Fox v. Carter

Filing 8

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND (ECF NO. 7 ); THIRTY (30) DAY DEADLINE, signed by Magistrate Judge Michael J. Seng on 7/13/2017. (Lafata, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEITH ANDERSON FOX,

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Plaintiff,

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CASE NO. 1:16-cv-00223-DAD-MJS
ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND

v.
(ECF NO. 7)
HONORABLE ASHTON B. CARTER,
THIRTY (30) DAY DEADLINE

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Defendant.

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Plaintiff Keith Anderson Fox initiated this action on February 18, 2016. (ECF No.

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1.) On August 25, 2016, his complaint was dismissed for failure to comply with Federal

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Rule of Civil Procedure 8 and failure to state a claim. (ECF No. 6.) His first amended

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complaint, filed February 16, 2017, is before the Court for screening. (ECF No. 7.)

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I.

Screening Requirement

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Pursuant to 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the

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complaint to determine if it states a cognizable claim. The Court must dismiss a

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complaint or portion thereof if it determines that the action has raised claims that are

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legally "frivolous or malicious," "fails to state a claim upon which relief may be granted,"

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

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§ 1915(e)(2)(B). "Notwithstanding any filing fee, or any portion thereof, that may have

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been paid, the court shall dismiss the case at any time if the court determines that . . .

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the action or appeal . . . fails to state a claim on which relief may be granted." 28 U.S.C.

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§ 1915(e)(2)(B)(ii).

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II.

Pleading Standard

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

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

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

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

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

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

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

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

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

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III.

Plaintiff’s Allegations

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Plaintiff’s complaint is brief and his factual allegations cursory. Briefly stated,

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Plaintiff alleges that he was wrongfully terminated by Defense Logistics Agency for being

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absent without leave. Copies of an agency decision attached to the complaint reflect that

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Plaintiff believes his dismissal was due to discrimination based on race, sex, age, and

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disability. He also appears to contend that he was harassed due to unspecified

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whistleblowing activity.

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IV.

Analysis

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Plaintiff’s factual allegations are insufficient to state a claim. The Court will provide

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Plaintiff with the legal standards applicable to what appear to be his intended claims.

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

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claim to relief that is plausible on its face.” Ashcroft, 556 U.S. at 678. Here, Plaintiff

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provides no factual details to support his claim that his dismissal resulted from

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discrimination, nor does he describe the alleged harassment he suffered as a result of

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alleged whistleblowing activity. Plaintiff’s conclusory statements are insufficient and the

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mere attachment of any agency decision does not meet applicable pleading standards.

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Fed. R. Civ. P. 8(a).

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Plaintiff will be given one final opportunity to amend his complaint to state facts

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supporting a cognizable cause of action. Failure to cure defects noted in this order will

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result in a recommendation that the action be dismissed.

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A.

Title VII

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the
basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e–2(a).

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To prevail on a Title VII claim for disparate treatment, the plaintiff must prove that

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an adverse employment action was taken “because of” unlawful discrimination. Costa v.

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Desert Palace, Inc., 299 F.3d 838, 857 (9th Cir.2002). Title VII disparate-treatment

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claims “require the plaintiff to prove that the employer acted with conscious intent to

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discriminate.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805-06 (1973). to

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establish a prima facie case of disparate treatment, the plaintiff must show that (1) he

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belongs to a protected class, (2) he performed according to his employer's legitimate

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expectations, (3) he was subjected to an adverse employment action, and (4) similarly

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situated individuals outside his protected class were treated more favorably. Godwin v.

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Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir.1998) (internal citations omitted).

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Title VII’s general prohibition against discrimination also extends to harassment

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claims. See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998); Manatt v.

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Bank of America, 339 F.3d 792, 798 (9th Cir. 2003); Fuller v. City of Oakland, 47 F.3d

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1522, 1527 (9th Cir. 1995). Harassment that is so “severe or pervasive” as to “‘alter the

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conditions of [the victim's] employment and create an abusive working environment’”

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violates Title VII. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). To

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establish a prima facie case for a Title VII hostile workplace claim premised upon racial

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or sexual harasasment, a plaintiff must establish: (1) that he was subjected to verbal or

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physical conduct of a racial or sexual nature; (2) that the conduct was unwelcome; and

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(3) that the conduct was sufficiently severe or pervasive to alter the conditions of the

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plaintiff's employment and create an abusive work environment. Vasquez v. County of

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Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003).

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B.

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The Age Discrimination in Employment Act (“ADEA”) makes it unlawful “to

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discharge any individual . . . because of such individual's age.” 29 U.S.C. § 623(a)(1). A

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plaintiff pursuing an ADEA claim must first establish a prima facie case of age

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discrimination by “demonstrating that he was (1) at least forty years old, (2) performing

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his job satisfactorily, (3) discharged, and (4) either replaced by substantially younger

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employees with equal or inferior qualifications or discharged under circumstances

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otherwise ‘giving rise to an inference of age discrimination.’” Diaz v. Eagle Produce Ltd.

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P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (quoting Coleman v. Quaker Oats Co., 232

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F.3d 1271, 1281 (9th Cir. 2000)).

