Moses Flores v. Red Robin
FINDINGS and RECOMMENDATIONS Recommending that Plaintiff's First Amended Complaint be Dismissed Without Leave to Amend for Failure to State a Claim. Matter referred to Judge O'Neill. Objections to F&R due within twenty-one (21) days of service of this recommendation; signed by Magistrate Judge Sheila K. Oberto on 11/27/2017. (Timken, A)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
FINDINGS AND RECOMMENDATIONS
THAT PLAINTIFF’S FIRST AMENDED
COMPLAINT BE DISMISSED WITHOUT
LEAVE TO AMEND FOR FAILURE TO
STATE A CLAIM
Case No. 1:17-cv-00396-LJO-SKO
OBJECTIONS DUE: 21 DAYS
Before the Court is an amended complaint (the “Amended Complaint”), filed on June 29,
21 2017, by Plaintiff Moses Flores (“Plaintiff”) against Defendant Red Robin (“Red Robin”). (Doc.
22 9.) The Court has screened the Amended Complaint and finds that, despite the Court’s explicit
23 recitation of the deficiencies in the original complaint, it fails to state any cognizable federal
Accordingly, the Court RECOMMENDS that Plaintiff’s Amended Complaint be
25 DISMISSED without leave to amend.
On March 20, 2017, Plaintiff, proceeding pro se and in forma pauperis, filed a complaint
28 against Red Robin. (Doc. 1.) The original complaint included a single claim that Red Robin
1 violated the Equal Pay Act, 29 U.S.C. § 206 et seq. (Doc. 1 at 3.) The complaint alleged that
2 Plaintiff was employed at Red Robin as a line cook, and, that during his six months of
3 employment, he was “cross-trained” in order to take the position of a woman employee who later
4 resigned. (Id.) The complaint further alleged that Plaintiff “was not granted the raise [he] was
5 well deserving of nor were [his] hours increased to equal that of the female employee who just
6 quit.” (Id.)
On April 24, 2017, the undersigned found that Plaintiff’s complaint failed to state
8 cognizable claims under the Equal Pay Act. (Doc. 3.) The undersigned identified two prominent
9 deficiencies of the Complaint: (1) “Plaintiff fails to include allegations that the job he performed
10 and the job performed by the female employee were substantially equal;” and (2) “Plaintiff fails to
11 include any allegation in the Complaint that another employee of a different gender who
12 performed equal work as Plaintiff was paid more than Plaintiff.” (Doc. 3 at 6.) Plaintiff was
13 provided with the applicable legal standards so that he could determine if he would like to pursue
14 his case, and he was granted thirty (30) days leave to file an amended complaint curing the
15 pleading deficiencies identified in the order. (Id.)
On June 29, 2017, Plaintiff filed his Amended Complaint. (Doc. 9.) Like the original
17 complaint, the Amended Complaint alleges that Red Robin violated “the Equal Pay Act.” (Id. at
18 1.) With regard to the issue of whether the job performed by Plaintiff and the job performed by
19 the woman employee were substantially equal, the Amended Complaint alleges the following:
[Plaintiff] engaged in the same duties and responsibilities of the
female employee who completed the same duties and
responsibilities that Plaintiff performed. Both employees were
expected to perform the similar if not exact task of preparing food
items according to the standard operating procedure . . . .
The fact is that the Plaintiff did in fact perform the exact same
duties and responsibilities of preparing the same menu items in the
same manner according to the standards of the facility as the
female employee who voluntarily resigned, in fact the employer
utilized this female employee to train the Plaintiff . . . .
In fact being that the Plaintiff was already trained on one station
prior to being trained on the cold station, suggests strongly that the
Plaintiff did in fact perform and engage in slightly more duties and
responsibilities than the female employee in question.
1 (Id. at 2.)
With regard to whether another employee of a different gender who performed equal work
3 was actually paid more than Plaintiff, the Amended Complaint alleges the following:
Is it possible to allege that Plaintiff was paid less [than the woman
employee] based on the records of the employer? Plaintiff does
not fully understand how to properly present this allegation to the
courts due to the fact that the female employee refused to inform
Plaintiff of her wages due to the fact that Defendants warned all
back of the house employees not to discuss the rate of pay with one
another . . . .
