Whitsitt v. Amazon.Com et al

Filing 14

FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 5/6/2014 RECOMMENDING that this matter be dismissed; REFERRING this matter to Judge Troy L. Nunley; ORDERING that any objections be filed and served on all parties within fourteen days. (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM WHITSITT,

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Plaintiff,

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No. 2:14-cv-0416 TLN CKD PS

v.

FINDINGS AND RECOMMENDATIONS

AMAZON.COM, et al.,

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Defendants.

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Plaintiff is proceeding in this action pro se and in forma pauperis. The action was referred

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to this court by Local Rule 302(c)(21).
Plaintiff has filed a second amended complaint. The federal in forma pauperis statute

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authorizes federal courts to dismiss a case if the action is legally “frivolous or malicious,” fails to

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state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is

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immune from such relief. 28 U.S.C. § 1915(e)(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327.

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A complaint must contain more than “naked assertions,” “labels and conclusions” or “a

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formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555-557 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of

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action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct.

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1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief has facial

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plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949.

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In this action, plaintiff alleges that he was hired as a temporary employee by defendant

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SMX Staffing Agency to perform services for defendant Amazon.Com. Plaintiff further asserts

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that he sought employment with defendant Amazon.Com as a direct hire/permanent employee but

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was not hired for such a position. Plaintiff alleges claims under the Age Discrimination in

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Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and for intentional infliction of emotional

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distress and invasion of privacy.1 Plaintiff was previously advised of the elements for stating a

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claim for those causes of action. The ADEA makes it unlawful for an employer “to fail or refuse

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to hire or to discharge any individual or otherwise discriminate against any individual with

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

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individual’s age.” 29 U.S.C. § 623(a)(1). To establish a prima facie case of an ADEA violation,

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the plaintiff must show that he (1) belonged to a protected class [age 40 or older]; (2) was

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satisfactorily performing his job or was qualified for hire or promotion; (3) was terminated,

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rejected for employment, or otherwise subjected to an adverse employment action; and (4) was

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replaced by a substantially younger employee with equal or inferior qualifications. See Coleman

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v. Quaker Oats Co., 232 F.3d 1271, 1280-81 (9th Cir. 2000). In the second amended complaint,

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although plaintiff in conclusory fashion alleges he was qualified for the position for which he

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sought permanent employment, plaintiff also acknowledges that he was disciplined while

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Plaintiff variously titles his causes of action. To the extent this court can decipher plaintiff’s
pleadings, it appears that these claims are the gravamen of the complaint.
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employed at Amazon.Com as a temporary employee for failing to meet certain quality standards.

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As such, plaintiff cannot demonstrate the second element of a cause of action under the ADEA.

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Under California law, the elements of a prima facie case for the tort of intentional

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infliction of emotional distress are “(1) extreme and outrageous conduct by the defendant with the

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intention of causing, or reckless disregard [for] the probability of causing, emotional distress; (2)

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the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate

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causation of the emotional distress by the defendant’s outrageous conduct.” Davidson v. City of

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Westminster (1982) 32 Cal.3d 197, 209. The conclusory allegations plaintiff sets forth in his

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second amended complaint do not state a claim for intentional infliction of emotional distress.

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Plaintiff also makes vague allegations regarding an alleged invasion of his privacy rights

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because his disciplinary proceedings were not handled by a supervisor. Such a claim does not

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give rise to a cause of action for invasion of plaintiff’s privacy rights. See Porten v. University of

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San Francisco, 64 Cal. App. 3d 825 (1976) (liability for the common-law tort requires publicity;

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disclosure to a few people in limited circumstances does not violate the right); see also Shulman

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v. Group W Productions, Inc., 18 Cal.4th 200 (1998) (facts disclosed must be offensive or

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objectionable to a reasonable person); Hill v. National Collegiate Athletic Assn., 7 Cal. 4th 1, 35-

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37 (1994) (to state a claim under California constitutional right of privacy, plaintiff must allege a

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legally protected privacy interest, reasonable expectation of privacy, and serious invasion of

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privacy interest).

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Plaintiff has now filed three complaints. Plaintiff’s second amended complaint again

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suffers from the deficiencies previously noted with regard to the original and first amended

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complaints. In each complaint, plaintiff has failed to allege in a nonconclusory fashion the proper

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elements for the causes of action pled in the complaint. Despite repeated opportunities to cure the

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deficiencies in his complaints, plaintiff has failed to do so. Moreover, it appears that further

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amendment would be futile.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 6, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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