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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BENNIE LEN BULLOCK, Plaintiff, 12 v. 13 14 PCL INDUSTRIAL SERVICS, INC., Defendant. 15 ) ) ) ) ) ) ) ) ) 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 16 17 Plaintiff Bennie Bullock is proceeding pro se and in forma pauperis in this action, asserting a 18 violation of his civil rights by PCL Industrial Services, Inc. (“Defendant” or “PCL”). (Doc. 4). For the 19 following reasons, the Court finds Plaintiff has stated a cognizable claim, and service of the First 20 Amended Complaint is appropriate. 21 I. 22 Screening Requirement When an individual is proceeding in forma pauperis, the Court shall dismiss a complaint, or 23 portion of the complaint, if it is “frivolous, malicious or fails to state a claim upon which relief may be 24 granted; or . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 25 1915A(b); 28 U.S.C. § 1915(e)(2). The Court must screen the First Amended Complaint because an 26 amended complaint supersedes the previously filed complaint. See Forsyth v. Humana, Inc., 114 F.3d 27 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). 28 /// 1 1 II. Pleading Requirements The Federal Rules of Civil Procedure set forth the general requirements for adequate pleading. 2 3 A complaint must include a statement affirming the court’s jurisdiction, “a short and plain statement of 4 the claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may 5 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 6 7 succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The 8 purpose is to give the defendant fair notice of the claims against him, and the grounds upon which the 9 complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted, 10 12 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. 13 Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (internal quotation marks and citations omitted). 14 Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 15 266, 268 (9th Cir. 1982). The Court clarified, 11 [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.’ 16 17 18 19 20 21 Iqbal, 556 U.S. at 679 (citations omitted). When factual allegations are well-pled, a court should 22 assume the truth and determine whether the facts would make the plaintiff entitled to relief; conclusions 23 in the pleading are not entitled to the same assumption of truth. Id. 24 III. 25 Plaintiff’s Allegations Plaintiff alleges he worked for PCL “as fire watch” until January 23, 2012. (Doc. 4 at 3). He 26 asserts that on January 22, 2012, he was approached at his fire watch post by a safety representative for 27 Defendant’s client, who “asked to see the ‘job hazard analysis.’” Id. at 2. The representative reviewed 28 the document with Plaintiff, which was completed by another member of his crew, “and said that he 2 1 wanted the wording to be more specific.” Id. Plaintiff alleges he was asked to convey this information 2 during the 7 am safety meeting to be held the next morning. Id. According to Plaintiff, “the client’s 3 safety rep then approached the Superintendent and threatened to shut down the jobsite down if the job 4 hazardous analysis was not filled out properly.” Id. 5 Plaintiff alleges that at the safety meeting on January 23, 2012, “he was rebuffed by Mr. Gibson 6 and members of his crew” each time he “tried to convey the message that ‘the wording needed to be 7 more specific.’” (Doc. 4 at 2). Plaintiff asserts “the foreign nationals and Mexicans were allowed to 8 give input” at the meeting, while he was not permitted to do so. Id. Later the same morning, Plaintiff 9 approached Mr. Gibson, a foreman, and he was told to “go see the Superintendent.” Id. at 3. According 10 to Plaintiff, he was fired by Defendant “for refusing to sign a false misconduct written by … [Mr.] 11 Gibson.” Id. He alleges: “Mr. Gibson falsely claimed that Plaintiff threatened him and supported his 12 claim with statements coerced and coaxed from members of his crew.” Id. 13 Plaintiff received a “Notice to Employee as to Change in Relationship” signed by Adam Gomez 14 and dated January 23, 2012, which indicated Plaintiff was “not a cultural fit for PCL.” (Doc. 4 at 3). 15 Mr. Gomez noted that Plaintiff refused to sign the document. Id. at 9. 16 On February 10, 2012, Plaintiff signed an “Agreement of Separation,” which provided he would 17 be paid $10,000 “as compensation for the releases contemplated by th[e] Agreement.” (Doc. 4 at 7). 18 Also, under the terms of the Agreement, Plaintiff was to be provided “a written employment reference 19 letter” from Defendant. Id. Plaintiff asserts he “enter[ed] the agreement because the original letter of 20 termination dated 01-23-12 listed the reason for termination as ‘not a good cultural fit for PCL’ and 21 human resources staff informed Plaintiff that it would not affect his unemployment benefits.” Id. at 3. 