Plaintiff is at this time unable to prove that a employee was in fact
paid more than the Plaintiff. However the fact that two employees
were unwilling to share their rate of pay strongly suggests the
plausibility that employees were in fact paid different wages, for
performing similar tasks, duties, and responsibilities.
Plaintiff can only allege this rate difference due to the female
employee’s refusal to discuss rate of pay per the authority of
Defendant, in turn the only way to solidly confirm this allegation is
to bring this matter before a jury or the courts and bring in said
witnesses to testify, as well as have the defendants provide the
proper documentation of their records as evidence of whether or
not individuals of opposite sex were in fact paid more.
16 (Id. at 2-3.)
After screening the Amended Complaint, the Court finds that despite the explicit recitation
18 of the deficiencies of Plaintiff’s original complaint, Plaintiff has failed to state any cognizable
19 federal claims for the reasons set forth below.
In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen
22 each case, and shall dismiss the case at any time if the Court determines that the allegation of
23 poverty is untrue, or the action or appeal is frivolous or malicious, fails to state a claim upon
24 which relief may be granted, or seeks monetary relief against a defendant who is immune from
25 such relief. 28 U.S.C. § 1915(e)(2). If the Court determines that the amended complaint fails to
26 state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint
27 can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).
The Court’s screening of the amended complaint under 28 U.S.C. § 1915(e)(2) is governed
2 by the following standards. A complaint may be dismissed as a matter of law for failure to state a
3 claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a
4 cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
5 1990). Plaintiff must allege a minimum factual and legal basis for each claim that is sufficient to
6 give each defendant fair notice of what plaintiff’s claims are and the grounds upon which they
7 rest. See, e.g., Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v.
8 Block, 932 F.2d 795, 798 (9th Cir. 1991).
In determining whether a complaint states a claim on which relief may be granted,
10 allegations of material fact are taken as true and construed in the light most favorable to the
11 plaintiff. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Moreover, since
12 Plaintiff is appearing pro se, the Court must construe the allegations of the amended complaint
13 liberally and must afford plaintiff the benefit of any doubt. See Karim–Panahi v. Los Angeles
14 Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). However, “the liberal pleading standard . . .
15 applies only to a plaintiff’s factual allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9
16 (1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements of
17 the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257
18 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
Further, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
20 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
21 action will not do . . . . Factual allegations must be enough to raise a right to relief above the
22 speculative level.” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
23 citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (To avoid dismissal for
24 failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to
25 ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the
26 plaintiff pleads factual content that allows the court to draw the reasonable inference that the
27 defendant is liable for the misconduct alleged.”) (internal citations omitted).
The Amended Complaint Does Not State a Cognizable Equal Pay Act Claim.
Turning to the instant case, the Amended Complaint claims that Red Robin violated the
Equal Pay Act. (Doc. 9 at 1.) The Equal Pay Act provides the following, in relevant part:
No employer having employees subject to any provision of this
section shall discriminate, within any establishment in which such
employees are employed, between employees on the basis of sex
by paying wages to employees in such establishment at a rate less
than the rate at which he pays wages to employees of the opposite
sex in such establishment for equal work on jobs the performance
of which requires equal skill, effort, and responsibility, and which
are performed under similar working conditions, except where
such payment is made pursuant to (i) a seniority system; (ii) a
merit system; (iii) a system which measures earnings by quantity
or quality of production; or (iv) a differential based on any other
factor other than sex . . . .
