Burton v. Zero Waste Solutions

Filing 14

ORDER Vacating April 14, 2016, Findings and Recommendations 10 ; FINDINGS and RECOMMENDATIONS to Dismiss without Leave to Amend for Failure to State a Claim, signed by Magistrate Judge Michael J. Seng on 6/27/16. Referred to Judge O'Neill; 14-Day Deadline. (Verduzco, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

LOVELL BURTON,

12
13
14
15
16
17
18
19

Plaintiff,

CASE NO. 1:15-cv-01562-LJO-MJS
ORDER VACATING APRIL 14, 2016,
FINDINGS AND RECOMMENDATIONS;

v.
AND
ZERO WASTE SOLUTIONS, et al.,
Defendants.

FINDINGS AND RECOMMENDATIONS
TO DISMISS WITHOUT LEAVE TO
AMEND FOR FAILURE TO STATE A
CLAIM
(ECF NOS. 10, 12)
FOURTEEN-DAY (14) OBJECTION
DEADLINE

20
21
22
23
24
25
26
27

Plaintiff is proceeding pro se and in forma pauperis in this employment
discrimination and retaliation action filed on October 14, 2015. On February 23, 2016,
the Court dismissed Plaintiff’s first amended complaint and directed Plaintiff to file a
second amended complaint within thirty days. (ECF No. 9.) When Plaintiff failed to file an
amended pleading, the undersigned issued Findings and Recommendations to dismiss
this action without prejudice for failure to comply with a court order and failure to
prosecute. (ECF No. 10.) Immediately following this recommendation, Plaintiff filed a

28
1

1

second amended complaint. (ECF No. 12.) Accordingly, the undersigned will vacate the

2

April 14, 2016, Findings and Recommendations and screen the second amended

3

complaint.

4

I.

SCREENING REQUIREMENT

5

The in forma pauperis statute provides, “Notwithstanding any filing fee, or any

6

portion thereof, that may have been paid, the court shall dismiss the case at any time if

7

the court determines that . . . the action or appeal . . . fails to state a claim upon which

8

relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

9

II.

PLEADING STANDARD

10

A complaint must contain “a short and plain statement of the claim showing that

11

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

12

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

13

supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

14

662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

15

Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief

16

that is plausible on its face.” Id. Facial plausibility demands more than the mere

17

possibility that a defendant committed misconduct and, while factual allegations are

18

accepted as true, legal conclusions are not. Id. at 677-78.

19

III.

PLAINTIFF’S ALLEGATIONS

20

Plaintiff brings this employment discrimination and retaliation action against Zero

21

Waste Solutions (“Zero Waste”), Carmen Rodriguez (“Carmen R.”), and Rigo Rodriguez

22

(“Rigo R.”).1

23

Plaintiff is an African-American man who worked as a custodian for Zero Waste

24

for over ten years. Plaintiff last worked at the Robert E. Coyle Federal Courthouse (“the

25

Courthouse”) in Fresno, California.

26
27
28

1

Rigo Rodriguez is unrelated to Carmen Rodriguez.

2

1

In 2015, Carmen R. became Plaintiff’s supervisor. Plaintiff had a lot of

2

(unspecified) problems with Carmen R. in the past, and he believes that her appointment

3

to a supervisory position “gave her the authority to do what she wanted to do.”

4

In March 2015, Rigo R. was assigned to work at the Courthouse as a manager.

5

Soon thereafter, Rigo R. gave Plaintiff a “time-slotted work schedule,” which Plaintiff

6

objected to and refused to sign. Because of this, Plaintiff was written up for

7

insubordination. Plaintiff felt “discriminated against and singled out because [he] was the

8

only person that got a … time slotted schedule.”

9

Carmen R. then “manipulated [Rigo R.] to stay on [Plaintiff] and write [him] up.” As

10

a result, Plaintiff was written up five more times in less than three months, and on June

11

26, 2015, Plaintiff was terminated from his employment. Plaintiff has text messages

12

stating that Carmen R and Rigo R. “were after him.”

13
14

Plaintiff complained about this treatment to union representatives, but Plaintiff was
told to “just do your job.”

15

Plaintiff claims that he was discriminated against because of his race and sex and

16

retaliated against in violation of Title VII of the Civil Rights Act. Plaintiff also asserts that

17

he was wrongfully terminated. He seeks damages and/or job reinstatement.

18

IV.

ANALYSIS

19

A.

