of In Forma Pauperis Complaint Pursuant to 28 U.S.C. § 1915 (e)(2) 25 The Court must dismiss a complaint or portion thereof if a plaintiff has raised 26 claims that are legally frivolous or malicious, that fail to state a claim upon which relief 27 may be granted, or that seek monetary relief from a defendant who is immune from such 28 relief. 23 28 U.S.C. § 1915A(b)(1)–(2). A pleading must contain a “short and plain 1 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 2 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it 3 demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” 4 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a 5 cause of action, supported by mere conclusory statements, do not suffice.” Id. “[A] 6 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 7 relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 8 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that 9 allows the court to draw the reasonable inference that the defendant is liable for the 10 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 11 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 12 judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific 13 factual allegations may be consistent with a claim for relief, a court must assess whether 14 there are other “more likely explanations” for a defendant’s conduct. Id. at 681. 15 But as the United States Court of Appeals for the Ninth Circuit has instructed, 16 courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 17 342 (9th Cir. 2010). A “complaint [filed by a pro se litigant] ‘must be held to less 18 stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 19 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 20 If the Court determines that a pleading could be cured by the allegation of other 21 facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal 22 of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). “It 23 is also clear that section 1915(e) not only permits but requires a district court to dismiss 24 an in forma pauperis complaint that fails to state a claim.” Id. at 1127. 25 II. ANALYSIS 26 Plaintiff’s Complaint states that he was discriminated against by the Defendant 27 pursuant to Title VII of the Civil Rights Act of 1964 “on several occasions from August 28 2014-September 2015.” (Doc. 1, 1-2). Plaintiff indicates that (i) he filed charges with -2- 1 the U.S. Equal Employment Opportunity Commission (“EEOC”), (ii) he received a Right 2 to Sue letter, and (iii) the EEOC filed a retaliation charge against the Defendant. (Id. at 3 2). Plaintiff also states that an NLRB arbitration hearing is scheduled for November 4 2016. 5 termination and lost wages and pain and suffering.” (Id.). (Id.) Plaintiff seeks monetary damages “for discrimination and wrongful 6 Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., (“Title VII”) provides 7 that “[i]t shall be an unlawful employment practice for an employer (1) to fail or refuse to 8 hire or to discharge any individual, or otherwise discriminate against any individual with 9 respect to his compensation, terms, conditions, or privileges of employment, because of 10 such individual’s race, color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e- 11 2(a)(1). In a claim for discrimination pursuant to Title VII, a plaintiff must “offer 12 evidence that ‘give[s] rise to an inference of unlawful discrimination.’” Lowe v. City of 13 Monrovia, 775 F. 2d 998, 1005 (9th Cir. 1985), as amended, 784 F. 2d 1407 (1986) 14 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). A 15 plaintiff may prove discrimination by direct evidence that a defendant’s challenged 16 employment action was either intentionally discriminatory or that it had a discriminatory 17 effect on the plaintiff. See Jespersen v. Harrah’s Oper. Co., Inc., 444 F. 3d 1104, 1108- 18 09 (9th Cir. 2006). 19 circumstantial evidence a prima facie case of discrimination by proving that (i) plaintiff is 20 a member of a protected class, (ii) plaintiff was qualified for his position and performing 21 his job satisfactorily, (iii) plaintiff experienced an adverse employment action, and (iv) 22 similarly situated employees outside plaintiff’s protected class were treated more 23 favorably, or other circumstances surrounding the adverse employment action give rise to 24 an inference of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 25 802 (1973); Hawn v. Executive Jet Mgmt., Inc., 615 F. 3d 1151, 1156 (9th Cir. 2010). 