Lau v. Fernandez et al

Filing 64

Order finding as moot 49 Motion to Dismiss; granting 56 Amended Motion to Dismiss. This case is DISMISSED. Signed by Chief Judge Frances M. Tydingco-Gatewood on 10/15/2019. (fad, )

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THE DISTRICT COURT OF GUAM

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CIVIL CASE NO. 16-00042

GABRIEL H.T. LAU, Employee, Department
of Education,
Plaintiff,

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ORDER
vs.

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JOHN FERNANDEZ, Employee,
ANTONETTE SANTOS, Employee, and
DEPARTMENT OF EDUCATION for the
GOVERNMENT OF GUAM,

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Defendants.
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Before the court are the following motions: Defendants’ Motion to Dismiss and
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Defendants’ Amended Motion to Dismiss. See ECF Nos. 49 and 56. For the reasons stated
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herein, Defendants’ Amended Motion to Dismiss is GRANTED.1
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I. Factual and Procedural Background
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On May 16, 2016, the pro se Plaintiff initiated this action by filing an “Intentional Tort
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Claim,” see ECF No. 1, which the court construed as a “Complaint.” Therein, the Plaintiff
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appeared to assert a tort action against the Defendants for alleging the Plaintiff “intentionally
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provided a false statement, deception, or fraud” in his employment application, which resulted in
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In light of the Amended Motion to Dismiss (ECF No. 56), the Motion to Dismiss (ECF No. 49) is hereby MOOT.

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the Plaintiff’s non-selection for employment with the Guam Department of Education

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(“GDOE”), as evidenced by a letter dated April 2, 2014, from Antonette Muna-Santos, a

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Personnel Administrator with GDOE. Id. and Attachment B thereto.

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On June 6, 2017, the Plaintiff filed a Motion for Default Judgment. See ECF No. 2. On

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February 27, 2017, the court denied said motion, finding that it was improper for the Plaintiff to

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file a motion requesting entry of default or default judgment before he had properly served the

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Defendants. Order at 4, ECF No. 27. Additionally, the court found that entry of default was

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improper because the Defendants had filed a timely response to the Complaint. Id.

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On August 8, 2016, the Defendants filed a Motion to Dismiss. ECF No. 11. On February

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27, 2017, the court granted in part said motion. ECF No. 28. The court found that the Complaint

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did not contain a short and plain statement of the grounds for this court’s jurisdiction, nor did it

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set forth any facts that would support a claim under certain federal laws (such as Title VII of the

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Civil Rights Act of 1964, Title I of the American with Disability Act of 1990 and Section 504 of

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the Rehabilitation Act) that the Plaintiff alleged the Defendants violated. Id. at 6. Accordingly,

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the court dismissed the Complaint without prejudice and ordered the Plaintiff to file an amended

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complaint no later than March 29, 2017. Id. at 9.

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On March 8, 2017, the Plaintiff filed a Motion to Appoint Counsel, ECF No. 32, which
this court denied on March 21, 2017. ECF No. 35.
On March 30, 2017, the Plaintiff filed a Motion for Voluntary Dismissal. ECF No. 36. On

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April 25, 2017, the court issued an Order granting the Motion for Voluntary Dismissal of this

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action without prejudice. ECF No. 39.

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On July 20, 2017, the Plaintiff wrote to the court requesting that the court “enter a

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judgment for the entitlement as prevailed party.” ECF No. 41. Therein, the Plaintiff claimed he

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was “entitled to claim $150,000 [in] attorney fee[s]” and other compensation because he asserts
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he was the prevailing party in this action. The court denied the Plaintiff’s motion on July 25,

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2017. ECF No. 42.

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On November 1, 2018, the Plaintiff filed a “Re-submission of Complaints ‘Intentional

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Tort’ and/or ‘Tort of negligence’” (hereinafter “Re-submission of Complaints”). ECF No. 45.

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Therein, the Plaintiff reiterates the same allegations made in his previous filings: violations of

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the American with Disability Act of 1990 and Title VII of the Civil Rights Act of 1964, as well

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as emotional distress. ECF No. 45.

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On November 27, 2018, the Plaintiff filed a “Re-submission of Complaints as

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‘Intentional Tor’ and/or ‘Tort of negligence’ Amended Complaints” (hereinafter “Amended

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Complaints”). ECF No. 51. Therein, the Plaintiff added an allegation of a violation of Section

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504 of the Rehabilitation Act of 1973.

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The allegations contained in the “Re-submission of Complaints” and the “Amended

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Complaints” are all the same allegations contained in previous filings dismissed by this court on

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February 27, 2019, ECF No. 28.