22 However, the Texas Workforce Commission (“the Commission”) denied Plaintiff’s application for 23 unemployment compensation. Id. 24 According to Plaintiff, after he applied for unemployment benefits with the Commission, it 25 requested information from PCL regarding Plaintiff’s termination, and left a telephone message for 26 PCL on February 23, 2012. (Doc. 4 at 3, 11.) Plaintiff alleges that on February 23, 2012, “Defendant 27 modified the . . . letter of termination to read as follows “‘not a good cultural fit for PCL due to 28 insubordinate behavior with a supervisor.’” Id. at 3. The amendments to the notice were made by 3 1 Adrian Nevarez, who indicated: “Error made when preparing the form.” Id. at 11. Plaintiff alleges 2 that as a result of the modifications, he “was denied unemployment compensation in the amount of 3 $1260.00 a month for approximately 8 months.” Id. at 3. Further, Plaintiff contends he “would not 4 have entered the settlement agreement had he known that the Defendant would modify the letter of 5 termination.” Id. Plaintiff alleges Defendant sent a letter to the Commission on May 15, 2013, “stating that 6 7 Plaintiff did not commit misconduct.” (Doc. 4 at 3). He asserts Defendant committed employment 8 practices that “effectively deprived Plaintiff of equal employment because of his race.” Id. 9 IV. 10 Discussion and Analysis Plaintiff identifies this “an action under Title VII of the Civil Rights Act of 1964 and Title 1 of 11 the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of race.” (Doc. 1 at 12 1.) Under Title VII, it is “an unlawful employment practice for an employer . . . to discriminate against 13 any individual with respect to his compensation, terms, conditions, or privileges of employment, 14 because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1); 15 Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). The Supreme Court determined this provision 16 guarantees “the right to work in an environment free from discriminatory intimidation, ridicule, and 17 insult.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). A plaintiff may allege racial 18 discrimination in violation of Title VII by disparate treatment, or showing a hostile work environment. 19 Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1109 (9th Cir. 1991) (citing Int’l 20 Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). Here, Plaintiff asserts he 21 “is a victim of disparate treatment.” (Doc. 4 at 2). 22 To prevail on a claim of disparate treatment, a plaintiff must allege sufficient facts that give rise 23 to an inference of unlawful discrimination. Specifically, a plaintiff states a cognizable claim for 24 disparate treatment if he alleges that (1) he belongs to a class protected by Title VII; (2) he performed 25 his job satisfactorily; (3) he suffered an adverse employment action; and (4) “the plaintiff’s employer 26 treated the plaintiff differently than a similarly situated employee who does not belong to the same 27 protected class as the plaintiff.” Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 1028 (9th 28 Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). 4 Here, Plaintiff is a member of a protected class, and alleges he “performed his job as fire watch 1 2 in a satisfactory manner.” (Doc. 4 at 2). Although this is a legal conclusion, Plaintiff supports his 3 assertion by noting Defendant admitted he was not fired for any misconduct, and the letter of 4 termination dated January 23, 2012 stated he “was fired for not being a good cultural fit[] as opposed to 5 inadequate job performance.” Id. Further, Plaintiff alleges his employment with Defendant was 6 terminated, which is an adverse employment action under Title VII. See Nat’l R.R. Passenger Corp. v. 7 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 8 9 assigned to his crew. As a specific example, Plaintiff points to the safety meeting that took place the 10 same day he was terminated, where the other members of his crew, including “foreign nationals and 11 Mexicans,” were permitted to give input, while he was repeatedly “rebuffed” for speaking up. (Doc. 4 12 at 2). Thus, Plaintiff alleges Defendant treated him differently than similarly situated individuals who 13 were not of the same race as Plaintiff, and has stated a cognizable claim for disparate treatment in 14 violation of Title VII. 15 V. 16 17 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. 18 Based upon the foregoing, IT IS HEREBY ORDERED: 19 1. PCL Industrial Services, Inc.; 20 21 Service of Plaintiff’s complaint is appropriate for, and shall be initiated on Defendant 2. The Clerk of the Court is directed to send Plaintiff one USM-285 form, one summons, 22 one Notice of Submission of Documents form, an instruction sheet, and a copy of the 23 First Amended Complaint filed on September 19, 2013 (Doc. 4). 24 3. Within thirty (30) days from the date of this order, Plaintiff SHALL complete the 25 attached Notice of Submission of Documents and submit the completed Notice to the 26 Court with the following documents: 27 a. One completed USM-285 form for the defendant; 28 b. One completed summons for the defendant; and 5 c. 1 2 4. Three (3) copies of the endorsed complaint. Plaintiff need not attempt service on Defendants and need not request waiver of service. 3 Upon receipt of the above-described documents, the Court will direct the United States 4 Marshal to serve Defendant pursuant to Federal Rule of Civil Procedure 4 without 5 payment of costs. 6 5. Plaintiff is cautioned that failure to comply with this order will result in dismissal of the action pursuant to Local Rule 110. 7 8 9 10 11 IT IS SO ORDERED. Dated: September 23, 2013 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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