Wilson v. Alliant Techsystems Incorporated

Filing 12

ORDER re 11 Amended Complaint filed by Scott P Wilson. Plaintiffs general tort claim, Title VII claim, and fraud claim (Doc. 11 17-22) are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state aclaim to relief. The ADA claim (Doc. 11 8-16) survives dismissal. PlaintiffPlaintiff is responsible for effectuation service of process on Defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure. Signed by Magistrate Judge Charles R Pyle on 02/02/12. (LMF)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-11-00503-TUC-CRP

Scott P. Wilson,

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Plaintiff,

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ORDER

vs.
Alliant Techsystems Inc.,
Defendant.

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Plaintiff commenced this employment law action by filing a pro se complaint on

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August 15, 2011. Doc. 1. Six weeks later he filed an amended complaint, asserting a

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claim under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and

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unspecified claims based on religion and fraud. Doc. 7. In an order dated December 6,

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2011 (Doc. 10), the Court granted Plaintiff’s application to proceed in forma pauperis

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(Doc. 2) and screened the amended complaint pursuant to 28 U.S.C. § 1915(e)(2). The

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Court found that the pleading failed to assert subject matter jurisdiction and failed to state

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a claim to relief. Doc. 10 at 2-4. Plaintiff was provided guidance on how to satisfy

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Rule 8 of the Federal Rules of Civil Procedure and was given 30 days to file an amended

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pleading. Id.

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Plaintiff filed a second amended complaint on January 6, 2012. Doc. 11. The

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complaint purports to assert four claims: an ADA claim (id. ¶¶ 8-16), a “general tort”

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claim (¶ 17), a Title VII religious discrimination claim (¶¶ 18-21), and a fraud claim

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(¶ 22). For reasons that follow, the Court finds that the complaint sufficiently asserts

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federal jurisdiction, but only the ADA claim survives dismissal.

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I.

Jurisdiction.

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The Court previously found that it is without subject matter jurisdiction because

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although the first amended complaint asserts a claim under the ADA, a federal statute,

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Plaintiff failed to allege that he filed a charge with the EEOC. Doc. 10 at 2-3. This

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deficiency has been cured. The second amended complaint alleges that Plaintiff has

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exhausted administrative remedies and received a “right to sue” letter from the EEOC.

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Doc. 11 ¶¶ 1-2. In short, the complaint sufficiently states “the grounds for the [C]ourt’s

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jurisdiction.” Fed. R. Civ. P. 8(a)(1); see 28 U.S.C. § 1331.

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II.

ADA Claim.

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To state a prima facie case for discrimination under the ADA, a plaintiff must

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allege that “he is a qualified individual with a disability who suffered an adverse

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employment action because of his disability.” Zivkovic v. S. Cal. Edison Co., 302

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F.3d 1080, 1090 (9th Cir.2004) (quotation marks and citation omitted); see 42 U.S.C.

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§ 12112(a)).

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disability who, with or without reasonable accommodation, can perform the essential

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functions of the employment position that such individual holds or desires.” Id. at 1089

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(quoting 42 U.S.C. § 12111(8)).

A qualified individual with a disability “means an individual with a

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The second amended complaint alleges that Plaintiff has a disability, including

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depression, hearing loss, and vision loss (Doc. 11 ¶ 11), that these conditions have been

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corrected or ameliorated (¶¶ 12-14), that absent the disability he is able to perform the job

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he had with Defendant (¶ 10), and that he was terminated because his medical needs

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made certain members of Defendant’s management “uneasy” (¶ 16). The complaint

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further alleges, albeit in conclusory fashion, that Plaintiff “is a person with a disability

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who with reasonable accommodations could perform the essential functions of his

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employment (¶ 9) and that Defendant “improperly terminated [his] employment . . . [by]
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willfully ignoring the disability” (¶ 8).

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Construing the pro se complaint liberally, as is required in this Circuit, see Hebbe

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v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), the Court finds that the pleading sufficiently

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states a claim to relief under the ADA. The facts alleged in support of the ADA claim,

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when read liberally, constitute “more than an unadorned, the defendant-unlawfully-

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harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009).

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Stated differently, the allegations are sufficient to give Defendant “fair notice of what the

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claim is and the grounds upon which it rests.” Bell Atl. v. Twombly, 550 U.S. 544, 555

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(2007). Plaintiff has met his “burden of pleading [an ADA] claim that is plausible[.]”

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al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009).

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III.

Tort Claim.

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The one-sentence “general tort” claim alleges only that “Defendant caused the

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Plaintiff[’s] hearing loss by having [his] desk in a too noisy environment.” Doc. 11 ¶ 17.

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The complaint fails to specify the nature of the alleged tort. Nor does it identify any duty

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on the part of Defendant that may have been breached. The claim, on its face, appears to

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be barred by workers’ compensation law. See St. George v. Home Depot U.S.A., Inc.,

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No. CV-04-1210-PCT-LOA, 2006 WL 3147661, at *4 (D. Ariz. Nov. 1, 2006)

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(Arizona’s workers’ compensation scheme provides the exclusive remedy for workers

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injured on the job) (citations omitted). The “general tort” claim will be dismissed for

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failure to state a claim to relief.

