Bullock v. PCL Industrial Services, Inc.

Filing 5

ORDER Finding Service Of Plaintiff's First Amended Complaint Appropriate And Forwarding Service Documents To Plaintiff For Completion Within Thirty Days, signed by Magistrate Judge Jennifer L. Thurston on 9/23/2013. (Case Management Deadline: 10/28/2013) (Attachments: # 1 First Amended Complaint filed Sept. 19, 2013, # 2 USM Civil Instructions, # 3 Summons) (Enclosed: Blank USM-285 Form)(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BENNIE LEN BULLOCK,
Plaintiff,

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v.

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PCL INDUSTRIAL SERVICS, INC.,
Defendant.

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Case No.: 1:13-cv-01233- LJO – JLT
ORDER FINDING SERVICE OF PLAINTIFF’S
FIRST AMENDED COMPLAINT APPROPRIATE
AND FORWARDING SERVICE DOCUMENTS
TO PLAINTIFF FOR COMPLETION WITHIN
THIRTY DAYS

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Plaintiff Bennie Bullock is proceeding pro se and in forma pauperis in this action, asserting a

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violation of his civil rights by PCL Industrial Services, Inc. (“Defendant” or “PCL”). (Doc. 4). For the

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following reasons, the Court finds Plaintiff has stated a cognizable claim, and service of the First

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Amended Complaint is appropriate.

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I.

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Screening Requirement
When an individual is proceeding in forma pauperis, the Court shall dismiss a complaint, or

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portion of the complaint, if it is “frivolous, malicious or fails to state a claim upon which relief may be

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granted; or . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §

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1915A(b); 28 U.S.C. § 1915(e)(2). The Court must screen the First Amended Complaint because an

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amended complaint supersedes the previously filed complaint. See Forsyth v. Humana, Inc., 114 F.3d

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1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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II.

Pleading Requirements
The Federal Rules of Civil Procedure set forth the general requirements for adequate pleading.

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A complaint must include a statement affirming the court’s jurisdiction, “a short and plain statement of

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the claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may

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include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a).
A complaint must give fair notice and state the elements of the plaintiff’s claim 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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purpose is to give the defendant fair notice of the claims against him, and the grounds upon which the

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complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,

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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) (internal quotation marks and citations omitted).

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Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d

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266, 268 (9th Cir. 1982). The Court clarified,

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[A] complaint must contain sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” [Citation]. A claim has facial 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. [Citation]. The
plausibility standard is not akin to a “probability requirement,” but it asks for more than
a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint
pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of
the line between possibility and plausibility of ‘entitlement to relief.’

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Iqbal, 556 U.S. at 679 (citations omitted). When factual allegations are well-pled, a court should

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assume the truth and determine whether the facts would make the plaintiff entitled to relief; conclusions

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in the pleading are not entitled to the same assumption of truth. Id.

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III.

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Plaintiff’s Allegations
Plaintiff alleges he worked for PCL “as fire watch” until January 23, 2012. (Doc. 4 at 3). He

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asserts that on January 22, 2012, he was approached at his fire watch post by a safety representative for

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Defendant’s client, who “asked to see the ‘job hazard analysis.’” Id. at 2. The representative reviewed

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the document with Plaintiff, which was completed by another member of his crew, “and said that he
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wanted the wording to be more specific.” Id. Plaintiff alleges he was asked to convey this information

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during the 7 am safety meeting to be held the next morning. Id. According to Plaintiff, “the client’s

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safety rep then approached the Superintendent and threatened to shut down the jobsite down if the job

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hazardous analysis was not filled out properly.” Id.

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Plaintiff alleges that at the safety meeting on January 23, 2012, “he was rebuffed by Mr. Gibson

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and members of his crew” each time he “tried to convey the message that ‘the wording needed to be

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more specific.’” (Doc. 4 at 2). Plaintiff asserts “the foreign nationals and Mexicans were allowed to

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give input” at the meeting, while he was not permitted to do so. Id. Later the same morning, Plaintiff

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approached Mr. Gibson, a foreman, and he was told to “go see the Superintendent.” Id. at 3. According

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to Plaintiff, he was fired by Defendant “for refusing to sign a false misconduct written by … [Mr.]

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Gibson.” Id. He alleges: “Mr. Gibson falsely claimed that Plaintiff threatened him and supported his

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claim with statements coerced and coaxed from members of his crew.” Id.

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Plaintiff received a “Notice to Employee as to Change in Relationship” signed by Adam Gomez

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and dated January 23, 2012, which indicated Plaintiff was “not a cultural fit for PCL.” (Doc. 4 at 3).

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Mr. Gomez noted that Plaintiff refused to sign the document. Id. at 9.

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On February 10, 2012, Plaintiff signed an “Agreement of Separation,” which provided he would

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be paid $10,000 “as compensation for the releases contemplated by th[e] Agreement.” (Doc. 4 at 7).

