Flores v. Chiles Bar And Grill et al

Filing 28

ORDER DISMISSING Second Amended Complaint WITH LEAVE TO AMEND re 26 signed by Magistrate Judge Gary S. Austin on 9/1/2015. Amended Complaint due by 10/5/2015. (Martinez, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MOSES FLORES,

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Plaintiff,

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No. 1:13-cv-1783 AWI-GSA

v.
CHILI’S BAR AND GRILL and COLIN
BUTTERFIELD,

ORDER DISMISSING SECOND
AMENDED COMPLAINT WITH LEAVE
TO AMEND

Defendants.

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(Doc. 26)

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I.

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INTRODUCTION

Plaintiff Moses Flores (“Plaintiff”), proceeding pro se and in forma pauperis, filed a

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Second Amended Complaint (“SAC”) alleging civil rights violations. Plaintiff has named Chili’s

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Bar and Grill and Colin Butterfield as Defendants (“Defendants”). 1 (Doc. 26). For the reasons

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discussed below, Plaintiff’s complaint is dismissed and Plaintiff will granted leave to amend.

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It is unclear whether Collin Butterfield is a named Defendant since his name is not specifically listed in the caption
of the SAC, however, he was listed in the first pleading and the instant pleading contains numerous allegations
against him.

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II.

DISCUSSION

A. Screening Standard
Pursuant to 28 U.S.C. § 1915(e), the Court must conduct an initial review of Plaintiff’s

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complaint for legal sufficiency. The Court must dismiss a complaint, or portion thereof, if it
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determines that the action is legally “frivolous or malicious;” “fails to state a claim upon which

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relief may be granted;” or “seeks monetary relief against a defendant who is immune from such

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relief.” 28 U.S.C. § 1915(e)(2). If a complaint fails to state a valid claim, the Court may grant

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leave to amend to the extent the deficiencies may be cured by amendment. Lopez v. Smith, 203

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F.3d 1122, 1127 (9th Cir. 2000).
The Supreme Court cases, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and
Ashcroft v. Iqbal, 566 U.S.662 (2009), set forth a “plausibility” standard which a complaint must
meet to sufficiently state a claim. While not a probability requirement, Twombly and Iqbal’s

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plausibility standard requires a complaint to contain more than “an unadorned, the-defendant-

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unlawfully-harmed-me accusation.” Iqbal, 566 U.S. at 678. Rather than “labels and conclusions”

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or a “formulaic recitation of the elements of a cause of action,” the complaint must contain

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“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555

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and 570. In assessing the plausibility of a claim to relief, well-pleaded factual content is accepted
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as true. Legal conclusions couched as factual allegations are not, however, entitled to an

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assumption of truth. Iqbal, 566 U.S. at 678 (“[t]hreadbare recitals of the elements of a cause of

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action, supported by mere conclusory statements,” are not accepted as true). In sum, after

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Twombly and Iqbal, a complaint cannot simply allege the plaintiff's entitlement to relief; rather, it

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has to demonstrate the plausibility of any claimed entitlement with relevant facts.

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The Court notes that the pleadings of pro se plaintiffs “must be held to less stringent
standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.

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2010) (holding that pro se complaints should continue to be liberally construed after Iqbal).

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Accordingly, pro se pleadings are construed liberally, with plaintiffs afforded the benefit of any

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doubt. Id.
B. Plaintiff’s Allegations

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In the SAC, Plaintiff is alleging unlawful termination from his job because of his race.

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The Complaint is fifty-one pages long and consists of a long narrative of his experiences while he

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was working as a Line Cook at Chili’s Bar and Grill in Hanford, California. More particularly, it

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appears he contends he was discharged from his employment because he is Hispanic. Although

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not entirely clear, it seems that Plaintiff alleges that his employer harassed him while he
attempted to complete his job duties, and that he was unlawfully terminated for behaviors that

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management accepted from white employees. He also alleges he was denied promotions and pay
increases because he is Hispanic. Plaintiff would like his employment reinstated, back pay, a

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promotion to a supervisor position at any location he desires, as well as any other damages or

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relief the Court deems appropriate.