12 29 U.S.C. § 206(d)(1). “The Equal Pay Act is broadly remedial, and it should be construed and
13 applied so as to fulfill the underlying purposes which Congress sought to achieve.” Corning Glass
14 Works v. Brennan, 417 U.S. 188, 208 (1974). “It embodies the deceptively simple principle that
15 employees doing equal work should be paid equal wages, regardless of sex.” Hein v. Or. Coll. Of
16 Educ., 718 F.2d 910, 913 (9th Cir. 1983) (citation omitted).
“In an Equal Pay Act case, the plaintiff has the burden of establishing a prima facie case of
18 discrimination by showing that employees of the opposite sex were paid different wages for equal
19 work.” Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1073-74. (9th Cir. 1999). “In broad terms, the
20 [Equal Pay Act] defines what constitutes equal work by specifying that jobs are equal if their
21 performance requires ‘equal skill, effort, and responsibility’ and they are performed under ‘similar
22 working conditions’” Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1414 (9th Cir. 1988)
23 (quoting 29 U.S.C. § 206(d)(1)). “The prima facie case is limited to a comparison of the jobs in
24 question, and does not involve a comparison of the individuals who hold the jobs.” Stanley, 178
25 F.3d at 1074 (citation omitted). Additionally, “it is actual job performance requirements, rather
26 than job classifications or titles, that is determinative.” E.E.O.C. v. Maricopa Cty. Cmty. Coll.
27 Dist., 736 F.2d 510, 513 (citing Gunther v. Cty. of Wash., 623 F.2d 1303, 1309 (9th Cir. 1979)).
To constitute equal work, “[t]he jobs held by employees of opposite sex need not be
2 identical,” and “inconsequential differences in jobs may be disregarded.” Hein, 718 F.2d at 9133 14 (citations omitted). Nonetheless, “[t]o make out a prima facie case, the plaintiff bears the
4 burden of showing that the jobs being compared are substantially equal.” Stanley, 178 F.3d at
5 1074 (citation omitted).
To satisfy the “substantially equal” requirement, the plaintiff must show that “the jobs to
7 be compared have a common core of tasks.” Id. at 1074 (citation omitted). In other words, the
8 plaintiff must show that “a significant portion of the two jobs is identical.” Id. (citation omitted).
9 See generally Rizo v. Yovino, No. 1:14-cv-0423-MJS, 2015 WL 9260587, at *6 (E.D. Cal. Dec.
10 18, 2015) (noting that the “substantially equal” showing by the plaintiff is only the first step in this
11 analysis; following this showing, the court then determines whether the two jobs are “substantially
12 different” and, if the jobs are substantially equal, the burden then shifts “to the employer to
13 demonstrate that the wager disparity is attributable to one of four statutory exceptions” (citations
14 omitted)). “The question of whether two jobs are substantially equal is one that must be decided
15 on a case-by-case basis.” Hein, 718 F.2d at 913. Plaintiff has adequately alleged that the job
16 performed by Plaintiff and the job performed by a female employee were substantially equal.
While Plaintiff has cured one of the deficiencies that plagued the original complaint, the
18 Amended Complaint still fails to allege that the woman employee at issue was actually paid more
19 than Plaintiff. The Amended Complaint alleges merely that the refusal by the woman employee to
20 discuss her pay rate “strongly suggests the plausibility that employees were in fact paid different
21 wages.” (Doc. 9 at 2-3.) This allegation is insufficient as it merely speculates the woman’s reason
22 for refusing to discuss her pay rate. See Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at
23 678. As Plaintiff himself contends in the Amended Complaint, Red Robin allegedly had a policy
24 against discussing pay rates, and this just as plausibly could have been the woman’s reason for
25 refusing to discuss her pay rate with Plaintiff. (Doc. 9 at 2); see, e.g., Alegria v. U.S., No. 3:13-cv26 00465-RCJ-WGC, 2013 WL 5818619, at *3 (D. Nev. Oct. 22, 2013) (finding that Plaintiff failed
27 to allege facts giving rise to an Equal Pay Act claim because Plaintiff “does not specifically allege
28 she was paid less than members of the opposite sex doing the same work”).
In fact, Plaintiff concedes that he “is at this time unable to prove that a employee was in
2 fact paid more than the Plaintiff.” (Doc. 9 at 3.) Plaintiff apparently seeks to use the litigation
3 process to learn whether the woman employee was actually paid more than him. (See id. at 3
4 (“[T]he only way to solidly confirm this allegation is to bring the matter before a jury . . . .”).) The
5 litigation process, however, is not intended as a means for litigants to learn whether they have
6 legal claims. Plaintiff’s failure to allege in the Amended Complaint that he received less pay than
7 another employee of a different gender for equal work is fatal to Plaintiff’s Equal Pay Act claim.