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The Defendants filed the instant Motion to Dismiss the “Re-submission of Complaints,”

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ECF No. 49, and the instant Amended Motion to Dismiss to include therein the dismissal of the

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“Amended Complaints” and lack of diversity argument, ECF No. 56.

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II. Discussion
Defendants’ Amended Motion to Dismiss sets forth the following arguments: lack of

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jurisdiction and improper venue; and failure to state a claim on several grounds. See ECF No. 56.

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The gist of Plaintiff’s complaint is that Defendants engaged in discriminatory and

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retaliatory practices when GDOE did not hire Plaintiff for employment under the pretext that he

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lied on the “Suitability Determination Form.” ECF No. 51, at 3. As such, Plaintiff also alleges

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that GDOE violated the Stipulation for Settlement entered into by GDOE and Plaintiff in Lau v.
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Department of Education for the Government of Guam, District Court of Guam Civil Case No.

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10-00035, ECF No. 86. See ECF No. 51, at 4. Based on these, Plaintiff claims a violation of the

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following federal laws: Title VII of the Civil Rights Act of 1964, Title I of the American with

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Disability Act of 1990, and Section 504 of the Rehabilitation Act. Id. at 6-7.

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As context, in Lau v. Department of Education for the Government of Guam, District

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Court of Guam Civil Case No. 10-00035, the parties entered into a Stipulation for Settlement and

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agreed, inter alia, that GDOE would place the Plaintiff on the eligibility list for DOE positions

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and that DOE would not base any future hiring decisions relating to the Plaintiff’s application for

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future employment on any prior terminations of the Plaintiff or on any of the Plaintiff’s past

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performance. Civil Case No. 10-00035, ECF No. 86 at 6.
In that case, Plaintiff alleged a violation of the stipulation when GDOE did not offer him

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the position he applied and interviewed for, despite a recommendation by the interviewer to the

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GDOE Administration. Civil Case No. 10-00035, ECF No. 93. The letter of his non-selection,

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dated April 2, 2014, stated that he was not selected for the position because he “intentionally

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provide[d] false statements, deception, or fraud in the application process.” Civil Case No. 10-

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00035, ECF No. 94, Ex. C. Specifically, it stated that Plaintiff was not truthful on the Suitability

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Determination Form when Plaintiff indicated on the form that he was not discharged from

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employment. Id.

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This court found in that case that GDOE was not in violation of the stipulation, because

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“[a]lthough the Plaintiff insists [G]DOE declined to hire him because of his prior termination of

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November 2008, the evidence presented reveals that the Plaintiff was not selected for the

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position because the Plaintiff provided false information on the Suitability Determination form.”

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Civil Case No. 10-00035, ECF No. 123 at 5. That decision stands.

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In the instant case, Plaintiff’s basis for his complaint, despite having been styled as a tort
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claim, boils down to his non-selection of a GDOE position in 2014.
Pursuant to Rule 8, a claim for relief must include “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The pleading

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standard under Rule 8 “does not require detailed factual allegations, but it demands more than an

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unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 555 U.S. 662,

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678 (2009) (internal quotation marks omitted).

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to state a claim to relief that is plausible on its face.” Id. (citing Twombly, 550

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U.S. at 570) (internal quotation marks omitted). Id. at 678-79. First, the court must weed out the

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legal conclusions—that is “threadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements”—in the pleading that are not entitled to a presumption of truth. Id.

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at 678. Second, the court should presume the remaining factual allegations are true and

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determine whether the claim is plausible. Id. at 679.

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A claim is facially plausible if “the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 678

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(citing Twombly, 550 U.S. at 556). The court must “draw on its judicial experience and common

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sense” to determine the plausibility of a claim given the specific context of each case. Id. at 679.

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Here, aside from Plaintiff’s statements of his non-selection and conclusory statements of

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a violation of Title VII of the Civil Rights Act of 1964, Title I of the American with Disability

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Act of 1990 and Section 504 of the Rehabilitation Act, the court finds a complete absence of any

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other allegations on the face of the “Re-submission of Complaints” and the “Amended

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Complaints” to support the tort claim and the claim of federal law violations.

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Moreover, this court gave the Plaintiff the opportunity to amend his original complaint

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and cure the defects by stating sufficient facts to support his claims, but he has failed to do so.
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Accordingly, Defendants’ Amended Motion to Dismiss the above-captioned case is hereby

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GRANTED.

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III.

Conclusion

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Based on the foregoing, the case is DISMISSED.

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SO ORDERED.

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/s/ Frances M. Tydingco-Gatewood
Chief Judge
Dated: Oct 15, 2019

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