Lopez v. Coca-Cola
Filing
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ORDER FINDING Service of Plaintiff's 5 Second Amended Complaint Appropriate and Forwarding Service Documents to Plaintiff for Completion within Thirty Days signed by Magistrate Judge Jennifer L. Thurston on 12/16/2013. (Attachments: # 1 USM Instructions)(Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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PEDRO LOPEZ, JR.,
Plaintiff,
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v.
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COCA-COLA.,
Defendant.
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Case No.: 1:13-cv-01217- LJO -J LT
ORDER FINDING SERVICE OF PLAINTIFF’S
SECOND AMENDED COMPLAINT (DOC. 5)
APPROPRIATE AND FORWARDING SERVICE
DOCUMENTS TO PLAINTIFF FOR
COMPLETION WITHIN THIRTY DAYS
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Plaintiff Pedro Lopez, Jr. initiated this action by filing a complaint on August 5, 2013. (Doc. 1.)
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The Court screened Plaintiff’s complaint on August 19, 2013 to determine whether it has jurisdiction
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over the action, and dismissed Plaintiff’s complaint with leave to amend. (Doc. 2.) For the following
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reasons, the Court finds service of Plaintiff’s Second Amended Complaint (Doc. 5) is appropriate.
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I.
Pleading Requirements
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The Federal Rules of Civil Procedure govern the requirements for filing an adequate complaint
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in the District Court. A complaint must include a statement affirming the court’s jurisdiction, “a short
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and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the relief
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sought, which may include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a).
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The purpose of the complaint is to give the defendant fair notice of the claims against him, and the
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grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).
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Thus, a complaint must give fair notice and state the elements of the plaintiff’s claims in a plain and
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succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The
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Supreme Court explained,
Rule 8 does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action will
not do. Nor does a complaint suffice if it tenders naked assertions devoid of further
factual enhancement.
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Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (quotation marks and citations omitted). Conclusory
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and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266, 268
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(9th Cir. 1982). When factual allegations are well-pled, a court should assume their truth and
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determine whether the facts would make the plaintiff entitled to relief; conclusions in the pleading are
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not entitled to the same assumption of truth. Id.
The Court has a duty to dismiss a case at any time it determines an action fails to state a claim,
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“notwithstanding any filing fee that may have been paid.” 28 U.S.C. § 1915e(2). Accordingly, a court
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“may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a
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claim.” See Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981) (citing 5 C. Wright & A. Miller, Federal
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Practice and Procedure, § 1357 at 593 (1963)). However, the Court may grant leave to amend when
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the deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 1122, 1127-
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28 (9th Cir. 2000).
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II.
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Plaintiff’s Allegations
Plaintiff alleges he worked for Coca-Cola as a driver, but his employment was terminated on
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August 5, 2011. (Doc. 5 at 7). Plaintiff reports had previously been suspended from work, leading to a
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termination of his employment on December 10, 2010. (Doc. 3 at 2.) Plaintiff reports that in
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November 2012, he “was shop steward for the Full Service Department and spoke out in favor of one
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of [his] co-workers.” (Doc. 5 at 1.) A month later, Plaintiff was “terminated for allegedly falsyfing
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(sic) [his] time sheet and stealing 13 min of company time.” (Id.) According to Plaintiff, “another co-
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worker actually got caught at home numerous of times on company time and didn’t get fired.”
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Therefore, Plaintiff asserts this first suspension and termination occurred because his co-worker was
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white and Plaintiff is Hispanic. (Id. at 2.)
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Plaintiff was reinstated as a driver, with a different route, on July 19, 2011. (Doc. 3 at 2.) He
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reports he was given one day of training, which “consisted of a slide show and no hands on training”
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when he returned to work. (Id.) Plaintiff asserts he was “accused of not reporting an accident and
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falsyfing (sic) [his] DVR book.” (Doc. 5 at 2.) He alleges there “was no reportable damage to the
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vehicle” as a result of the accident. (Id.) However, according to Plaintiff, two other non-Hispanic
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drivers “had missing lights and their truck and they didn’t report them on their DVRs…and no
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discipline ever came to them.” (Id.)