Title VII Claims

20

Title VII makes it “an unlawful employment practice for an employer” to

21

“discriminate against any individual with respect to” the “terms, conditions, or privileges

22

of employment, because of such individual's race, color, religion, sex, or national origin.”

23

42 U.S.C. § 2000e–2(a). A disparate treatment claim must be supported by direct

24

evidence of discrimination, or may instead be evaluated under the burden-of-proof-and

25

production analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-

26

04 (1973). See, e.g., Hawn v. Executive Jet Management, Inc., 615 F.3d 1151, 1155

27

(9th Cir. 2010) (applying McDonnell Douglas framework to Title VII discrimination claim).

28
3

1

1.

Exhaustion Requirement

2

As a threshold matter, Title VII has exhaustion requirements that must be met

3

prior to filing a court action. 42 U.S.C.§ 2000(e) et seq. A person seeking relief under

4

Title VII must first file a charge with the Equal Employment Opportunity Commission

5

(“EEOC”) within 180 days of the alleged unlawful employment practice, or, if the person

6

initially instituted proceedings with the state or local administrative agency, within 300

7

days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1). If the

8

EEOC does not bring suit based on the charge, the EEOC will issue a “right to sue

9

letter.” 42 U.S.C. § 2000e-5(f)(1). Once a person receives this letter, he has 90 days to

10

file suit. 42 U.S.C. § 2000e-5(f)(1). The Court informed Plaintiff of this exhaustion

11

requirement. Nevertheless, Plaintiff has not offered any indication that he exhausted his

12

administrative remedies prior to filing this action.

13

2.

Race or Sex Discrimination

14

To establish a prima facie case of discrimination based on gender/sex or race,

15

Plaintiff must show that he is a member of a protected class; that he was qualified for his

16

position or was performing satisfactorily; that he experienced an adverse employment

17

action; and that similarly situated individuals outside his protected class were treated

18

more favorably, or that some other circumstances surrounding the adverse employment

19

action give rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at

20

802; Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 847 (9th Cir. 2004);

21

see also Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

22

As with his original complaint and first amended complaint, Plaintiff’s operative

23

pleading does not state a claim for either race or sex discrimination. Though Plaintiff

24

alleges that he is an African-American man and that he was fired, he asserts no facts

25

that would give rise to an inference that his termination was because of either his race or

26

sex. Plaintiff was previously informed that he would be given one last opportunity to

27

amend this claim. Having failed to include any additional details that would support a

28
4

1

claim that he was fired because he is a man and/or because he is African-American, the

2

Court will recommend that this claim be dismissed without leave to amend.

3

3.

Retaliation

4

To make out a prima facie case of retaliation under Title VII, a plaintiff must

5

establish that he engaged in a protected activity, such as the filing of a complaint

6

alleging racial discrimination, that his employer subjected him to an adverse employment

7

action, and that a causal link exists between the protected activity and the adverse

8

action. Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006)

9

The McDonnell Douglas framework is also used to analyze claims of retaliation.

10

To prove a retaliation claim, a plaintiff must first establish a prima facie case by showing

11

that he engaged in protected activity, such as opposing unlawful discrimination or

12

making a charge of employment discrimination; that he was thereafter subjected to a

13

materially adverse action; and that there was a causal connection between the adverse

14

action and his protected activity. See Surrell v. California Water Serv. Co., 518 F.3d

15

1097, 1107-08 (9th Cir. 2008).

16

To establish causation, a plaintiff must show by a preponderance of the evidence

17

that engaging in the protected activity was one of the reasons for the adverse

18

employment decision and that but for such activity the decision would not have been

19

made. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002). The

20

causal link may be established by an inference derived from circumstantial evidence,

21

“such as the employer's knowledge that the [plaintiff] engaged in protected activities and

22

the proximity in time between the protected action and allegedly retaliatory employment

23

decision.” Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987). “[W]hen adverse

24

employment decisions are taken within a reasonable period of time after complaints of

25

discrimination have been made, retaliatory intent may be inferred.” Passantino v.

26

Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 507 (9th Cir. 2000).

27
28
5

1

As with the previous iterations of the pleading, the second amended complaint

2

satisfactorily alleges a materially adverse action (six write-ups in three months and then

3

termination from Plaintiff’s job), but it does not describe the protected activity or allege a

4

causal connection between any protected activity and the adverse action. Though

5

Plaintiff claims that he reached out to union representatives regarding the Defendants’

6

conduct, he does not allege that the Defendants were aware of this complaint and that

7

they acted in response to the complaint. Having failed to assert allegations to support

8

this claim despite three opportunities to do so, the Court will recommend that this claim

9

also be dismissed without leave to amend.