26 Plaintiff must show that discrimination was either the sole reason for or a “motivating 27 factor” in the employer’s adverse employment decision. See Costa v. Desert Palace, 28 Inc., 299 F.3d 838, 853-54 (9th Cir. 2002) (en banc) (“Put simply, the plaintiff in any In the absence of direct evidence, a plaintiff may establish by -3- 1 Title VII case may establish a violation through a preponderance of evidence (whether 2 direct or circumstantial) that a protected characteristic played ‘a motivating factor.’”), 3 aff’d, 539 U.S. 90 (2003). 4 A plaintiff bears the burden of proof under Title VII. Burdine, 450 U.S. at 253 5 (“The ultimate burden of persuading the trier of fact that the defendant intentionally 6 discriminated against the plaintiff remains at all times with the plaintiff.”) If the plaintiff 7 establishes by a preponderance of the evidence a prima facie case of discrimination, then 8 “the burden of production, but not persuasion, shifts to the defendant to articulate some 9 legitimate, nondiscriminatory reason for the challenged action.” Chuang v. Univ. of Cal. 10 Davis, Bd. of Trs., 225 F. 3d 1115, 1123-24 (9th Cir. 2000). Plaintiff must then show that 11 defendant’s stated reason for the adverse employment action was a mere “pretext” for 12 unlawful discrimination or discriminatory in its application. McDonnell Douglas Corp., 13 411 U.S. at 804. “[A] plaintiff can prove pretext in two ways: (1) indirectly, by showing 14 that the employer's proffered explanation is ‘unworthy of credence’ because it is 15 internally inconsistent or otherwise not believable, or (2) directly, by showing that 16 unlawful discrimination more likely motivated the employer.” Chuang, 225 F.3d at 1127 17 (emphasis added) (citing Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220–22 (9th Cir. 18 1998)); see Burdine, 450 U.S. at 256. “All of the evidence [as to pretext] – whether 19 direct or indirect – is to be considered cumulatively.” Raad v. Fairbanks North Star 20 Borough School Dist., 323 F.3d 1185, 1194 (9th Cir. 2003). Where the evidence of 21 pretext is circumstantial, rather than direct, the plaintiff must present “specific” and 22 “substantial” facts showing discrimination. Godwin, 150 F.3d at 1222. 23 Title VII also prohibits discrimination against an individual “because he has 24 opposed any practice made an unlawful employment practice by this subchapter, or 25 because he has made a charge, testified, assisted, or participated in any manner in an 26 investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). 27 “Title VII’s antiretaliation provision forbids employer actions that ‘discriminate against’ 28 an employee (or job applicant) because he has ‘opposed’ a practice that Title VII forbids -4- 1 or has ‘made a charge, testified, assisted, or participated in’ a Title VII ‘investigation, 2 proceeding, or hearing.’” Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 3 53, 59 (2006) (quoting 42 U.S.C. § 2000e-3(a)). 4 provision of Title VII seeks to secure a workplace free from discrimination on the basis 5 of race, religion, sex, or national origin, the anti-retaliation provision of Title VII 6 prohibits employers from “interfering (through retaliation) with an employee’s efforts to 7 secure or advance enforcement of [Title VII’s] basic guarantees.” 8 retaliation claim, the plaintiff must prove by a preponderance of evidence that (i) plaintiff 9 engaged in or was engaging in “protected activity”; (ii) the employer subsequently 10 subjected the plaintiff to adverse employment action; and (iii) that “a causal link exists 11 between the two.” See Dawson v. Entek Int’l, 630 F. 3d 928, 936 (9th Cir. 2011). Whereas the anti-discrimination Id. at 63. In a 12 In addition, a plaintiff who believes he has been discriminated against on either 13 theory must file a charge within the statutory time period and serve notice upon the 14 defendant against whom the charge is made. See 42 U.S.C. § § 2000e-5(b), (e)(1); 15 National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). A charge must be 16 filed within 180 days after the alleged unlawful employment practice occurred and notice 17 of the charge (including the date, place, and circumstances of the alleged unlawful 18 employment practice) must be served upon the Defendant within ten days. However, if a 19 plaintiff initially institutes proceedings with the Arizona Civil Rights Division, the charge 20 must be filed within 300 days of the unlawful employment practice alleged. 42 U.S.C. § 21 2000e-5(e)(1); Morgan, 536 U.S. at 109. Though not a jurisdictional prerequisite to suit 22 in federal court, the timely filing of a charge of discrimination is “a requirement that, like 23 a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes v. 24 Trans World Airlines, Inc. Independent Federation of Flight Attendants v. Trans World 25 Airlines, Inc., 455 U.S. 385, 393 (1982). A claim for discrimination under Title VII is 26 timely filed in District Court if filed within ninety days after the issuance of the right-to- 27 sue letter. See O’Donnell v. Vencor Inc., 466 F. 3d 1104, 1109 (9th Cir. 2006) (citing 42 28 U.S.C. § 2000e-5(f)(1)). The timely filing of a complaint in District Court does not -5- 1 satisfy the requirement of timely filing a charge with the EEOC or appropriate state 2 agency. 