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IV.

Title VII Claim.

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With respect to the Title VII claim, Plaintiff alleges generally that he was

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terminated for “religious reasons.” Doc. 11 ¶ 18. The only facts presented in support of

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this claim are that Plaintiff is a Christian clergyman, his supervisor openly “expressed

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views opposed to formal Christian worship,” and Plaintiff was given time off as a

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religious accommodation only “begrudgingly” and after “considerable discussion.” Id.

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¶¶ 19-20.

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Where the well-pleaded facts “do not permit the court to infer more than the mere
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possibility of misconduct, the complaint has alleged – but has not ‘show[n]’ – ‘that the

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pleader is entitled to relief.’” Iqbal, 129 S. Ct. at 1949. The second amended complaint

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does not include facts sufficient to create a nexus between Plaintiff’s religious worship

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and his termination. Stated differently, Plaintiff has not shown that he was terminated

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because of his religion. See 42 U.S.C. § 2000e-2(a)(1). Nor has he shown that he

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otherwise was subjected to an adverse employment action or a hostile work environment

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based on religion. See Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1109-10 (9th Cir.

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2000) (to violate Title VII the harassment must be “sufficiently severe or pervasive to

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alter the conditions of the victim’s employment and create an abusive work

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environment”). The Title VII claim (Doc. 11 ¶¶ 18-21) will be dismissed.

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V.

Fraud Claim.

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Plaintiff was terminated, the second amended complaint alleges, because he

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“would not engage in deception on a Department of Defense required audit.” Doc. 11

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¶ 22. Plaintiff asserts that this “constitutes dismissal for failure to be involved in fraud

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against the United States” (id.), but cites no statute or other law showing a valid cause of

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action. Nor does Plaintiff allege fraud with “particularity” as required by Rule 9(b) of the

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Federal Rules of Civil Procedure – that is, the complaint fails to plead the “‘who, what,

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when, where, and how’ of the misconduct charged.” Vess v. Ciba-Geigy Corp. U.S.A.,

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317 F.3d 1097, 1106 (9th Cir. 2003) (citation omitted). The fraud claim will (Doc. 11

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¶ 22) be dismissed.

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VI.

Leave to Amend.

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The Court recognizes that leave to amend should be freely given when justice so

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requires. Fed. R. Civ. P. 15(a)(2). Plaintiff, however, already has amended his complaint

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twice: once as a matter of course (Doc. 7) and again in response to the Court’s initial

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screening order (Docs. 10, 11).

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deficiencies. Before the filing of the second amended complaint, Plaintiff was advised of

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Rule 8’s pleading requirements as interpreted by the Supreme Court in Twombly and

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Iqbal. Doc. 10 at 2-4. Plaintiff has not shown, and it does not otherwise appear to the

Those amendments failed to cure certain pleading

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Court, that the second amended complaint’s deficiencies can be cured through additional

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amendment. The Court therefore will deny leave to file a third amended complaint. See

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Foman v. Davis, 371 U.S. 178, 182 (1962) (leave to amend may be denied as futile);

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Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (affirming

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denial of leave to amend where the claims could not be saved by amendment).

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VII.

Plaintiff’s Obligations.

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Plaintiff is reminded that although he is proceeding pro se, he must become

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familiar with, and follow, the Federal Rules of Civil Procedure and the Rules of the

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United States District Court for the District of Arizona (“Local Rules”). See King v.

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Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986) (“Pro se litigants must follow the same rules of

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procedure that govern other litigants.”); Carter v. Comm’r of Internal Revenue, 784 F.2d

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1006, 1008 (9th Cir. 1986) (“Although pro se, [plaintiff] is expected to abide by the rules

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of the court in which he litigates.”). The Federal Rules of Civil Procedure and the

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Court’s Local Rules may be obtained in the Clerk’s Office and online at the Court’s

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Internet website: www.azd.uscourts.gov (follow link titled “Rules/General Orders”).

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Plaintiff is advised that he is responsible for having the summons and complaint

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properly served on Defendant within the time allowed by Rule 4(m) of the Federal Rules

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of Civil Procedure. If Plaintiff fails to prosecute this action, or if he fails to comply with

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the rules or any Court order, the Court may dismiss the action with prejudice pursuant to

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Rule 41(b) of the Federal Rule of Civil Procedure. See Ferdik v. Bonzelet, 963 F.2d

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1258, 1260 (9th Cir.1992); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).

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IT IS ORDERED:

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Plaintiff’s general tort claim, Title VII claim, and fraud claim (Doc. 11

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¶¶ 17-22) are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a

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claim to relief. The ADA claim (Doc. 11 ¶¶ 8-16) survives dismissal.

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2.

Plaintiff is responsi
ible for eff
fectuating s
service of process on Defendant
n
n

pursuant to Rule 4 of th Federal Rules of Civ Procedu
R
he
R
vil
ure.
Dated this 2nd day of Febru
d
d
uary, 2012.

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