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C. Analysis
1. Rule 8
As noted above, a complaint must contain “a short and plain statement of the claim showing

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that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Iqbal, 566 U.S. at 678 (citing Bell Atlantic Corp. v.

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Twombly, 550 U.S. at 555). Plaintiff must set forth “sufficient factual matter, accepted as true, to

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‘state a claim that is plausible on its face.’” Iqbal, 566 U.S. at 678 (quoting Twombly, 550 U.S. at

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555). Facial plausibility demands more than the mere possibility that a defendant committed

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misconduct, Iqbal at 579, and while factual allegations are accepted as true, legal conclusions are
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not. Id. at 678.
In this instance, Plaintiff’s fifty-one page SAC sets forth a long narrative of how Plaintiff was
wronged and a myriad of claims against several defendants. The complaint is confusing because

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it unnecessarily contains numerous extraneous facts and legalese and therefore fails to comply
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with Rule 8(a). Plaintiff bears the burden of separately setting forth his legal claims, and for each

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claim, briefly and clearly providing the facts so that the Court and Defendants can read and

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understand them. Bautista v. Los Angeles Cnty., 216 F.3d 837, 840-41 (9th Cir. 2000).

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Given that Rule 8(a) requires a short and plain statement of the claim, the Court will allow
Plaintiff one more opportunity to amend his claims. However, the Third Amended Complaint
shall be limited to twenty-five pages, excluding exhibits. This page limit is sufficient for Plaintiff

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to identify his claims and set forth specific facts in support of those claims.
A review of the facts reveals that Plaintiff may be attempting to file an employment

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discrimination action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e et

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seq (“Title VII”). Accordingly, the Court will provide Plaintiff with the legal standards for these

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causes of action. Plaintiff is advised that he must briefly provide specific examples of the alleged

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misconduct including particular facts identifying the misconduct, when the conduct occurred, and
who was involved. Plaintiff is further advised that the causes of action must be clearly organized

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so that there is one cause of action for each alleged violation of law. Moreover, any amended

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complaint must clearly identify which defendant is named under each cause of action. In order

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for the Court to properly screen Plaintiff’s complaint, it must be clear which defendants are

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alleged to have committed each specific violation. Finally, any amended complaint must contain

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all necessary allegations for each cause of action and defendant’s actions must be linked to the

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specific violation of law alleged. Mere speculation regarding a defendant’s behavior or making

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assumptions and drawing legal conclusions is not sufficient to state a claim.
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The Court recognizes that Plaintiff is proceeding pro se and it is mindful of its obligation

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to liberally construe pro se pleadings. However, Plaintiff is clearly literate and capable of

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confining himself to setting forth relevant facts. It is Plaintiff’s obligation to file a complaint that

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complies with Rule 8(a). The Third Amended Complaint must be sufficiently organized and easy
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to read so that the Court can assess the facts surrounding Plaintiff’s case and assess whether he
has stated a claim.

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1. Title VII Claims

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a) Exhaustion Requirement

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As a threshold matter, Plaintiff is informed that Title VII has exhaustion requirements that
must be met prior to filing a court action. 42 U.S.C.§ 2000(e) et seq. A person seeking relief

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under Title VII must first file a charge with the Equal Employment Opportunity Commission
(“EEOC”) within 180 days of the alleged unlawful employment practice, or, if the person initially

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instituted proceedings with the state or local administrative agency, within 300 days of the alleged

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unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1). If the EEOC does not bring suit based

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on the charge, the EEOC will issue a “right to sue letter.” 42 U.S.C. § 2000e-5(f)(1). Once a

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person receives this letter, he has 90 days to file suit. 42 U.S.C. § 2000e-5(f)(1).
Plaintiff must outline how he has exhausted his administrative remedies and that he has

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met this requirement in the Third Amended Complaint.
b) Disparate Treatment

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42 U.S.C. § 2000e-2(b) provides that it shall be an unlawful employment practice for an

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employer to fail to refuse, or otherwise discriminate against, any individual because of his race,

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color, religion, sex, or national origin. 42 U.S.C. § 2000e-2. To establish a prima facie case of