10

4.

Hostile Work Environment

11

A hostile work environment is one that is permeated with discriminatory

12

intimidation, ridicule, and insult, that is “sufficiently severe or pervasive to alter the

13

conditions of the victim's employment and create an abusive working environment.”

14

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank FSB

15

v. Vinson, 477 U.S. 57, 65-67 (1986)).

16

“To prevail on a hostile workplace claim premised on either race or sex, a plaintiff

17

must show: (1) that he was subjected to verbal or physical conduct of a racial or sexual

18

nature; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently

19

severe or pervasive to alter the conditions of the plaintiff's employment and create an

20

abusive work environment.” Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th

21

Cir. 2003).

22

Construing Plaintiff’s second amended complaint as asserting a claim for hostile

23

work environment, the Court finds that none of the conduct described is sufficiently

24

“severe or pervasive” for purposes of a Title VII claim. As one court in the Northern

25

District of California has described, “[s]uccessful claims of hostile work environment

26

include harsh and, generally, repetitive verbal abuse.” Lockett v. Bayer Healthcare, 2008

27

WL 624847, at *9 (N.D. Cal. Mar. 3, 2008) (citing Kang v. U. Lim Am., Inc., 296 F.3d

28
6

1

810, 817 (9th Cir. 2002) (finding that a Korean plaintiff suffered national origin

2

harassment where the employer verbally and physically abused the plaintiff because of

3

his race); Nichols v. Azteca Rest. Enters., 256 F.3d 864, 872-73 (9th Cir. 2001) (finding a

4

hostile work environment where a male employee was called “faggot” and “fucking

5

female whore” by co-workers and supervisors at least once a week and often several

6

times per day); Anderson v. Reno, 190 F.3d 930 (9th Cir. 1999) (finding a hostile work

7

environment where a supervisor repeatedly referred to the employee as “office sex

8

goddess,” “sexy,” and “the good little girl” and where he humiliated the employee in

9

public by drawing a pair of breasts on an easel while the employee was making a

10

presentation and then told the assembled group that “this is your training bra session,”

11

and where the employee received vulgar notes and was patted on the buttocks and told

12

she was “putting on weight down there”); Draper v. Coeur Rochester, 147 F.3d 1104,

13

1109 (9th Cir. 1998) (finding hostile work environment where plaintiff's supervisor made

14

repeated sexual remarks to her, told her of his sexual fantasies and desire to have sex

15

with her, commented on her physical characteristics, and asked over a loudspeaker if

16

she needed help changing her clothes).

17

Here, the Defendants’ conduct falls far short of the conduct described in

18

numerous Ninth Circuit opinions where no hostile work environment was found. See

19

Manatt v. Bank of Am., 339 F.3d 792 (9th Cir. 2003); Vasquez, 349 F.3d at 642-44

20

(finding no hostile environment discrimination where the employee was told that he had

21

“a typical Hispanic macho attitude,” that he should work in the field because “Hispanics

22

do good in the field” and where he was yelled at in front of others); Kortan v. Cal. Youth

23

Auth., 217 F.3d 1104, 1111 (9th Cir. 2000) (finding no hostile work environment where

24

the supervisor referred to females as “castrating bitches,” “Madonnas,” or “Regina” in

25

front of plaintiff on several occasions and directly called plaintiff “Medea”); Sanchez v.

26

City of Santa Ana, 936 F.2d 1027, 1031, 1036-37 (9th Cir. 1990) (affirming the district

27

court's decision that no reasonable jury could have found a hostile work environment

28
7

1

despite allegations that the employer posted a racially offensive cartoon, made racially

2

offensive slurs, targeted Latinos when enforcing rules, provided unsafe vehicles to

3

Latinos, did not provide adequate police backup to Latino officers, and kept illegal

4

personnel files on plaintiffs because they were Latino)). For instance, in Manatt v. Bank

5

of America, the plaintiff, who was a Chinese American, overheard a number of

6

conversations in which fellow employees used the phrase “China man” and referred to

7

“communists” and “rickshaws.” 339 F.3d at 795. She was mocked by her coworkers, who

8

“pulled their eyes back with their fingers in an attempt to imitate or mock the appearance

9

of Asians.” Id. She also was told that her pronunciation of the word “Lima” was

10

“ridiculous,” was asked to repeat the pronunciation for others to hear, and had her co-

11

workers explain her pronunciation by saying “that's because she's a China woman.” Id.

