Anthony Nuno v. California State University, Bakersfield et al

Filing 3

ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND, signed by Magistrate Judge Jennifer L. Thurston on 9/22/2017. Amended Complaint due within 30 days. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY NUNO,
Plaintiff,

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v.

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CALIFORNIA STATE UNIVERSITY
BAKERSFIELD, et al.,

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Defendants.

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Case No.: 1:17-cv-00978 - AWI - JLT
ORDER DISMISSING PLAINTIFF’S
COMPLAINT WITH LEAVE TO AMEND
(Doc. 1)

Anthony Nuno asserts that he is a professor at California State University, Bakersfield, and has

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been subjected to harassment and retaliation based upon his race and national origin. Plaintiff contends

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California State University and David Schecter, the Vice Provost, are liable for violations of his Title

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VII rights. As set forth more fully below, Plaintiff fails to set forth sufficient factual allegations to

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support the claims alleged, and the complaint is DISMISSED with leave to amend.

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I.

Pleading Requirements

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The Federal Rules of Civil Procedure govern the requirements for filing an adequate complaint

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in the District Court. A complaint must include a statement affirming the court’s jurisdiction, “a short

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and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the relief

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sought, which may include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a).

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The purpose of the complaint is to give the defendant fair notice of the claims against him, and the

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grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).
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Thus, a complaint must give fair notice and state the elements of the plaintiff’s claims in a plain and

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succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The

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Supreme Court explained,
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.

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Iqbal, 556 U.S. at 678-79 (internal quotation marks and citations omitted). Conclusory and vague

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allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir.

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1982). When factual allegations are well-pled, a court should assume the truth and determine whether

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the facts would make the plaintiff entitled to relief; conclusions in the pleading are not entitled to the

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same assumption of truth. Id.
The Court has a duty to dismiss a case at any time it determines an action fails to state a claim,

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“notwithstanding any filing fee that may have been paid.” 28 U.S.C. § 1915e(2). Accordingly, a court

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“may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a

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claim.” See Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981) (citing 5 C. Wright & A. Miller, Federal

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Practice and Procedure, § 1357 at 593 (1963)). However, the Court may grant leave to amend when

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the deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 1122,

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1127-28 (9th Cir. 2000) (en banc).

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II.

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Allegations
Plaintiff alleges that he is Mexican-American and “was not given the same opportunities that

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other professors received.” (Doc. 1 at 6) Specifically, Plaintiff contends, “California State University,

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Bakersfield denied [him] promotion to full professor and salary increase and failed to properly evaluate

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[his] contributions in the areas of teaching, service to the university and community and in research and

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scholarship.” (Id.) Further, Plaintiff asserts that he would like “to be able to attend department

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meetings with other professors and … to communicate directly with them via email.” (Id. at 7)

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Plaintiff contends “[t]he University failed to create a harassment and retaliatory free work

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environment” in violation of Title VII. (Doc. 1 at 1, 6) He received a “Notice of Right to Sue” from

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the Equal Employment Opportunity Commission dated April 28, 2017. (Id. at 8)
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III.

Discussion and Analysis
Plaintiff contends the defendants are liable for retaliation and discrimination in violation of Title

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VII. (Doc. 1 at 5) Title VII makes it unlawful “for an employer to discriminate against any of his

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employees . . . because he has opposed any practice made an unlawful employment practice by this

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[title] . . . or because he has made a charge, testified, assisted, or participated in any manner in an

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investigation, proceeding, or hearing under this [title]. . . .” 42 U.S.C. § 2000e-3(a). Further, Title VII

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provides it is “an unlawful employment practice for an employer . . . to discriminate against any

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individual with respect to his compensation, terms, conditions, or privileges of employment, because of

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such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1); Harris v.

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Forklift Sys., Inc., 510 U.S. 17, 21 (1993). The Supreme Court determined this guarantees “the right to

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work in an environment free from discriminatory intimidation, ridicule, and insult.” Meritor Sav. Bank,

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

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A.

Retaliation

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The Ninth Circuit explained an “employer can violate the anti-retaliation provisions of Title

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VII in either of two ways: (1) if the adverse employment action occurs because of the employee’s

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opposition to conduct made unlawful [by Title VII]; or (2) if it is in retaliation for the employee’s

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participation in the machinery set up by Title VII to enforce its provisions.” Hashimoto v. Dalton, 118

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F.3d 671, 680 (9th Cir. 1997). To state a cognizable claim for retaliation, a plaintiff must allege: “(1)

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[]he engaged in an activity protected by Title VII; (2) [the] employer subjected [him] to an adverse

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employment action; and (3) a causal link exists between the protected activity and the adverse action.”

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Bleeker v. Vilsack, 468 Fed. App’x 731, 732 (9th Cir. 2012); Ray v. Henderson, 217 F.3d 1234, 1240

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(9th Cir. 2000).

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For an employee’s “opposition” to be protected, the employer’s conduct which the employee

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opposed “must fairly fall within the protection of Title VII to sustain a claim of unlawful retaliation.”

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Learned v. Bellevue, 860 F.2d 928, 932 (9th Cir. 1988). Conduct constituting a “protected activity”

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under Title VII includes filing a charge or complaint, testifying about an employer’s alleged unlawful

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practices, and “engaging in other activity intended to oppose an employer’s discriminatory practices.”