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Also, under the terms of the Agreement, Plaintiff was to be provided “a written employment reference

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letter” from Defendant. Id. Plaintiff asserts he “enter[ed] the agreement because the original letter of

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termination dated 01-23-12 listed the reason for termination as ‘not a good cultural fit for PCL’ and

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human resources staff informed Plaintiff that it would not affect his unemployment benefits.” Id. at 3.

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However, the Texas Workforce Commission (“the Commission”) denied Plaintiff’s application for

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unemployment compensation. Id.

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According to Plaintiff, after he applied for unemployment benefits with the Commission, it

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requested information from PCL regarding Plaintiff’s termination, and left a telephone message for

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PCL on February 23, 2012. (Doc. 4 at 3, 11.) Plaintiff alleges that on February 23, 2012, “Defendant

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modified the . . . letter of termination to read as follows “‘not a good cultural fit for PCL due to

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insubordinate behavior with a supervisor.’” Id. at 3. The amendments to the notice were made by
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Adrian Nevarez, who indicated: “Error made when preparing the form.” Id. at 11. Plaintiff alleges

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that as a result of the modifications, he “was denied unemployment compensation in the amount of

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$1260.00 a month for approximately 8 months.” Id. at 3. Further, Plaintiff contends he “would not

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have entered the settlement agreement had he known that the Defendant would modify the letter of

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termination.” Id.
Plaintiff alleges Defendant sent a letter to the Commission on May 15, 2013, “stating that

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Plaintiff did not commit misconduct.” (Doc. 4 at 3). He asserts Defendant committed employment

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practices that “effectively deprived Plaintiff of equal employment because of his race.” Id.

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IV.

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Discussion and Analysis
Plaintiff identifies this “an action under Title VII of the Civil Rights Act of 1964 and Title 1 of

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the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of race.” (Doc. 1 at

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1.) Under Title VII, it is “an unlawful employment practice for an employer . . . to discriminate against

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any individual with respect to his compensation, terms, conditions, or privileges of employment,

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because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1);

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Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). The Supreme Court determined this provision

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guarantees “the right to work in an environment free from discriminatory intimidation, ridicule, and

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insult.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). A plaintiff may allege racial

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discrimination in violation of Title VII by disparate treatment, or showing a hostile work environment.

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Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1109 (9th Cir. 1991) (citing Int’l

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Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). Here, Plaintiff asserts he

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“is a victim of disparate treatment.” (Doc. 4 at 2).

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To prevail on a claim of disparate treatment, a plaintiff must allege sufficient facts that give rise

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to an inference of unlawful discrimination. Specifically, a plaintiff states a cognizable claim for

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disparate treatment if he alleges 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 v. Electra Central Credit Union, 439 F.3d 1018, 1028 (9th

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Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
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Here, Plaintiff is a member of a protected class, and alleges he “performed his job as fire watch

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in a satisfactory manner.” (Doc. 4 at 2). Although this is a legal conclusion, Plaintiff supports his

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assertion by noting Defendant admitted he was not fired for any misconduct, and the letter of

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termination dated January 23, 2012 stated he “was fired for not being a good cultural fit[] as opposed to

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inadequate job performance.” Id. Further, Plaintiff alleges his employment with Defendant was

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terminated, which is an adverse employment action under Title VII. See Nat’l R.R. Passenger Corp. v.

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Morgan, 536 U.S. 101, 114 (2002); Davis v. Team Elec. Co., 520 F.3d 1080, 1094 (9th Cir. 2008).
Finally, Plaintiff alleges he was treated differently than those of different races who were

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assigned to his crew. As a specific example, Plaintiff points to the safety meeting that took place the

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same day he was terminated, where the other members of his crew, including “foreign nationals and

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Mexicans,” were permitted to give input, while he was repeatedly “rebuffed” for speaking up. (Doc. 4

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at 2). Thus, Plaintiff alleges Defendant treated him differently than similarly situated individuals who

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were not of the same race as Plaintiff, and has stated a cognizable claim for disparate treatment in

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violation of Title VII.

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V.

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Conclusion and Order
Plaintiff has alleged facts sufficient to state a cognizable claim for a violation of Title VII by

Defendant, and service of the First Amended Complaint is appropriate.

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Based upon the foregoing, IT IS HEREBY ORDERED:

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1.

PCL Industrial Services, Inc.;

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Service of Plaintiff’s complaint is appropriate for, and shall be initiated on Defendant

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The Clerk of the Court is directed to send Plaintiff one USM-285 form, one summons,

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one Notice of Submission of Documents form, an instruction sheet, and a copy of the

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First Amended Complaint filed on September 19, 2013 (Doc. 4).

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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;

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b.

One completed summons for the defendant; and
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c.

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Three (3) copies of the endorsed complaint.

Plaintiff need not attempt service on Defendants and need not request waiver of service.

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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:

September 23, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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