12

at 795-96. While the Ninth Circuit said it was “troubled” by the comments and “racially

13

offensive” acts of the plaintiff's coworkers, given that the incidents occurred only a few

14

times over two and a half years and were directed at her only rarely, it found that the

15

actions of the plaintiff's coworkers generally fell into the “simple teasing” and offhand

16

comments” category of non-actionable discrimination because it was not severe or

17

pervasive enough to alter the conditions of her employment. Id. at 798-99. Accordingly,

18

the Ninth Circuit upheld the district court's grant of summary judgment in favor of the

19

defendant. Id. at 795.

20

For these reasons, the Court concludes that, to the extent that the pleading can

21

be construed as asserting a claim for hostile work environment, the claim must be

22

dismissed for failure to state a claim.

23

B.

Supplemental Jurisdiction

24

Supplemental jurisdiction over state claims exists when a federal claim is

25

sufficiently substantial to confer federal jurisdiction, and there is “a common nucleus of

26

operative fact between the state and federal claims.” Brady v. Brown, 51 F.3d 810, 816

27

(9th Cir. 1995) (citing Gilder v. PGA Tour, Inc., 936 F.2d 417, 421 (9th Cir. 1991)); see

28
8

1

also 28 U.S.C. § 1367. This Court may decline to exercise supplemental jurisdiction over

2

a state law claim if: (1) the claim raises a novel or complex issue of state law; (2) the

3

state law claim substantially predominates over the claim or claims over which the

4

district court has original jurisdiction; (3) the district court has dismissed all claims over

5

which it has original jurisdiction; or (4) in exceptional circumstances, there are other

6

compelling reasons for declining jurisdiction. 28 U.S.C. § 1367.

7

Supplemental jurisdiction is a doctrine of discretion, not of a plaintiff's right. City of

8

Chicago v. Int'l College of Surgeons, 522 U.S. 156, 172 (1997); United Mine Workers of

9

Amer. v. Gibbs, 383 U.S. 715, 726 (1966); Maltzman v. Friedman, 103 F.3d 139 (9th Cir.

10

1996) (“the doctrine of supplemental jurisdiction is a flexible one, giving a district court

11

the power to exercise supplemental jurisdiction over a claim and the discretion whether

12

to exercise such jurisdiction”). When, as here, “the federal claims are dismissed before

13

trial, even though not insubstantial in a jurisdictional sense, the state claims should be

14

dismissed as well.” Gibbs, 383 U.S. at 726. Although the Supreme Court later noted that

15

such a dismissal is not “a mandatory rule to be applied inflexibly in all cases,” it also

16

recognized that, “in the usual case in which all federal-law claims are eliminated before

17

trial, the balance of factors to be considered under the pendent jurisdiction doctrine—

18

judicial economy, convenience, fairness, and comity—will point toward declining to

19

exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v.

20

Cohill, 484 U.S. 343, 350 n.7 (1988)

21

Because Plaintiff does not state a federal claim, the undersigned will recommend

22

that the Court decline to exercise supplemental jurisdiction over any remaining state-law

23

claims.

24

V.

25
26
27

CONCLUSION AND ORDER
Based on the foregoing, it is HEREBY ORDERED that the April 14, 2016,

Findings and Recommendations (ECF No. 10) are VACATED; and
It is HEREBY RECOMMENDED that:

28
9

1

1. This action be DISMISSED without leave to amend for failure to state a claim;

2

2. The Court DECLINE to exercise supplemental jurisdiction over any state law

3

claims; and

4

3. This case be CLOSED.

5

These Findings and Recommendations are submitted to the United States District

6

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

7

fourteen (14) days after being served with these Findings and Recommendations, any

8

party may file written objections with the Court and serve a copy on all parties. Such a

9

document should be captioned “Objections to Magistrate Judge’s Findings and

10

Recommendations.” Any reply to the objections shall be served and filed within fourteen

11

(14) days after service of the objections. The parties are advised that failure to file

12

objections within the specified time may result in the waiver of rights on appeal.

13

Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

14

F.2d 1391, 1394 (9th Cir. 1991)).

15
16
17
18

IT IS SO ORDERED.
Dated:

June 27, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

19
20
21
22
23
24
25
26
27
28
10