Dugar v. Pak "N" Save Store #3111

Filing 7

SCREENING ORDER PURSUANT TO 28 U.S.C. 1915. Signed by Magistrate Judge Jacqueline Scott Corley on 1/11/2022. Amended complaint due by 2/17/2022. (ahm, COURT STAFF) (Filed on 1/11/2022)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)Mailed to Plaintiff via USPS on 1/11/2022.

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ERNESTO DUGAR, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 21-cv-08904-JSC SCREENING ORDER PURSUANT TO 28 U.S.C. § 1915 v. PAK “N” SAVE STORE #3111, Re: Dkt. No. 1 Defendant. 12 13 The Court previously granted Plaintiff’s Application to Proceed in Forma Pauperis. (Dkt. 14 No. 5.) It must now review the complaint’s allegations under 28 U.S.C. § 1915. Because 15 Plaintiff’s claims do not comply with Federal Rule of Civil Procedure 8, the Court gives Plaintiff 16 the opportunity to amend the complaint. 17 COMPLAINT ALLEGATIONS 18 Defendant operates a store at 555 Floresta Boulevard in San Leandro, California. In May 19 2021, Plaintiff went to the store to apply for a job and was directed to an upstairs break room for 20 an interview. After waiting while another person was interviewed, Plaintiff interviewed with a 21 manager for a “night stocker” position. (Dkt. No. 1 at 2.) Plaintiff gave the manager his email 22 address and phone number, and left. Plaintiff never heard back after the interview. 23 In August 2021, Plaintiff received a check and a letter from Defendant stating that Plaintiff 24 had been terminated due to “Job Abandonment.” (Id. at 3.) According to the letter, Plaintiff 25 clocked in on June 28, 2021, but did not show up on June 29, June 30, or July 1. Plaintiff alleges 26 that Defendant told another employee to clock Plaintiff in on June 28 or otherwise fraudulently 27 clocked him in. He was not aware that he had been hired until he received the termination letter. 28 As a result of not being able to work for Defendant, Plaintiff alleges that he was evicted and is 1 currently homeless. 2 Plaintiff brings claims for “constructive dismissal” and “wrongful [] termination,” citing 3 Title VII of the Civil Rights Act of 1964 (“Title VII”) and Section 2922 of the California Labor 4 Code. (Id. at 1, 5.) 5 LEGAL STANDARD 6 A court must dismiss an in forma pauperis complaint before service of process if it is frivolous, fails to state a claim, or contains a complete defense to the action on its face. 28 U.S.C. 8 § 1915(e)(2). Section 1915(e)(2) parallels the language of Federal Rule of Civil Procedure 9 12(b)(6) regarding dismissals for failure to state a claim. See 28 U.S.C. § 1915(e)(2); see also 10 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000). The complaint therefore must allege 11 United States District Court Northern District of California 7 facts that plausibly establish each defendant’s liability. See Bell Atl. Corp. v. Twombly, 550 U.S. 12 544, 555-57 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that 13 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 14 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 15 A complaint must also comply with Federal Rule of Civil Procedure 8, which requires the 16 complaint to contain “a short and plain statement of the claim showing that the pleader is entitled 17 to relief.” Fed. R. Civ. P. 8(a)(2); see also Moss v. Infinity Ins. Co., No. 15-CV-03456-JSC, 2015 18 WL 5360294, at *2 (N.D. Cal. Sept. 14, 2015). “While the federal rules require brevity in 19 pleading, a complaint nevertheless must be sufficient to give the defendants ‘fair notice’ of the 20 claim and the ‘grounds upon which it rests.’” Coleman v. Beard, No. 14-CV-05508-YGR (PR), 21 2015 WL 395662, at *4 (N.D. Cal. Jan. 29, 2015) (quoting Erickson v. Pardus, 551 U.S. 89, 93 22 (2007)). A complaint that fails to state a defendant’s specific acts “that violated the plaintiff’s 23 rights fails to meet the notice requirements of Rule 8(a).” Medina Chiprez v. Becerra, No. 20-CV- 24 00307-YGR (PR), 2020 WL 4284825, at *3 (N.D. Cal. July 27, 2020) (citing Hutchinson v. 25 United States, 677 F.2d 1322, 1328 n.5 (9th Cir. 1982)). 26 Plaintiff is proceeding without representation by a lawyer. While the Court must construe 27 the complaint liberally, see Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir. 1984), it may not add to 28 the factual allegations in the complaint, see Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). 2 1 Litigants unrepresented by a lawyer remain bound by the Federal Rules and Local Rules of this 2 District. See N.D. Cal. Civ. L.R. 3-9(a). DISCUSSION 3 4 I. Constructive Discharge Constructive discharge does not provide a cause of action for Plaintiff. “Standing alone, 5 6 constructive discharge is neither a tort nor a breach of contract, but a doctrine that transforms what 7 is ostensibly a resignation into a firing. Even after establishing constructive discharge, an 8 employee must independently prove a breach of contract or tort in connection with employment 9 termination in order to obtain damages for wrongful discharge.” Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1030 (Cal. 1994) (in bank). “An employee may prove, for example, that a 11 United States District Court Northern District of California 10 constructive discharge is a breach of an express or implied contract of employment. In the 12 absence of an express or implied agreement to the contrary, an employment relationship without a 13 fixed term is presumed to be validly terminable at the will of either party, employer or employee, 14 at any time.” Id. Plaintiff’s complaint does not allege an express or implied agreement that he 15 would be employed for a particular length of time. Moreover, Plaintiff’s complaint does not 16 allege that Defendant’s conduct caused him to ostensibly resign; rather, it alleges that Defendant 17 terminated Plaintiff before Plaintiff even knew he was employed. Thus, Plaintiff’s claim of 18 constructive discharge does not entitle him to any relief. 