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disparate treatment under Title VII Plaintiff must show that: “(1) he is a member of a protected

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class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and
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(4) similarly situated individuals outside his protected class were treated more favorably, or other

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circumstances surrounding the adverse employment action give rise to an inference of

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discrimination.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004); see also

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Raad v. Fairbanks North Star Borough School Dist., 323 F.3d 1185, 1195-96 (9th Cir. 2003)
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(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Adverse employment action is broadly defined. Ray v. Henderson, 217 F.3d 1234, 1241

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(9th Cir.2000); see also Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000)

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(collecting cases). Adverse employment action exists where an employer's action negatively

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affects an employee's compensation. See, Little v. Windermere Relocation, Inc., 301 F.3d 958,
970 (9th Cir. 2002) (holding that a reduction in base monthly pay was an adverse employment

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action even though with commission and bonuses it might have equaled the same net pay); cf.
University of Hawai'i Prof'l Assembly v. Cayetano, 183 F.3d 1096, 1105-06 (9th Cir. 1999)

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(holding that receiving pay even a couple of days late can seriously affect an employee's financial

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situation and constitutes substantial impairment under the Contracts Clause).

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Plaintiff should keep in mind that Title VII does not provide a cause of action for
damages against supervisors or fellow employees. Holly D. v. California Institute of
Technology, 339 F.3d 1158 (9th Cir. 2003). Therefore, he is unable to name his supervisors or

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fellow employees in any amended complaint alleging a Title VII violation.
c) Hostile Work Environment

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To establish a prima facie case for a hostile-work environment claim, Plaintiff must

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establish that: (1) the defendants subjected the plaintiff to verbal or physical conduct based on his

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race [or one of the other protected classes]; (2) the conduct was unwelcome; and (3) the conduct

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was sufficiently severe or pervasive to alter the conditions of employment and created an abusive

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working environment. Surrell v. California Water Service Co., 518 F. 3d 1097, 1108 (9th Cir.
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2008) citing Manatt v. Bank of America, NA, 339 F.3d 792, 798 (9th Cir. 2003).

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Title VII is not a “general civility code.” Faragher v. City of Boca Raton, 524 U.S. 775,

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788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (discussing Title VII). “[S]imple teasing, offhand

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comments, and isolated incidents (unless extremely serious) will not amount to discriminatory
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changes in the ‘terms and conditions of employment.’ ” Id. (internal citation omitted); see also

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Jordan v. Clark, 847 F.2d 1368, 1374-75 (9th Cir.1988) (finding no hostile work environment

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where “off-color” jokes were told in workplace).

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III.

CONCLUSION

For the reasons stated above, the complaint is DISMISSED WITH LEAVE TO AMEND.
If Plaintiff chooses to amend the Third Amended Complaint, he shall carefully consider the

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standards and guidelines set forth in this order and only file an amended complaint if he believes
he can allege a cognizable claims. The Third Amended Complaint may not exceed twenty-five

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pages in length, and it will be stricken from the record if it violates this page limit. The

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document shall bear the case number assigned to this action and be labeled “Third Amended

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Complaint.” Plaintiff is hereby notified that an amended complaint supercedes the original

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complaint, Lacey v. Maricopa County, 693 F 3d. 896, 907, n. 1 (9th Cir. 2012) (en banc), and

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must be complete in itself without reference to the original complaint. See Local Rule 220. Thus,
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as previously noted, Plaintiff shall provide specific facts in support of his claims, and establish
that he exhausted his administrative remedies in the amended complaint.
Plaintiff shall file a third amended complaint within thirty (30) days of the date of service

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of this order, curing the deficiencies in the second amended complaint as identified by the Court

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above. Plaintiff is advised that this will be the last opportunity to amend the complaint since he

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has been given two prior opportunities to do so.

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Finally, failure to file a third amended complaint within the time specified will result in
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a recommendation that this action be dismissed. Plaintiff is encouraged to seek legal counsel

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in this matter as his case presents complex legal issues.

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IT IS SO ORDERED.
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Dated:

September 1, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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