3 Here, though Plaintiff has timely filed his Complaint within ninety days of the 4 issuance of the EEOC’s Notice of Right to Sue letter attached to the Complaint, Plaintiff 5 has failed to allege facts sufficient for the Court to find that Plaintiff’s charges were 6 timely made. Plaintiff indicates only that he filed charges in January 2015, a date 7 inconsistent with discrimination alleged to have occurred from August 2014 through 8 September 2015. The Court does not possess a copy of the charges. 9 In addition, Plaintiff fails to allege sufficient facts from which the Court may 10 determine that a Title VII claim exists. Plaintiff does not allege that he is a member of a 11 protected class. 12 discriminatory conduct occurred, where it occurred, and when it occurred. Plaintiff does 13 not indicate whether he was qualified for his position and satisfactorily performing his 14 job, nor does he allege whether others outside of his protected class were being treated 15 more favorably or any other circumstances which may give rise to an inference of 16 discrimination. 17 discrimination. Plaintiff does not describe protected activity in which he was engaged for 18 which Defendant took retaliatory adverse employment action against him. 19 Plaintiff has failed to state a Title VII claim against the named Defendant for which relief 20 can be granted on any theory of liability, the Complaint will be dismissed without 21 prejudice. 22 Plaintiff does not indicate with any specificity what alleged Plaintiff does not allege any direct or circumstantial evidence of Because III. LEAVE TO AMEND 23 For the foregoing reasons, Plaintiff’s Complaint will be dismissed for failure to 24 state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a 25 first amended complaint to cure the deficiencies outlined above. Plaintiff must clearly 26 designate on the face of the document that it is the “First Amended Complaint.” A first 27 amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 F.2d 28 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, -6- 1 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as 2 nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the 3 original complaint and that was voluntarily dismissed or was dismissed without prejudice 4 is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa County, 5 693 F.3d 896, 928 (9th Cir. 2012) (en banc). 6 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements 7 telling the Court the factual basis for his Title VII claims, including for example: (1) the 8 protected class in which Plaintiff is a member; (2) whether Plaintiff was qualified for his 9 position and performing his job satisfactorily; (3) any protected activity of the Plaintiff; 10 (4)exactly what the Defendant did or failed to do that constitutes adverse employment 11 action; (5) when the action or inaction of the Defendant occurred; (6) whether similarly 12 situated employees outside of Plaintiff’s protected class were treated more favorably or 13 other relevant circumstances giving rise to an inference of discrimination; (7) when the 14 Plaintiff filed a charge with the EEOC or appropriate state agency; (8) the relief Plaintiff 15 seeks for injuries he has sustained. Plaintiff must repeat this process for each entity he 16 names as a Defendant. Conclusory allegations will not suffice. 17 IV. POSSIBLE DISMISSAL 18 If Plaintiff fails to timely comply with every provision of this Order, the Court 19 may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a 20 district court may dismiss an action for failure to comply with any order of the court). 21 V. CONCLUSION 22 For the reasons set forth herein, 23 IT IS ORDERED granting Plaintiff’s Application to Proceed in District Court 24 25 26 27 28 without Prepaying Fees or Costs (Doc. 2). IT IS FURTHER ORDERED dismissing Plaintiff’s Complaint (Doc. 1) for failure to state a cause of action. IT IS FURTHER ORDERED that Plaintiff shall file a First Amended Complaint within thirty (30) days of the filing of this Order. -7- 1 IT IS FURTHER ORDERED that if Plaintiff fails to file an amended complaint 2 within 30 days, the Clerk of Court must, without further notice, enter a judgment of 3 dismissal of this action without prejudice. 4 Dated this 4th day of November, 2016. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-

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