19 II. Wrongful Termination 20 The elements of a claim for wrongful termination under California law are: (1) the plaintiff 21 was employed by the defendant; (2) the defendant discharged the plaintiff; (3) a violation of public 22 policy was a motivating reason for the discharge; and (4) the discharge harmed the plaintiff. 23 Robles v. Agreserves, Inc., 158 F. Supp. 3d 952, 1009 (E.D. Cal. 2016). The relevant public 24 policy must be “(1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the 25 sense that it inures to the benefit of the public rather than serving merely the interests of the 26 individual; (3) well established at the time of the discharge; and (4) substantial and fundamental.” 27 Id. (cleaned up). Plaintiff’s complaint does not identify any public policy violated by his alleged 28 termination. He cites to a statutory provision which states: “An employment, having no specified 3 1 term, may be terminated at the will of either party on notice to the other. Employment for a 2 specified term means an employment for a period greater than one month.” Cal. Lab. Code § 3 2922. The complaint does not allege that Plaintiff’s employment by Defendant had a specified 4 term; indeed, he alleges that he was not told Defendant hired him. Thus, the cited provision does 5 not articulate a public policy violated by Plaintiff’s termination. Similarly, while Title VII 6 articulates a public policy against discrimination, see Phillips v. St. Mary Reg’l Med. Ctr., 116 7 Cal. Rptr. 2d 770, 781–85 (Cal. Ct. App. 2002), as explained below the complaint does not allege 8 facts sufficient to support an inference that Plaintiff’s termination violated that public policy. 9 Accordingly, Plaintiff’s claim for wrongful termination does not comply with Rule 8. 10 III. Title VII United States District Court Northern District of California 11 The elements of a prima facie claim of discrimination under Title VII are: “(1) the plaintiff 12 belongs to a protected class; (2) he was qualified for the position; (3) he was subject to an adverse 13 employment action; and (4) similarly situated individuals outside his protected class were treated 14 more favorably” or “other circumstances surrounding the adverse employment action give rise to 15 an inference of discrimination.” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 16 2010); Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123 (9th Cir. 2000). Title VII forbids 17 discrimination on the basis of “race, color, religion, sex, [and] national origin.” 42 U.S. Code § 18 2000e–2(a)(1). Plaintiff’s complaint does not identify his membership in any protected class or 19 other circumstances giving rise to an inference of discrimination on the basis of race, color, 20 religion, sex, or national origin. Again, he does not even allege facts that show he knew 21 Defendant hired him. Thus, the complaint does not adequately allege facts to give Defendant “fair 22 notice” of the Title VII claim and the “grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 23 89, 93 (2007). 24 25 CONCLUSION For the reasons explained above, the complaint as pleaded does not comply with Rule 8. If 26 Plaintiff believes he can cure the deficiencies, or at least some of the deficiencies, the Court has 27 identified, he may file an amended complaint on or before February 11, 2022. If he chooses to 28 amend, Plaintiff should: set forth the complaint’s allegations in separate numbered paragraphs; set 4 1 forth each claim in a separate numbered paragraph; and identify each factual allegation that 2 supports each claim for relief. Additionally, Plaintiff is informed that the Court cannot refer to 3 prior pleadings in order to make an amended complaint complete. The amended complaint must 4 be complete in itself because it replaces the previously filed complaints. See Ferdik v. Bonzelet, 5 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, Plaintiff is warned that failure to comply with the 6 Federal Rules of Civil Procedure, the Local Rules, or any court order could result in a report and 7 recommendation that his complaint be dismissed. Similarly, failure to file an amended complaint 8 that cures the above-identified deficiencies could also lead to a report and recommendation that his 9 complaint be dismissed. 10 The Court encourages Plaintiff to seek free assistance from the Northern District’s Legal United States District Court Northern District of California 11 Help Center, 450 Golden Gate Avenue, 15th Floor, Room 2796, San Francisco, CA 94102. In 12 light of the ongoing COVID-19 pandemic, Plaintiff should make a telephone appointment by 13 calling (415) 782-8982. The website for the Northern District of California also has information 14 for litigants who are not represented by counsel. 15 The initial case management conference scheduled for February 17, 2022 is vacated. 16 IT IS SO ORDERED. 17 Dated: January 11, 2022 18 19 JACQUELINE SCOTT CORLEY United States Magistrate Judge 20 21 22 23 24 25 26 27 28 5

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