Watschke v. Department of the Air Force

Filing 12

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND, signed by Magistrate Judge Jennifer L. Thurston on 1/26/2018. 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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MARIBEL WATSCHKE,
Plaintiff,

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v.

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DEPARTMENT OF THE AIR FORCE,

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Defendant.

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) Case No.: 1:17-cv-01211- DAD - JLT
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) ORDER DISMISSING THE COMPLAINT WITH
) LEAVE TO AMEND
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The plaintiff claims she was forced to quit her job without due process when she complained

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about her co-worker cursing in her presence and having a bad temper. The complaint fails to allege

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facts sufficient to support that she suffered a violation of due process and, therefore, the complaint is

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DISMISSED with one-final opportunity to amend.

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I.

Screening Requirement

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When a plaintiff proceeds in forma pauperis, the Court is required to review the complaint, and

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shall dismiss the complaint if it is “frivolous, malicious or fails to state a claim on which relief may be

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

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1915(e)(2). A plaintiff’s claim is frivolous “when the facts alleged arise to the level of the irrational or

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the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.”

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Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).

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III.

Pleading Standards
General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A

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pleading stating a claim for relief 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

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

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8(a). The Federal Rules adopt a flexible pleading policy, and pro se pleadings are held to “less

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stringent standards” than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972).

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A complaint must give fair notice and state the elements of the plaintiff’s claim in a plain and

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

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plaintiff must identify the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534

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U.S. 506, 512 (2002). The Supreme Court noted,

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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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Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (internal quotation marks and citations omitted).

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Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d

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266, 268 (9th Cir. 1982). The Court clarified further,

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[A] complaint must contain sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” [Citation]. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. [Citation]. The
plausibility standard is not akin to a “probability requirement,” but it asks for more than
a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint
pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of
the line between possibility and plausibility of ‘entitlement to relief.’

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Iqbal, 566 U.S. at 678 (citations omitted). When factual allegations are well-pled, a court should

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assume their truth and determine whether the facts would make the plaintiff entitled to relief; legal

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conclusions in the pleading are not entitled to the same assumption of truth. Id.

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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, leave to amend a complaint may be granted

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

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1122, 1127-28 (9th Cir. 2000) (en banc).

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IV.

Factual Allegations
Plaintiff alleges on October 15, 2013, she was working with a co-worker Chelsea Watkins.

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(Doc. 11 at 1) On that date, Ms. Watkins said “fuck” within the presence of the plaintiff. Id. The

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plaintiff objected to Ms. Watkins about the use of the curse word and told her not to curse while they

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worked together. Id. Ms. Watkins asked whether her objection was due to her being a Christian and

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the plaintiff confirmed this was the reason. Id.
Due to this and “several incidents” that occurred in the past, the plaintiff decided to make a

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formal complaint about Ms. Watkins. (Doc. 11 at 1) The plaintiff went to her superiors, Melissa

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Arnold and “Mr. Carl,” to complain about Ms. Watkins’ “bad temper,” which made it “very difficult”

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to work with Ms. Watkins. Id. The plaintiff asked to be permitted to work with another co-worker,

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Sherry-ann, rather than with Ms. Watkins. Id.

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Ms. Arnold refused to request for reassignment and gave the plaintiff the choice of working

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with Ms. Watkins or quitting. (Doc. 11 at 1) Feeling forced to quit, the plaintiff signed a document

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indicating she was quitting and while doing so, Ms. Arnold and Ms. Arnold’s secretary, chanted, “quit,

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quit, quit.” Id.

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V.

Discussion and Analysis

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A.

Procedural due process

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The plaintiff claims she suffered a violation of due process when, in essence, she was forced to

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quit her job with the Air Force. (Doc. 11 at 1) A coerced resignation may give rise to due process

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guarantees. Knappenberger v. City of Phoenix, 566 F.3d 936, 941 (9th Cir. 2009). However, it is the

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employee’s burden to plead sufficient facts such to justify the conclusion that a reasonable person

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would feel she had no choice but to quit. Id. In addition, the employee must demonstrate that the

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employer knew about the intolerable conditions.

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In her complaint, the plaintiff asserts Ms. Watkins cursed in her presence and had demonstrated
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a “bad temper” on several occasions in the past. (Doc. 11 at 1) Given the fact that the plaintiff worked

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for the Air Force for more than nine years, these few events do not seem to rise to the level of

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intolerable working conditions. Moreover, though she indicates that she asked not to work with Ms.

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Watkins in the future, it appears that she told her supervisors only that Ms. Watkins had a “bad temper.

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Thus, the facts alleged don’t give rise to a conclusion that a reasonable person would have felt

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compelled to quit or that the employer was aware of the intolerable conditions.
Assuming that the plaintiff acted reasonably when she quit, she must demonstrate that the

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defendant deprived her of a property interest and it did so without due process of law. Brewster v. Bd.

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of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998). Property interests “are

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created and their dimensions are defined by existing rules or understandings . . . that secure certain

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benefits and that support claims of entitlement to those benefits.” Bd. of Regents of State Colleges v.

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Roth, 408 U.S. 564, 577 (1972). A property interest is one which gives rise to “a legitimate entitlement

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to it,” rather than a mere “unilateral expectation of it.” Id. The plaintiff alleges that she had worked at

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her job for more than nine years. (Doc. 11 at 1) However, she fails to allege any facts that support the

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conclusion she had a property interest in her ongoing employment.
Moreover, in a constructive discharge case, such as this one, an employee is entitled, at most, to

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post-deprivation remedies. Gravitt v. Brown, 74 F. App'x 700, 704 (9th Cir. 2003) [Because an

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employer of a person who suffer a constructive discharger does not know in advance that the

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termination will occur, the employer cannot give a pre-termination hearing.] Notably, the attachments

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to the original complaint demonstrate she was able to challenge the termination. (Doc. 1 at 4-35) She

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submitted at least one complaint and then appealed the rejection of her claim. Id. Her post-deprivation

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remedy failed because it was untimely. Id. She did not seek review until 2016—nearly three years

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after her termination. Id.
On the other hand, most civilian employees of the federal government have the protection of a

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civil service scheme. See 5 U.S.C. § 7513. Finally, the plaintiff does not allege that she ever requested

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a due process hearing either before she signed her resignation papers or after. See Gravitt v. Brown, 74

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F. App'x 700, 704 (9th Cir. 2003). Rather, she concedes that she did not do so. (Doc. 1 at 1)

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VI.

Conclusion and Order

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Based upon the foregoing, the Plaintiff will be given a final opportunity to file a second

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amended complaint curing the deficiencies identified in this order. The amended complaint must bear

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the docket number assigned this case and must be entitled “Second Amended Complaint.”

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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 “Second 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

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amended complaint are waived.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986) (citing London v.

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Coopers & 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 First Amended Complaint is DISMISSED with leave to amend; and

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3.

Within thirty days from the date of service of this order, Plaintiff SHALL file a First
Amended Complaint.

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If Plaintiff fails to comply with this order to file a First Amended Complaint, the action may be

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dismissed for failure to prosecute and failure to obey the Court’s order.

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IT IS SO ORDERED.
Dated:

January 26, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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