Age Discrimination in Employment Act

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The elements of a prima facie case for an ADEA harassment claim are the same

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as those under Title VII: (1) that he was subjected to verbal or physical conduct because

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of his age, (2) that the conduct was unwelcome, and (3) that the conduct was sufficiently

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

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abusive work environment. See Freitag v. Ayers, 468 F.3d 528, 539 (9th Cir. 2006);

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Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1187 (9th Cir. 2005).

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C.

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The Rehabilitation Act of 1973 (“RA”), 29 U.S.C. §§ 701 et seq., prohibits

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discrimination on the basis of disability by various federal agencies, contractors and

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recipients of federal funds and makes Title VII rights and remedies available to a person

Rehabilitation Act

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complaining of employment discrimination on the basis of disability. See Boyd v. U.S.

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Postal Serv., 752 F.2d 410, 412-13 (9th Cir. 1985); 29 U.S.C. § 791(a)-(b).

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“To state a prima facie case of discrimination under the Rehabilitation Act, a

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plaintiff must demonstrate that (1) she is a person with a disability, (2) who is otherwise

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qualified for employment, and (3) suffered discrimination because of her disability.”

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Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007) (citing Wong v.

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Regents of the Univ. of Cal., 410 F.3d 1052, 1058 (9th Cir. 2005). The Americans with

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Disabilities Act, whose standards of substantive liability are incorporated in the

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Rehabilitation Act, defines “disability” as: “(A) a physical or mental impairment that

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substantially limits one or more major life activities of such individual; (B) a record of

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such an impairment; or (C) being regarded as having such an impairment (as described

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in paragraph (3)). 42 U.S.C. § 12102(1); Walton, 492 F.3d at 1005.

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While, the Ninth Circuit has yet to recognize harassment claims under the

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Rehabilitation Act or Americans with Disabilities Act, some courts have recognized such

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a claim based on analogous Title VII analysis. Ostrofsky v. Dep't of Rehab., No. CIV S-

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07-0987MCEEFBP, 2009 WL 3011578, at *7 (E.D. Cal. Sept. 17, 2009), report and

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recommendation adopted, No. CIV S–07–0987 MCE EFB PS, 2009 WL 3623203 (E.D.

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Cal. Oct. 29, 2009) (collecting cases). Thus, such a claim, if properly pled, may be held

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cognizable at the pleading stage. Id.; see also Fowler v. Potter, No. C 06–04716 SBA,

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2008 WL 2383073, 5–6 (N.D. Cal. 2008) (recognizing claim for hostile work environment

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under the Rehabilitation Act, but finding that plaintiff failed to exhaust administrative

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remedies).

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The elements of a harassment claim under the Rehabilitation Act therefore would

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follow those required under Title VII, and a plaintiff would be required to show that: he is

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a qualified individual with a disability under the Rehabilitation Act; (2) he was subject to

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unwelcome harassment; (3) the harassment was based on his disability or a request for

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an accommodation; (4) the harassment was sufficiently severe or pervasive to alter the

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conditions of his employment and to create an abusive working environment; and (5) that

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defendant knew or should have known of the harassment and failed to take prompt

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effective remedial action. Ostrofsky, 2009 WL 3011578, at *8 (quoting McConathy v. Dr.

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Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir. 1998)).

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D.

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It appears that Plaintiff may wish to bring a claim under the Whistleblower

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Protection Act (“WPA”). In relevant part, the WPA prohibits an employer from taking

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personnel action against an employee because of “any disclosure” by the employee that

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the employee believes evidences a violation of law, rule, or regulation, or gross

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mismanagement, waste of funds, abuse of authority, or a substantial and specific danger

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to public health or safety. 5 U.S.C. § 2302(b)(8)(A); see also Coons v. Sec'y of U.S.

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Dep't of Treasury, 383 F.3d 879, 888 (9th Cir. 2004). The Merit Systems Protection

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Board (“MSPB”) has original jurisdiction over WPA claims. Kerr v. Jewell, 836 F.3d 1048,

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1058 (9th Cir. 2016), cert. denied sub nom. Kerr v. Haugrud, 137 S. Ct. 1365 (2017).

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Such claims thus cannot be pursued in this court without first being presented to the

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MSPB. Id.

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V.

Whistleblower Protection Act

Conclusion and Order

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Plaintiff’s complaint must be dismissed for failure to state a claim and failure to

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meet the requirements of Federal Rule of Civil Procedure 8. The Court will grant Plaintiff

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one final opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446,

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1448-49 (9th Cir. 1987). If Plaintiff chooses to amend, he must set forth “sufficient factual

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matter . . . to ‘state a claim that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting

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Twombly, 550 U.S. at 555 (2007)). Plaintiff should carefully read this screening order

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and focus his efforts on curing the deficiencies set forth above.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general rule,

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an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no

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longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged. The amended complaint should be clearly and boldly titled “Second

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Amended Complaint,” refer to the appropriate case number, and be an original signed

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under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P.

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8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a

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right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations

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omitted).

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Accordingly, it is HEREBY ORDERED that:

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1.

Plaintiff’s first amended complaint is dismissed with leave to amend;

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2.

Within thirty (30) days from the date of service of this order, Plaintiff must

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file a second amended complaint curing the deficiencies identified by the

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Court in this order or a notice of voluntary dismissal; and

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If Plaintiff fails to file an amended complaint or notice of voluntary

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dismissal, the Court will recommend the action be dismissed for failure to

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comply with a court order and failure to state a claim.

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IT IS SO ORDERED.
Dated:

July 13, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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