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Raad v. Fairbanks N. Star Borough, 323 F.3d 1185, 1197 (9th Cir. 2003) (citing 42 U.S.C. § 2000e3

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3(a)) (internal quotation marks omitted). Here, Plaintiff fails to identify any activity protected by Title

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VII in the complaint.

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Further, even if Plaintiff alleged facts sufficient to support a determination that he engaged in a

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protected activity, he has not alleged a causal link between his actions and the decision to not promote

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Plaintiff to a full professor position. A causal link may be “inferred from circumstantial evidence, such

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as the employer’s knowledge that the plaintiff engaged in protected activities and the proximity in

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time between the protected action and the allegedly retaliatory employment decision.” Yartzoff, 809

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F.2d at 1375. “[C]ausation can be inferred from timing alone where an adverse employment action

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follows on the heels of protected activity.” Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1065 (9th

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Cir. 2002).
Significantly, for a causal link to be inferred, Plaintiff must allege his employer had knowledge

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of any protected activities taken by Plaintiff. See, e.g., Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th

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Cir. 1987) (inferring causation where adverse employment actions took place less than three months

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after the plaintiff’s complaint where his supervisors were aware of his Title VII charges and his

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participation in administrative investigations); Strother v. S. Cal. Permanente Med. Grp., 79 F.3d 859,

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869-70 (9th Cir. 1996) (finding causal link where alleged retaliation followed within months of

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protected activity where supervisor knew of the employee’s complaint). Here, Plaintiff has failed to

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allege sufficient facts supporting either the conclusion that he engaged in protected activity, or the

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inference of a causal link. Consequently, his claim for retaliation is DISMISSED.

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B.

Disparate Treatment

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An individual suffers disparate treatment in his employment when he “is singled out and treated

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less favorably than others similarly situated.” Cornwell v. Electra Central Credit Union, 439 F.3d

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1018, 1028 (9th Cir. 2006). To prevail on a claim of disparate treatment, a plaintiff must allege

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sufficient facts that give rise to an inference of unlawful discrimination. Specifically, a plaintiff states a

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cognizable claim for disparate treatment if he alleges that (1) he belongs to a class protected by Title

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VII; (2) he performed his job satisfactorily; (3) he suffered an adverse employment action; and (4) “the

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plaintiff’s employer treated the plaintiff differently than a similarly situated employee who does not

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belong to the same protected class as the plaintiff.” Cornwell v. Electra Central Credit Union, 439
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F.3d 1018, 1028 (9th Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

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In this complaint, Plaintiff fails to allege he performed his job satisfactorily or that he was

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treated different from those “who do[] not belong to the same protected class.” Cornwell, 439 F.3d at

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1028. Rather, Plaintiff alleges he “was not given the same opportunities that other professors

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received.” (Doc. 1 at 6) Given the broad allegations of the complaint, the Court is unable to conclude

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the “other professors” were not of the same protected class, or were similarly situated to Plaintiff.

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Thus, Plaintiff has not alleged facts sufficient to support his claim for disparate treatment in violation of

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Title VII, and this cause of action must be DISMISSED.

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IV.

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Conclusion and Order
Given the lack of factual allegations, the Court is unable to find Plaintiff states a cognizable

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claim for a violation of Title VII. Because it is not clear whether the factual deficiencies may be cured

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by amendment, Plaintiff will be granted leave to amend the complaint. See Noll v. Carlson, 809 F.2d

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1446, 1448-49 (9th Cir. 1987); see also Lopez, 203 F.3d at 1128 (dismissal of a pro se complaint

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without leave to amend for failure to state a claim is proper only where it is obvious that an opportunity

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to amend would be futile). The amended complaint must bear the docket number assigned this case and

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must be entitled “First Amended Complaint.”

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Plaintiff is admonished to provide more than conclusions in his complaint, and provide a short,

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plain statement of her case, including facts that support his allegations. See Fed. R. Civ. P. 8(a); Iqbal,

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556 U.S. at 678-79. Although accepted as true, “[f]actual allegations must be [sufficient] to raise a

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right to relief above the speculative level…” Bell Atl. Corp v. Twombly, 127 S.Ct. 1955, 1965 (2007)

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(citations omitted).

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Plaintiff is advised that an amended complaint supersedes the original complaint. Forsyth v.

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Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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In addition, the amended complaint must be “complete in itself without reference to the prior or

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superseded pleading.” Local Rule 220. Once Plaintiff files an amended complaint, the original

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pleading no longer serves any function in the case. The amended complaint must bear the docket

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number assigned this case and must be labeled “First Amended Complaint.” Finally, Plaintiff is

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warned that “[a]ll causes of action alleged in an original complaint which are not alleged in an amended
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complaint are waived.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986) (citing London v. Coopers &

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Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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Based upon the foregoing, the Court ORDERS:

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Plaintiff’s Complaint is DISMISSED with leave to amend; and

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Plaintiff is GRANTED thirty days from the date of service of this Order to file a First
Amended Complaint.

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Plaintiff is cautioned that failure to comply with this order by filing an amended complaint will

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result in a recommendation that this action be dismissed pursuant to Local Rule 110.

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IT IS SO ORDERED.
Dated:

September 22, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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