8 See, e.g., Negley v. Judicial Council of Cal., 458 Fed.Appx 682, 684 (9th Cir. 2011) (“A prima
9 facie unequal pay claim under the [Equal Pay Act] . . . requires the plaintiff to provide evidence
10 that her employer (1) paid an individual of the opposite sex more than her (2) for substantially
11 equal work.” (emphasis added) (citing Stanley, 178 F.3d at 1074)).
Plaintiff Improperly States New Claims in the Amended Complaint.
Finally, Plaintiff alleges in the Amended Complaint that Red Robin’s policy prohibiting
14 employees from discussing their wages violates Title VII of the Civil Rights Act of 1964, 42
15 U.S.C. § 2000e et seq.
(Doc. 3 at 2-3.)
Plaintiff also alleges that he was constructively
16 discharged, and that such action by Red Robin constitutes retaliatory discrimination. To the extent
17 that Plaintiff is seeking to add these new claims to the Amended Complaint, the undersigned
18 recommends that those new claims be stricken from the Amended Complaint. (See id. at 7
19 (cautioning Plaintiff that “[he] may not change the nature of this suit by adding new, unrelated
20 claims in his amended complaint”) (quoting Borders v. City of Tulare, No. 1:16-cv-1818-DAD21 SKO, 2017 WL 1106039, at *4 (E.D. Cal. Mar. 23, 2017))); see also DeLeon v. Wells Fargo
22 Bank, N.A., No. 10-cv-01390-LHK, 2010 WL 4285006, *3 (N.D. cal. Oct. 22, 2010) (“In cases
23 like this one . . . where leave to amend is given to cure deficiencies in certain specified claims,
24 courts have agreed that new claims alleged for the first time in the amended pleading should be
25 dismissed or stricken.”); Kennedy v. Full Tilt Poker, No. CV 09-07964 MMM (AGRx), 2010 WL
26 3984749, *1 (C.D. Cal. Oct. 12, 2010) (noting that the court had stricken a third amended
27 complaint because plaintiff’s new claims and the addition of new defendants “exceeded the
28 authorization to amend the court granted”).
While leave to amend must be freely given, the Court is not required to permit futile
amendments. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992); Reddy v.
Litton Indus., Inc., 912 F.2d 291, 296–97 (9th Cir. 1990); Rutman Wine Co. v. E. & J. Gallo
Winery, 829 F.2d 729, 738 (9th Cir. 1987); Klamath–Lake Pharm. Ass’n v. Klamath Med. Serv.
Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983). Here, Plaintiff has failed to cure the deficiencies
outlined in the Court’s earlier order and, based upon the record and the facts set forth in pleadings
filed by Plaintiff, it does not appear the deficiencies of the Amended Complaint can be cured by
amendment. Thus, it appears that granting Plaintiff further leave to amend would be futile.
Lopez, 203 F.3d at 1128 (dismissal is proper where it is obvious the plaintiff cannot prevail on the
facts alleged and that an opportunity to amend would be futile).
Based on the foregoing, it is HEREBY RECOMMENDED that:
Plaintiff’s new claims in the amended complaint be STRICKEN;
Plaintiff’s amended complaint be DISMISSED without leave to amend for failure
to state a cognizable federal claim; and
address listed on the docket for this matter.
These findings and recommendations are submitted to the district judge assigned to this
The case be CLOSED.
The Court further DIRECTS the Clerk to send a copy of this order to Plaintiff at his
CONCLUSION AND RECOMMENDATIONS
action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within twenty-one
(21) days of service of this recommendation, any party may file written objections to these
findings and recommendations with the Court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The
district judge will review the magistrate judge’s findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified
1 time may waive the right to appeal the district judge’s order. Wilkerson v. Wheeler, 772 F.3d 834,
2 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.
November 27, 2017
Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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