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