On May 29, 2012, Plaintiff filed a complaint with California Department of Fair Employment
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and Housing and the EEOC, asserting he was discriminated against on the basis of race. (Doc. 5 at 7.)
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Plaintiff noted his supervisor, Ron Hemingway, informed him that Plaintiff’s failure was “for failure to
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report an accident and falsifying paperwork,” but Plaintiff’s “non-Hispanic counterparts were not
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terminated for similar reasons.” (Id.)
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III.
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Discussion and Analysis
Title VII makes it unlawful “for an employer to discriminate against any of his employees . . .
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because he has opposed any practice made an unlawful employment practice by this [title] . . . or
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because he has made a charge, testified, assisted, or participated in any manner in an investigation,
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proceeding, or hearing under this [title]. . . .” 42 U.S.C. § 2000e-3(a). Further, Title VII provides it is
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“an unlawful employment practice for an employer . . . to discriminate against any individual with
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respect to his compensation, terms, conditions, or privileges of employment, because of such
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individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1); Harris v. Forklift
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Sys., Inc., 510 U.S. 17, 21 (1993). The Supreme Court determined this guarantees “the right to work in
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an environment free from discriminatory intimidation, ridicule, and insult.” Meritor Sav. Bank, FSB v.
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Vinson, 477 U.S. 57, 65 (1986). Here, Plaintiff alleges he suffered discrimination based upon his race
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in violation of Title VII.
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“A person suffers disparate treatment in his employment when he or she is singled out and
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treated less favorably than others similarly situated on account of race.” Cornwell v. Electra Central
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Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). To state a cognizable claim of disparate
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treatment, a plaintiff must show that (1) he belongs to a class protected by Title VII; (2) he performed
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his job satisfactorily; (3) he suffered an adverse employment action; and (4) “the plaintiff’s employer
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treated the plaintiff differently than a similarly situated employee who does not belong to the same
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protected class as the plaintiff.” Cornwell, 493 F.3d at 1028 (citing McDonnell Douglas Corp., 411
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U.S. at 802).
In this case, Plaintiff alleges he was a member of a protected class, and that he performed his
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job well for 13 years. (See Doc. 5 at 4-5.) Further, Plaintiff alleges he has suffered an adverse
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employment action given the termination of his employment. See Davis v. Team Elec. Co., 520 F.3d
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1080, 1094 (9th Cir. 2008) (termination is an adverse employment action); Brooks v. City of San
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Mateo, 229 F.3d 917, 928 (9th Cir. 2000) (same). Finally, Plaintiff has alleged that he was treated
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differently than his non-Hispanic coworkers who were not terminated for failure to report accidents on
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their DVRs, in spite of having visible damage to their trucks. Consequently, Plaintiff has stated a
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cognizable claim for a disparate treatment in violation of Title VII.
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IV.
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Conclusion and Order
Plaintiff has stated cognizable claims for a violation of Title VII, and the Court has jurisdiction
over this matter. Accordingly, IT IS HEREBY ORDERED:
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initiated on Defendant.
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Service of Plaintiff’s Second Amended Complaint is appropriate for, and shall be
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The Clerk of the Court is directed to send Plaintiff two (2) USM-285 forms, two (2)
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summons, one (1) Notice of Submission of Documents form, an instruction sheet, and a
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copy of the Second Amended Complaint filed on November 7, 2013 (Doc. 5).
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3.
Within thirty (30) days from the date of this order, Plaintiff SHALL complete the
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attached Notice of Submission of Documents and submit the completed Notice to the
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Court with the following documents:
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a.
One completed USM-285 form for the defendant listed above;
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b.
One completed summons for the defendant listed above; and
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c.
Three (3) copies of the endorsed complaint.
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4.
Plaintiff need not attempt service on Defendant and need not request waiver of service.
Upon receipt of the above-described documents, the Court will direct the United States
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Marshal to serve Defendant pursuant to Federal Rule of Civil Procedure 4 without
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payment of costs.
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5.
Plaintiff is cautioned that failure to comply with this order will result in dismissal
of the action pursuant to Local Rule 110.
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IT IS SO ORDERED.
Dated:
December 16, 2013
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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